Commentary Part 1: Local Government Chapter 2: Fire and rescue authorities Section 9: General powers of certain fire and rescue authorities
23.Subsection (1) inserts new sections 5A to 5L into the Fire and Rescue Services Act 2004 providing new broad general powers to do things related to their purposes to metropolitan county fire and rescue authorities, the London Fire and Emergency Planning Authority and combined fire and rescue authorities in England or Wales. County councils that are fire and rescue authorities are not included, as they are provided with the general power of competence by Chapter 1 of this Part of the Localism Act.
24.New section 5A provides a power for the authority to do (a) anything it considers appropriate for the carrying out of any of its functions, (b) anything it considers appropriate for purposes incidental to the carrying out of any of its functions (whether directly or indirectly incidental) or (c) anything it considers to be connected with (a) or (b).
25.New section 5B sets out the limits on the power under new section 5A. Express prohibitions, restrictions and limitations within primary or secondary legislation are applied to the new power, and, as with section 2 of the Localism Act, a distinction is drawn between restrictions in pre and post-commencement legislation. The new section 5A power does not enable authorities to borrow money, to do things they are statutorily obliged to do for a commercial purpose, or to do things for a commercial purpose other than through a company or co-operative society. The power does not enable them to charge for services for non-commercial purposes (but see section 10 of the Localism Act below).
26.New section 5C provides the Secretary of State or Welsh Ministers with powers, equivalent to those provided to the Secretary of State in relation to the general power of competence by section 5 of the Localism Act, to remove limitations and restrictions and overlapped powers, and to prevent fire and rescue authorities from doing something under the new power, or to make its use subject to conditions. New section 5C(6) and (7) set out the consultation requirements. Consultation is not required if the order in question is simply to extend or disapply provisions contained in an existing order.
27.New section 5D sets out the conditions for the use of the power in new section 5C(1). These are the same as those in section 6 of the Localism Act in relation to the power in section 5(1) of that Act. New section 5E sets out the procedure for making such orders in England and new sections 5F to 5L in Wales. These are equivalent to the procedure in section 7 of the Localism Act in relation to the powers in section 5(1) and (2) of that Act. Other orders are, with the same exceptions as set out in relation to orders under section 5 of the Localism Act, subject to an “affirmative” procedure as a result of amendments made to the Fire and Rescue Services Act 2004 by section 9(3) to (6) of the Localism Act.
28.Subsections (2) and (8) remove existing incidental powers from combined authorities, as these are replaced by the new power.