Transferring the functions of a Police and Crime Commissioner – consultation requirements

The Court of Appeal’s upholding of a High Court judgment which quashed the decision by the Home Secretary to transfer the powers of the West Midlands Police and Crime Commissioner (PCC) to the Mayor of the West Midlands Combined Authority (WMCA) is a salutary reminder of the need to fully comply with consultation requirements, writes Matt Marsh.

Challenges to the Home Secretary’s decision

Agreeing to a request made by the WMCA Mayor last year, the Home Secretary intended to make an order under section 107F of the Local Democracy, Economic and Development Construction Act 2009 (the 2009 Act) to abolish the PCC role in the West Midlands and transfer the PCC functions to the Mayor. The incumbent PCC challenged the decision by way of judicial review which was heard by Mr Justice Swift on 12 March 2024.

The focus of the challenge was the public consultation on the proposals undertaken by the Home Secretary during December 2023 and January 2024 as required under section 113 (2) of the 2009 Act. The expedited consultation took place after the Home Secretary had previously made a false start in purporting to exercise his s107F power on 6 December 2023 without reference to the proposed transfer of the PCC functions meeting the conditions set out under s113(1)(a) and (aa) of the 2009 Act, or having consulted on the proposals.

The consultation

The consultation launched on 20 December 2023 included supporting information and posed the following questions to the public:

The Government proposes that the functions of the PCC for West Midlands be exercised by the Mayor of the West Midlands from the May 2024 Mayoral election onwards.

• Do you agree/disagree/don’t know with the transfer of PCC functions to the Mayor of the West Midlands?
• Why do you think this?
• Are there any other comments you would like to make?

The consultation documents also included references to other documents which were not specifically cross-referenced nor readily available for the purpose of the consultation.

The PCC’s grounds of challenge

The PCC contended that the consultation was not undertaken lawfully because:

• The consultation was not undertaken at a formative stage, but at a time when the Home Secretary had a closed mind, having already decided to exercise his power under s107F (the false start) (ground one).
• The consultation did not provide sufficient information to permit the public a fair opportunity to consider and respond to the proposals (ground two).
• The consultation responses were not conscientiously considered (ground three).
• The Home Secretary had failed in his Tameside obligation to take reasonable steps to acquaint himself with relevant information (ground five).

The High Court judgment

Mr Justice Swift rejected grounds one and three but allowed the challenge on ground two as he considered the information provided in support of the consultation to be insufficient for the purposes envisaged and required under s113 of the 2009 Act.

According to the judge, the provided information should have clarified why the Home Secretary believed transferring the functions of the Police and Crime Commissioner (PCC) to the Mayor would enhance the economic, social, and environmental well-being of the residents or workers in the West Midlands Combined Authority (WMCA) area, as outlined in section 113(a) of the 2009 Act. Additionally, it should have explained why such a transfer would be suitable for achieving efficient and convenient local governance while also representing the identities and interests of the communities in the area, as per section 113(aa) of the 2009 Act. The judge also considered that documents referred to in a consultation should be readily available for review by consultees without their having to obtain them for themselves, as a consultation is not a ‘treasure hunt’.

Mr Justice Swift considered that the information provided ‘fell well short of the mark’ and concluded that ‘the Home Secretary did not, when consulting, provide sufficient information to permit intelligent and informed response’ and also rejected the Home Secretary’s fallback submission under s31 (2A) Senior Courts Act 1981, whereby even if the consultation was conducted unlawfully, his decision of 6 February 2024 should not be quashed as it was ‘highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’. Given his determination on ground two, the judge did not consider it necessary to consider ground five and quashed the Home Secretary’s decision to transfer the West Midlands PCC functions to the WMCA Mayor.

Appeal from the Home Secretary

On 22 March 2024, the Court of Appeal rejected an appeal by the Home Secretary. According to media reports, the appeal judges held that it could not be said that Mr Justice Swift was ‘wrong… in setting out the steps for a lawful consultation in the particular circumstances of the case’, and that in failing to provide ‘sufficient information to permit intelligent consideration and response, the consultation was so unfair as to be unlawful’.

The Court of Appeal’s upholding of Mr Justice Swift’s judgment means the election of a PCC for the West Midlands on 2 May 2024 will proceed. More generally, the case reiterates the need for consultations to provide sufficient information for consultees to make intelligent, informed responses and highlights that where a decision is required to be made on the satisfaction of express statutory conditions, a consultation must also clearly set out the basis on which the decision-maker considers such conditions are satisfied.

The High Court judgment is available here.

Matt Marsh is a solicitor at Anthony Collins.