Introduction

The case of Secretary of State for the Home Department v Police and Crime Commissioner for the West Midlands ([2024] EWCA Civ 367) presents a critical examination of the statutory consultation process under the Local Democracy, Economic Development and Construction Act 2009 (the 2009 Act). The dispute centers on the adequacy of the consultation conducted by the Secretary of State before transferring the powers of the Police and Crime Commissioner (PCC) for the West Midlands to the newly elected Mayor of West Midlands.

The key issues involved include whether the consultation provided sufficient information for public consideration, if it was conducted in an unbiased manner, and the broader implications of transferring PCC functions to mayoral authorities. The parties involved are the Secretary of State for the Home Department (appellant) and the Police and Crime Commissioner for the West Midlands (respondent), with the court expediting the hearing due to imminent mayoral elections.

Summary of the Judgment

The Court of Appeal granted permission to the PCC to apply for judicial review, ultimately quashing the Secretary of State's decision to transfer the PCC's functions to the Mayor under section 107F of the 2009 Act. The primary reason for allowing the judicial review was the Secretary of State's failure to provide sufficient information in the consultation documentation, thereby undermining the public's ability to make informed contributions. Other grounds related to the consultation being conducted with an open mind were rejected, and a third ground concerning the Tameside obligation was not determined.

The Secretary of State sought to appeal the judgment, arguing that the judge erred in both the structure of the consultation process and the assessment of information adequacy. However, the Court of Appeal refused permission to appeal, affirming the original judgment that the consultation did not meet the statutory requirements.

Analysis

Precedents Cited

The judgment extensively referenced key legal precedents to underpin the court’s decision:

• Gunning (R v Brent London Borough Council ex p Gunning [1985] 84 LGR 168): Established the foundational requirements for lawful consultations, including conducting consultations at a formative stage, providing sufficient reasons for proposals, allowing adequate time for responses, and conscientiously considering consultation outcomes.
• Moseley (R (Moseley) v Haringey London Borough Council [2014] UKSC 56): Reinforced the necessity for consultations to include not just proposals but also realistic alternatives and the reasons for rejecting those alternatives, ensuring meaningful public participation.
• Tameside (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014): Emphasized the duty of decision-makers to acquaint themselves reasonably with relevant information when making decisions.
• Bloomsbury Institute (R (Bloomsbury Institute Limited) v Office for Students [2020] EWCA Civ 1074): Confirmed that the test for quashing a consultation is whether the process was so unfair that it was unlawful.

Legal Reasoning

The court's legal reasoning focused on the statutory obligations imposed by the 2009 Act, especially following amendments by the Levelling Up and Regeneration Act 2023. The Secretary of State was required to conduct a public consultation that not only presented the benefits of transferring PCC functions but also addressed specific statutory criteria such as improving economic, social, and environmental wellbeing, and reflecting the identities and interests of local communities.

The judgment highlighted that the consultation document provided insufficient information regarding why the statutory conditions were met. Critical details, such as the economic benefits and potential drawbacks like increased policing costs, were inadequately addressed, preventing the public from making informed contributions. The court rejected the Secretary of State's arguments that a three-stage consultation process was unnecessary and that the provided information was adequate, aligning with the principles established in precedent cases.

Impact

This judgment sets a significant precedent for future transfers of PCC functions to mayoral authorities. It underscores the necessity for comprehensive and transparent consultations that fully inform the public about the rationale and implications of such transfers. The decision reinforces the judiciary's role in upholding statutory consultation requirements, ensuring that executive actions align with legislative intent and democratic principles.

For policymakers and governmental bodies, the ruling emphasizes the importance of meticulous compliance with statutory consultation processes, particularly when legislative amendments introduce stricter requirements. It also highlights the courts' willingness to scrutinize executive decisions to prevent procedural inadequacies that could undermine public trust and democratic accountability.

Complex Concepts Simplified

Section 107F of the Local Democracy, Economic Development and Construction Act 2009

This section grants the Secretary of State the authority to transfer the functions of a Police and Crime Commissioner (PCC) to a mayor of a combined authority area. Such transfers are intended to streamline governance by consolidating roles and potentially improving efficiency and accountability.

Public Consultation Requirements

A statutory requirement mandates that before making such a transfer, the Secretary of State must conduct a public consultation. This process is designed to gather input from stakeholders and the public to ensure that the transfer meets specific criteria, such as enhancing economic, social, and environmental wellbeing.

Tameside Obligation

Originating from a 1977 case, this duty requires decision-makers to make reasonable efforts to familiarize themselves with relevant information before making decisions. In this context, it ensures that the Secretary of State adequately considers the implications of transferring PCC functions.

Judicial Review

Judicial review is a legal process where courts examine the lawfulness of a decision or action made by a public body. In this case, the PCC challenged the Secretary of State's decision to transfer powers based on the adequacy of the consultation process.

Fair-Minded and Informed Observer Test

This test assesses whether a reasonable and unbiased observer would perceive that the decision-maker acted fairly and provided adequate information during the consultation process. It is used to evaluate the legitimacy and transparency of the consultation.

Conclusion

The Court of Appeal's decision in Secretary of State for the Home Department v PCC for West Midlands underscores the paramount importance of conducting thorough and transparent public consultations in the transfer of PCC functions to mayoral authorities. By quashing the Secretary of State's decision due to inadequate consultation, the court has reinforced the necessity for sufficient informational disclosure, ensuring that public participation is meaningful and informed.

This judgment not only affects the immediate parties involved but also serves as a vital reference point for future administrative actions involving structural changes in local governance. It emphasizes that adherence to statutory consultation requirements is non-negotiable and that courts will actively uphold these standards to maintain democratic integrity and public trust in governmental processes.