High Court rules against Home Secretary in inadequate consultation process case

Citation: [2024] EWHC 604 (Admin)
Judgment on


In the High Court of Justice decision regarding the Police and Crime Commissioner for the West Midlands v Secretary of State for the Home Department, Mr. Justice Swift analyzed the legality and adequacy of a consultation process which the Home Secretary undertook before making an order to transfer policing powers. The case presented several legal principles related to administrative law, particularly around decision-making and consultation processes by public authorities, and the application of statute in decision making.

Key Facts

The case involved a challenge by the Police and Crime Commissioner for the West Midlands (“the Commissioner”) against the Home Secretary’s order to transfer the Commissioner’s powers to the Mayor of West Midlands. The challenge was focused on the lawfulness of the consultation process, adherence to statutory requirements, and whether or not the Home Secretary had an “open mind” during this process. It was contended that the consultation was not conducted at a formative stage and that insufficient information was provided for an informed response, among other issues.

The following legal principles were highlighted and applied in this case:

  1. Gunning Principles: These involve four criteria which public consultations must meet to be considered lawful: (a) must happen when proposals are in a formative stage, (b) provide sufficient reason for proposals to enable intelligent consideration and response, (c) offer adequate time for response, and (d) give sincere consideration to responses. The case hinged on whether these principles were adhered to concerning the consultation process.

  2. Bias and Pre-Determination: Legal standard preventing pre-determination was discussed, questioning whether decisions could be unlawful if a decision maker approached with a closed mind or demonstrated a real possibility of a closed mind. The case examined whether the Home Secretary, having previously made a decision on the matter, retained an open mind during the consultation.

  3. Duty to Acquaint with Relevant Information: Here, the Tameside obligation was referenced, requiring decision-makers to inform themselves about matters relevant to the decisions they make. The issue was whether the Home Secretary sufficiently inquired into potential cost implications of the transfer of police powers.

  4. Section 31(2A) Senior Courts Act 1981: This legal provision allows a court not to quash a decision for illegality if it is highly likely that the outcome would not have been substantially different without the conduct complained of. This provision was engaged with regard to whether the consultation process’s shortcomings affected the decision outcome.

The case also referenced caselaw, including R v Brent London Borough Council ex parte Gunning (1985), which introduced the Gunning principles, R(Moseley) v Haringey LBC [2014] that affirmed these principles, and R(Lewis) v Redcar Cleveland BoroughCouncil [2009], which related to pre-determination and bias in administrative decisions.


The decision reached by Mr. Justice Swift was that the consultation process was inadequate according to the third Gunning principle, as there was a failure to provide sufficient information to the public to allow for an intelligent response. Consequently, the Home Secretary’s decision of 6 February 2024 was quashed.

The application of Section 31(2A) of the 1981 Act was rejected as the court could not conclude that it was “highly likely” the outcome would not have been substantially different had the consultation been lawful, given the speculative nature of what might have resulted from a sufficient consultation. Moreover, the Home Secretary’s decision did not satisfy the “highly likely” standard as required by Section 31(2A).


In conclusion, the case underlines the importance of lawful and meaningful consultation processes as a foundational element of proper and fair administrative decision-making. It serves as a reminder to public authorities of their duties under the Gunning principles and emphasizes that rushing decision-making processes at the expense of adequate consultation may lead to decisions being overturned. The case further affirms the role of the judiciary in upholding administrative legality and ensuring that the public’s ability to engage with, and influence decision-making remains protected.