A key part of the current Government’s Levelling Up agenda was the empowerment of local communities to make decisions. One of the proposals as part of this was the possibility for mayoral combined authorities to assume the powers of coterminous Police and Crime Commissioners. Found in s. 107 of the Local Democracy, Economic and Development Construction Act 2009, the power to do so already existed, but the unlike the first two Combined Authority Mayors who exercised these powers (Greater Manchester and West Yorkshire), in the West Midlands, its use proved more of a challenge.

After an abortive start, in which the Government attempted to make a s. 107F order but forgot that they needed the consent of both the mayor and the local authorities of the West Midlands Combined Authority (whilst the mayor was in favour of assuming the new powers, the local authorities were not), the Government proceeded to make the order using a slightly amended s.107F power which had now come into effect, removing the need for the consent of the local authorities.

This new version of the power however came with an obligation to conduct a public consultation on the question at hand. The Home Secretary did so, between 20^th December 2023 and 31^st January 2024, concluding at the end that the decision should proceed. Perhaps naturally, the PCC for the West Midlands was not entirely happy about being abolished, and challenged the decision on three consultation-related grounds (and one other procedural one, which we shall not go into here).

The first was a challenge to the openness of the mind of the decision-maker, fundamentally a Gunning 1 challenge. Interestingly, the parties relied heavily on the judgment in R (Lewis) v Redcar Borough Council, not one often seen as the core of a challenge. The PCC argued that there was a clear demonstration that the consultation had been conducted after the decision had substantively been made, drawing on first the earlier flawed attempt to pass the order, secondly the context the decision was placed in internally, as a method of “delivering transfer of [the Commissioner’s function to… [the Mayor], and thirdly certain comments made in ministerial submissions referring to “the need to demonstrate that we had given [the consultation responses] proper consideration”. In the event, Swift J determined that placed in their proper context the comments did not support the inference of close-mindedness.

Perhaps the most interesting ground (and the only one on which the Commissioner succeeded) was the Gunning 2 ground- whether the Government had provided sufficient information to permit intelligent consideration. Section 113 of the 2009 Act lays out the conditions for a s.107F order to be made, specifically stating that before making such an order, the SoS must consider several things:

(a) That to do so is likely to improve the economic, social and environmental well-being of some or all of the people who live or work in the area,

(aa) That to do so is appropriate considering the need:

                   (i) To secure effective and convenient local government

                   (ii) To reflect the identities and interests of local communities

It was, the judge said, inherent in this that to make an intelligent comment on the substance of the proposals each of these points should be explained by the SoS. Without doing so, the public would not know why exactly the proposals were being made.

Although the ‘background’ section of the consultation document gave a brief general overview of what the changes would mean, and some of the context, it did not explain why the SoS believed that making the order was the right thing to do. As such, Justice Swift felt obligated to uphold the claim. As a reserve, the SoS attempted to argue that even had the information been included, it would have been highly likely that the end decision would have been the same, relying on s.31(2A) of the Senior Courts Act 1981, which allows judges to refuse relief in these circumstances. The judge however was not convinced.

The final ground is not directly consultation related, but is something we have previously discussed within the consultation context- the Tameside duty of inquiry. Having decided conclusively on the Gunning 2 ground, Swift J did not consider this in much detail, but did highlight that the definition of ‘economic wellbeing’ adopted by the Home Secretary seemed very narrow, focussing chiefly on a saving of around half a million over a nine-year period.

So what to make of the case? On the face of it, it’s a relatively straightforward success on a Gunning 2 ground, though a somewhat rare one in which the Leggatt-Carr factors were not cited once! Instead, it does perhaps serve as a reminder to pay attention to the legislative requirements of the proposed actions of public authorities. If the legislation outlines specific points of consideration to be used prior to a decision- it’s probably best to explore these in any consultation. Equally, though the PCC failed on the Gunning 1 ground, there is perhaps a more subtle warning to be aware of the context in which you discuss your decision-making in internal documents. In the event, the Home Secretary’s decision was quashed, and for now at least, the PCC will maintain separation from the office of the Mayor. 

Article by Stephen Hill

Stephen was formally the Institute’s Legal and Parliamentary Officer, though now spends most of his time playing with rockets and satellites. He retains a keen interest in issues of democracy and public engagement however and provides independent commentary on consultation current affairs and legal challenges.