Police and Crime Commissioner for the West Midlands, R (on the application of the) v Secretary of State for the Home Department

A statutory consultation must be conducted when the decision remains open and must provide sufficient information for intelligent and informed responses. Where legislation requires the decision-maker to satisfy specified conditions before exercising a power, the consultation should explain why those conditions are considered satisfied.

A court should not refuse relief under section 31(2A) of the Senior Courts Act 1981 unless it is highly likely that a lawful process would have produced a substantially similar outcome. That threshold is especially difficult to meet where better information could have generated different consultation responses.

The claimant challenged the Home Secretary’s decision to transfer the functions of the West Midlands Police and Crime Commissioner to the Mayor of the West Midlands under section 107F of the Local Democracy, Economic and Development Construction Act 2009.

The challenge concerned a consultation conducted in December 2023 and January 2024. The claimant alleged that the consultation was undertaken with a closed mind, lacked sufficient information, and that responses were not conscientiously considered. A further ground concerned the Home Secretary’s duty to obtain relevant information before deciding whether the statutory conditions for transfer were met.

Claim allowed in part. The Home Secretary’s decision of 6 February 2024 was quashed because the consultation was unlawful. Any statutory instrument made to give effect to that decision would fall to be treated in the same way.

1. The first and fourth Gunning principles address whether consultation occurred while the proposal remained formative and whether the responses were conscientiously considered. Applying the approach in R(Lewis) v Redcar Cleveland Borough Council, including the high threshold for establishing a real possibility of a closed mind, the evidence did not show that the Home Secretary had predetermined the outcome. Political predisposition and preparatory work directed towards meeting the electoral timetable were insufficient. Grounds 1 and 3 failed.
2. Section 113 of the Local Democracy, Economic and Development Construction Act 2009 required the Home Secretary to consider whether the transfer was likely to improve economic, social and environmental well-being and whether it was appropriate having regard to effective and convenient local government and community identities and interests. The consultation also had to provide an opportunity to comment on those reasons.
3. The consultation document did not explain adequately why the statutory conditions in section 113(1)(a) and (aa) were satisfied. General references to joined-up crime prevention, democratic accountability, public safety, other areas and collaboration were perfunctory. Referring respondents to other documents or requiring them to research comparable arrangements was inadequate, particularly given the expedited timetable and the Christmas period. Ground 2 succeeded.
4. The section 31(2A) exception in the Senior Courts Act 1981 was not satisfied. The counterfactual had to assume a lawful consultation and conscientious consideration of the responses it might have produced. The range of possible information and responses made it too speculative to conclude that the outcome would highly likely have been substantially the same.
5. The court did not need finally to decide the Tameside ground. It observed that the duty to take reasonable steps to acquaint oneself with relevant information is not a duty of perfection, and that the statutory criteria left the Home Secretary considerable latitude. The assessment document’s narrow focus on financial savings nevertheless appeared to adopt an unduly restricted view of economic well-being.

First-instance judicial review proceedings. The court quashed the Home Secretary’s decision of 6 February 2024.