2004 Chapter 21

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These notes refer to the Fire and Rescue Services Act 2004 (c.21) which received Royal Assent on Thursday 22 July 2004

FIRE AND RESCUE SERVICES ACT 2004

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Fire and Rescue Services Act 2004, which received Royal Assent on Thursday 22 July 2004. They have been produced by the Office of the Deputy Prime Minister in order to assist the reader in understanding the Act.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section of the Act does not seem to require any explanation or comment, none is given.

3.     The Act applies to England and Wales only, with the exception of the provisions relating to pensions in Part 4 and consequential provisions and repeals in Schedules 1 and 2 which also apply to Scotland.

BACKGROUND

4.     The main purpose of this Act is to deliver a modernised Fire and Rescue Service that responds to the particular demands of the 21^st Century.

5.     The Act repeals the Fire Services Act 1947.

6.     It gives effect to the majority of proposals that require primary legislation in the White Paper Our Fire and Rescue Service, published on 30th June 2003.

7.     The White Paper was a Government response to The Independent Review of the Fire Service carried out by Sir George Bain and his team, whose report was published on 16^th December 2002.

OVERVIEW

8.     The Act covers various aspects of the Fire and Rescue Service and is in seven Parts:

—     Part 1 - Fire and rescue authorities (sections 1 to 5): determines which body is the fire and rescue authority for an area, and provides for the combination of two or more fire and rescue authorities by order.

—     Part 2 - Functions of fire and rescue authorities (sections 6 to 20): sets out the duties and powers of fire and rescue authorities.

—     Part 3 - Administration (sections 21 to 31): provides for the preparation of a Fire and Rescue National Framework setting out the strategic priorities of the Fire and Rescue Service, and for the supervision of fire and rescue authorities. It makes supplementary provision for the Secretary of State to provide equipment and training centres for fire and rescue authorities.

—     Part 4 - Employment (sections 32 to 37): deals with employment by fire and rescue authorities, in particular the creation of negotiating bodies to determine the terms and conditions of employees, and pension schemes.

—     Part 5 - Water supply (sections 38 to 43): imposes duties on fire and rescue authorities and water undertakers to ensure an adequate supply of water for fire-fighting activities.

—     Part 6 - Supplementary (sections 44 to 54 and Schedules 1 and 2): concerns the powers of fire and rescue authority employees to undertake rescue work and investigations, as well as a number of consequential provisions and repeals, including the abolition of the Central Fire Brigades Advisory Council.

—     Part 7 - General (sections 55 to 64): makes general provision in relation to pre-commencement consultation, interpretation, statutory instruments, territorial extent etc.

9.     The term 'brigade' does not appear in the Act - this reflects a community service structured on the roles of individuals rather than adherence to a rank structure.

TERRITORIAL APPLICATION

10.     The Act devolves the remaining responsibilities for fire and rescue authorities in Wales to the National Assembly for Wales, taking forward the commitment to do so set out in the Our Fire and Rescue Service White Paper. The Act has therefore been drafted in liaison and agreement with officials from the Assembly and the Wales Office. As set out in section 62 (Wales), any reference to the "Secretary of State" in Parts 1 to 6 and sections 60 and 61 of the Act should be treated as a reference to the "National Assembly for Wales", in the Act's application to Wales.

11.     The Act does not repeal the provisions of the Fire Services Act 1947 as they apply in Scotland, which remain in force. The only exceptions to this are the pension provisions in Part 4 of the Act and consequential provisions, which do extend to Scotland as pension policy is a reserved matter and not a devolved issue under the Scotland Act 1998. The Act, therefore, repeals the existing pension provisions in the 1947 Act, and in turn extends the replacement provisions to England, Wales and Scotland.

12.     The Act does not extend to Northern Ireland.

COMMENTARY ON SECTIONS

PART 1: FIRE AND RESCUE AUTHORITIES

Section 1: Fire and rescue authorities

13.     This section defines what is meant in the Act by "fire and rescue authority" which can differ in constitution from area to area. The establishment and membership of metropolitan county fire and civil defence authorities is dealt with in section 26 of, and Schedule 11(2) to, the Local Government Act 1985 (c. 51). The London Fire and Civil Defence Authority became the London Fire and Emergency Planning Authority under the Greater London Authority Act 1999 (c. 29) - see section 328.

Sections 2, 3 and 4: Creation of combined fire and rescue authorities; supplementary; and combined authorities under the Fire Services Act 1947

14.     The existing power in the Fire Services Act 1947 to create combined fire authorities is re-enacted in a modified form to facilitate the establishment of combined fire and rescue authorities either for reasons of economy, efficiency and effectiveness or in the interests of public safety.

15.     Combination could also occur where fire and rescue authorities themselves submit a proposal to that effect. Combination schemes that have already been made under the Fire Services Act 1947 will continue in force. Such schemes will be subject to the Secretary of State's power to vary or revoke them by order.

16.     The Secretary of State will be able to appoint a minority (up to one half minus one) of the members of the combined fire and rescue authorities created under this legislation.

17.     In all cases the Secretary of State will be required to consult the fire and rescue authorities affected, the local authorities in the combined area proposed and other persons considered appropriate beforehand. The term "local authority", for the purposes of this Act , is defined in section 57. The Secretary of State will also be required to hold an inquiry before making a combination order, unless the combination is uncontentious or is urgently required in the interests of public safety.

Section 5: Powers of combined fire and rescue authorities

18.     Section 5 gives combined fire and rescue authorities the powers which are already available to county fire authorities, the London Fire and Emergency Planning Authority and metropolitan county fire and civil defence authorities under section 111 of the Local Government Act 1972.

PART 2: FUNCTIONS OF FIRE AND RESCUE AUTHORITIES

Core functions

19. Sections 6, 7, 8 and 9 establish the core duties of fire and rescue authorities.

Section 6: Fire safety

20.     The Fire and Rescue Service already carries out a wide range of activities to promote community fire safety, with the aim of preventing deaths and injuries in the home and reducing the impact of fire on the community as a whole. This includes fire safety education (especially for vulnerable groups), smoke alarm installation, chip pan safety demonstrations and fire safety checks for householders and others. Many fire and rescue authorities also provide training programmes for young people and work with local businesses, agencies and partnerships (such as crime and disorder partnerships and local strategic partnerships). This work is currently carried out on a discretionary basis and the effect of section 6 is to impose a statutory duty.

Sections 7 and 8: Fires and road traffic accidents

21.     Section 7 re-enacts the existing statutory duty for a fire and rescue authority to plan and provide arrangements for fighting fires and protecting life and property from fires within its area. A fire and rescue authority is required to secure the provision of sufficient personnel, services and equipment to deal with all normal circumstances, as well as adequate training. A fire and rescue authority must also put in place effective arrangements for receiving and responding to calls for help and for obtaining information which it needs to carry out its functions; the latter might include, for example, information about the nature and characteristics of buildings within the authority's area or availability of and access to water supplies.

22.     Section 8 places a duty on fire and rescue authorities to make provision for rescuing persons from road traffic accidents and for dealing with the aftermath of such accidents. Historically, the risk of fire was the trigger for attendance at such an incident. While advances in vehicle design have seen the incidence of fire following an accident decrease, calls to assist with the rescue of people from wreckage and protect them from harm from spillage of hazardous substances have increased dramatically. A fire and rescue authority is required, therefore, to secure sufficient resources and training to deal with all normal circumstances. A fire and rescue authority must also put in place effective arrangements for receiving and responding to calls for help and for obtaining information to exercise its functions (for example, knowledge of local road and trunk road network).

23.     Under sections 7 and 8 fire and rescue authorities must seek to mitigate the damage, or potential damage, to property in exercising their statutory functions. As a consequence, the actions a fire and rescue authority must take in responding to an incident which could damage property should be proportionate to the incident and the risk to life.

Section 9: Emergencies

24.     This section empowers the Secretary of State, by order following consultation, to place a duty on fire and rescue authorities to respond to particular types of emergency, as defined by order, such as flooding and terrorist incidents.

25.     The Secretary of State can also, by order following consultation, direct fire and rescue authorities as to how they should plan, equip for and respond to such emergencies. This may include, for example, directions as to the deployments of mass decontamination equipment for civil resilience purposes. The intention is to ensure consistency of approach towards emergencies, particularly in response to terrorist incidents.

26.     Section 9 also allows the order to require an authority to respond to an emergency that has arisen outside its own area if, for example, it has more appropriate equipment and training than the authority in whose area the emergency has occurred.

27.     The term "emergency" is defined in section 58.

Other functions

Section 10: Directions relating to particular fires and emergencies

28.     This section enables the Secretary of State to direct a fire and rescue authority to respond to a particular fire or emergency incident in the event of an extreme or unusual event such as a terrorist attack or natural disaster, where there is no time to revise or make an order under section 9, or where a level of central co-ordination is required. Such a direction can require a fire and rescue authority to act outside as well as inside its own area. The Secretary of State can also direct an authority not to take any action in the event of such an emergency if, for example, another fire and rescue authority is better equipped to do so.

Sections 11 and 12: Power to respond to other eventualities; and other services

29.     Section 11 replaces section 3(1)(e) of the Fire Services Act 1947, and provides fire and rescue authorities with discretion to equip and respond to events beyond its core functions provided for elsewhere in the Act. A fire and rescue authority will be free to act where it believes there is a risk to life or the environment. This would allow, for example, a fire and rescue authority to engage in specialist activities such as rope rescue. A fire and rescue authority will be able to exercise the power in support of another fire and rescue authority - for example, under a reinforcement scheme (see sections 13 and 14).

30.     Section 12 provides a fire and rescue authority with the power to agree to the use of its equipment or personnel for any purpose it believes appropriate and wherever it so chooses. For example, a fire and rescue authority may agree to help pump out a pond as a service to its community.

Assistance in discharge of functions

Sections 13 and 14: Reinforcement schemes and directions as to reinforcement schemes

31.     These sections re-enact the existing provisions of the Fire Services Act 1947 on reinforcement schemes and extend them to apply to road traffic accidents and other serious emergencies (as defined by order under section 9). Section 13 obliges fire and rescue authorities to group together, so far as practicable, to provide mutual assistance. If there are cases where fire and rescue authorities are unable to come to an agreement about forming such a group, and one of the authorities concerned requests it, section 14 enables the Secretary of State to direct the fire and rescue authorities involved to make, vary or revoke such a scheme.

32.     Before giving a direction, the Secretary of State must give all authorities concerned the opportunity to make representations to him and he may hold an inquiry.

Section 15: Arrangements with other employers of fire-fighters

33. This section extends existing powers in the Fire Services Act 1947 which allow fire and rescue authorities to enter into agreements with organisations that employ their own fire-fighters. For example, if fire-fighters are employed by an airport to respond to plane crashes, an agreement could be entered into so that the airport fire-fighters will respond to and assist with incidents within a certain range of the airport. Fire and rescue authorities could pay the airport for each call that their fire-fighters respond to. These arrangements can also apply to the non-fire emergencies covered by sections 8 and 9. The arrangements under this section cannot be between two fire and rescue authorities as this type of relationship would be covered by sections 13 and 14.

Discharge of functions by others

Sections 16 and 17: Arrangements for discharge of functions by others

34.     Section 16 extends existing powers in the Fire Services Act 1947 to provide fire and rescue authorities with the ability to enter into contractual arrangements with others (including other fire and rescue authorities) to provide services in the execution of their functions (covered by sections 6 to 9 and 11). An example would be an agreement where a fire and rescue authority contracts with a local education authority to promote fire safety within its schools. Another example would be where a fire and rescue authority specialises in rope rescue and a neighbouring authority contracts with it to provide some or all of its response to incidents requiring rope rescue.

35.     However, a fire and rescue authority can only delegate its fire-fighting functions to another fire and rescue authority or others that employ fire-fighters. An example of such an agreement could be delegating to the licence-holder of a nuclear site, which employs its own fire service, the responsibility for preparing for, and dealing with, fires within the area of the site.

36.     Section 17 re-enacts provisions in the Fire Services Act 1947 that provide the Secretary of State with the ability to require fire and rescue authorities to enter into contractual arrangements under section 16 (or to vary or cancel any such arrangements). The Secretary of State can exercise the power on his own initiative or where one of the authorities has asked him to intervene, but the power must be exercised in the interests of economy, efficiency and effectiveness. Before issuing a direction the Secretary of State must give the fire and rescue authorities affected the opportunity to make representations to him and he may hold an inquiry.

Supplementary

Section 18: Training centres

37.     This section re-enacts provisions in the Fire Services Act 1947 that allow a fire and rescue authority to set up and run training centres.

Section 19: Charging

38.     Section 19 allows the Secretary of State to set out by order, following consultation, the services for which a fire and rescue authority may charge and the persons who may be subject to the charge. Section 3(1)(e) of the Fire Services Act 1947 already provides fire and rescue authorities with a discretionary power to charge for certain functions. As with the existing legislation, fire and rescue authorities will not be able to charge for extinguishing fires or protecting life and property in the event of fires, except in respect of incidents at sea or under the sea. There is also a prohibition on charging for the provision of emergency medical assistance.

39.     Subsection (4) allows any order made under subsection (1) to include a provision for charges to be imposed on, or recovered from, third parties. Subsection (5) maintains the existing arrangement that allows fire and rescue authorities to set their own level of charge, and to vary the charge depending on the type of service provided and the circumstances of a particular incident, or to choose not to charge at all. Subsection (6) limits the amount charged to the cost of providing the service.

Section 20: Exercise of powers at or under sea

40.     The Maritime Coastguard Agency (MCA) has a general duty to manage the response of UK authorities to maritime incidents both in territorial waters and beyond. To support such response the MCA will enter into agreements with other service providers. Fire and rescue authorities may indicate to the MCA a willingness to provide a response to fires and other emergencies at sea and to provide fire crews equipped and trained to undertake such work.

41.     Section 20 will enable fire and rescue authorities to continue to provide a response to incidents at sea and under the sea.

PART 3: ADMINISTRATION

Fire and Rescue National Framework

Section 21: Fire and Rescue National Framework

42.     This section requires the Secretary of State to consult on and prepare a Fire and Rescue National Framework ("the Framework"), to which fire and rescue authorities must have regard in carrying out their functions. The Secretary of State must keep the Framework under review and must consult on any significant revisions made to it. Parliament will have the opportunity to scrutinise the Framework before it takes effect.

43.     A draft Framework was published for consultation on 11 December 2003 and the 2004/05 Fire and Rescue National Framework was published on 16 July 2004. The purpose of the Framework is to provide strategic direction from central government while ensuring that authorities continue to make local decisions. The Framework sets out the Government's objectives for the Fire and Rescue Service and what fire and rescue authorities should do to achieve these objectives. The Framework also sets out the support the Government will provide to fire and rescue authorities.

Section 22 and 23: Intervention by Secretary of State and intervention protocol

44.     This section gives the Secretary of State the power to intervene if fire and rescue authorities fail to act in accordance with the Framework. The best value powers in Part 1 of the Local Government Act 1999 already make provision for the Secretary of State to intervene where an authority is failing to comply with the requirements of Part 1 of that Act. However, some wider Fire and Rescue Service performance issues covered by the Framework, such as measures to make provision for resilience in the face of a terrorist attack, may not be covered by the 1999 Act.

45.     Section 22 provides the Secretary of State with the power to require, by order, a fire and rescue authority to act in accordance with the Framework where he considers that the authority is failing to do so, or is likely to fail to do so. Before making such an order the Secretary of State must give the authority an opportunity to make representations to him.

46.     Any use of the Secretary of State's powers under section 22 will be governed by an "intervention protocol". Section 23 requires the Secretary of State to consult on and publish this protocol.

Section 25: Report

47.     The Secretary of State will report to Parliament, at least once in every two years, on the extent to which fire and rescue authorities are acting in accordance with the Framework and any action he has taken to ensure they do so. He will not report on individual fire and rescue authorities.

Supervision

Section 26: Information

48.     This section applies a power equivalent to section 230 of the Local Government Act 1972 to all fire and rescue authorities and not just those to which section 230 applies. The power could, for example, be used for collecting incident by incident information on primary fires (those involving property, rescues, casualties or fatalities), the number and location of fires and the number of fire-related casualties and fatalities. This information is in fact already collected from fire and rescue authorities, as is information on false alarms, attendance at road traffic accidents and information on staffing levels. This section formalises the requirement to supply such information.

Section 27: Inquiries

49.     Section 27 re-enacts in an amended form section 33 of the Fire Services Act 1947. The Secretary of State will be able to hold an inquiry into the performance of a fire and rescue authority or its handling of a particular incident. Section 28: Inspectors

50.     This section re-enacts the power in the Fire Services Act 1947 that determines the arrangements for appointing inspectors of the Fire and Rescue Service.

Supplementary

Section 29: Equipment, facilities, services and organisations

51.     This section enables the Secretary of State to provide equipment, services and facilities to fire and rescue authorities, to maintain anything so provided or to contribute towards the cost of such provision or maintenance. For example, this section gives the Secretary of State authority to provide equipment to prepare authorities to deal with civil resilience incidents and to provide standardised systems for radio communications and control rooms. This will help to ensure consistency of approach in the case of major emergencies, such as a terrorist incident.

52.     Section 29 empowers the Secretary of State to establish and maintain any organisation he considers appropriate if it promotes the economy, efficiency or effectiveness of authorities or to contribute towards the costs of such an organisation. Where he establishes or maintains such an organisation or provides anything under this section, authorities may be charged for the use of the associated equipment, facilities and services.

53.     This section also allows the Secretary of State, by order following consultation, to require authorities to use specified services or to use and maintain specified equipment and facilities.

Section 30: Directions for public safety purposes

54.     This section provides the Secretary of State with the power to give directions, by order, to fire and rescue authorities as to the use and disposal of their property or facilities for the purposes of public safety. Such a direction may cover all kinds of property and facilities, whether or not they have been provided as part of a national procurement exercise under section 29. An example of when this power might be used is during a period of industrial action when emergency cover provided by a fire and rescue authority is insufficient and in order to ensure public safety their equipment needs to be used by others providing emergency cover.

Section 31: Training institution and centres

55.     The Act provides for training for fire and rescue authority employees (and others) to be delivered centrally, regionally or locally. This section re-enacts and enhances provision allowing the Secretary of State to set up and maintain central or local (including regional) training centres.

56.     The Fire Service College at Moreton in Marsh is the central training institution for the Fire and Rescue Service. It provides specialist, operational incident and New Dimension training which is considered most effectively delivered at a national level. Other training (for example, that which needs to be carried out regularly) is considered best delivered at a regional or local level.