Fire authorities in Peterborough and the West Midlands have lost a combined judicial review of the Home Secretary’s decision to allow their respective Police and Crime Commissioners (PCCs) to take over responsibility for the governance of their local fire and rescue services.
In Shropshire And Wrekin Fire Authority & Ors, R (On the Application Of) v The Secretary of State for the Home Department  EWHC 1967 (Admin) (29 July 2019) the court upheld the Home Office’s decision to allow Cambridgeshire Police and Crime Commissioner Jason Ablewhite to take over the governance role of the Cambridgeshire and Peterborough Fire Authority. In the West Midlands, the court also upheld the decision to transfer the powers of both the Herefordshire and Worcestershire Fire Authority (HWFA) and the Shropshire & Wrekin Fire Authority to the West Mercia Police and Crime Commissioner, John Campion.
Lawyers for both fire authorities argued that when setting out her decision to approve a proposal to transfer the governance in March 2018, the Secretary of State had failed to apply the correct statutory test and that, in failing to obtain an independent assessment in relation to the issue of public safety from a relevant body, she had adopted an irrational approach.
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.
In his judgment, Mr Justice Garner said that when considering the statutory test, the key question was to define what the expression "in the interests of economy, efficiency and effectiveness" mean 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"?
On receipt of the proposals from the PCCs in 2017, and the stated opposition to them by the affected local authorities, the Minister of State for Policing and the Fire Service asked the Chartered Institute of Public Finance and Accountancy (CIPFA) to review both proposals for the purpose of providing the independent assessment required by paragraph 4(3)(a) of Schedule A1 to the 2004 Act.
In both cases CIPFA agreed, with some caveats, that taken together the economy, efficiency and effectiveness tests were met although it was not convinced that the economy test specifically had been fully met.
In bringing the judicial review, the fire authorities argued that when drafting the 2004 Act, Parliament intended that each of the economy, efficiency and effectiveness tests must be met, rather than being considered together, citing similar legislation, the “Best Value” obligations under the Local Government Act 1999 and relevant debates in Hansard as evidence that this approach was correct.
The judge concluded that the evidence for this approach was not strong enough and that the “Best Value” comparison was not relevant. “3Es is not a synonym for "best value", he said. “Given the common usage of that term, if Parliament had intended that to be the test, it would have said so”. Moreover, he added, the natural meaning of the words was clear enough when considered in the context of each other and that further analysis of their intended meaning was not required.
The second argument put forward by the claimants was that, in relying on CIPFA as the independent assessor of the plans, the Home Secretary had acted irrationally as this included the public safety implications of the proposals and the public accountancy body could not be expected to have the requisite expertise in this area. As evidence, counsel for the fire authorities referred to the clarification recorded in CIPFA’s report that "in terms of public safety, we are only expected to comment where we identify something on which comment is required."
However, the judge ruled that as the objections of the fire authorities to the proposals did not include possible adverse effects on public safety, the Home Secretary was within her rights to appoint CIPFA as the independent assessor as the points in contention were mostly related to financial and governance issues.
As a result, the decision to appoint CIPFA was rational. In any case CIPFA was expressly asked to consider if there were any public safety implications to the proposals and they interviewed, amongst others, the relevant Chief Fire Officers and councillors serving as members of the claimant fire authorities. They put themselves in a good position to receive reports of concerns that might affect public safety, the judge said.
Both fire authorities said that they intend to appeal the decision. The HWFA Chairman, Councillor Roger Phillips, said: “We are disappointed with the decision of the High Court as we provided a strong argument to show that the PCC’s business case would not improve the economy, effectiveness, or efficiency of the Services, any more than under the governance of the Fire Authority.
"The Judge decided not to grant our application for judicial review even though he agreed with our argument that the Home Secretary had applied the wrong test when considering the PCC's business case. In light of this and having considered legal advice, we believe there are grounds to challenge the Court's decision and will therefore be applying for leave to appeal.”
In Peterborough, fire authority chairman Cllr Kevin Reynolds said: “I know I speak for the whole fire authority when I say that we are hugely disappointed with the outcome of the judicial review.
“We sought a judicial review as we believe the fire authority and fire and rescue service in Cambridgeshire work extremely well together as a governance model and no reason had been demonstrated to change that in either the business case or the documentation we received from the Home Office to explain their decision to rule in favour of the police and crime commissioner.
“We had already submitted an application for a second judicial review prior to the hearing in June, based on new information, and so now we will seek legal advice about whether to continue to pursue that or what other options there may be for us now.”