Home Secretary’s cuts to financial support for victims of trafficking was unlawful because of a failure to consult.

This is Blog No 33

When Priti Patel was Home Secretary in 2020, she changed the financial regime whereby modern slavery victims were supported whilst in ‘initial accommodation’. In the case of R (PM) v Secretary of State for the Home Department, [2023] EWHC 1551 (Admin), Mrs Justice Steyn ruled that revised Guidance necessitated consultation with key stakeholders, and as this had not happened, the claimant won her case.   

For consultation practitioners, the case has several interesting features.

1. It is the latest in a line of legal challenges alleging that Ministers should have consulted properly before or when legislating. It is my view that confusion about the role of consultation lay at the heart of the Care Act case upon which I wrote in May. It has always been a hazy area, with cases won and lost on fine points of difference. In 2019, Michael Gove, when Secretary of State for DEFRA successfully defended a challenge that he had approved new regulations on animal welfare without adequate consultation – the Petsafe case.

       In the PM case, the Home Office withdrew one set of Statutory Guidance – the effect of which was to  

       reduce a weekly payment from £65 to £35. Three months later and following representations from The  

       Independent Anti-Slavery Commissioner and others, the Home Secretary approved fresh Guidance

       providing for a payment of £25.40. Stripped of a lot of legal complexity, this is really about whether

       Ministers had to consult anyone before making such reductions. Interestingly, the claim was couched in

       language that the Home Sec had ‘unlawfully failed to consult and/or make appropriate inquiry before

       taking its decision.’ This is a reference to something called the Tameside duty – originally explained by

       Lord Diplock who, in 1977, famously said '[T]he question for the court is, did the Secretary of State ask

       himself the right question and take reasonable steps to acquaint himself with the relevant information to

       enable him to answer it correctly?'

      Applying this test to the facts this time around resulted in the Judge finding unambiguously in favour of the

      claimant.

  2. The most frequently cited Judicial analysis of the occasions when consultation is required is now the 2014

      Plantagenet Alliance case (The reburial of King Richard III). It states: 

       'There are four main circumstances where a duty to consult may arise. First, where there is a statutory                  

        duty to consult. Second, where there has been a promise to consult. Third, where there has been an

        established practice of consultation. Fourth, where, in exceptional cases, a failure to consult would

        lead to conspicuous unfairness. Absent these factors, there will be no obligation on a public body to

        consult.' (Par 98(2))

       From a consultation perspective, this is a case about the fourth scenario, and is one of the first to rule on

       what amounts to ‘conspicuous unfairness’. I have little doubt that Government lawyers will worry about

       these words being interpreted too liberally in the Courts, but the facts of the PM case and the wider

       context of supporting potential or actual victims of trafficking led the Judge to conclude that this was a

       case of consultation having been required. To take money from such vulnerable people was unfair – at

       least without a consultation of some sort.

      The other factor is that this is not a requirement for public consultation. This was about engaging with the  

      Modern Slavery Strategy and Implementation Group (MSSIG), which consists of charities, NGOs, and

      some statutory bodies, including Anti-Slavery International, Human Trafficking Foundation, the Salvation  

      Army, and the Independent Anti-Slavery Commissioner's Office. In other words, people and organisations

      with deep knowledge and commitment to the subject. Maybe the Government anticipated an unfavourable

      reaction to its proposals, but that, of course, is not a reason to act unlawfully.

 3.  In many ways, the most obvious takeaway from this judgment is the risks decision-makers take when they    

      cut corners on impact assessments. Only last week I took issue with the DHSC’s consultation on                               

      Visitor Rights because it elected to postpone its Impact Assessment. No doubt in the current case, officials  

      would have claimed that there was no need to consult anyway, but what stands out is that advice given to  

      the Minister was focused on internal comparisons of benefit levels and little about the impact on the victims

      themselves. Officials argued that these changes were to be implemented urgently (and as the country was

      emerging from the 2020 lockdowns) and on an interim There would be a more extensive review of these

      support arrangements at a later date. This was deemed by the Court not to be an acceptable reason for

      not consulting and producing an impact assessment.

      In the words of Mrs Justice Steyn,

       'Once the nature of the decision the Secretary of State took is properly understood, in my view it is    

        clear that the failure to consult outside bodies such as MSSIG, or otherwise to gather any information  

        as to the impact that a (de facto) 27% reduction in trafficking support would have on the recovery of

        victims, breached the Tameside duty. Accordingly, I conclude that the Amended Guidance was

         unlawful.'

In summary, this is yet another case where Government and public bodies prefer to develop policy internally, ignoring discussions they should be having with specialist stakeholders whose real-world experience would make for better-informed decision-making. It is bad practice and in this and other cases, unlawful.  

The Home Office won’t like it, and will wish to challenge the interpretation of ‘conspicuous unfairness’ so an appeal may yet be lodged.

The Secretary of State at the time was Dame Priti Patel DBE. Would her successor have done better?

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 Jones LL.B 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.