Transfer of policing powers to West Midlands mayor challenged at the High Court

Plans to transfer policing powers in the West Midlands to the region’s mayor are unlawful and will reduce “democratic accountability”, the High Court has been told.

Simon Foster, the Labour police and crime commissioner (PCC) for the area, is taking legal action against the Government’s move to scrap his role ahead of elections in May.

His powers over the local police force are set to be merged with those of the West Midlands mayor – a role currently held by Conservative Andy Street.

Mr Foster, who has previously branded the plans as a “hostile takeover” and “cynical power grab”, says the decision to transfer powers should be quashed due to alleged failings in a public consultation over the plans.

At a hearing on Tuesday, his lawyers argued that the Home Office’s consultation was “no more than a tick box exercise”, with ministers having a “closed mind” on the issue.

The Home Office, defending against the challenge, says its decision was taken “with an open mind following a lawful consultation and with regard to relevant information”.

Mr Street wrote to the Home Secretary in November requesting the powers transfer – an option that became available under the Levelling Up and Regeneration Act passed last year.

Later that month, Home Secretary James Cleverly decided to proceed with transferring the PCC’s powers for the May 2024 election.

But following a legal letter from Mr Foster, who was elected to his role in May 2021, officials realised an “error” in the drafting of the law meant it imposed a consultation requirement, a judge was told.

This prompted a six-week consultation between December and January, after which Mr Cleverly again decided to back the transfer, a move that must be approved by Parliament.

Sarah Hannett KC, representing Mr Foster at the hearing in London, said in written arguments that the consultation gathered 7,103 responses, with 50% disagreeing with the proposed transfer and 46% agreeing.

She said the consultation was “wholly deficient”, was “infected” by a closed mind and “fails to seek any informed views as to the impact on the residents of the West Midlands”.

The barrister said it came after “frantic attempts by the Home Office to ensure that the legislative error would not de-rail the transfer of powers for the May 2024 elections” and that after Mr Cleverly’s November decision, “his mind on the issue was closed from that date”.

“This consultation was no more than a tick-box exercise,” Ms Hannett said.

She said it “failed to provide any information as to any anticipated economic, social and environmental impacts of any transfer” and that consultees should have been informed that it appeared there was “a significant negative economic impact” on the West Midlands Combined Authority of increased election costs estimated between £1.3 and £3 million.

The lawyer said it should have been explained that it was “inevitable” that the work of the current full-time PCC would be delegated to an appointed deputy mayor for policing due to the regional mayor’s other responsibilities.

Ms Hannett said this “reduces the democratic accountability of the PCC by putting the day-to-day job in the hands of an unelected official, indirectly accountable through the Mayor”.

Alan Payne KC, for the Home Office, said in written arguments that the Government had “long had a general policy of encouraging transfers of PCC functions where the boundaries of the PCC’s area and that of the mayoralty are aligned”.

Rejecting claims that Mr Cleverly had a “closed mind”, the barrister said he was advised he needed to re-take his decision after “proper” consideration of consultation responses.

Mr Payne said resources put into the consultation showed it was “taken seriously and that a serious effort was made to analyse and consider the responses”.

The barrister said questions asked were “sufficient to enable consultees to provide an intelligent response”.

The court was told that the transfer was “not primarily a costs saving measure” and that the “potential benefits of such structural change are inevitably difficult to monetise”.

Mr Payne said “a shift in relatively limited election costs” was “a point of marginal relevance”.

In its consultation response, the Government said the transfer would “enhance accountability” and had the potential “to offer wider levers to tackle crime”.

“A mayor with a wide range of functions has a stronger foundation to better align local strategies and services, taking a holistic approach to problem solving,” it said.

Mr Street previously argued that the PCC model was “not holding West Midlands Police well enough to account to drive down crime”.

He said that crime had “more than doubled in the last eight years, and I simply cannot allow it to go on any longer”.

It came after the police inspectorate said in December that it had “serious concerns” about how West Midlands Police investigates crime, protects vulnerable people and manages offenders and suspects.

Elected PCCs set their local police force’s budget, decide what crimes it should prioritise, can fire and hire the chief constable and aim to make sure they are accountable to the communities they serve.

Every force area in England and Wales is represented by a PCC except London, Manchester and West Yorkshire, where the mayor holds the responsibility instead. PCC functions are also due to transfer to the South Yorkshire Mayor in May.

The hearing concluded on Tuesday, with Mr Justice Swift due to issue his written judgment over the case next week.