Secretary of State for the Home Department v Police and Crime Commissioner for the West Midlands

A statutory consultation must enable informed participation in the decision required by the statutory scheme. Where section 113 of the Local Democracy, Economic Development and Construction Act 2009 applies, the decision-maker must state provisionally why the statutory criteria are satisfied and provide sufficient information for intelligent consideration and response. Identifying the criteria or describing general benefits is insufficient. It is no answer that consultees independently raise relevant matters. The requirements in R v Brent London Borough Council ex p Gunning [1985] 84 LGR 168, approved in R (Moseley) v Haringey London Borough Council [2014] UKSC 56, do not impose an impermissible three-stage process. Failure to provide the necessary information may make the consultation so unfair as to be unlawful. Permission to appeal was refused.

The Secretary of State made an order under section 107F of the Local Democracy, Economic Development and Construction Act 2009 transferring the Police and Crime Commissioner’s functions in the West Midlands to the Mayor. The Police and Crime Commissioner sought judicial review.

Swift J allowed the claim and quashed the order because the consultation did not provide sufficient information to permit informed consideration and response. Challenges based on predetermination and failure conscientiously to consider responses were rejected, while a Tameside issue was left undetermined. The Secretary of State sought urgent permission to appeal. The central issue was whether the consultation documentation adequately explained the statutory basis and reasons for the proposed transfer.

The court, in a judgment given by Dingemans LJ for the court, refused the Secretary of State’s application for permission to appeal. The proposed grounds had no real prospect of success.

1. Statutory purpose. Section 113(2) of the Local Democracy, Economic Development and Construction Act 2009 required a public consultation in the circumstances. Its purpose was to enable people living and working in the area to participate in the decision-making process. For that purpose, the Secretary of State had to set out provisionally why the criteria in section 113(1)(a) and section 113(1)(aa) were considered satisfied.
2. Consultation requirements. The Gunning requirements, stated in R v Brent London Borough Council ex p Gunning [1985] 84 LGR 168 and applied in later authorities, required proposals to remain formative, sufficient reasons to be given for intelligent consideration and response, adequate time, and conscientious consideration of the responses. The judge below had not imposed an impermissible three-stage process by explaining those requirements.
3. Insufficient information. The consultation document recorded the statutory criteria and described general benefits, but did not explain the Secretary of State’s provisional reasons for considering the criteria met. It omitted relevant matters, including possible financial disadvantages. The fact that some consultees independently mentioned economic benefits or disadvantages did not cure the failure, because they had not been given the decision-maker’s provisional reasons. The process was therefore so unfair as to be unlawful, applying the test in R (Bloomsbury Institute Limited) v Office for Students [2020] EWCA Civ 1074.
4. Disposition. The importance or urgency of the policy objective could not displace statutory preconditions enacted by Parliament. The court did not need to determine the detail of the consultation responses or the Police and Crime Commissioner’s alternative grounds of appeal.

• Court of Appeal (Civil Division). On 22 March 2024, permission to appeal was refused. [2024] EWCA Civ 367.
• High Court of Justice, King’s Bench Division, Administrative Court. Swift J allowed judicial review on the ground that the consultation supplied insufficient information for informed consideration and response, and quashed the Secretary of State’s decision of 6 February 2024.