One of the things we’ve seen recently is an increase in consultation and engagement in policing. We’ve been doing quite a lot of work here on that very topic and have hosted round tables and other events. This week, the Leicestershire Police and Crime Commissioner wrote in an article for Conservative Home that he has banned his staff from being in contact with BLM. Using the justification that they want to “defund the police”, have “put police officers in hospital” and have “desecrated the cenotaph”, the rather radical solution will no doubt cause controversy online about the politics.

But we have bigger concerns- does his statement increase the likelihood of any consultations he does being challenged? If he does follow through on his claim, and then perform any consultation, there is a good argument that any consultation might be rendered unlawful. One of the principles of consultation is openness, and that we do not get to pick and choose our consultees. By excluding a group, his office would certainly be infringing on that principle. In more recent cases, we’ve seen reassertions that putting up unnecessary barriers to participation, even if they don’t constitute strict bans, can also render a consultation unlawful.

Even if those BLM attached individuals or groups (it’s important to remember here that BLM are not a singular, monolithic movement) were allowed to participate in consultation and engagement exercises with the PCC’s office, his statement could raise doubts about how fairly he could treat their representations. Usually concerns about who is being consulted are raised as a separate head from the normal Gunning principles, to the extent that certain of my Institute colleagues have advocated the idea of there being in reality a “Gunning 5”, covering who is being consulted. In this case though, we might well see it being raised under Gunning 4. Could an argument be made that a decision-maker with a strong history of comments against one group may not have given ‘conscientious consideration’ of any comments they made? It’s not beyond the realms of possibility.

It perhaps provides a more recent reminder to political figures that they need to be careful with what they say. This principle was illustrated most starkly in the classic Partingdale Lane case, where a politician’s prior statements during an election campaign were used to support an argument of pre-determination. Although there is unlikely to be a challenge in this case, and any fallout is likely to be more political than legal or process related, it might be advisable for the PCC to clarify his remarks.