Decision by Home Secretary to abolish Police and Crime Commissioner role in West Midlands unlawful, High Court rules

A High Court judge has quashed the Home Secretary’s decision to abolish the Police and Crime Commissioner (PCC) role in the West Midlands and transfer its policing governance powers to the Mayor of West Midlands.

Police and Crime Commissioner Simon Foster, who brought the legal challenge over the Home Secretary's order, said a PCC election would now take place on 2 May, 2024.

Mr Justice Swift rejected the Commissioner's contention that the consultation in December 2023 and January 2024 had not been undertaken with an open mind.

However, the judge allowed the challenge on the PCC's second ground, namely whether sufficient information was given in the consultation document to permit appropriate consideration and response.

Mr Justice Swift said he did not consider the information provided in support of the consultation was sufficient for the purposes of the consultation envisaged and required by section 113 of the Local Democracy, Economic and Development Construction Act 2009 as amended.

The judge suggested the information provided ought to have explained why the Home Secretary considered the section 113(1) conditions to the use of the section 107F power [under which the Home Secretary made his decision] were met – "i.e., why the transfer of powers from the Commissioner to the Mayor would be likely to improve the social economic and environmental wellbeing of some or all of those living or working in the WMCA area, and why the Home Secretary considered the transfer would be appropriate for the purpose of effective and convenient local government and reflecting 'the identities and interests' of communities in the area."

The information provided fell "well short of the mark".

Mr Justice Swift concluded on the second ground: "The Home Secretary did not, when consulting, provide sufficient information to permit intelligent and informed response.

"The consultation information ought to have explained why in Home Secretary’s view the section 113(1) conditions for the transfer of the Commissioner’s powers to the Mayor were met. Some of the information provided in support of the consultation did relate to those conditions...., but that information was perfunctory."

The judge also rejected the Home Secretary’s fallback submission, relying on section 31(2A) of the Senior Courts Act 1981, that even if the consultation was conducted unlawfully, the 6 February 2024 decision should not be quashed because, in the words of section 31(2A), it was “highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”.

Given his decision on the second ground, the judge said it was not necessary for him to consider a further ground alleging a failure to comply with the Tameside obligation that decision-makers must take reasonable steps to acquaint themselves with relevant information.

Commenting on the ruling, Simon Foster said: “I am pleased that the people of the West Midlands will now have the right to vote for a democratically elected and directly accountable Police and Crime Commissioner at the election on 2 May 2024, whose one and only top priority is preventing, tackling and reducing crime.

“I brought this claim for judicial review to fulfil my manifesto pledge to the people of the West Midlands, the commitment in my Police and Crime Plan and to defend democracy, the rule of law and the rights of the people I represent.

“I was also concerned that the transfer of PCC powers to a representative of the government, would lead to more cuts, more chaos and more crime.”

He added: “The Home Secretary acknowledged that he and the Mayor had previously failed to act in accordance with the law, by failing to carry out a public consultation and apply the relevant statutory criteria.

“It defies belief that they had farcically, inexplicably and incompetently failed to read and understand their own legislation, that they themselves had specifically passed only weeks before, to remove the need for a democratic mandate in the West Midlands.

“It was only following legal action, successfully challenging and holding them to account, that they were forced into a humiliating climbdown and a belated public consultation was launched at all.”

A government spokesperson said: "We are disappointed by this outcome and intend to seek permission to appeal.

“We firmly believe the join up of public safety functions under a combined authority mayor offers a better scope for preventing crime. The success of the model is already evident in Greater Manchester, West Yorkshire and London where the mayors are already responsible for policing and crime.”

Andy Street, the Mayor of the West Midlands, said: “I am naturally very disappointed in today’s ruling as I firmly believe that a change in governance is required to help tackle the rates of crime across the West Midlands.

“With crime having doubled and West Midlands Police in special measures, I was not prepared to stand by anymore and so followed the process as set out by the Home Office to merge the PCC role with the Mayoral role at May’s elections. I have always believed that a merged role - as is the case in Manchester, London, and West Yorkshire - is best for the West Midlands.

“The Home Office must be the ones to comment on their process, my only interest is in doing what it takes to tackle crime and help people in the West Midlands feel safe again.”

Kingsley Napley’s Natalie Cohen, who acted alongside fellow partner Adam Chapman for the PCC, said: “This case underlines the importance of public bodies following statutory consultation requirements and complying with established case law principles in the way a consultation process must be carried out. Consultations when carried out properly help to improve democratic governance.

"In this instance, the judge found that the information provided to the public, enabling them to meaningfully engage with the process fell 'well short' of the mark. Coupled with this, the judge acknowledged that this consultation was ‘conducted to an expedited timetable.’ The response period was shorter than normal and included the Christmas and New Year period. In these circumstances the need for relevant information to be readily available to those wishing to respond to the consultation was particularly important.”