Peter Oldham QC and Leo Davidson in challenge to Home Office decisions to transfer fire and rescue responsibility to Police and Crime Commissioners

Cases

Peter and Leo appeared for three claimant Fire and Rescue Authorities (FRAs), each of which challenged the Secretary of State’s decisions of March 2017 to transfer fire and rescue governance from the FRAs to the respective Police and Crime Commissioners for Cambridge & Peterborough, and West Mercia.   Garnham J’s decision of 29th July 2019 can be found here.  

The Secretary of State had the power to transfer responsibility under s 4A of the Fire and Rescue Services Act 2004 if she believed that to do so would be “in the interests of economy, efficiency and effectiveness”, the so-called “3Es”.  She accepted that in applying the 3Es test, she had looked at them in the round, regarding them as a single composite, rather than considering whether transfer would be in the interests of each of the 3Es.  The FRAs contended that she should have considered each of the 3Es individually.  This was of particular significance, since the Secretary of State had not found that the transfer would save money, and so the FRAs argued that ipso facto the Secretary of State had found that the transfer would not be in the interests of economy. The judge agreed with the FRAs that, contrary to the Secretary of State’s approach, each of the 3Es had to be considered separately.  However, he did not quash her decision. He said that something was “in the interests of economy” if it “kept expenditure as low as possible consistent with achieving the objective in view”. He decided that this was a case where s 31(2A) of the Senior Courts Act applied, which says that the High Court must refuse to grant relief on an application for judicial review if it appears to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.  An unusual feature of this case is that the Secretary of State had not argued that that s 31(2A) should apply.  The decision is subject to appeal.

The judgment can be accessed here.