Mr Justice Swift has today handed down his decision in the case of the Police and Crime Commissioner for the West Midlands v The Secretary of State for the Home Department, where Kingsley Napley represented the claimant, the current Police and Crime Commissioner for the West Midlands (“the PCC”), namely Simon Foster.
The PCC sought to challenge by way of judicial review the order the Home Secretary made on 6 February 2024 to transfer the PCC’s powers to the Mayor of the West Midlands. The order would have abolished the PCC role for the West Midlands, transferring its powers to the Mayor.
The case was heard urgently (the claim was filed on 15 February 2024), because elections for the PCC and Mayor for the West Midlands are due to take place in May 2024 and preparations for those elections need to take place this week. Sarah Hannett KC and James Stansfeld of Matrix chambers were instructed by Kingsley Napley on behalf of the PCC.
The arguments
This case was essentially a challenge to the Home Secretary’s public consultation in respect of the proposed transfer of the PCC’s powers to the Mayor of the West Midlands which preceded his order of 6 February 2024. The consultation was conducted over six weeks (between 20 December 2023 until 31 January 2024). Consultees were asked in broad terms whether they agreed or disagreed with the transfer of the PCC functions, the reasons for their view, and for any further comments they would like to make. 50% of those taking part in the consultation disagreed with the transfer, more than the 46% agreed with it, yet the Home Secretary continued with his plans to back the transfer.
Critical to our client’s challenge was the argument that the Home Secretary had failed to adhere to established principles of fairness in the way the consultation was carried out. In other words, failure to adhere to the general principles approved by the Supreme Court in R (Mosley) v Haringey LBC [2014] 1 W.L.R 3947 taken from the earlier case of R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168. Specifically, the PCC argued breaches of the first, second and fourth Gunning principles. Namely, that the consultation did not take place at a formative stage as the proposals had been pre-determined, there was insufficient information given in the consultation document to permit appropriate consideration and response, and the consultation responses had not been conscientiously taken into account.
Today’s outcome
Mr Justice Swift has today ruled that the consultation was flawed in its failure to adhere to the second Gunning principle. Specifically, “The Home Secretary did not, when consulting, provide sufficient information to permit intelligent and informed response.” The consultation information ought to have explained why, in the Home Secretary’s view, “the transfer of the Commissioner’s powers to the Mayor had met the relevant statutory conditions.” It should have explained why the transfer of powers from the Commissioner to the Mayor was likely to improve the social economic and environmental wellbeing of some or all of those living or working in the West Midlands Combined Authority area, and why the Home Secretary considered the transfer would be appropriate for the purpose of effective and convenient local government and reflecting “the identities and interests” of communities in the area. The judge found that “some of the information provided in support of the consultation did relate to those conditions, but that information ‘was perfunctory’.”
Given these flaws, Mr Justice Swift quashed the Home Secretary’s decision (i.e. the decision of 6 February 2024) based on his consideration of the consultation to transfer the PCC’s powers. The accompanying statutory instrument made in accordance with the decision would also fall to be treated in the same way.
Kingsley Napley’s public law partners Natalie Cohen and Adam Chapman represented the PCC in this matter.
Natalie Cohen comments: “We are delighted to have helped secure this positive outcome for our client. This case underlines the importance of public bodies following statutory consultation requirements and complying with established case law principles in the way a consultation process must be carried out. Consultations when carried out properly help to improve democratic governance. In this instance, the judge found that the information provided to the public, enabling them to meaningfully engage with the process fell “well short” of the mark. Coupled with this, the judge acknowledged that this consultation was ‘conducted to an expedited timetable.’ The response period was shorter than normal and included the Christmas and New Year period. In these circumstances the need for relevant information to be readily available to those wishing to respond to the consultation was particularly important.”
You can read the full judgment here.
On Friday 22nd March 2024, the Home Secretary was refused permission to appeal on this case.
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