Shropshire and Wrekin Fire Authority v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMr Justice Garnham
Judgment Date29 July 2019
Neutral Citation[2019] EWHC 1967 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/2286/2018 CO/2300/2018
Date29 July 2019

[2019] EWHC 1967 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Garnham

Case No: CO/2286/2018

CO/2287/2018

CO/2300/2018

The Queen (on the application of)

Between:
(1) Shropshire and Wrekin Fire Authority
(2) Hereford and Worcester Fire Authority
(3) Cambridgeshire and Peterborough Fire Authority)
Claimants
and
The Secretary of State for the Home Department
Defendant

and

Police and Crime Commissioner for Cambridgeshire
Police and Crime Commissioner for West Mercia
Interested Parties

Peter Oldham QC & Leo Davidson (instructed by LGSS Law) for the Claimants

David Pievsky & Natasha Simonsen (instructed by Government Legal Department) for the Defendant

Hearing dates: 5th & 6th June & 22 nd July

Approved Judgment

Mr Justice Garnham

Introduction

1

What does the expression “in the interests of economy, efficiency and effectiveness” mean? In particular, in order to show that a proposal is “in the interests of economy, efficiency and effectiveness” within section 4A(5) of the Fire and Rescue Services Act 2004, is it necessary to show that it is in the interest of each of those objectives, or can those three matters, the “3Es”, be considered “in the round”? That is the primary question raised by these proceedings.

2

On 26 March 2018, the Home Secretary provided a written ministerial statement to the House of Commons, setting out her decision to approve a proposal to transfer the governance of the Cambridgeshire Fire and Rescue Service (“FRS”) to the Police and Crime Commissioner (“PCC”) for Cambridgeshire, and the governance of the Shropshire FRS, and the Hereford and Worcester FRS to the PCC for West Mercia.

3

By these judicial review proceedings, those three fire authorities challenge those decisions. On 3 October 2018, Farbey J granted permission to proceed to judicial review on two grounds, namely that:

(1) the Secretary of State had failed to apply the correct statutory test. Section 4A of the Fire and Rescue Services Act 2004, provides that the Secretary of State can only make an order making a PCC a Fire Rescue Authority (“FRA”) if to do so is in the interests of economy, efficiency and effectiveness. Properly construed, that expression requires that the order must be in the interests of economy and efficiency and effectiveness.

(2) the Secretary of State adopted an irrational approach, or mis-directed herself, in failing to obtain an independent assessment in relation to the issue of public safety.

4

I had the benefit of written and oral submissions in support of the three Claimants from Peter Oldham QC and Leo Davidson; the Secretary of State was represented by David Pievsky and Natasha Simonsen. When a draft of this judgment was sent to counsel for typographical correction, I received a careful and courteous letter from Mr Oldham inviting me to permit further submissions on the consequences that should flow from my decision on the proper construction of the statute. I am well aware of the strict limitations the court imposes on responses to receipt of draft judgments (see Egan v Motor Services (Bath) Ltd [2007] EWCA Civ 1002) but, as both parties agreed, prior to formal hand down of a judgment, this is a matter for the exercise of judicial discretion. In my judgment, on the particular facts of this case, it was appropriate to hear brief additional submissions. I did so on 22 July 2019 and those submissions are addressed in this judgment.

5

I am grateful to all counsel for their careful and helpful submissions throughout this case.

The Statutory Scheme

6

Section 4A of the Fire and Rescue Services Act 2004 (“the 2004 Act”) was inserted by schedule 1 paragraph 5 of the Policing and Crime Act 2017 (“2017 Act”). It gives the Secretary of State a power to make a PCC a FRA. It provides as follows:

“(1) The Secretary of State may by order provide—

(a) for the creation of a corporation sole as the fire and rescue authority for the area specified in the order, and

(b) for the person who is for the time being the police and crime commissioner for the relevant police area to be for the time being that fire and rescue authority.

(2) In subsection (1) “the relevant police area” means the police area which—

(a) is the same as the area of the fire and rescue authority created by the order, or

(b) if the order creates two or more fire and rescue authorities, is the same as the areas of those authorities taken together.

(3) The whole of an area of a fire and rescue authority created by an order under this section must be—

(a) within England, and

(b) outside the metropolitan police district and the City of London police area.

(4) An order under this section may be made only if the relevant police and crime commissioner has submitted a proposal for the order to the Secretary of State.

(5) An order under this section may be made only if it appears to the Secretary of State that—

(a) it is in the interests of economy, efficiency and effectiveness for the order to be made, or

(b) it is in the interests of public safety for the order to be made.

(6) The Secretary of State may not make an order under this section in a case within subsection (5)(a) if the Secretary of State thinks that the order would have an adverse effect on public safety.

(7) In this section “relevant police and crime commissioner” has the same meaning as in Schedule A1; and that Schedule makes further provision about the procedure for an order under this section.”

7

Schedule 1 paragraph 4(1) provides as follows:

“4 Provision of representations to Secretary of State

(1) Sub-paragraphs (2) to (4) apply if, in response to a consultation by a relevant police and crime commissioner under paragraph 3(1)(a), a relevant local authority indicates that it does not support a section 4A proposal.

(2) The commissioner must, in submitting the proposal to the Secretary of State, provide the Secretary of State with—

(a) copies of each document provided by the commissioner for the purposes of paragraph 3,

(b) copies of each representation made by a relevant local authority in response,

(c) a summary of the views expressed by people in the commissioner's police area about the proposal, and

(d) a summary of the views expressed about the proposal by persons consulted under paragraph 3(1)(c), and

(e) the commissioner's response to those representations and views.

(3) The Secretary of State must—

(a) obtain an independent assessment of the proposal, and

(b) have regard to that assessment and to the material provided to the Secretary of State under sub-paragraph (2) in deciding whether to make an order under section 4A in response to the proposal.

(4) The Secretary of State must publish the independent assessment—

(a) as soon as is reasonably practicable after making a determination in response to the proposal, and

(b) in such manner as the Secretary of State thinks appropriate.

8

Paragraph 4(3) of Schedule A1 to the 2004 Act provides for an independent assessment of proposals for the exercise of that power:

“(3) The Secretary of State must—

(a) obtain an independent assessment of the proposal, and

(b) have regard to that assessment and to the material provided to the Secretary of State under sub-paragraph (2) in deciding whether to make an order under section 4A in response to the proposal.”

9

Paragraph 6(6) of Schedule A1 provides that:

“(6) In this Schedule “relevant local authority”, in relation to a section 4A proposal, means a local authority—

(a) whose area is the same as, or contains all of, the area of the fire and rescue authority proposed to be created by the order, or

(b) all or part of whose area falls within the area of that fire and rescue authority.”

The Background

10

In October 2017, the Secretary of State received a proposal from the Cambridgeshire PCC that he, the PCC, should take on governance of the county's FRS. Later that same month, the Secretary of State received a similar proposal from West Mercia's PCC, in respect of both the Hereford and Worcester FRS and the Shropshire FRS. Those proposals followed consultations conducted by the respective PCCs. On receipt of the proposals, the Minister of State for Policing and the Fire Service asked the Chartered Institute of Public Finance and Accountancy (“CIPFA”) to review the two PCCs' proposals for the purpose of providing the independent assessment required by paragraph 4(3)(a) of Schedule A1 to the 2004 Act.

11

CIPFA's report in both cases recorded their instructions from the Minister of State to the effect that they should undertake an independent assessment of the proposals and set out their view as to whether the proposal met the statutory test. As set out in paragraph 1.6 of both CIPFA reports, “These tests cover, whether in our view, the proposal is in the interests of economy, efficiency and effectiveness (the 3Es) or public safety, and whether the proposal will have an adverse effect on public safety”.

12

Both reports made clear that the Home Office had provided further clarification as regards CIPFA's remit on public safety. “It has been emphasised that our focus is on an independent assessment of the economy, efficiency and effectiveness and that, in terms of public safety, we are only expected to comment where we identify something on which comment is required”.

13

Both reports also indicated that in considering the statutory test, in respect of economy, efficiency and effectiveness, CIPFA used the following definitions provided by the National Audit Office (“NAO”):

• Economy: minimising the cost of resources used or required (input)

• Efficiency: the relationship between output from goods or services and the resources to produce that (the process)

• Effectiveness: the extent to which objectives are achieved and the relationship between the intended and actual results of public...

To continue reading

Request your trial
2 cases
  • Ghanem Al-Masarir v Kingdom of Saudi Arabia
    • United Kingdom
    • Queen's Bench Division
    • 19 August 2022
    ...which has been judicially approved in R (Shropshire and Wrekin Fire Authority and others) v Secretary of State for the Home Department [2019] EWHC 1967, [55]; Edwards v S J Henderson & Company Ltd [2019] EWHC 2742, [63]; Jeffrey v Sawyer (1993) 16 OR (3d) 75, 78; Maguire v DPP [2004] 3 IR 2......
  • 香港特別行政區 訴 蔡玉玲
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 7 November 2022
    ...[2000] 2 AC 115,126F-H [61] App No 37374/05 (未經彙編) (日期:2009年4月14 日) ,[38]。 [62] 前述, 178E-G。 [63] (2016) 19 HKCFAR 372, [134]-[135]。 [64] [2019] PTSR 2052,[60] [65] 《裁決理由書》,[33]。 [66] [2002] 3 HKLRD 541,558A-B [67] [2007] 2 HKLRD 804,[68]-[71] [68] [1981] QB 767,775G-776A [69] [1991] 2 QB 39......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT