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Recent legal developments
29 July 2008
This month, Richard Barlow of Browne Jacobson LLP looks at a
series of recent legal developments which have arisen affecting the
Fire Service over the last year.
Setting new standards
Under the Local Government and Public Involvement in Health Act
2007, the Standards Committee of a Fire Authority now has the power
to determine allegations of misconduct against Councillors.
These provisions were brought into effect from 8th May
2008. Further guidance can be expected from Government
arising from their consultation process and, indeed, from the
Standards Board for England who take on a more supervisory
jurisdiction in relation to conduct investigations and their
determination.
New Advisory Council
The Government has set up the Risk and Regulation Advisory
Council to give guidance on public risk and aid policy decisions.
The Council is intended to act as something of a litmus test in
relation to the regulation of risk. The Council’s first press
release outlines its reservations about the unduly precautious
approach which is being recommended by the British Standards
Institute in their draft guidance as to the management of highway
trees. It will be interesting to see whether the Council
enquires into any of the issues of risk and hazard encountered,
managed and minimised by the Fire Service.
Flooding Duty
Sir Michael Pitt’s report “Learning Lessons from the 2007
floods” (June 2008) recommended a fully funded national capability
for flood rescue, with Fire & Rescue Authorities playing a
leading role. This should now be in place by June 2009. As
this recommendation becomes enshrined in law, it will be important
to learn from lessons in the past. Any legislation should, from the
outset, make it clear that the new duty is intended only to be
enforced by way of public law proceedings and not to give rise to
any private rights. This will prevent the risk of insurers
seeking to recover their outlay from those who respond to emergency
flooding situations and do their best notwithstanding the forces of
nature.
The London Authorities Mutual Limited Case
There have been 2 recent decisions of the High
Court in relation to the Mutual Insurance Company formed by a
number of London Authorities. The Court decided that the
London Borough of Brent had not taken a lawful decision based upon
its well-being powers contained in Section 2 of the Local
Government Act 2000 to participate in the London Authority Mutual
Limited.
This element of the decision is of concern to
Combined Fire Authorities (CFAs) because it is clear that the Court
considered that the only basis upon which a Local Authority could
participate in the Mutual had to have been based upon its
well-being powers. Since CFAs do not have such well-being
powers currently, this emphasises the difficulties which they
face.
It should, however, be noted that many Local
Authorities came together to form the Municipal Mutual Insurance
(MMI) Company Limited at the turn of the 19th century
and they did not at that time have the well-being powers.
Nevertheless, the legality of the MMI as a mutual insurance company
was never questioned in the Courts.
The consequences of this element of the
decision were considered from a procurement perspective and the
court concluded that there had been a breach of the Procurement
Regulations with the result that Risk Management Partners are
entitled to damages from the Council for their loss of the
opportunity to bid for the Council’s insurance contract.
This case is already being appealed to the Court of Appeal and
so, at this stage, the judgment must be viewed with caution.
It has important implications for Fire Authorities and we await the
Court of Appeal’s guidance on this matter with interest.
Firefighters Pension Scheme
The High Court made another important decision
concerning the Firefighters Pension Scheme and the scope of appeal
against the opinion of the Independent Qualified Medical
Practitioner in the case of Marrion –v- Board of Medical Referees
[May 2008].
The Court decided that an appeal to the Board
of Medical Referees constituted a full appeal and enabled the Board
to address all relevant issues regarding the application of the
Scheme to the Claimant. The Court also found that a person
was only “permanently disabled” if he or she was incapable of
engaging in front line fire fighting duties and all of the duties
with which he or she could be tasked. As a result, persons
capable of performing non-operational duties within the broader
definition of regular firefighter should not be classified as
permanently disabled.
This column will be covering the question of
the Firefighters Pension Scheme Order in more detail in the
November issue.
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