Secretary of State for the Home Department v Police and Crime Commissioner for the West Midlands
[2024] EWCA Civ 367
Police and Crime Commissioner for the West Midlands, R (on the application of the) v Secretary of State for the Home Department
18 March 2024
[2024] EWHC 604 (Admin)
High Court
The Home Secretary wanted to give a mayor more power. He consulted the public, but didn't explain his reasons well enough. The court said this wasn't fair, and the power transfer was canceled.
Key Facts
- •The Police and Crime Commissioner for the West Midlands (Commissioner) challenged the Home Secretary's order transferring his powers to the Mayor of West Midlands.
- •The Home Secretary's initial decision was based on a misunderstanding of the Local Democracy, Economic and Development Construction Act 2009 (2009 Act).
- •A subsequent consultation was conducted by the Home Secretary, which the Commissioner argued was unlawful.
- •The Commissioner's challenge was based on three grounds concerning the consultation's legality and one ground concerning the Home Secretary's failure to consider relevant information.
- •The court considered the principles set out in R v Brent London Borough Council ex p Gunning (1985) and R(Lewis) v Redcar Cleveland Borough Council [2009].
Legal Principles
Gunning principles for lawful consultation: consultation at a formative stage, sufficient reasons provided, adequate time given, and responses conscientiously considered.
R v Brent London Borough Council ex p Gunning (1985)
Standard for pre-determination in administrative decision-making: a 'closed mind' or a 'real possibility' of a closed mind assessed by a 'fair-minded and informed observer'.
R(Lewis) v Redcar Cleveland Borough Council [2009]
Tameside obligation: Decision-makers must take reasonable steps to acquaint themselves with relevant information.
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977]
Section 113 of the 2009 Act requires the Home Secretary, before transferring PCC functions, to consider whether the transfer improves economic, social, and environmental well-being and is appropriate for effective local government and reflecting community interests; and to conduct a public consultation.
Local Democracy, Economic and Development Construction Act 2009, Section 113
Section 31(2A) of the Senior Courts Act 1981: A court may refuse relief if it's highly likely the outcome would not have been substantially different if the conduct complained of had not occurred.
Senior Courts Act 1981, Section 31(2A)
Outcomes
The Commissioner's claim succeeded on Ground 2 (insufficient information in the consultation document).
The consultation document failed to adequately explain why the Home Secretary believed the conditions in section 113(1) of the 2009 Act were met.
The Commissioner's claim failed on Grounds 1 and 3 (consultation not undertaken with an open mind).
The court found no clear pointers suggesting the Home Secretary had a closed mind or that there was a real possibility he did.
The Commissioner's claim failed on Ground 5 (failure to comply with Tameside obligation).
While the Home Secretary's approach to the section 113(1) conditions was arguably narrow, it did not violate the Tameside obligation.
The Home Secretary's decision of 6 February 2024 was quashed.
The unlawful consultation (Ground 2) was not remedied by section 31(2A) of the Senior Courts Act 1981.
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