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(2) Those conditions are that—

(a) the effect of the provision is proportionate to the policy
objective intended to be secured by the provision;

(b) the provision, taken as a whole, strikes a fair balance between
5the public interest and the interests of any person adversely
affected by it;

(c) the provision does not remove any necessary protection;

(d) the provision does not prevent any person from continuing to
exercise any right or freedom which that person might
10reasonably expect to continue to exercise;

(e) the provision is not of constitutional significance.

(3) An order under section 5C(1) may not make provision for the
delegation or transfer of any function of legislating.

(4) For the purposes of subsection (3) a “function of legislating” is a
15function of legislating by order, rules, regulations or other subordinate
instrument.

(5) An order under section 5C(1) may not make provision to abolish or
vary any tax.

5E Procedure for Secretary of State’s orders under section 5C(1) and (2)

(1) 20If, as a result of any consultation required by section 5C(6) and (11) with
respect to a proposed order of the Secretary of State under section
5C(1), it appears to the Secretary of State that it is appropriate to change
the whole or any part of the Secretary of State’s proposals, the Secretary
of State must undertake such further consultation with respect to the
25changes as the Secretary of State considers appropriate.

(2) If, after the conclusion of the consultation required by section 5C(6) and
(11) and subsection (1), the Secretary of State considers it appropriate to
proceed with the making of an order under section 5C(1), the Secretary
of State must lay before Parliament—

(a) 30a draft of the order, and

(b) an explanatory document explaining the proposals and giving
details of—

(i) the Secretary of State’s reasons for considering that the
conditions in section 5D(2), where relevant, are satisfied
35in relation to the proposals,

(ii) any consultation undertaken under section 5C(6) and
(11) and subsection (1),

(iii) any representations received as a result of the
consultation, and

(iv) 40the changes (if any) made as a result of those
representations.

(3) Sections 15 to 19 of the Legislative and Regulatory Reform Act 2006
(choosing between negative, affirmative and super-affirmative
parliamentary procedure) are to apply in relation to an explanatory
45document and draft order laid under subsection (2) but as if—

(a) section 18(11) of that Act were omitted,

(b) references to section 14 of that Act were references to subsection
(2), and

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(c) references to the Minister were references to the Secretary of
State.

(4) Provision proposed to be made by the Secretary of State under section
5C(2) may be included in a draft order laid under subsection (2) and, if
5it is, the explanatory document laid with the draft order must also
explain the proposals under section 5C(2) and give details of any
consultation undertaken under section 5C(6) and (11) with respect to
those proposals.

5F Procedure for Welsh Ministers’ orders under section 5C(1) and (2)

(1) 10If, as a result of any consultation required by section 5C(6) with respect
to a proposed order of the Welsh Ministers under section 5C(1), it
appears to the Welsh Ministers that it is appropriate to change the
whole or any part of their proposals, they must undertake such further
consultation with respect to the changes as they consider appropriate.

(2) 15If, after the conclusion of the consultation required by section 5C(6) and
subsection (1), the Welsh Ministers consider it appropriate to proceed
with the making of an order under section 5C(1), they must lay before
the National Assembly for Wales—

(a) a draft of the order, and

(b) 20an explanatory document explaining the proposals and giving
details of—

(i) the Welsh Ministers’ reasons for considering that the
conditions in section 5D(2), where relevant, are satisfied
in relation to the proposals,

(ii) 25any consultation undertaken under section 5C(6) and
subsection (1),

(iii) any representations received as a result of the
consultation, and

(iv) the changes (if any) made as a result of those
30representations.

(3) Provision proposed to be made by the Welsh Ministers under section
5C(2) may be included in a draft order laid under subsection (2) and, if
it is, the explanatory document laid with the draft order must also
explain the proposals under section 5C(2) and give details of any
35consultation undertaken under section 5C(6) with respect to those
proposals.

5G Determining Assembly procedures for drafts laid under section 5F(2)

(1) The explanatory document laid with a draft order under section 5F(2)
must contain a recommendation by the Welsh Ministers as to which of
40the following should apply in relation to the making of an order
pursuant to the draft order—

(a) the negative resolution procedure (see section 5H),

(b) the affirmative resolution procedure (see section 5J), or

(c) the super-affirmative resolution procedure (see section 5K).

(2) 45The explanatory document must give reasons for the Welsh Ministers’
recommendation.

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(3) Where the Welsh Ministers’ recommendation is that the negative
resolution procedure should apply, that procedure applies unless,
within the 30-day period—

(a) the National Assembly for Wales requires the application of the
5super-affirmative resolution procedure, in which case that
procedure applies, or

(b) in a case not within paragraph (a), the Assembly requires the
application of the affirmative resolution procedure, in which
case that procedure applies.

(4) 10Where the Welsh Ministers’ recommendation is that the affirmative
resolution procedure should apply, that procedure applies unless,
within the 30-day period, the National Assembly for Wales requires the
application of the super-affirmative resolution procedure, in which
case the super-affirmative resolution procedure applies.

(5) 15Where the Welsh Ministers’ recommendation is that the super-
affirmative resolution procedure should apply, that procedure applies.

(6) For the purposes of this section, the National Assembly for Wales is to
be taken to have required the application of a procedure within the 30-
day period if—

(a) 20the Assembly resolves within that period that that procedure is
to apply, or

(b) in a case not within paragraph (a), a committee of the Assembly
charged with reporting on the draft order has recommended
within that period that that procedure should apply and the
25Assembly has not by resolution rejected that recommendation
within that period.

(7) In this section “the 30-day period” means the 30 days beginning with
the day on which the draft order was laid before the National Assembly
for Wales under section 5F(2).

5H 30Negative resolution procedure for draft laid under section 5F(2)

(1) For the purposes of this Part, “the negative resolution procedure” in
relation to the making of an order pursuant to a draft order laid under
section 5F(2) is as follows.

(2) The Welsh Ministers may make an order in the terms of the draft order
35subject to the following provisions of this section.

(3) The Welsh Ministers may not make an order in the terms of the draft
order if the National Assembly for Wales so resolves within the 40-day
period.

(4) A committee of the National Assembly for Wales charged with
40reporting on the draft order may, at any time after the expiry of the 30-
day period and before the expiry of the 40-day period, recommend
under this subsection that the Welsh Ministers not make an order in the
terms of the draft order.

(5) Where a committee of the National Assembly for Wales makes a
45recommendation under subsection (4) in relation to a draft order, the
Welsh Ministers may not make an order in the terms of the draft order
unless the recommendation is, in the same Assembly, rejected by
resolution of the Assembly.

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(6) For the purposes of this section an order is made in the terms of a draft
order if it contains no material changes to the provisions of the draft
order.

(7) In this section—

(8) For the purpose of calculating the 40-day period in a case where a
10recommendation is made under subsection (4) by a committee of the
National Assembly for Wales but the recommendation is rejected by
the Assembly under subsection (5), no account is to be taken of any day
between the day on which the recommendation was made and the day
on which the recommendation was rejected.

5J 15Affirmative resolution procedure for draft laid under section 5F(2)

(1) For the purposes of this Part, “the affirmative resolution procedure” in
relation to the making of an order pursuant to a draft order laid under
section 5F(2) is as follows.

(2) If after the expiry of the 40-day period the draft order is approved by a
20resolution of the National Assembly for Wales, the Welsh Ministers
may make an order in the terms of the draft.

(3) However, a committee of the National Assembly for Wales charged
with reporting on the draft order may, at any time after the expiry of
the 30-day period and before the expiry of the 40-day period,
25recommend under this subsection that no further proceedings be taken
in relation to the draft order.

(4) Where a committee of the National Assembly for Wales makes a
recommendation under subsection (3) in relation to a draft order, no
proceedings may be taken in relation to the draft order in the Assembly
30under subsection (2) unless the recommendation is, in the same
Assembly, rejected by resolution of the Assembly.

(5) For the purposes of subsection (2) an order is made in the terms of a
draft order if the order contains no material changes to the provisions
of the draft order.

(6) 35In this section—

(7) For the purpose of calculating the 40-day period in a case where a
recommendation is made under subsection (3) by a committee of the
40National Assembly for Wales but the recommendation is rejected by
the Assembly under subsection (4), no account is to be taken of any day
between the day on which the recommendation was made and the day
on which the recommendation was rejected.

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5K Super-affirmative resolution procedure for draft laid under section
5F(2)

(1) For the purposes of this Part, “the super-affirmative resolution
procedure” in relation to the making of an order pursuant to a draft
5order laid under section 5F(2) is as follows.

(2) The Welsh Ministers must have regard to—

(a) any representations,

(b) any resolution of the National Assembly for Wales, and

(c) any recommendation of a committee of the Assembly charged
10with reporting on the draft order,

made during the 60-day period in relation to the draft order.

(3) If, after the expiry of the 60-day period, the Welsh Ministers want to
make an order in the terms of the draft order, they must lay before the
National Assembly for Wales a statement—

(a) 15stating whether any representations were made under
subsection (2)(a), and

(b) if any representations were so made, giving details of them.

(4) The Welsh Ministers may after the laying of such a statement make an
order in the terms of the draft order if it is approved by a resolution of
20the National Assembly for Wales.

(5) However, a committee of the National Assembly for Wales charged
with reporting on the draft order may, at any time after the laying of a
statement under subsection (3) and before the draft order is approved
by the Assembly under subsection (4), recommend under this
25subsection that no further proceedings be taken in relation to the draft
order.

(6) Where a committee of the National Assembly for Wales makes a
recommendation under subsection (5) in relation to a draft order, no
proceedings may be taken in relation to the draft order in the Assembly
30under subsection (4) unless the recommendation is, in the same
Assembly, rejected by resolution of the Assembly.

(7) If, after the expiry of the 60-day period, the Welsh Ministers wish to
make an order consisting of a version of the draft order with material
changes, they must lay before the National Assembly for Wales—

(a) 35a revised draft order, and

(b) a statement giving details of—

(i) any representations made under subsection (2)(a), and

(ii) the revisions proposed.

(8) The Welsh Ministers may after laying a revised draft order and
40statement under subsection (7) make an order in the terms of the
revised draft order if it is approved by a resolution of the National
Assembly for Wales.

(9) However, a committee of the National Assembly for Wales charged
with reporting on the revised draft order may, at any time after the
45revised draft order is laid under subsection (7) and before it is approved
by the Assembly under subsection (8), recommend under this

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subsection that no further proceedings be taken in relation to the
revised draft order.

(10) Where a committee of the National Assembly for Wales makes a
recommendation under subsection (9) in relation to a revised draft
5order, no proceedings may be taken in relation to the revised draft
order in the Assembly under subsection (8) unless the recommendation
is, in the same Assembly, rejected by resolution of the Assembly.

(11) For the purposes of subsections (4) and (8) an order is made in the terms
of a draft order if it contains no material changes to the provisions of
10the draft order.

(12) In this section “the 60-day period” means the 60 days beginning with
the day on which the draft order was laid before the National Assembly
for Wales under section 5F(2).

5L Calculation of time periods

15In calculating any period of days for the purposes of sections 5G to 5K,
no account is to be taken of any time during which the National
Assembly for Wales is dissolved or during which the Assembly is in
recess for more than four days.

(2) Omit section 5 of the Fire and Rescue Services Act 2004 (power of combined fire
20and rescue authorities corresponding to the power under section 111 of the
Local Government Act 1972).

(3) In section 60(1) of the Fire and Rescue Services Act 2004 (meaning of
“subordinate legislation”) for “by the Secretary of State under this Act”
substitute “under this Act by the Secretary of State or the Welsh Ministers”.

(4) 25In section 60(4) of the Fire and Rescue Services Act 2004 (orders and
regulations subject to affirmative procedure) for “subordinate legislation
which amends or repeals any Act or provision of an Act may” substitute

(a) an order made by the Secretary of State under section 5C(3),
other than one that is made only for the purpose mentioned in
30section 5C(7),

(b) an order made by the Secretary of State under section 5C(4),
other than one that is made only for that purpose or for
imposing conditions on the doing of things for a commercial
purpose,

(c) 35an order made by the Secretary of State under section 5C(2)
that—

(i) amends any Act or provision of an Act, and

(ii) is not made in accordance with sections 15 to 19 of the
Legislative and Regulatory Reform Act 2006 as applied
40by section 5E(3), or

(d) subordinate legislation made by the Secretary of State, other
than an order under section 5C, that amends or repeals any Act
or provision of an Act,

may.

(5) 45In section 60(5) of the Fire and Rescue Services Act 2004 (orders and
regulations subject to negative procedure) for “legislation, apart from an order
under section 30 or 61, is” substitute “legislation made by the Secretary of State,

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apart from—

(1)(a)an order under section 5C(1),

(b) an order under section 5C(2) that is made in accordance with
sections 15 to 19 of the Legislative and Regulatory Reform Act
52006 as applied by section 5E(3), or

(c) an order under section 30 or 61,

is.

(6) In section 60 of the Fire and Rescue Services Act 2004 (orders and regulations)
after subsection (5) insert—

(6) 10A statutory instrument containing (alone or with other provisions)—

(a) an order made by the Welsh Ministers under section 5C(3),
other than one that it is made only for the purpose mentioned in
section 5C(7),

(b) an order made by the Welsh Ministers under section 5C(4),
15other than one that is made only for that purpose or for
imposing conditions on the doing of things for a commercial
purpose,

(c) an order made by the Welsh Ministers under section 5C(2)
that—

(i) 20amends any Act or provision of an Act or amends any
Act, or Measure, of the National Assembly for Wales or
provision of such an Act or Measure, and

(ii) is not made in accordance with sections 5G to 5L, or

(d) subordinate legislation made by the Welsh Ministers, other
25than an order under section 5C, that amends any Act or
provision of an Act,

may not be made unless a draft of the instrument has been laid before,
and approved by a resolution of, the National Assembly for Wales.

(7) A statutory instrument containing any other subordinate legislation
30made by the Welsh Ministers, apart from—

(a) an order under section 5C(1),

(b) an order under section 5C(2) that is made in accordance with
sections 5G to 5L, or

(c) an order under section 30 or 61,

35is subject to annulment in pursuance of a resolution of the National
Assembly for Wales.

(7) In section 62 of the Fire and Rescue Services Act 2004 (application of Act in
Wales)—

(a) in subsection (1)(b) (references to Secretary of State in sections 60 and
4061) for “sections 60 and” substitute “section”,

(b) after subsection (1) insert—

(1A) The reference in subsection (1)(a) to Parts 1 to 6 does not
include—

(a) sections 5A and 5B,

(b) 45sections 5C and 5D,

(c) section 5E, and

(d) sections 5F to 5L., and

(c) omit subsection (3) (disapplication of section 60(4) and (5)).

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(8) In section 146A of the Local Government Act 1972 (application of provisions to
certain joint and other authorities)—

(a) in subsection (1) after “Subject to subsections (1ZA), (1ZB)” insert
“, (1ZC)”, and

(b) 5after subsection (1ZB) insert—

(1ZC) Neither a metropolitan county fire and rescue authority, nor the
London Fire and Emergency Planning Authority, is to be
treated as a local authority for the purposes of section 111 above
(but see section 5A of the Fire and Rescue Services Act 2004).

10 10Fire and rescue authorities: charging

(1) The Fire and Rescue Services Act 2004 is amended as follows.

(2) After section 18 insert—

18A Charging by authorities

(1) A fire and rescue authority may charge a person for any action taken by
15the authority—

(a) in the United Kingdom or at sea or under the sea, and

(b) otherwise than for a commercial purpose,

but this is subject to the provisions of this section and section 18B.

(2) Subsection (1) authorises a charge to be imposed on, or recovered from,
20a person other than the person in respect of whom action is taken by the
authority.

(3) Before a fire and rescue authority begins to charge under subsection (1)
or section 5A(1)(e) for taking action of a particular description, the
authority must consult any persons the authority considers
25appropriate.

(4) If a fire and rescue authority decides to charge under subsection (1) for
taking action of a particular description—

(a) the amount of the charge is to be set by the authority;

(b) the authority may charge different amounts in different
30circumstances (and may charge nothing).

(5) In setting the amount of a charge under subsection (1), a fire and rescue
authority must secure that, taking one financial year with another, the
authority’s income from charges does not exceed the cost to the
authority of taking the action for which the charges are imposed.

(6) 35The duty under subsection (5) applies separately in relation to each
kind of action.

(7) The references in subsection (1) and section 18B(1) to “sea” are not
restricted to the territorial sea of the United Kingdom.

(8) In subsection (5) “financial year” means 12 months ending with 31
40March.

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18B Limits on charging under section 18A(1)

(1) Section 18A(1) authorises charging for extinguishing fires, or protecting
life and property in the event of fires, only in respect of fires which are
at sea or under the sea.

(2) 5Section 18A(1) does not authorise charging for emergency medical
assistance.

(3) Section 18A(1) authorises charging for action taken in response to a
report of a fire or explosion only if section 18C applies to the report.

(4) Section 18A(1) does not authorise charging for rescuing individuals, or
10protecting individuals from serious harm, in the event of an
emergency.

(5) Section 18A(1) does not authorise charging for action taken in response
to—

(a) emergencies resulting from events of widespread significance,

(b) 15emergencies which have occurred as a direct result of severe
weather, or

(c) emergencies resulting from road traffic accidents.

(6) Section 18A(1) does not authorise charging for action taken by a fire
and rescue authority in its capacity as an enforcing authority for the
20purposes of the Regulatory Reform (Fire Safety) Order 2005 (S.I. 2005/
1541).

(7) Nothing in subsections (1) to (6)—

(a) applies to charges for providing under section 12 the services of
any persons or any equipment,

(b) 25affects the operation of section 13(3) or 16(3), or

(c) affects any provision for payments to a fire and rescue authority
contained in arrangements for co-operation made between that
authority and—

(i) a public authority that is not a fire and rescue authority,
30or

(ii) any person, other than a public authority, who exercises
public functions.

(8) The Secretary of State in relation to fire and rescue authorities in
England, and the Welsh Ministers in relation to fire and rescue
35authorities in Wales, may by order disapply subsection 18A(1) in
relation to actions of a particular kind.

(9) The power under subsection (8) includes power to disapply for a
particular period.

18C Cases where a charge may be made for responding to report of fire etc

(1) 40This section applies for the purposes of section 18B(3).

(2) This section applies to a report of fire, or explosion, at sea or under the
sea.

(3) This section applies to a report of fire if—

(a) the report is of fire at premises that are not domestic premises,

(b) 45the report is false,

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(c) the report is made as a direct or indirect result of warning
equipment having malfunctioned or been misinstalled, and

(d) there is a persistent problem with false reports of fire at the
premises that are made as a direct or indirect result of warning
5equipment under common control having malfunctioned or
been misinstalled.

(4) The references in subsection (2) to “sea” are not restricted to the
territorial sea of the United Kingdom.

(5) In subsection (3)—

(3) Omit section 19 (charging).

(4) 20In section 62 (application of Act in Wales) before subsection (2) insert—

(1B) The reference in subsection (1)(a) to Parts 1 to 6 does not include
sections 18A to 18C.

(5) Where immediately before the coming into force of subsections (1) to (3) in
relation to England or Wales an order under section 19(1) of the Fire and
25Rescue Services Act 2004 authorises a fire and rescue authority in England or
(as the case may be) Wales to charge for action of a specified description taken
by the authority, section 18A(3) of that Act does not apply in relation to action
of that description.

CHAPTER 3 Governance

11 30New arrangements with respect to governance of English local authorities

Schedule 2 (new Part 1A of, and Schedule A1 to, the Local Government Act
2000) has effect.

12 New local authority governance arrangements: amendments

Schedule 3 (minor and consequential amendments relating to local authority
35governance in England) has effect.

13 Changes to local authority governance in England: transitional provision etc

(1) The Secretary of State may by order make such transitional, transitory or
saving provision as the Secretary of State considers appropriate in connection
with the coming into force of sections 11 and 12 and Schedules 2 and 3.

(2) 40An order under subsection (1) may, in particular, include any provision—

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