Sophie Coulthard & Anor, R (on the application of) v Secretary of State for the Environment, Food and Rural Services

This appeal arises from a challenge to secondary legislation made by the Secretary of State which, amongst other things, made it a criminal offence for a person to possess or have in their custody an XL Bully type dog after 1 February 2024 (unless an exemption applies). The legislation was made under powers conferred by the Dangerous Dogs Act 1991 (“the 1991 Act”). The 1991 Act was introduced in response to a number of dog attacks, including fatal attacks.

The First Appellant is the director of the Second Appellant, which campaigns generally against the breed-specific approach to dog control adopted by Parliament in the 1991 Act, and specifically against the designation of XL Bullies under section 1 of that Act.

On 17 December 2024 Lang J (or “the Judge”) granted the Appellants’ claim for judicial review in part, on the basis that the orders had been made in breach of the public sector equality duty (“PSED”) in section 149 of the Equality Act 2010 (“the 2010 Act”).

The Judge went on, however, to hold that she was obliged to refuse relief by section 31(2A)(a) of the Senior Courts Act 1981 (“the 1981 Act”), on the basis that it appeared to be “highly likely” that the outcome for the Appellants would not have been “substantially different” if the conduct complained of had not occurred. Further, the Judge said that there were no reasons of “exceptional public interest” which would make it appropriate to depart from that general rule, an implicit reference to section 31(2B) of the 1981 Act.

On 18 February 2025 the Appellants were granted permission to appeal by Lewison LJ on part of their first proposed ground of appeal. Accordingly, the only issue in this appeal is whether the Judge ought to have applied section 31(2B) of the 1981 Act and disregarded the requirements in section 31(2A), on the basis that it was appropriate to do so for reasons of “exceptional public interest”, in circumstances where the legislation under challenge created criminal offences.

The 1991 Act aims to reduce the population of dogs of designated types who are bred for fighting, or have the characteristics of a type bred for that purpose, in the interests of public safety, because of their dangerous characteristics, and to impose strict controls on those that remain.

Section 1 of the 1991 Act applies to pit bull terriers, Japanese tosas and, under section 1(1)(c), “any dog of any type designated for the purposes of this section by an order of the Secretary of State, being a type appearing to him to be bred for fighting or to have the characteristics of a type bred for that purpose”. Section 1(2) imposes restrictions in relation to dogs covered by section 1(1), for example a ban on breeding that type of dog: section 1(2)(a).

Section 1(3) allows the Secretary of State to make orders prohibiting having possession or custody of the dogs specified in section 1(1) after a certain date, and section 1(5) empowers the Secretary of State to create schemes for exemption from such orders.

Section 1(7) provides that:

“Any person who contravenes this section is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both …”

Under section 1(8), where the Secretary of State designates a new type of dog under section 1(1)(c), a ban on possessing or having custody of such a dog takes effect from a date specified in the order made under section 1(1)(c).

Section 1(9) provides that the power to make orders under these provisions is exercisable by statutory instrument, pursuant to the negative resolution procedure in Parliament.

In these proceedings, the following statutory instruments were challenged (“the Orders”):

A submission to the Secretary of State dated 29 September 2023 attached a short PSED assessment, which, at paras 3-5, said:

“3.

In completing this assessment, we have considered correspondence received on the issue of XL bully breed types.

4.

We are not aware of any evidence that XL bully breed types are disproportionately owned by individuals with protected characteristics and so we do not consider that the proposed measures would impact unfairly on individuals with protected characteristics.

5.

A further assessment will be completed on the introduction of the compensation scheme.”

A submission sent by officials to the Secretary of State on 20 October 2023 was in the same terms.

The submission to the Secretary of State dated 26 October 2023 simply said the following, at para 36:

“Public Sector Equality Duty

36.

In completing this assessment, we have considered correspondence received on the issue of XL Bully dogs. We are not aware of any evidence that XL Bully dogs are disproportionately owned by individuals with protected characteristics and so we do not consider that the proposed measures would impact unfairly on individuals with protected characteristics.”

A much fuller PSED impact assessment was conducted in late May 2024 and this was annexed to an updated impact assessment dated August 2024. The May 2024 Assessment was produced prior to the making of an order which was not challenged in these proceedings: the Dangerous Dogs (Exemption Schemes) (England and Wales) (Amendment) Order 2024 (SI 2024 No 721), which was made on 28 May 2024 and came into force on 20 June 2024.

In order to illustrate the underlying concerns which the Appellants have about the Orders, Ms Cathryn McGahey KC drew our attention to two particular aspects of the May 2024 Assessment, which she submits recognised that there would be a negative impact on, for example, some people with disabilities and on women who are affected by domestic abuse.

In the May 2024 Assessment it was acknowledged that the requirement (in the criteria for an exemption) that the dog has to be at the same home address as a person except for any 30 days in a 12-month period could raise an issue in relation to people who need to be away from their home address for more than 30 days for medical care. The Assessment continued:

“However, it is part of the established basis under which dangerous type dogs are controlled. We consider that the negative impact on affected owners – some of whom might have protected characteristics – is proportionate in view of the policy aim to protect the public from dog attacks by XL Bully type dogs. Keeping a dangerous type of dog at a fixed, secure address is key for both public safety and enforcement purposes. Exceptions for these individuals as part of the exemption scheme would therefore not be appropriate. …”

The Assessment also acknowledged that some survivors of domestic abuse require free and confidential foster care for their dogs, enabling them to access refuge or emergency housing (as many refuges do not accept pets). The Assessment understood that women were more likely to use that scheme. The Assessment continued:

“We … consider that potential impacts can be mitigated by continuing to assist owners to take steps that will enable them to continue to meet this condition in these situations, and we will keep this under review. However, we do recognise that the condition requiring dogs to live at a specified address may make it more difficult for a person to leave their home to flee domestic violence if they own an XL Bully type dog and wish to take it with them. They do, of course, have the option of leaving without the dog, but this would risk the dog potentially being seized and euthanised. We acknowledge that the XL Bully ban adds a potential additional complication to the lives of those suffering from domestic violence, but without undermining the ban itself, the only option is to manage the issue as sensitively as possible where it arises. Ultimately any impact is justified and proportionate in light of the necessity of the condition for public safety and enforcement purposes …”

Section 31(2A) of the 1981 Act provides that:

“The High Court—

(a)

must refuse to grant relief on an application for judicial review, …

if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

Section 31(2B) provides that:

“The court may disregard the requirements in subsection (2A)(a) … if it considers that it is appropriate to do so for reasons of exceptional public interest”.

Section 31(2C) provides that:

“If the court grants relief … in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.”

It was not suggested at the hearing before us that the certification referred to has to be in any particular form. In principle, in my view, it could simply consist of a statement in the court’s judgment, although the court may also wish to mention it expressly in the order it makes. What is significant for present purposes is that Parliament thought it important to remind a court that, if it is to depart from the general rule in section 31(2A) by relying on subsection (2B), it must certify that the condition in that subsection is satisfied.

There were numerous grounds of challenge before the Judge but the only ones which are relevant to this appeal were Ground A(iv) (that the Respondent had failed to comply with the PSED in deciding to prohibit XL Bullies); and ground B(iii) (that the Orders were unlawful because the Respondent, before placing each statutory instrument before Parliament, had failed to comply with the PSED).

The Judge addressed these grounds at paras 87-115 of her judgment. She set out the principles on section 31(2A) of the 1981 Act, by reference to authority, at paras 91-94. Although the Judge did not in terms set out the provisions of section 31(2B), she was clearly familiar with them, as she referred to them in substance at para 123 of the judgment.

The Judge set out her conclusions on the PSED issue at paras 112-115. She concluded that the Respondent was in breach of the requirements of the PSED when the Orders had been made. She found that the assessments carried out in September and October 2023 were insufficient to discharge the PSED.

Nevertheless, the Judge concluded that the May 2024 Assessment did comply with the PSED. She also accepted that it was an assessment of the Orders under challenge. However, she said that “the PSED ought to have been discharged at or before the time when the Orders were made, so that the [Respondent] was made aware of potential adverse impacts before she made her final decisions”: see para 114 of her judgment. Therefore, the Judge concluded that the Respondent had been in breach of the PSED when the Orders were made: see para 115 of her judgment.

The Judge then turned to the question of relief and considered section 31(2A) of the 1981 Act at paras 116-124. She rejected the Appellants’ criticisms of the May 2024 Assessment and held that it was a lawful discharge of the PSED: see para 122 of her judgment.

At para 123, the Judge concluded as follows:

“I have carefully considered the principles set out above … and applied them to this case. I am satisfied, in the light of the comprehensive May 2024 [Assessment], that it is highly likely that the outcome for the Claimants would not have been substantially different if the conduct complained of had not occurred. Therefore, section 31(2A)(a) [of the 1981 Act] applies, and I must refuse the grant of relief on this ground. There are no reasons of exceptional public interest which make it appropriate to depart from the general rule.”

The Order made by the Judge on 17 December 2024 included the following, at para 1:

“The claim for judicial review is allowed in respect of Grounds A(iv) and B(iii) (breach of the public sector equality duty under section 149 of the Equality Act 2010). Section 31(2A)(a) of the Senior Courts Act 1981 applies and accordingly relief is refused.”

The Judge refused permission to appeal to this Court and, in her reasons for doing so, said:

“I do not consider that the Claimants have a real prospect of success on appeal, for the reasons I have set out in my judgment. Nor is there some other compelling reason why the appeal should be heard. I refer to the points made in the Defendant’s Submissions lodged in response to the Claimants’ Grounds of Appeal (both of which are attached hereto).”

At the request of this Court, after the hearing before us, we received an agreed note from the parties on some aspects of the procedural history of this case.

The note makes clear that the Appellants’ skeleton argument for the High Court did not address either section 31(2A) or section 31(2B) of the 1981 Act. The Appellants developed their arguments orally and referred to section 31(2B) for the first time, at the hearing, and in reply.

The Appellants developed their submissions in considerable detail in their application for permission to appeal, which was submitted on 12 December 2024. In substance the Appellants advanced the arguments which have been advanced before this Court on this appeal. The Respondent filed a brief written response, dated 13 December 2024.

It is clear from the Judge’s reasons for refusing permission to appeal that she accepted what the Respondent said in his written response. In particular, the following was set out at paras 5-6 of the Respondent’s submissions:

“5.

… At the hearing the Claimants argued orally that there was no authority that a ‘cure’ can be found for defects when the defective decision is in the form of a statutory instrument. In response, the Defendant produced an authority where s.31(2A) has been found to apply to a statutory instrument: R (Christchurch BC) v SSHCLG [2019] PTSR 598 §68). There is no substance at all in the argument that s.31(2A) is somehow limited in relation to ‘offence-creating regulations’ whether on grounds of exceptional public interest or otherwise. Nor did the Claimants rely upon any evidence of prosecutions relevant to the PSED point that could conceivably have supported a case of exceptional public interest.

6.

The residual discretion under s.31(2A) was for the Judge to consider, which she did at J123. There is no error. The submissions are that the Orders were ‘unlawful until the May 2024 [Assessment] was drafted, that any criminal prosecutions between February to May 2024 or even the risk of them is ‘unjust’, and that the Orders have been ‘retroactively cured’ by the application of s.31(2A). Those submissions fundamentally misunderstand the Court’s function in judicial review proceedings, and the operation of s.31(2A). The lawfulness of any secondary legislation is presumed; the outcome of the judicial review claim is that the Orders have been upheld as lawful; the Judge has not given any law ‘retroactive’ effect. There is no authority, or justification, for the proposition that statutory instruments that create potential criminal sanctions are to be treated differently.”

Ground 1 in the application for permission to appeal application was formulated as follows: “The learned judge erred in refusing relief having allowed the claim for judicial review in respect of breaches of the public sector equality duty under section 149 of the Equality Act 2010”.

However, the grant of permission to appeal by Lewison LJ was limited to “the point raised in para 11(i) of the [Appellants’ permission to appeal skeleton argument] and its amplification”.

Para 11(i) of the Appellants’ permission to appeal skeleton argument stated:

“The Orders created criminal offences, and if those Orders were unlawful from the time that they came into force until 28 May 2024 (as they must have been), then there were reasons of exceptional public interest to grant relief”.

There are two main limbs to the argument made by Ms McGahey for the Appellants. The first is that there is an exceptional public interest in disregarding section 31(2A) of the 1981 Act where the regulation or order in question creates a criminal offence. The second is that there is an exceptional public interest in doing so where the unlawfulness affects the rights of those with protected characteristics.

In terms of the exceptional public interest where the regulation or order creates a criminal offence, the Appellants’ key arguments are as follows:

In terms of the exceptional public interest in disregarding section 31(2A) where the unlawfulness affects the rights of those with protected characteristics, the Appellants’ key arguments are as follows:

On behalf of the Respondent Sir James Eadie KC advances the following submissions on the applicable principles:

Applying these principles to the facts, the Respondent’s key submissions are as follows:

Section 31(2B) of the 1981 Act does not seem to have been the subject of any authoritative decision of this Court, although it was considered and applied in R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214; [2020] PTSR 1446, at para 277 (in a judgment of the Court, comprising Sir Keith Lindblom SPT and Singh and Haddon-Cave LJJ).

In contrast, section 31(2A) of the 1981 Act has been considered by this Court in a relatively large number of cases and the principles are now well-established. They were recently set out by me in R (Hippolyte) v Secretary of State for the Home Department [2025] EWCA Civ 1493, at paras 69-74, where the key authorities are summarised, in particular Plan B Earth, at paras 267-273; R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 WLR 58, at paras 70-75 (Lewis LJ); and R (Greenfields) (IOW) Ltd v Isle of Wight Council [2025] EWCA Civ 488; [2025] 2 P & CR 16, at paras 72-74 (Lewis LJ) and paras 102-106 (Singh LJ). As I said in Hippolyte, at para 77:

“I accept, of course, that courts have a duty to apply section 31(2A), since that is the will of Parliament. Nevertheless, the important guidance which this Court has given in a number of case, including Plan B Earth, Bradbury and Greenfields, should enable first instance courts and tribunals to apply that provision without undue difficulties.”

I see no inconsistency between the guidance which has been given in that line of authority and what was said by Coulson LJ in R (Gathercole) v Suffolk County Council [2020] EWCA Civ 1179; [2021] PTSR 359, at para 38:

“It is important that a court faced with an application for judicial review does not shirk the obligation imposed by section 31(2A). The provision is designed to ensure that, even if there has been some flaw in the decision-making process which might render the decision unlawful, where the other circumstances mean that quashing the decision would be a waste of time and public money (because, even when adjustment was made for the error, it is highly likely that the same decision would be reached), the decision must not be quashed and the application should instead be rejected. The provision is designed to ensure that the judicial review process remains flexible and realistic.”

It will be apparent from all of these authorities that the exercise which is required by section 31(2A) is a highly fact-sensitive one. There will be cases in which it is appropriate to apply that provision and others where it is not.

Our attention was drawn to R (Goring-on-Thames Parish Council) v South Oxfordshire District Council (Practice Note) [2018] EWCA Civ 860; [2018] 1 WLR 5161, at para 47 where this Court (Sir Terence Etherton MR, McCombe and Lindblom LJJ) in giving a judgment of the Court, said:

“The duty [in section 31(2A)] has regularly been applied to substantive decision-making across the whole spectrum of administrative action, including in the sphere of planning, both at first instance and in decisions of this Court …”

This passage was cited by the Respondent to support the submission that there was no suggestion there that “the whole spectrum of administrative action” excludes secondary legislation creating criminal offences. Nevertheless, we bear in mind that that passage was expressly said to be obiter and this Court had not heard full argument on the point. Furthermore, we bear in mind that the particular issue which has arisen on the present appeal, which concerns secondary legislation which creates criminal offences, was not the subject either of Goring-on-Thames or any other decision which we have been shown.

In this context I should also mention that Sir James Eadie KC placed reliance on what was said by Lewis LJ in Bradbury, at para 70:

“The outcome for the claimant, is, usually, the decision or other measure that the public authority has taken.”

Sir James submits that the “other measure” can plainly include secondary legislation as in the present case. Again, it seems to me that only limited reliance can be placed on this passage, as the issue which arises on the present appeal was not one that was specifically addressed in Bradbury.

I accept Sir James Eadie’s submission that there is authority, albeit not binding on this Court, for the proposition that section 31(2A) of the 1981 Act can be applicable even in the context of secondary legislation: see Christchurch, at paras 67-68 (Sir Ross Cranston). As the Judge said there, there is no reason why the “no difference” principle cannot apply where regulations are ultra vires an enabling Act and the power to act does not exist.

I also accept Sir James Eadie’s submission that there is nothing in the wording of section 31(2A) or (2B) which restricts their scope and in some way excludes secondary legislation which creates criminal offences.

Ms McGahey placed reliance on the judgment of Helen Mountfield QC, sitting as a Deputy High Court Judge, in R (Abid) v Secretary of State for the Home Department [2017] EWHC 1962 (Admin), in particular at paras 88-90. That case concerned a period of unlawful detention in the immigration context. Although that case did not concern section 31(2A) or (2B), because it was not a substantive claim for judicial review, it did concern the equivalent provisions at the stage where the High Court is considering an application for permission to bring a claim for judicial review: see sections 31(3D) and (3E) of the 1981 Act.

In that case, although the Deputy Judge concluded that the criteria for refusing to grant permission had been made out, and that it was “overwhelmingly likely” that the Secretary of State would have detained the claimant in any event, she considered that there was “a great public interest in the state detaining people indefinitely for the purposes of effecting removal from the jurisdiction only where the conditions for doing so are clearly made out.” She continued:

“It is wrong for casual and careless risk assessments to form the basis for detention.”

Having regard to other factors in that case, in particular the lengthy delay for simple steps such as transmission of documents to take place because of technology failures, the Deputy Judge concluded that “there is an exceptional public interest in the court saying so and disapplying section 31(3D) …” Accordingly, the Deputy Judge exercised her discretion to grant permission to apply for judicial review and to make an appropriate declaration that the defendant had erred in law but refused substantive relief on the basis that it was almost certain that in the circumstances the claimant would have been detained in any event.

In my judgment, that decision does not assist this Court in the present appeal. First, it is a permission decision. Secondly, it is a decision of the High Court and not of this Court. Thirdly, it is a decision on its own facts in the exercise of the High Court’s discretion. Fourthly, and most importantly, although it does concern detention (in the immigration context), it does not raise the kind of issue which has been raised on this appeal, which needs to be addressed on its own merits.

Ms McGahey also placed reliance on the judgment of Lang J in R (Reilly) v Secretary of State for Work and Pensions (No 2) [2014] EWHC 2182 (Admin); [2015] QB 573. That case concerned claimants who were unemployed and in receipt of Job Seeker’s Allowance (“JSA”) who were required to participate in unpaid work schemes, introduced by regulations made in 2011, under which the JSA could be withheld from those who refused to participate, as a sanction. The particular issue concerned retrospective provisions. The decision in that case turned on the application of Article 6 of the European Convention on Human Rights. It should be noted that the present case does not concern the Convention or the Human Rights Act 1998, which gives effect to it in domestic law.

Nevertheless, the reason why Ms McGahey cites that judgment is because of what Lang J said at para 82:

“Although these principles emanate from decisions of the ECtHR, in my view they also accurately reflect fundamental principles of the UK’s unwritten constitution. The constitutional principle of the rule of law was expressly recognised in section 1 of the Constitutional Reform Act 2005. It requires, inter alia, that Parliament and the executive recognise and respect the separation of powers and abide by the principle of legality. Although the Crown in Parliament is the sovereign legislative power, the courts have the constitutional role of determining and enforcing legality. Thus, Parliament’s undoubted power to legislate to overrule the effect of court judgments generally ought not to take the form of retrospective legislation designed to favour the executive in ongoing litigation in the courts brought against it by one of its citizens, unless there are compelling reasons to do so. Otherwise it is likely to offend a citizen’s sense of fair play.”

I do not find that passage to be of assistance in determining the issue which arises in the present appeal. The present case does not concern legislation “to overrule the effect of court judgments” in the form of retrospective legislation designed to favour the executive in ongoing litigation in the courts brought against it.

Ms McGahey placed particular reliance on the decision of this Court in R (C) (A Minor)) v Secretary of State for Justice [2008] EWCA Civ 882; [2009] QB 657. That case concerned secure training centres established for the purpose of detaining young persons between the ages of 12 and 17 who had been sentenced to or remanded in custody. The Secretary of State laid before Parliament rules which provided that a trainee could be physically restrained for the purpose of ensuring good order and discipline. The rules took effect by virtue of the negative resolution procedure. The claimant sought judicial review of the rules: the grounds of challenge included a complaint that the Secretary of State had failed to carry out a race equality impact assessment (“REIA”), as required by section 71 of the Race Relations Act 1976, as amended in 2000, (a precursor to the PSED in section 149 of the 2010 Act). The Divisional Court concluded that there had been a breach of that provision but, in the exercise of its discretion, declined to quash the rules.

On appeal, this Court decided that the Divisional Court should have quashed the rules. In particular, although an REIA had subsequently been carried out, the failure to produce that assessment before laying the rules before Parliament had been a defect of very great substantial importance which should be marked by an appropriate order. Accordingly, the rule of law and the proper administration of race relations law required the rules to be quashed.

It is helpful first to consider the concurring judgment of Keene LJ, who agreed with the main judgment given by Buxton LJ (with which Tuckey LJ agreed). At para 85, Keene LJ said:

“… I firmly endorse the views expressed by Buxton LJ at para 41 about the appropriate course to be taken by a court when delegated legislation is found to be ultra vires. Such a finding should normally lead to the delegated legislation being quashed, and only in unusual circumstances would one expect to find a court exercising its discretion in such a way as to allow such legislation to remain in force. Such legislation normally changes the law for the public generally or for a class of persons. It should not generally be allowed to stand if it has not come into being in accordance with the law, and certainly not merely because certain checks which should have been carried out beforehand are to be made subsequently. Such a course may well prejudge the outcome of those checks, and yet the public is expected to conduct its life in accordance with such delegated legislation in the meantime. That cannot normally be appropriate.”

At paras 40-41, with which Keene LJ was there agreeing, Buxton LJ said:

“40.

At its para 48 the Divisional Court cited, and apparently were much influenced by, some observations of Webster J in R v Secretary of State for Social Services, Ex p Association of Metropolitan Authorities [1986] 1 WLR 1, 15. This passage was strongly relied on by the Secretary of State before us. It reads:

‘it is not necessarily to be regarded as the normal practice, where delegated legislation is held to be ultra vires, to revoke the instrument, but… the inclination would be the other way, in the absence of special circumstances making it desirable to revoke that instrument… in principle I treat the matter as one of pure discretion…’

41.

It has proved difficult to find other authority on the specific point. Webster J’s dictum does not seem to be discussed, much less adopted, in any of the standard works on administrative law, and for my part I would not wish to endorse it. As with any administrative decision, the court has discretion to withhold relief if there are pressing reasons for not disturbing the status quo. It is, however, wrong to think that delegated legislation has some specially protected position in that respect. If anything, the imperative that public life should be conducted lawfully suggests that it is more important to correct unlawful legislation, that until quashed is universally binding and used by the public as a guide to conduct, than it is to correct a single decision, that affects only a limited range of people.”

At paras 45-46, Buxton LJ said the following:

“45.

The objection of principle is that the Divisional Court’s approach confuses two different constitutional functions. The legal obligation to take certain steps before laying legislation before Parliament is that of the executive. It is not Parliament’s role to control that obligation: that is the function of the courts. Rather, the function of Parliament is simply to approve or disapprove the Amendment Rules as laid. Its failure to disapprove the Amendment Rules cannot supply the executive’s failure to perform the legal obligations that it bears before laying the Amendment Rules in the first place.

46.

The importance of these distinctions has recently been reiterated in this court in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] QB 365. At para 104 of his judgment Waller LJ reminded us of the observation of Taylor LJ in R v Secretary of State for Health, Ex p United States Tobacco International Inc [1992] QB 353, 372:

‘Although the Regulations were subject to annulment by negative resolution of the House of Commons but were not so annulled, Parliament would be concerned only with the objects of the Regulations and would be unaware of any procedural impropriety. It is therefore to courts, by way of judicial review, that recourse must be had to seek a remedy.’

…”

At para 48, Buxton LJ observed that, even by the time of the hearing and judgment of the Divisional Court, the Secretary of State had not remedied the defect of omission of an REIA. This was somewhat belatedly realised after the Divisional Court had given judgment, and the Court extracted from the Secretary of State an undertaking, not previously offered to the Court, to conduct an REIA. As Buxton LJ observed:

“The omission of an REIA was … a serious matter.”

At para 49 Buxton LJ said this:

“Leading judges have stressed the importance of REIAs as an instrument in guarding against race discrimination. They include Arden LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213, para 274 and Sedley LJ in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139. In the latter case Sedley LJ said, at para 3, that the decision in that case not to interfere with the trial judge’s decision not to quash the alteration of the Immigration Rules that had taken place without an REIA does not in any way diminish the importance of compliance with section 71, not as a rearguard action following a concluded decision but as an essential preliminary to any such decision. Inattention to it is both unlawful and bad government. I respectfully agree. In the present case, absence of an REIA was the result not of inattention but of a mistake made by the Secretary of State. It was however a mistake that the Divisional Court found very surprising: see para 38 above. In my view it sent out quite the wrong message to public bodies with responsibilities under section 71 to allow that deficit to be cured by a review only undertaken eight months after the Amendment Rules had been laid, and in the face of an adverse court decision; and only completed a year after the Amendment Rules were laid, and four days before the hearing in this court. That process has also produced the result that the REIA needed to come to a particular conclusion in order to preserve Regulations that the court has found to have been introduced unlawfully. I do not of course in any way doubt the good faith of the grade seven civil servant who has produced an REIA that demonstrates that PCC is not applied in a discriminatory fashion. But as a matter of principle it cannot be right that a survey that should have been produced to inform the mind of government before it took the decision to introduce the Amendment Rules was only produced in order to attempt to validate the decision that had already been taken.”

Finally, it is important to note para 54, where Buxton LJ said:

“In considering that issue I am strongly influenced by the failure to produce an REIA. Although here characterised as a procedural defect, it is a defect in following a procedure that is of very great substantial, and not merely technical, importance, as the observations of Arden and Sedley LJJ make clear. It continues to be of the first importance to mark that failure by an appropriate order. That an REIA has now been produced, more than a year after it should have been, is by no means conclusive on this issue of principle, granted the unsatisfactory conditions under which that work was undertaken. Miss Lieven pointed out that despite this court’s strictures in the BAPIO case [2007] EWCA Civ 1139 it did not interfere with the refusal of the trial judge to quash the Regulations. But that was a case where the mistake had been realised and corrected before the matter came to court, and was the subject of proper apology. Neither of those things is true in this case.”

It must be observed, first, that the case of C (A Minor) pre-dates the enactment of section 31(2A) and (2B) of the 1981 Act, which were introduced by section 84 of the Criminal Justice and Courts Act 2015 in respect of claims for judicial review filed on or after 13 April 2015. Secondly, that case was not concerned with even the previous analogous principle, set out in Simplex GE (Holdings) Ltd v Secretary of State for the Environment [2017] PTSR 1041, at 1060 (1988), where this Court said that there is a discretion to refuse relief where the outcome would “inevitably” have been the same even if the public law error identified had not occurred. Accordingly, what C (A Minor) was concerned with was the more general exercise of discretion, which undoubtedly exists in judicial review proceedings, since judicial review remedies are always discretionary. Nevertheless that discretion must be exercised in accordance with principle and, as Buxton LJ observed, in particular to uphold the rule of law.

Most significantly, on the facts of C (A Minor) it is clear that there had not been an adequate REIA conducted by the Secretary of State even by the time of the hearing before the Divisional Court. That is a material point of distinction from the present case. Here, the May 2024 Assessment complied with the PSED and the Judge concluded that, had it been done in September/October 2023, the Orders would still have been made as they were.

My understanding of this Court’s decision in C (A Minor) is reinforced by what this Court subsequently said about that decision in R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441; [2016] 1 WLR 3923, at paras 86-87 (Laws and Treacy LJJ, with whom Lord Dyson MR agreed):

“86.

… We have to consider the effect of the failure to consider section 149 at the right time in the light of our conclusion that the eventual equality statement satisfies the statutory requirements. A reading of Buxton LJ’s comments at para 49 of C’s case … might appear to favour the quashing of the decision solely by reason of the fact that the equality statement was not prepared as part of the decision, and post-dated it. However, reference to para 54 of C’s case shows that late preparation of the assessment is not necessarily conclusive on the question of whether quashing the decision should automatically follow. There seems to us to be some degree of tension between paras 49 and 54, and there have been situations in which this court has not quashed a decision, notwithstanding a failure to address equality impacts at the correct point in time.

87.

Nothing we say should be thought to diminish the importance of proper and timely compliance with the PSED. But we have strong reservations about the proposition that the court should necessarily exercise its discretion to quash a decision as a form of disciplinary measure. During the course of argument, Mr Forsdick accepted that if an assessment, subsequently carried out, satisfied the court, there would be no point in quashing the decision if the effect of doing that and requiring a fresh consideration would not have led to a different decision. We think this was a correct concession. The court’s approach should not ordinarily be that of a disciplinarian, punishing for the sake of it, in these circumstances. The focus should be on the adequacy and good faith of the later assessment, although the court is entitled to look at the overall circumstances in which that assessment was carried out. In C’s case a particularly dilatory state of affairs was identified which was of importance to the exercise of the court’s discretion as to remedy. The decision in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2008] ACD 20 appears to represent the other end of the spectrum. The present case falls somewhere between the two on that spectrum. We do not think that C’s case necessarily demonstrates that an order quashing the decision must follow.”

I would observe that West Berkshire also pre-dates the coming into force of the amendments to section 31 of the 1981 Act made by Parliament in 2015. Nevertheless, what that case illustrates is that, even under the pre-existing law, the decision in C (A Minor) was not to be regarded as requiring the quashing of a decision solely by reason of the fact that the equality statement was not prepared as part of the decision but post-dated it.

Ms McGahey sought to persuade us that the decision in West Berkshire can be distinguished because it did not concern legislation but rather the National Planning Practice Guidance issued by the Secretary of State in respect of planning matters. I do not consider that that is a sufficient point of distinction as a matter of principle. The significant point is that the provisions which the Judge (and now this Court) have to apply are those enacted by Parliament by way of amendment in 2015. We are not concerned simply with the exercise of the normal discretion to grant remedies in judicial review proceedings.

The issue in the present appeal is a narrow one and concerns only section 31(2B) of the 1981 Act. It needs to be emphasised that the issue does not concern either the underlying merits of the claim for judicial review (since the Judge found that there had been a breach of the PSED initially but that this was cured by a subsequent Equality Impact Assessment in late May 2024) or with the question whether it is highly likely that the outcome would not be substantially different for the Appellants if the legal error had not occurred (that issue arose under section 31(2A) of the 1981 Act and permission to appeal has not been granted on that issue).

The exercise which a court must perform in considering section 31(2B) is a two-stage one. First, the court must make an evaluative assessment of whether there are reasons of exceptional public interest which would justify not applying the duty which otherwise arises under section 31(2A). If the answer is Yes, then the court has a discretion (“may”) to grant relief to the applicant even though otherwise the duty in section 31(2A) would apply.

It appears to be common ground before us that the role of this Court on an appeal is its conventional one when considering appeals from such decisions. The Court does not simply rehear the case or take the decision for itself. The question for this Court is whether the decision of the first-instance court was “wrong”: see CPR 52.21(3)(a). In relation to stage 2 of the exercise, the role of this Court is again the conventional one when reviewing the exercise of a discretion by a lower court: did the court err as a matter of principle in its approach, for example by misdirecting itself in law or failing to take a relevant consideration into account; and, even if it did not err in principle, did it reach a conclusion which was not reasonably open to it?

The issue in the present appeal concerns stage 1 of that exercise: are there reasons of exceptional public interest in this case? I can see force in the argument that, if this Court considers that there are reasons of exceptional public interest (which is a high threshold), then it should conclude that the decision of a first-instance court or tribunal is “wrong”.

I do not, however, accept Ms McGahey’s submission to the effect that there are categories of case where there will inherently be reasons of exceptional public interest justifying departure from the normal duty in section 31(2A). In particular, she emphasises that this case concerns secondary legislation creating criminal offences and affecting the liberty of the subject. Important though those factors are, I do not accept that there are any categories of case where there is inherently an exceptional public interest within the meaning of section 31(2B). I would deprecate any attempt to add a gloss to the ordinary language which Parliament has used. The words “exceptional public interest” mean what they say, no more and no less. Courts are well used to applying such formulae and the exercise will inevitably be a highly fact-specific one.

The important starting point in addressing that question in the present case is that the answer to the section 31(2A) question has already been given, namely that it is highly likely that the outcome would not have been substantially different for the Appellants if the legal error (here the breach of the PSED) had not occurred. There were times when the submissions by Ms McGahey appeared to stray back into that question but that is not one which is before this Court on this appeal. She suggested, for example, that one cannot predict what attitude Parliament might have taken had it known that there had been a breach of the PSED on the part of the Secretary of State before making the Orders. She submits that Parliament had an important role to play in the process of making this secondary legislation because of the negative resolution procedure. She also emphasises that section 31(2A) refers to “the applicant” and not other people who are not before the Court. She submits that this was a piece of public interest litigation and there were therefore (it can safely be assumed) other individuals who were adversely affected by the Orders at a time when the PSED had not been complied with properly. In particular her complaint relates to the period between 1 February 2024 and 28 May 2024.

The first difficulty with this line of argument is that the Judge’s reasoning when applying section 31(2A) was not confined to the circumstances of these particular Appellants. Her reasoning was more general and would be relevant to any person falling within the scope of the relevant legislation. Furthermore, the second Appellant is an organisation which brought this litigation in a representative capacity to represent the interests of a wide cohort of people. I also bear in mind that the Appellants had the opportunity to file any evidence which they thought appropriate, for example relating to the circumstances of other people who were not themselves claimants before the Administrative Court. That is frequently done in “public interest litigation”.

Accordingly, the reality is that, although there was a breach of the PSED before the Orders were made and this was not cured until late May 2024, the Judge has concluded that, if the PSED had been properly conducted before the Orders were made, those Orders would still have been made in the form that they were.

The second difficulty with the Appellants’ argument is that it assumes what has to be proved: that the Orders were “unlawful” between February and May 2024 because of the (initial) breach of the PSED. But this is contrary to the principle that the decisions of public authorities, and in particular legislation, are not invalid unless and until set aside by a court of competent jurisdiction. The Judge held that the Secretary of State had breached the PSED before the Orders were made but she did not hold the Orders were therefore “unlawful”. In fact she held the opposite, since she refused to quash the Orders. The consequence in law is that the Orders are valid and were valid in the period between February and May 2024.

The judgment of Lord Reed PSC in R (Majera) v Secretary of State for the Home Department [2021] UKSC 46; [2022] AC 461 re-affirms certain fundamental principles of public law in this context. At para 28, Lord Reed quoted the well-known passage in the opinion of Lord Radcliffe in Smith v East Elloe Rural District Council [1956] AC 736, at 769-770:

“An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.” (Emphasis added)

As Lord Reed said, at para 29:

“Accordingly, if an unlawful administrative act or decision is not challenged before a court of competent jurisdiction, or if permission to bring an application for judicial review is refused, the act or decision will remain in effect. Equally, even if an unlawful act or decision is challenged before a court of competent jurisdiction, the court may decline to grant relief in the exercise of its discretion, or for a reason unrelated to the validity of the act or decision, such as a lack of standing (as in Durayappah v Fernando [1967] 2 AC 337) or an ouster clause (as in Smith v East Elloe). In that event, the act or decision will again remain in effect. An unlawful act or decision cannot therefore be described as void independently of, or prior to, the court’s intervention.”

At paras 34-35, Lord Reed quoted from the decision of the House of Lords in Hoffmann-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 and said the following:

“34.

… The case of Hoffmann-La Roche … concerned an application by the Crown for an interim injunction to enforce the application of a statutory order pending the determination of proceedings in which the validity of the order was challenged. The sole issue arising was whether the Crown should be required to give a cross-undertaking in damages. It was held that it should not. Lord Reid observed at p 341 that ‘an order made under statutory authority is as much the law of the land as an Act of Parliament unless and until it has been found to be ultra vires’. He went on to state that ‘the order which the appellants seek to annul is the law at present and if an interim injunction is refused that means that the law is not to be enforced and the appellants are to be at liberty to disregard it’ (p 342). Similar observations were made by the other members of the majority.

35.

Lord Diplock … commented at p 366 that ‘it leads to confusion to use such terms as “voidable”, “voidable ab initio”, “void” or “a nullity” as descriptive of the legal status of subordinate legislation alleged to be ultra vires for patent or for latent defects, before its validity has been pronounced on by a court of competent jurisdiction’. These were, he said, ‘concepts developed in the private law of contract which are ill-adapted to the field of public law’. All that could usefully be said, in his view, was ‘that the presumption that subordinate legislation is intra vires prevails in the absence of rebuttal, and that it cannot be rebutted except by a party to legal proceedings in a court of competent jurisdiction who has locus standi to challenge the validity of the subordinate legislation in question’. ”

At paras 37-41, Lord Reed considered the decision in the House of Lords in Boddington. At page 155, Lord Irvine of Lairg LC said that, where subordinate legislation is impugned as unlawful, the legislation is presumed to be good until pronounced to be unlawful “but is then recognised as never having had any legal effect at all”. Lord Reed cast doubt on that dictum for several reasons, including, most importantly, that a majority of the appellate committee had dissociated themselves from that statement of the law.

In the present case it is unnecessary to delve at length into these constitutional issues. The fundamental point is that no-one has successfully persuaded a court of competent jurisdiction to set aside the Orders.

The third difficulty with the Appellants’ argument is that the consequence of the relief they seek (either a quashing order or a declaration that the Orders are invalid, which in substance amounts to the same thing because the Secretary of State will comply with a binding declaration of the Court in accordance with constitutional convention) would be to quash the Orders not only in respect of the period between 1 February and late May 2024 but throughout the period that the Orders have been in place. This would be, in Sir James Eadie’s phrase, to “over-remedy”. In my view, it would give a “windfall” to people, for example a person convicted in 2025 at a time when, on any view, the Orders comply with the PSED.

In the circumstances of the present appeal I am satisfied that the Judge was not “wrong” in refusing to apply section 31(2B) of the 1981 Act. To the contrary, I agree with the Judge that there are no reasons of exceptional public interest to warrant a departure from the duty to refuse relief which would otherwise arise.

I should add that throughout these proceedings Ms McGahey has sought to set aside the Orders in their entirety. This is not a case where, for example, the Appellants would have been content to accept some limited form of declaration, which would mark the fact that there had been a breach of the PSED but not quash the Orders themselves. This is apparent from the terms of the relief sought in the Claim Form and in the skeleton argument before the High Court. It is also apparent from the submissions made to this Court when Ms McGahey opened the appeal.

Sometimes the courts have been prepared to make a declaration in such limited terms, to mark the breach of the PSED but not to set aside the resulting decision or measure: see e.g. the decision of the Divisional Court in R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin); [2012] HRLR 13. Sometimes even that is not necessary since the judgment of the court may by itself suffice to indicate to the public that there has been a breach of the PSED. In the present case the Judge, no doubt with the agreement of the parties, made an Order which recorded the fact that there had been a breach of the PSED but went on to deny any relief to the Appellants.

Towards the very end of her submissions before us, in her reply, Ms McGahey tentatively suggested that, if this Court were otherwise minded to dismiss the appeal, it should consider granting a limited declaration to that effect. In my view, it is far too late to make that suggestion but, in any event, it would not achieve the primary purpose of the Appellants in bringing these proceedings. What they wish to achieve is the setting aside of the Orders. In my judgment, that would be, as Sir James Eadie put it on behalf of the Respondent, to “over-remedy” in response to the relatively limited breach of the PSED which was found by the Judge.

For the reasons I have given I would dismiss this appeal.

I agree.

I also agree.