‘Hostile Takeover’ of Police & Crime Commissioner’s role was unlawful due to a flawed consultation

This is Blog no 63

The High Court has quashed the Home Secretary’s decision to abolish the West Midlands Police and Crime Commissioner and merge the role with that of the Mayor, Andy Street..

The case is important not only because of the application of key consultation law principles but also because it demonstrates the consequences for Government departments and others when they fail to take public consultations seriously.

It is also a classic example of The Politics of Consultation. A Conservative Mayor seeks to remove a Labour Police & Crime Commissioner; no wonder it was viewed as a ‘hostile takeover.’ The Home Secretary approved the move on 6^th December 2023, and announced that the department would start preparing the necessary statutory instrument.

However, in this case, officials had made a mistake and failed to notice that a provision in the Levelling Up and Regeneration Act 2023 obliged the Home Secretary to conduct a public consultation, and when this came to light, a six week exercise was launched on 20^th December. It closed on 31^st January and responding with the kind of speed not often associated with the Home Office, it managed to announce the outcome on 6^thFebruary, confirming that the ‘takeover’ should go ahead. The Police and Crime Commissioner sought a judicial review.

The issue before Mr Justice Swift was straightforward. Was this a lawful consultation or was it so flawed that the Home Secretary’s decision would be quashed? The case was considered urgently because the decision to abolish the Commissioner’s role would mean that the scheduled election on 2^nd May would not occur. This explains the haste in the Home Office, and the political imperative for Ministers to achieve their policy goal.

There were three key arguments. Paraphrased, they were:-

• The decision had already been taken. (Gunning One)
• Information published in the consultation paper was insufficient to enable ‘intelligent consideration’ of the issue. (Gunning Two)
• The Home Secretary had not ‘conscientiously considered’ the consultation responses (Gunning Four)

The Judge found in favour of the Commissioner on the Gunning Two challenge, so the decision was quashed. He rejected both the Gunning One and the Gunning Four arguments. The Home Office says it may appeal.

The case raises several interesting issues, and it is worth a detailed look at the Judge’s reasoning. First, the Gunning Two argument.

Having dismissed the idea that this decision was pre-determined, he looked closely at the legislative requirement for the consultation. The original statute was from 2009, when Mayors for combined authorities were introduced and authorised Ministers to approve a merger of functions when sure that it “was likely to improve the economic, social and environmental well-being of some or all the people who live or work in the area.” Ministers should also believe the merger would be appropriate “to secure effective and convenient local government  … and to reflect the identities and interests of local communities.”

If these were the criteria underpinning Ministers’ decisions, the Judge argued that any consultation intended to influence those decisions should naturally cover these issues. It should explain why the Home Secretary thought this was a wise course of action. It should, in the words of the Judge, provide “an opportunity for members of the public to express their views on the reasons for using the … power.” After reviewing the content of the consultation paper and the questions it set, he concluded that the information provided fell well short of what was needed. He is particularly scathing about the Department’s lawyers suggesting that if consultees wanted to find out more, they should ‘do their own research’.

I particularly like his remark “The process of consultation ought not to become a treasure hunt.” It reminded me of the 2009 case of R (ex parte) Breckland District Council v The Boundary Committee where consulteeswere given little help to penetrate the incomprehensible financial case for absorbing District Councils into unitary authorities.

But why did the Judge find in favour of the Home Office on Gunning One and Gunning Four?

Of course, the Court considered documents and evidence that the rest of us have not seen but based on facts well established in the public domain, this seems a strange decision.

He adopts a definition of pre-determination that requires there to be ‘clear pointers’ that the decision-maker (i.e., the Home Secretary) would not consider the merits of the case. By reviewing submissions from civil servants as they considered the various options for proceeding once their mistake had been discovered, the Judge felt inclined to give the Minister the benefit of the doubt. He mentions that “simple political predisposition is not sufficient”

To those of us seasoned in political matters over the generations, our inclination would have been to view a clear political decision, announced and trumpeted to party supporters and everyone else as pretty conclusive evidence that the die was well and truly cast, and that a U-turn at a later date would be politically embarrassing. Not many politicians have the chutzpah to make such an announcement and then claim to have an open mind in a later consultation. Maybe the hurdle for proving pre-determination has gone up a little?

As for Gunning Four, the Judge rejects the argument that the record-breaking publication of the output/outcome document indicated that responses were not properly considered. This was because ‘consideration’ had begun whilst the consultation was still in progress. This will raise eyebrows among professional practitioners who will argue that until you have a full picture of all the responses, there are risks to the integrity of the analysis. For example, in predominantly qualitative exercises, early responses may have a disproportionate influence on analysts to the prejudice of later submissions.

None of this seems to have troubled Mr Justice Swift and was probably not argued by counsel. He is satisfied that the “responses were conscientiously considered”. But this begs the question of “By whom?” Was it the Home Secretary who personally considered responses in the short time available before the outcome was published? Or was it by civil servants who assiduously compiled the analysis whilst the consultation was still running? The judgment is silent on this point, but there are precedents from other cases suggesting that decision-makers cannot delegate their ‘conscientious consideration’.

Whatever reservations may be held about aspects of this case, it is nevertheless a timely reminder to Ministers and other decision-makers that a botched consultation can easily derail the implementation of political policies. The underlying theme in all of these was the clear political imperative to meet the deadline that would give effect to the merger in time to cancel the imminent election for Police and Crime Commissioner in the West Midlands.

It confirms the conclusion that Elizabeth Gammell and I arrived at in The Politics of Consultation that one of the main factors to undermine the integrity of Government consultations has been the pressure to make things happen in a hurry. In truth, meaningful consultation takes time, and this case illustrates how rushing one’s fences leads to avoidable mistakes. If this goes to the Court of Appeal, there could yet be a further twist to the story.  Watch this space.

Rhion H Jones LL.B

Commentaries are prepared primarily to help consultation practitioners take account of developments in the law and to guide them on situations where legal advice should be sought. They are no substitute for reading Court judgments or studying statutory provisions or associated Guidance.

Rhion has monitored and written commentaries on the Law of Consultation since 2007 but does not provide legal advice. He will, however, be happy to discuss the content of this or any other commentary.