Hawke, R (On the Application Of) v Secretary of State for Justice

In this case there are two claimants, a convicted prisoner, who is the second claimant; and his wife, who is the first claimant. I will call them respectively "the prisoner" and "his/the wife". The wife is seriously disabled and cannot realistically and at proportionate cost visit the prisoner where he is currently detained. The claimants contend that the Secretary of State for Justice has acted, and is continuing to act, unlawfully by not detaining the prisoner in a prison closer to her home.

Both claimants are in their 50s. They have been married for many years and have two adult children. The claimants' home is at Bude in Cornwall. While awaiting trial, the prisoner has held on remand in HMP Exeter, which is the nearest local prison to Bude.

In October 2013 the prisoner was convicted after a trial of very grave sexual offending. This consisted of three rapes upon each of two women, ie a total of six rapes. One woman was the partner of the prisoner's son; the other was that woman's mother. Additionally, the prisoner was convicted of four sexual assaults upon another partner of the prisoner's son, and one sexual assault upon a fourth woman. The first rape was in 1995. I am unclear as to the date of the last offence, but it was not earlier than 2009. So the offending spanned at least 13 or 14 years. The prisoner was sentenced to an aggregate determinate term of 17 years' imprisonment. His earliest release date is in March 2022, over another six years. He is thus a long term prisoner.

The Prison Service categorise prisoners from A to D to reflect the likelihood of the prisoner escaping or absconding, and the risk of harm to the public if he were to escape or abscond. After his conviction, the prisoner in this case was categorised as B; namely, a "prisoner for whom the very highest conditions of security are not necessary, but for whom escape must be made very difficult". There is no challenge in these proceedings to that categorisation of this prisoner.

The Prison Service subdivide category B prisons into local, or essentially short term, and training, or essentially long term, prisons. The starting point is, therefore, that this prisoner requires to be detained, unless and until he is recategorised as category C (which may never happen), in a category B training, or long term, prison. The nearest such prison to Bude is HMP Isle of Wight, to which he was transferred in April 2014. HMP Exeter and Bristol are both category B prisons and nearer to Bude, but they are local, or short term, prisons. There are category C training prisons in Devon at Dartmoor and Channings Wood, but this prisoner, being category B, cannot be detained there. (For completeness, I mention that there is a category B training prison at HMP Parc in south Wales, but the mileage distance from Bude is no shorter and it is not suggested that the prisoner should or might be transferred there.) The aim of this claim is to promote that the prisoner is transferred to HMP Exeter.

The wife has suffered for several years from the debilitating affliction of fibromyalgia. She describes this as a long term illness, which causes severe and continuous pain all over the body, as well as swelling of the joints and stiffness of the joints and muscles. She says (without challenge by the Secretary of State) that it is a very painful and debilitating illness, and that the pain is particularly severe when she stays in the same position for long periods of time, as, for instance, when travelling in a car.

The wife's statements are painful to read when she describes the small number of visits that she has made to the Isle of Wight. They required many stops and breaks and took a very long time (about 15 hours’ round trip, plus the length of the visit itself). They reduced her to agony and had the effect that during the visits themselves she was in great pain, swelling and stiffness. I wish to make very clear indeed that I am profoundly sympathetic to the wife in her affliction and her plight, and in its effect upon her ability to visit her husband so far away as the Isle of Wight. She says, and it is not challenged, that she, in discussion with her husband, has decided that she simply cannot visit the Isle of Wight again.

The Secretary of State for Justice does not challenge any of that evidence of the wife. He accepts, or concedes, that for the purposes of all relevant disability and equality legislation, the wife suffers from a disability. He accepts, or concedes, that the degree of difficulty and pain involved in making the journeys puts her at a substantial disadvantage for the purposes of that legislation. Whilst not formally accepting it, Ms Hannah Slarks, who appears on behalf of the Secretary of State, does not argue against the proposition (which I hold) that due to her condition, this particular wife cannot realistically, and at proportionate cost, visit the Isle of Wight. Theoretically, she might be able to be transported swiftly and without undue pain in a helicopter, but the cost would be unrealistic.

So the claimants have asked that the Secretary of State for Justice transfers the prisoner long term to HMP Exeter, at least until (if ever) he is recategorised as C, in which case he might alternatively be detained at HMP Dartmoor or Channings Wood, each of which are training, or long term, prisons and are reasonably accessible to the wife. The Secretary of State for Justice has decided that he is not prepared to transfer him, since he is a long term prisoner and Exeter is only a local, or short term, prison.

Mr Adam Straw, who appears on behalf of the claimants, argues that that decision is irrational and in breach of public law duties, and/or in breach of equality duties upon the Secretary of State, and/or involves adherence to a policy (namely the rigid classification of local and training prisons) which is unlawful as it does not contain appropriate adjustments for disability. Further, Mr Straw submits that the Secretary of State for Justice is in breach of his public sector equality duty under section 149 of the Equality Act 2010. It is important to stress that the disabled person in this case is not the prisoner himself (who has no disability) but his wife. Any duties towards disabled prisoners themselves are not directly in point.

Rules 3 and 4 of the Prison Rules 1999/728, which are made by statutory instrument, provide as follows:

As rule 4(1) refers to "the best interests of both", viz the prisoner and his family, and rule 4(2) refers to best promoting "the interests of his family", the Secretary of State for Justice concedes that he is under a duty not only to the prisoner but also to "his family", and that a duty to the wife, as well as to the prisoner, is engaged by this case.

By rule 35 of the Prison Rules, a convicted prisoner is ordinarily (there are exceptions not relevant to this case) entitled "to receive a visit twice in every period of four weeks". As Ms Slarks emphasises, that particular rule entitles the prisoner to "receive a visit" (my emphasis). It says nothing about who the visitor might be, and does not of itself afford any entitlement to a spouse or any other specific person or class of person to visit. The fact that his wife is unable to visit in no way impacts upon the prisoner's entitlement under that rule. He remains entitled to receive visits from other relatives, friends, well wishers or persons such as voluntary prison visitors.

The Secretary of State for Justice in no way disputes the importance, so far as reasonably achievable, of regular family visits. It is spelled out in his own Prison Service Instruction 16/2011 at paragraph 1.2, which states:

The National Offender Management Service instruction on Providing Visits Services to Visitors, now at bundle 1, tab C, page 88, makes provision at paragraphs 5.6 to 5.12 (now at bundle page 104) for "Accumulated Visits". As described in that instruction, and elaborated by the evidence in this case, Accumulated Visits are in effect a series of visits, to which the prisoner would otherwise have been entitled over a longer period, bunched up in a shorter period. They are expressly designed for, amongst others, those whose families are located some distance from the establishment or abroad. Accumulated Visits may be applied for every six months.

In the present case, the Secretary of State for Justice is willing to transfer, and has already transferred, the prisoner to HMP Exeter for a period of 28 days to enable his wife to have a concentrated period of Accumulated Visits. During October 2015 the prisoner was transferred to, and detained in, Exeter Prison for 27 days to enable his wife to visit frequently during that period. Altogether, 15 visiting occasions were offered to the wife during that month, of which she attended on ten. A further five visits were made available by the Prison Service, but, as it happened, the wife was in hospital and could not attend.

The Secretary of State for Justice argues that by making the prisoner available for Accumulated Visits in Exeter in this way, he makes reasonable adjustments for the disabled wife for the purpose of, and as required by, the Equality Act 2010. Both the prisoner and his wife describe how dependent they are upon each other and how hard they find separation to bear. They say, in effect, that Accumulated Visits compressed into one month do not compensate for the five months of no visits, and that they crave the ability to have regular bi-monthly visits month in, month out (as the prisoner is currently an enhanced prisoner, the prisoner is in fact currently entitled to visits even more frequently than this outside the Prison Rules).

By a number of witness statements from staff at HMP Exeter and Isle of Wight, and from Mr Colin Hay, Head of Population Management in the National Offender Management Service, the Secretary of State for Justice has explained why it is that he cannot simply transfer the prisoner long term to HMP Exeter, however simple a solution that might superficially seem. Those reasons may broadly be analysed as general ones, and as ones specific to this prisoner.

The general reasons are that for many decades the prisons in England and Wales have been split between training prisons and local prisons, and their function and purpose is quite different. The purpose of training prisons, which normally only hold prisoners who have been convicted and sentenced (the position may be different with very dangerous category A prisoners, with which I am not concerned), is to provide rehabilitation and/or training to ensure that prisoners use their time in prison productively. The primary purpose of local prisons is to serve the courts and to receive newly sentenced prisoners and those remanded into custody. The purpose of keeping prisoners temporarily in local prisons is so that they are as near as possible to their court of trial, accessible to their legal teams, and as near as possible to their families during the particularly traumatic time on remand.

Additionally, long term prisoners will be relocated, so far as possible, to a local prison in the last few months before release as part of their resettlement in the community. Prisoners sentenced to only short terms, normally up to six months, may remain in a local prison throughout their sentence to prepare for their release.

This is an entirely rational and fully explained subdivision of prisons into training and local, and one which is not of itself challenged by this judicial review. The implications are, however, that, as the witnesses fully explain, it simply is not practical nor appropriate that a long term prisoner such as this prisoner should serve out his sentence in a local prison. The demand for spaces or beds in local prisons is very great, as Mr Hay says in his statement at paragraphs 10, 12 and 15 (now at bundle 2, pages 100 (x) to (xiii)):

Mr Tom McCruden, Head of the Offender Management Unit at HMP Exeter, elaborates what Mr Hay says, but with specific reference to Exeter. HMP Exeter does not provide suitable courses, learning or training for this prisoner. Further, Exeter can hold a limited number of Vulnerable Prisoners ("VPs"), which the prisoner in this case is due to his sexual offending. Already Exeter has more VPs than it can properly accommodate. Mr McCruden continues at paragraphs 12 to 13 and 15 and 16 (bundle 2 at pages 100 (iv) and (v)):

I particularly emphasise the last two sentences of that quote. To accommodate this prisoner, being a VP, long term at Exeter would have a continuing impact on many other prisoners whose regime would have to be restricted. Further, as Ms Slarks pointed out, the average stay of a prisoner in HMP Exeter is about six weeks. If the prisoner was located there for the remainder of his term, about 50 other prisoners would necessarily be directly displaced during that term.

The reasons specific to this prisoner why he cannot be relocated long term to Exeter essentially pertain to the training and rehabilitation opportunities there. Preeminently this prisoner requires sexual offending courses which are not provided at a local prison such as Exeter. Currently he is not suitable for such a course as he denies his offending, but that may change.

More generally, the Secretary of State for Justice says that this prisoner could benefit from a range of courses and training which are available at the Isle of Wight but not at Exeter. The prisoner himself has denied that, saying in effect that he was a forester before his detention and it is to forestry that he will return, and he neither desires nor needs other forms of education or training. He says that his main priority is maintaining more time with his family. However, as Ms Slarks points out, it is the Secretary of State for Justice who is charged with the rehabilitation of this prisoner. The prisoner himself may say subjectively that he does not need any courses or training. But his remaining term is a long one, over six years. Objectively, he does (in the judgment of the Secretary of State for Justice) need courses and training and constructive use of his time in prison, which cannot be met long term in Exeter but can in the Isle of Wight. To provide suitable training and courses for him on a one to one basis at Exeter would be prohibitively and disproportionately expensive.

Mr Straw puts his claim and case essentially on three bases. He submits that the defendant is in breach of a public law duty. He submits that the defendant is in breach of his statutory duty under the Equality Act 2010 to make reasonable adjustments and to take such steps as it is reasonable to have to take to avoid the disadvantage to the disabled person, the wife. He submits that the defendant is in breach of his public sector equality duty under section 149 of the Equality Act 2010.

Rule 35(2) of the Prison Rules 1999 provides, so far as is material, that:

Mr Straw argues, correctly, that that gives rise to a public law duty on the Secretary of State. It is not necessary for me to decide the precise scope of the duty. I am quite clear that on the facts and in the circumstances of this case the Secretary of State for Justice is not in breach of the duty, however formulated, which arises under that rule. As I have already emphasised, the entitlement is that of the prisoner, not of any notional visitor, and the entitlement is to receive the specified number of visits. It is not an entitlement to receive a visit from any specified person or class of person.

The defendant has an entirely rational policy of categorising prisons and of subdividing them into training and local prisons, and there is nothing in his policy, or in his approach to this particular case, which denies or frustrates the entitlement of the prisoner under that rule. The case of R (Walker) v Secretary of State for Justice [2008] EWCA (Civ) 30, [2008] 1 WLR 1977, upon which Mr Straw relies, is clearly distinguishable. In that case, the Secretary of State for Justice was failing to make available altogether the resources required to enable an IPP prisoner to obtain release, so the Court of Appeal said of that case at paragraph 40:

It is not necessary for me to set out extracts from the Equality Act 2010 at any length. The Secretary of State for Justice accepts that he is exercising a public function for the purposes of section 29(6) of that Act; and that therefore he must not do anything that constitutes discrimination (section 29(6)), and that he is under a positive duty to make reasonable adjustments (section 29(7)(b)). That duty comprises the three requirements set out in section 20, of which the one in point in this case is the first, under section 20(3), viz:

The Secretary of State for Justice accepts that his provision, criterion or practice of subdividing category B prisons into training and local prisons does, or may, have the effect that a long term prisoner may be detained and located further away from his home than if he were detained at the nearest local prison; and he accepts that the class of disabled persons for whom travel by car is difficult are, or may be, at a substantial disadvantage in relation to visiting a prisoner in comparison with persons who are not so disabled. He accepts, therefore, that he is under the statutory duty to take such steps as it is reasonable to have to take (viz make reasonable adjustments) to avoid the disadvantage. The case of Finnigan v Chief Constable of Northumbria Police [2013] EWCA (Civ) 1191, [2014] 1 WLR 445 clearly establishes that the duty under the Act is anticipatory; see paragraphs 31, 33, 34 and 36 of the judgment of Lord Dyson MR, and in particular the last sentence of paragraph 36:

At paragraph 48 of his written skeleton argument in this case, Mr Straw identified five questions to be answered in this case, and I accept those questions. They are:

I answer those questions as follows:

The requirement under the Act is to take reasonable steps or to make reasonable adjustments. The Secretary of State for Justice has convincingly demonstrated, for the reasons which he has given, that it is neither realistic nor practical to transfer a long term prisoner (other than for short periods for Accumulated Visits or other compassionate purposes) to a local prison. Theoretically, the Secretary of State for Justice could build and staff a new and separate training prison in Exeter. Theoretically, he could build a special prison at Bude. Theoretically, he could arrange and fund helicopter flights for the wife between Bude and the Isle of Wight. But none of those solutions (which are not advocated by Mr Straw) are reasonable ones. On analysis, it is no more reasonable that a prisoner such as this prisoner should be transferred long term to a local prison.

Instead, the Secretary of State for Justice does offer to facilitate, and in the case of this prisoner has facilitated, Accumulated Visits. I recognise that this is a pale substitute for regular, fortnight in fortnight out, visits, but it does represent a step and an adjustment, and is the most that the Secretary of State for Justice can reasonably be expected to do.

(e) It follows that in my view the defendant has not failed to comply with the duty upon him under the Equality Act in relation to the claimant wife.

The public sector equality duty arises under section 149 of the Equality Act 2010. So far as is material, this provides as follows:

Frankly, there is negligible, if any, evidence in this case to demonstrate that when formulating their relevant policies, or when making decisions in relation to this particular prisoner and visits by his wife, the Secretary of State for Justice, or any of his officials or front line staff, had any real regard to that express statutory duty.

By paragraph 41 of his counsel's (Ms Slarks’) Detailed Grounds of Resistance, the Secretary of State for Justice asserts that he has considered the difficulties that people with characteristics such as disabilities and older age face when they wish to visit family members placed in prison far away. He asserts that as a result he attempts to place prisoners as close to their families as reasonably possible within his resource constraints, and offers an Accumulated Visits scheme in order to facilitate local visits where necessary.

With regard to the facts of this particular case, the Secretary of State for Justice draws attention to two documents attached to the summary grounds of resistance as D/02 and D/03. Examination of those documents reveals the scantest of reference or regard to the disabilities of the wife, still less to the statutory public sector equality duty. The first, dated 20.12.2014, says (on this topic) rather laconically:

The second, dated 9.02.2015, merely says (on this topic):

The Accumulated Visits section (paragraphs 5.6 to 5.12) of the PSI 16/2011 makes reference to:

That instruction makes no reference to, and evidences no discrete or specific consideration of, the position of those whose families may include a disabled person.

On behalf of the Secretary of State for Justice, Ms Slarks emphasises that the duty under section 149 is one of substance, not of form, and not a matter of ticking boxes. For that she relies on what was said by Aikens LJ in the Divisional Court in Brown v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) at paragraph 92, which was clearly approved by the Court of Appeal in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 at paragraph 26(iii). However, the whole tenor of the decision in Bracking, and all the propositions contained in paragraph 26, could not be more clear. The Act imposes a positive duty whose exercise must be positively demonstrated. McCombe LJ said at paragraphs 60 and 61:

Elias LJ said at paragraph 77:

As I have already explained, I am satisfied in this case that there is no breach in this case of the objective duty under section 20 of the Equality Act to make reasonable adjustments. By making provision for Accumulated Visits, the Secretary of State for Justice has done all that he reasonably and objectively can do. But I am not satisfied, in the way that Bracking so clearly requires, that the Secretary of State for Justice, or his officials or staff, have given the positive due regard which section 149 requires. If I were to brush over this, as the submissions of Ms Slarks encourage me to do, I would be failing in my own duty to mark the failure of a public authority to give effect to section 149 in the way that Bracking so clearly requires.

Although Ms Slarks relies upon what Lord Brown of Eaton-under-Heywood said in McDonald v Kensington and Chelsea [2011] UKSC 33 at paragraph 24, those observations are not in point at all in the present case. There, Lord Brown referred to a person who is ex hypothesi disabled and the public authority is discharging its functions under statutes which expressly direct their attention to the needs of disabled persons. That is far removed from the situation here.

I will accordingly make a declaration, in terms to be agreed by counsel or the subject of further argument, to the general effect that on the facts and in the circumstances of this case there has been a failure by the Secretary of State for Justice to discharge his duties under section 149 of the Equality Act 2010. However, neither claimant has suffered any loss as a result, since even if the Secretary of State for Justice or his staff or officials had fully and duly discharged their duties under that section, the outcome would have been, and will still be, the same.

Accordingly, save for the above declaration, the remainder of this claim for judicial review, including the claim for damages, is dismissed MR JUSTICE HOLMAN: Now, Miss Waddoup, I don't know that it would be fair to expect you to have to formulate the terms of the declaration today with Ms Slarks, unless you wish to do so.

MISS WADDOUP: My Lord, we'd be very grateful for some further time for Mr Straw and Ms Slarks to agree the terms of the declaration.

MR JUSTICE HOLMAN: Well I think that's perfectly fair and reasonable and practical, but I really do hope that once Mr Straw has an opportunity of reading the judgment, either if you have been making a very detailed note, from that note, or when the official transcript emerges, that there will be sensible discussion and an appropriate form of declaration will emerge. Mr Straw did not in fact, either in his oral submissions or his skeleton argument, precisely formulate the declaration that he seeks. I think, from memory, and I am paraphrasing, the claim in this case, and the statement of facts and grounds of claim, just say something to the effect that on the facts and in the circumstances of this case there has been a failure, or something. So I think it needs to be a little bit more precisely defined than that.

MISS WADDOUP: Yes, my Lord. In terms --

MR JUSTICE HOLMAN: So that deals with the declaration. You agree with that, Ms Slarks. You and Mr Straw will formulate something. So the order, when it emerges, will say "It is declared that," and it will say, "Save as aforesaid, the claim for judicial review is dismissed."

MISS WADDOUP: Yes, my Lord, I'm very grateful. I wonder whether we could have perhaps until 18 December in order to try and draft that order, or make further submissions. I have discussed that with my learned friend and she tells me there isn't any problem from her perspective.

MR JUSTICE HOLMAN: Well, there is one problem. That is that on 20 December -- well, 18 December I think may be a Friday.

MISS WADDOUP: Yes, my Lord, it is.

MR JUSTICE HOLMAN: As far as I'm concerned, it's the last day of the legal term, and I then disappear to New York for an appreciable period of time. So do you think we could do it a bit sooner than that? Otherwise I'm not back here until -- I've forgotten the precise date, but about 12 January, and in fact I'm then immediately disappearing to Birmingham, et cetera et cetera. I get the impression that one or both of you have been making a fairly full note of this.

MISS WADDOUP: Yes, my Lord.

MR JUSTICE HOLMAN: And anyway it's only the last bit that deals with the public sector equality duty that's germane to drafting this. I would really have thought that assuming Mr Straw is in general terms available, he's not away, is he?

MISS WADDOUP: My Lord, I don't know, he did say to ask for that particular date, but obviously if that's impossible --

MR JUSTICE HOLMAN: Can I ask for a sooner date, if at all possible.

MISS WADDOUP: Yes, my Lord.

MR JUSTICE HOLMAN: I would have thought -- obviously if he himself is away, he's away, but if he's merely not here today because he's doing some other case or something like that, he's available, Ms Slarks, you're available, I mean I would really hope that within about the next seven days you could have spoken or met and formulated this.

MISS WADDOUP: Yes, my Lord.

MR JUSTICE HOLMAN: Yes, I think so, if you wouldn't mind, so that I can sign it off well before the end of term, or if there is an impasse which can't be resolved, I can have some short hearing slotted in probably at 10 o'clock one morning. So I would rather if we just say round about the end of next week, which would be about the ... what would it be? (Pause) We seem to be running out of time, don't we, this month. It's the 2nd today. It would be the 11th, would it?

MISS WADDOUP: Yes, Friday, the 11th.

MR JUSTICE HOLMAN: Yes, well could we perhaps try and have consensus by Friday, the 11th.

MISS WADDOUP: Yes, my Lord.

MR JUSTICE HOLMAN: And either a fully drafted up order agreed just passed across me, because I will have to see it because it will be of course my declaration, and then that can be signed off, and if there isn't agreement we'll try and fix a very short hearing early in the week of the 14th, if that's all right.

Anything else?

MISS WADDOUP: No, my Lord.

MS SLARKS: My Lord, we would propose that we also by the same date make submissions as to costs.

MR JUSTICE HOLMAN: What applications would be respectively made with regard to costs?

MS SLARKS: I think we will be applying that we should certainly not have to pay -- that our costs should be paid in respect of the vast majority of the preparation of this claim, as to which the claimants did not succeed.

MR JUSTICE HOLMAN: What is the public funding situation?

MISS WADDOUP: It is a publicly funded claim, my Lord.

MR JUSTICE HOLMAN: I mean, he's a prisoner. I know she's not, what does she get up to?

MISS WADDOUP: She's legally aided, I understand.

MR JUSTICE HOLMAN: Does she have a contribution?

MISS WADDOUP: No.

MR JUSTICE HOLMAN: Does she have a job?

MISS WADDOUP: No, my Lord. I think the position is that the claimants would be asking for costs protection pursuant to section 26 of LASPO.

MR JUSTICE HOLMAN: I've forgotten what all that says.

MISS WADDOUP: Well, I understand --

MR JUSTICE HOLMAN: Is it something to the general effect that there can be an order, but it can't be enforced? Do you have section 26 there?

MISS WADDOUP: My Lord, I do ... my Lord, not to hand, I wonder if this could also be dealt with --

MR JUSTICE HOLMAN: No, I think this we can deal with today. I mean, to be honest, to a significant degree, to put it in blunt language, you have lost.

MISS WADDOUP: Yes, my Lord. The order that we would be seeking is that the defendant's reasonable costs of the claim be paid by the claimants, subject to costs protection which is provided by section 26.

MR JUSTICE HOLMAN: Yes, can I just see section 26.

MISS WADDOUP: Yes, I can hand a copy up, my Lord. (Handed)

MR JUSTICE HOLMAN: Thank you. (Pause)

MISS WADDOUP: My Lord, we would in any event be asking that the claimants' costs be the subject of a detailed assessment.

MR JUSTICE HOLMAN: Well that's fine, public funding assessment.

MISS WADDOUP: Yes. (Pause).

MR JUSTICE HOLMAN: What I'm quite frankly not quite clear about at this moment is -- clearly you are entitled to the protection of section 26, that's quite clear:

The problem is I don't actually have much information about the financial resources, for instance I don't know what sources of income are available to them, do they rent their home, own their home.

MISS WADDOUP: Yes, my Lord, this is --

MR JUSTICE HOLMAN: Et cetera et cetera. But is there now some process whereby some costs judge or other person actually assesses the amount which it's reasonable for the individual to pay, or is that for me to do? I come from a field in which most orders for costs are no order as to costs, or else people have pots of money, like the multimillionaires whose financial divorces I handle. I'm not frightfully familiar with the way this operates these days, quite honestly. Am I able to say that you're to pay the costs, the actual liability to be assessed as nil? I don't really have much material as to the financial resources of the claimants.

MS SLARKS: I would have thought that the ordinary order would be that the claimants should pay our costs, subject to detailed assessment, and the detailed assessment would have to take into account any limiting factor such as section 26.

MISS WADDOUP: My Lord, I would agree with that assessment. I don't think it's something which you can decide today, certainly.

MR JUSTICE HOLMAN: But you're not going to want an assessment of your costs, are you? You're not going to waste money on that. Your costs. Realistically.

MS SLARKS: Ordinarily --

MR JUSTICE HOLMAN: I mean the Secretary of State is on to a loser on this, I'm afraid. Of course --

MS SLARKS: (Overspeaking) having it subject to detailed assessment.

MR JUSTICE HOLMAN: One of your problems is somebody granted permission.

MS SLARKS: Yes.

MR JUSTICE HOLMAN: I'm not sure that I would ever have granted permission, quite frankly, but in the process I would have overlooked the force of the public sector equality duty, which only hit me -- rammed home when I actually read Bracking after we broke off.

MS SLARKS: Well, given that they're a legally aided party, my understanding is that their costs will have to be assessed --

MR JUSTICE HOLMAN: Their costs will have to be assessed, but yours won't, unless you ask for an assessment.

MS SLARKS: Ordinarily if a legally aided party is to pay the costs of the defendant, then the defendant's costs would have to be subject to detailed assessment. That's the ordinary order.

MR JUSTICE HOLMAN: Well let's say no order as to the costs of the claimants of and incidental to the claim, save detailed public funding assessment. That covers that, doesn't it. Let's just make that one paragraph. Another paragraph. Subject to section 26 of the LASPO 2012, the claimants shall pay the costs to be assessed on the standard basis of the defendant of and incidental to these proceedings, the actual liability of the claimants, if any, to be determined by a costs judge.

MS SLARKS: My Lord, I am concerned that there is provision that we may be able to find in the White Book -- oh, you've found it.

MR JUSTICE HOLMAN: Would you like to borrow a White Book?

MS SLARKS: I have one, I was just going to ask for a minute to look at it.

MR JUSTICE HOLMAN: Would you like me to rise for a short while? To be honest, I think you're on a hiding to nothing. He's a prisoner for the next six years, he was a forester, she has legal aid, nil contribution.

MS SLARKS: It's not that I care whether the costs are detailed or not, I think that that has to be the order, but we can check to see what the wording is.

MR JUSTICE HOLMAN: All right. Let me finish what I was writing -- well let me give you what I wrote. I will then rise for a short while and you can look at this, and I'll come back in whenever you're ready.

MS SLARKS: Thank you, my Lord.

MISS WADDOUP: Thank you, my Lord.

(A short break)

MR JUSTICE HOLMAN: Where have we got to?

MS SLARKS: My Lord, there is an additional matter that has caused some delay, and that is we have been discussing the implications of section 31(2A) of the Senior Courts Act 1981 and that holds that if you find --

MR JUSTICE HOLMAN: What?

MS SLARKS: If you find -- let me give you the exact wording of it. 31(2A):

Now, there is an exception to that. The exception's at 2B.

MR JUSTICE HOLMAN: I don't think this is a 1.05pm point.

MS SLARKS: No, that's exactly our point, the point is that this is a jurisdictional point and it may mean that you can't grant the order.

MR JUSTICE HOLMAN: Was this drawn to my attention during the hearing?

MS SLARKS: It wasn't considered during the hearing that you might find the public sector equality duty succeeded --

MR JUSTICE HOLMAN: Well, it was argued.

MS SLARKS: -- that as you expressed it in your judgment, that it would make --

MR JUSTICE HOLMAN: I don't understand that.

MS SLARKS: Whether or not it was raised during the hearing, it's a jurisdictional point, so you don't have any power to grant relief, given that you've expressly found in your judgment that it wouldn't have made any difference to the individual applicant.

MR JUSTICE HOLMAN: Well I'll have to look at that. It's not a provision with which I'm familiar. Was it considered by the Court of Appeal in that other case?

MS SLARKS: In which other case? Oh, Bracking. It wasn't in force when Bracking was decided.

MR JUSTICE HOLMAN: It wasn't in force?

MS SLARKS: No.

MR JUSTICE HOLMAN: What is this Act called?

MS SLARKS: It's in the Senior Courts Act 1981, but it's an amendment as of 13 April 2015. We're still looking at it ourselves to see when, according to the transitional provisions, whether or not this applied, but it is a point that must be considered by the parties before you can make this order, and I appreciate --

MR JUSTICE HOLMAN: Well I'm afraid I just -- Bracking was drawn to my attention, and I read Bracking.

MS SLARKS: Yes, it wasn't --

MR JUSTICE HOLMAN: And I thought it was just a direct application of Bracking. Nobody had suggested to me for one moment that I was blocked by some new Act. Anyway, we'll have to come back this afternoon, I'm afraid.

What about the costs point, because this doesn't really impact on that?

MISS WADDOUP: My Lord, what we have been discussing was whether it might make sense to deal with that point and the costs point along with the phrasing of the declaration, so counsel could deal with those three matters --

MR JUSTICE HOLMAN: Well, the costs point --

MISS WADDOUP: -- as well as permission to appeal.

MR JUSTICE HOLMAN: Well the costs point isn't really a point, is it? I don't think there's much dispute between us, is there, it's just how it should be formulated, isn't that right?

MISS WADDOUP: Well the point is, my Lord, that you have decided to find in favour of the claimants in relation to one aspect of the claim.

MR JUSTICE HOLMAN: Yes, but it doesn't justify these proceedings. It doesn't justify these proceedings.

MISS WADDOUP: We would simply want to incorporate that into the relevant costs order, because essentially one part of the claim has been decided in favour of the claimants.

MR JUSTICE HOLMAN: That's not what brought us here. It's an add-on. I mean Bracking -- leave aside this Act which has just recently come into force -- Bracking clearly says that if it appears that there hasn't been due compliance with section 149, the court must make a declaration to that effect. It doesn't help your clients one iota, and it's not what brought us here. What brought us here, as I said in the introductory paragraph of the judgment, was an aim of procuring that he moves to Exeter, and I'm afraid that's been completely unsuccessful.

MISS WADDOUP: Be that as it may, my Lord, the claim was argued on three grounds. We would simply seek to say that the defendant's reasonable costs of the claim are to be paid by the claimant, but only in respect of the two claims that we've lost.

MR JUSTICE HOLMAN: No, that's a sort of rather issues based approach. The part on which you succeeded and the defendant has been unsuccessful has added nothing in terms of costs, it hasn't added to the size of the brief fees. It maybe added half an hour or three quarters of an hour during the course of the hearing, which was itself contained within the allocated day. It hasn't added to the costs at all. So no, I'm afraid I'm not --

MISS WADDOUP: I'm slightly in difficulty in that respect because as you know, my Lord, I wasn't counsel at the hearing.

MR JUSTICE HOLMAN: No, I know, but your solicitor was here. I mean the public sector equality duty point may be a few paragraphs in the skeleton argument.

MISS WADDOUP: It's paragraphs 72 to 78, my Lord.

MR JUSTICE HOLMAN: Yes. Well there you are. So that's six paragraphs out of a skeleton argument which exceeds 78 paragraphs. It's nothing, I'm afraid. As far as the costs are concerned, it's not what's caused the costs, it's not what's brought us here, so I'm not going to give you your costs, and in principle the Secretary of State is entitled to his costs, although I think a realistic view is he's never going to get them, frankly. This man's a prisoner. The only thing is what Lord Donaldson of Lymington used to call a football pools order, but that's the only situation in which you might get them, realistically.

Anyway, I'll have to look at the Senior Courts Act. Section 31(2A)?

MS SLARKS: (2A), not 2(a), and (2B).

MR JUSTICE HOLMAN: Is this in this year's White Book, or is it in the supplement to the White Book, where is it?

MS SLARKS: Quite possibly. I'll find it.

MISS WADDOUP: My Lord, again, I wonder if this might be a point which when counsel come to discuss the terms of the declaration and possible permission to appeal, this is something which could be discussed between counsel, and it may be that Mr Straw doesn't have any issue with what my learned friend suggests.

MR JUSTICE HOLMAN: Well what does she suggest? She appears to be considering that I can't in fact make a declaration.

MS SLARKS: That is what I suggest. I've now checked when the claim was issued, and since it was issued in June 2015, this provision was in force, and that being the case, since you found that, as you just put it, it wouldn't have made one iota of difference to these applicants if we had complied with the public sector equality duty, you mustn't grant relief. The only exception to that is if you find that there is a reason of exceptional public interest which would require you to grant relief.

MR JUSTICE HOLMAN: Well I don't suppose there is an exceptional public interest.

MISS WADDOUP: My Lord, isn't the point though that --

MR JUSTICE HOLMAN: Anyway, look, I'm sorry, it's now 1.10. I will have to go and look at this. I'm not at all, frankly, pleased that it's only at this juncture that my attention has been drawn to this, because it was a discrete head of claim, obviously, and if the proposition is that if the substantive parts of the claim failed and it would have made no difference to her, I can't then make a declaration, if I'd known that, I would have obviously thought about it before giving the judgment in the language that I did.

Anyway, I will go away and look at that over lunch and we will resume at 2.15 and see where we go from there.

MISS WADDOUP: My Lord, with respect, I'm not sure that this is something which, given that Mr Straw's not here, and given that the instructing solicitor who has been dealing with this case isn't here, given that --

MR JUSTICE HOLMAN: Oh, I thought this gentleman was here the other day.

MISS WADDOUP: No, he's supervising the instructing solicitor who had conduct of this case.

MR JUSTICE HOLMAN: You were here, weren't you? Oh, you weren't. Oh, I'm sorry.

Well, I'm sorry, Miss Waddoup, I want to go and look at section 31(2A), frankly, and think about it. It may be that when we resume at 2.15 I'll be sympathetic to an approach that we'll have to get Mr Straw along, but we'll then have to discuss the where and the when and the how, because as we discussed earlier, time is running out before the end of term, I'm not in the Administrative Court after this week, and I don't know when we can easily resume to consider this point. But I want to see first whether it is a point, so I want to look at the section.

MISS WADDOUP: Yes, my Lord.

MR JUSTICE HOLMAN: So we'll resume at 2.15 and see where we go from there.

(A short break)

MR JUSTICE HOLMAN: Right. So over the break I have read section 31(2A) of the Senior Courts Act 1981 as added by the Criminal Justice and Courts Act 2015, apparently with effect from 13 April 2015.

Can I just first ask, Ms Slarks, I can't see anywhere in the formal pleadings or in either of the skeleton arguments, nor can I recall from the oral argument, that either counsel, or anybody, made the slightest reference to this section.

MS SLARKS: No, they didn't, and I can only apologise for that.

MR JUSTICE HOLMAN: Because there was of course a claim for an abstract declaration. I know the claimants were expecting a lot of other relief as well, of course, but nevertheless there was the claim for the declaration.

MS SLARKS: Yes.

MR JUSTICE HOLMAN: Which was developed and pursued by Mr Straw as a claim in its own right, and he took me of course to Bracking.

MS SLARKS: Yes.

MR JUSTICE HOLMAN: And I think one can see, in view of what I have concluded about the factual matrix, that Bracking clearly required that I make a declaration. That's what they did and said in Bracking. What nobody said was, "Ah, but the law's changed".

MS SLARKS: That's right, it should have been drawn to your attention. However, we are where we are, and if you do not have the power to make a declaration, then that's a matter that needs to be drawn to your attention now.

MR JUSTICE HOLMAN: No, I'm not suggesting otherwise, but how is it that when we broke off to think about costs you stumbled across this, which on the face of it has nothing to do with costs, and at this late stage drew it to my attention?

MS SLARKS: I can only say that the -- I think nobody in this litigation was anticipating it would go this way today. It has. As you emphatically pointed out that it wouldn't have made -- when we were talking about costs, that it wouldn't have made any difference to the claimants had we paid due regard to the public sector equality duty, that set the alarm bell ringing that this provision of the Senior Courts Act was relevant. Certainly it should have been raised earlier.

MR JUSTICE HOLMAN: All right, so really an alarm bell rang which had not rung earlier.

MS SLARKS: Yes.

MR JUSTICE HOLMAN: All right. Well this says:

Well I said that in terms. Subsection (2B):

Well, provisionally I can't see that there's exceptional public interest that makes it appropriate to disregard it. I'm not resiling from what I've said in the judgment, and so the Secretary of State, when he gets to read the judgment, will know that in my view there was that failure by him to pay due regard, but I don't see that there are reasons of exceptional public interest which make it appropriate, or require that I disregard the embargo under (2A).

MS SLARKS: Well yes.

MR JUSTICE HOLMAN: That would be your position.

MS SLARKS: Yes, and in fact since a declaration -- a breach of a declaration isn't a contempt of court, it actually won't really make any difference to the effect of your judgment.

MR JUSTICE HOLMAN: They could have said that in Bracking.

MS SLARKS: Sorry?

MR JUSTICE HOLMAN: That could have been said in Bracking.

MS SLARKS: Yes, but it didn't need to be said, because this provision wasn't yet in force.

MR JUSTICE HOLMAN: No.

MS SLARKS: But if you have said in your judgment that we have failed to comply with the public sector equality duty, it essentially has the same effect as the declaration. Either way, if we continue to fail to comply with our public sector equality duty, that will be grounds for a fresh judicial review, but by virtue of section 31, you can't actually go ahead to take the formal step to make a declaration.

MR JUSTICE HOLMAN: I see all that. If we just rewind to this morning.

MS SLARKS: Yes.

MR JUSTICE HOLMAN: After I concluded the judgment, we had a little discussion about you and Mr Straw meeting to agree the terms of a declaration, or communicating at any rate to agree the terms of a declaration, should it be done by 18 December or should it be done by an earlier date and so on and so forth, we had all of that.

MS SLARKS: Yes.

MR JUSTICE HOLMAN: And throughout none of that was my attention drawn to this, so the alarm bell didn't ring --

MS SLARKS: No, I think we've established that the alarm bell rang very late.

MR JUSTICE HOLMAN: All right.

Frankly I have to say that I haven't come across this before. I tend to learn the law when I need to, and I won't forget it in the future, but I hadn't previously read this, but you had, had you, or had you only discovered it today?

MS SLARKS: No, I have, it's just come up in cases where it was more obviously to the central point.

MR JUSTICE HOLMAN: Really I do feel that, at any rate for a transitional period, when big departments of state, of all people, acting through the government legal service, are faced with claims which include a head of claim for an abstract declaration, particularly of this sort of public sector equality duty kind, it would be helpful if the Secretary of State through its lawyers could say to the court, "If you consider it is highly likely it would have not made any substantial difference, you must not make the declaration".

MS SLARKS: Yes, that would have been very helpful indeed.

MR JUSTICE HOLMAN: Now, that's your position.

Now what about you, Miss Waddoup? At the moment it seems to me this is -- it just couldn't be more clear, and it doesn't need Mr Straw to come along, because there's nothing he can say. I'm not resiling from what I've said in the judgment.

MISS WADDOUP: Well, my Lord, the claimants would seek to persuade you to the contrary, that it's not --

MR JUSTICE HOLMAN: What's the argument that Mr Straw could possibly mount?

MISS WADDOUP: Well the argument, my Lord, is that the defendants are asking you to apply a provision which is designed to deal with technical defaults so as to prevent the otherwise appropriate relief being given in a discrimination case. Now, I think there are clearly submissions which Mr Straw could make, such as section 31(2A) doesn't apply to breaches of public sector equality duty, because this is --

MR JUSTICE HOLMAN: How can you say that?

MISS WADDOUP: Well, my Lord, not wishing to put words into his mouth, he could submit for example that this is a substantive, not a technical, remedy for a substantive breach of rights, there is --

MR JUSTICE HOLMAN: This section doesn't use the word "technical".

MISS WADDOUP: Well, my Lord, the Parliamentary debate which preceded the enactment of this section very recently, the examples of cases which are dealt with in those debates, and I would firstly of course be submitting that Pepper v Hart applies and this is ambiguous, it suggests examples such as a public authority failing to notify a person of the existence of a consultation where it should have done, that person hasn't provided a response when they might otherwise have done, but if that person's likely arguments had been the same as those which have already been raised, then the court would conclude that it was highly likely that that failure wouldn't have made a difference to the outcome, and I could, my Lord, or Mr Straw, more properly, could take you to several relevant parts of the Parliamentary debate which all stress that it's these types of cases which this section is designed to catch. It's not designed, my Lord, to capture cases in which there has been a substantive breach --

MR JUSTICE HOLMAN: Well you can only get to debates if there's an ambiguity in the drafting.

MISS WADDOUP: Yes, my Lord.

MR JUSTICE HOLMAN: Where's the ambiguity? Let's just go through the words one by one:

So the conduct complained of is that he failed to have due regard to the public sector equality duty, but I've already said, and I don't resile from it:

I mean the outcome for the claimants. So that surely, to paraphrase, is saying the outcome would not have been substantially different if the conduct explained of, that is the failure to have due regard, had not occurred.

MISS WADDOUP: Well, my Lord, I would note that the effect of this section would be to cut across rights provided for in the Equality Act about the prevention of discrimination, and that is a constitutional right, and when a constitutional right is to be cut across in that way, that should be done in the clearest possible terms --

MR JUSTICE HOLMAN: Sorry, when you say constitutional right.

MISS WADDOUP: Yes, my Lord.

MR JUSTICE HOLMAN: What do you mean by that?

MISS WADDOUP: Well, my Lord, there are lots of cases on the significance of the public sector equality duty that say that it's not just about a technical remedy but a substantive remedy, and clearly it's designed to ensure that public bodies give due regard to the need to prevent discrimination and to ensure equality of opportunity.

MR JUSTICE HOLMAN: Yes.

MISS WADDOUP: Those in my submission, my Lord, are constitutional rights. There are cases to the effect that when such rights are in issue, those provisions which are designed to cut across those rights should be interpreted in a narrower way. I can cite you one example, my Lord, the case of R (C) v Secretary of State for Justice [2008] EWCA Civ 882.

MR JUSTICE HOLMAN: Which says what?

MISS WADDOUP: Which says that when considering -- in that case there was a failure to complete a race equality impact assessment in a Young Offenders Institution, and the court granted relief in that case and said it was strongly influenced by the failure to produce that impact assessment, although it was characterised by the defendant in that case as a procedural defect, it was a defect in a procedure that was of great, substantial and not merely technical importance, and that the rule of law and the proper administration of race relations required the rules which had that effect to be quashed. My Lord, I --

MR JUSTICE HOLMAN: Ah, that's different. That was quashing a rule. There's no rule or anything that I'm being asked to quash in this case. You say that's an authority from 2008?

MISS WADDOUP: Yes, my Lord.

MR JUSTICE HOLMAN: Things have changed, haven't they?

MISS WADDOUP: My Lord, one of the points of relevance is as far as I'm aware there aren't any reported cases on the application of section 31(2A). This matter hasn't been resolved by the courts, it's a question of the scope of this section and how broadly it's to be applied. Is it to be applied only to the cases which I've mentioned, the cases which Parliament had in mind when it was enacting this section, or is it to be applied in such a way as to prevent what would otherwise be entirely the appropriate relief, in a case where there's been a breach of a public sector equality duty?

My lord, it's for those reasons, the fact that we are dealing here with discrimination, we're not dealing with a failure to consult or something of that nature, where you can imagine that technically not consulting that one extra person really didn't make a difference to an outcome, that's very different to the type of case that we're considering here, which is has there been a failure to have due regard to the need to promote equality of opportunity and to prevent discrimination, and it's for those reasons, my Lord, that I would say it can't -- the section can't be of application and that this is a matter on which further submissions by somebody much better qualified --

MR JUSTICE HOLMAN: When is Mr Straw going to come and make them?

MISS WADDOUP: My Lord, if I could step out for five minutes I could speak to his clerk, because I have been trying to reach him over the lunch break.

MR JUSTICE HOLMAN: I mean I would be willing to consider this tomorrow for some time, only for a short period of time, because I'm fully listed, but I will slot this in tomorrow, and I might be able to slot it in on Friday, but that's all. But at the moment, attractively though you put it, I can't at the moment see there's ambiguity in these words, and they seem to me to be absolutely clear.

MISS WADDOUP: Well in any case, my Lord, I would submit in addition that the exception in (2B) should apply, that there is an exceptional public interest in making the declaration, so that the class of people that this affects, which is a class of people who are vulnerable by reason of their discrimination, don't suffer discrimination in the future, and that the Ministry of Justice does take the steps which it's required to take in order to discharge its functions under the Equality Act.

MR JUSTICE HOLMAN: Well I assume that the Secretary of State for Justice, when he gets it, and gets a report on it, will not disregard what the High Court has said, albeit that there isn't a formal declaration. In fact very often in judicial review declarations are not made, because the court can rely on high departments of state respecting and giving effect to what the court has said without a formal declaration. I would have made the abstract declaration -- I've already said that and I'm not resiling from that -- in this case because, apart from anything else, Bracking made it quite clear that one should, but the law has changed.

MISS WADDOUP: My Lord, but there's --

MR JUSTICE HOLMAN: I can't see that there's exceptional public interest. I mean, I've said, and I shan't detract from it:

I've said that. I'm not resiling from that.

MISS WADDOUP: My Lord, with respect, that requires further submissions about the importance and relevance of declarations --

MR JUSTICE HOLMAN: All right. You can find out the availability of Mr Straw.

MISS WADDOUP: Yes. I'm grateful, my Lord.

(A short break)

MR JUSTICE HOLMAN: Right, what's the position?

MISS WADDOUP: My Lord, I'm very grateful for the time. Mr Straw would be able to send written submissions to the court by 10 am tomorrow morning --

MR JUSTICE HOLMAN: No, I really meant when could he attend to make oral submissions.

MISS WADDOUP: He can't attend tomorrow or Friday to make oral submissions, my Lord, he sends his apologies, but can produce written submissions --

MR JUSTICE HOLMAN: No, I'm either going to rule on this -- you're talking about this question of whether I can make a declaration, aren't you?

MISS WADDOUP: Yes.

MR JUSTICE HOLMAN: Yes. I'm either going to rule on it now or he'll have to come along and make his submissions orally.

MISS WADDOUP: My Lord, I made that clear to Mr Straw, he tells me he's very sorry but he's unable to attend tomorrow or on Friday, but that he can draw to your Lordship's attention --

MR JUSTICE HOLMAN: No, I'm not going to sort of ... he then puts in written submissions and then Ms Slarks will want to put some in, we get into a ping pong match. I'm not going to deal with it that way.

MISS WADDOUP: Unless, my Lord, both sets of written submissions were to come at the same time, the same date.

MR JUSTICE HOLMAN: Well no, Ms Slarks at the moment has made her submissions, they're short and to the point and very clear.

Well what dates might he have availability next week, for instance? Do you know?

MISS WADDOUP: I'm afraid I don't, my Lord, I'd understood you could only do tomorrow or Friday.

MR JUSTICE HOLMAN: Well I'm only sitting in the Administrative Court tomorrow and Friday. I'm sitting, but I'm doing family work, next week and indeed the week after. I dare say this could be slotted in for -- it would only be very short. We're just on the question of whether the effect of section 31(2A) is that I must in fact not make a formal declaration. That's the only question we're on, it's a pretty short point, I don't want pages and pages, I don't want Hansard or anything like that, we're not in that territory.

MISS WADDOUP: I could just step out again, I'm so sorry, I didn't ask about next week.

MR JUSTICE HOLMAN: No, I didn't ask you to, because I didn't realise he wasn't going to be able to do any time this week.

MISS WADDOUP: It will only take me a minute, my Lord.

MR JUSTICE HOLMAN: No, but it gets more complicated, because then I have to make phone calls about when the Clerk of the Rules would be able to spare me. You find out if Mr Straw has an available hour at 10.30 one morning next week and whether Ms Slarks is also available at the same time, and then let me know and I will then ring and see whether I can list this at that time.

MISS WADDOUP: I'm grateful, my Lord.

(A short break)

MR JUSTICE HOLMAN: Right, what's the position?

MISS WADDOUP: My Lord, Mr Straw is in Norwich all next week. He has spoken to instructing solicitors whom he has a conference with tomorrow. It was an all day conference, but he's pushed it back, the solicitors have agreed to push it back to midday, so Mr Straw will be able to attend tomorrow at 10.30.

MR JUSTICE HOLMAN: Would you be able to attend at 10.30?

MS SLARKS: Yes.

MR JUSTICE HOLMAN: Very well, then we'll deal with this at 10.30 tomorrow, that obviously is the best. I'm very, very grateful to him for doing that. That is best, because it will just flow on relatively seamlessly like a continuous hearing with a rather early end day. All right, well then we will arrange that this is listed, if it's not too late to get it in the published list, again for 10.30 tomorrow, there will have to be a shorthand writer here, and we'll see where we go from there.

Now, there's this question of whether I can make a declaration, so I'll just hear what Mr Straw has to say and rule on that. Do you think, Ms Slarks, you and Mr Straw could arrange to communicate sufficiently between now and then so that, without prejudice in any way whatsoever to your argument under section 31(2A), if I do make a declaration, you can have agreed the terms of it? I don't see why that should be difficult, because if we --

MS SLARKS: We can certainly -- yes, we can certainly try to do that, I'll contact him, I don't know how busy he will be overnight, I imagine it ought to be possible.

MR JUSTICE HOLMAN: Well I'm afraid at the Bar you just have to learn to get less sleep, don't you. I think if you could.

MS SLARKS: Yes.

MR JUSTICE HOLMAN: Because I would definitely have made the declaration if I was doing this a year ago.

MS SLARKS: Yes.

MR JUSTICE HOLMAN: If everything else was the same except that section wasn't there, I would have made the declaration, as I've already said, because that's I think what Bracking requires, and then we would have to have worked out the terms of it. If you're right, and I'm not persuaded by Mr Straw, then there won't be a declaration, but it may still be appropriate that I express more precisely that which I'm saying the Secretary of State failed to do.

So it's probably important that there is a formulation of the scope of the failure here, whether it's expressed as a declaration or merely words in the judgment. Clearly I'm going to have to give a supplemental judgment, which will when the whole thing is transcribed just read on effectively as a continuation of the judgment given this morning, in which I address this, and if I don't make a declaration, it may be that it shouldn't be left as relatively vague as it has been left so far. If you remember, I said:

That was vague because I needed to have the input of counsel to make it more precise. If I'm not going to make a declaration, then it's probably important, as much for the Secretary of State as for the claimants, that we end with more precision than currently exists in the judgment.

MS SLARKS: I'm happy to do that. Perhaps you can give Mr Straw and I some guidance as to whether you are suggesting that the Secretary of State failed to have due regard when formulating the policy or when applying the policy, or both.

MR JUSTICE HOLMAN: Both.

MS SLARKS: Thank you.

MR JUSTICE HOLMAN: I mean, the policy was formulated decades ago, actually.

MS SLARKS: Yes. Well we discussed it at the hearing.

MR JUSTICE HOLMAN: What there's an absence of, really, is evidence that since section 149 and all these equality duties come into force, the Secretary of State with his officials has sat down and said, "Right, we must now consider the impact of this policy on disabled people and how we square the circle," et cetera. I'm completely satisfied that objectively, reasonable adjustments have been made in this case, but that's just an outcome, but exactly how it's phrased I will at the moment leave to you and Mr Straw, I very much hope to agree, but failing agreement, to tell me your rival contentions tomorrow and I'll have to rule on them. Is that all right?

MS SLARKS: Yes, thank you, my Lord.

MR JUSTICE HOLMAN: So that's that.

Costs, surely it's going to be possible to work out what the order should say with regard to costs.

MS SLARKS: Yes.

MR JUSTICE HOLMAN: I wrote something down, did I hand it down?

MISS WADDOUP: You did, my Lord.

MR JUSTICE HOLMAN: Yes, it has no magic just because I wrote it down. Either Mr Straw, or indeed you, Miss Waddoup, who is obviously very much in control of this case by now anyway, should be able to agree something with Ms Slarks, so that will knock that one off.

MS SLARKS: Yes.

MR JUSTICE HOLMAN: And that would only leave permission to appeal. If anyone wishes to make an application they can, but I've been a judge for 20 years and I've never yet been persuaded that the decision that I have just reached is wrong so that I should grant permission to appeal, so that's not something that's going to occupy much time tomorrow morning.

MS SLARKS: Just as you gave us guidance in respect of the public sector equality duty, can I just confirm that your position is that the claimants should, at least hypothetically, be paying 100 per cent of our costs, even though that's probably 100 per cent of nothing?

MR JUSTICE HOLMAN: Yes, hypothetically, if they were rich people, subject obviously to assessment, yes.

MS SLARKS: Thank you.

MR JUSTICE HOLMAN: Yes, that is my position, and that's my position whether there's a declaration or no declaration, but they clearly have the protection of whatever section it was you drew to my attention.

MISS WADDOUP: Section 26, my Lord.

MR JUSTICE HOLMAN: Yes, and so probably they end up paying nothing, subject to the football pools. But quite how that is in modern days expressed I'm not quite sure. Surely you can work it out.

MISS WADDOUP: Yes.

MR JUSTICE HOLMAN: Anything else?

MS SLARKS: No, thank you.

MR JUSTICE HOLMAN: So Miss Waddoup, are we going to have the pleasure of seeing you tomorrow? Probably not.

MISS WADDOUP: No, my Lord, I'm otherwise engaged tomorrow, I'm afraid.

MR JUSTICE HOLMAN: You're otherwise engaged. It's an extraordinarily difficult situation, to find yourself suddenly parachuted into a situation like this, particularly when this kind of problem suddenly appears as a sort of googly at the very end. But nobody could have said more than you have, and I am immensely grateful to you. But you've asked that we get Mr Straw back, and so in deference to that I will see what he has to say, but actually I don't lack the least confidence in everything you've said. I don't agree with it, but nobody could have said more.

MISS WADDOUP: I'm grateful, my Lord.

MR JUSTICE HOLMAN: Thank you very much.

Addendum to the judgment

Until this point I have been reading out verbatim from a judgment which I had fully written out. What follows is an ex tempore continuation of the same judgment. In order that what follows can be understood by the reader, it is necessary briefly to describe the forensic context. At the substantive hearing of this claim the claimants were represented, as already indicated, by Mr Adam Straw. Mr Straw was not able personally to be present yesterday when I delivered the first part of this judgment. In his place was counsel, Miss Daniella Waddoup, who was later to address me with great learning and skill, but who was obviously not completely conversant with this case. Her plea was that, in the events which unfolded yesterday, I should adjourn the case, and indeed the conclusion of this judgment, until I had heard further submissions from Mr Straw himself at a further hearing, which we have been able to fix for the following day, namely today.

After I had read out the above judgment there was some discussion between myself and counsel as to a timetable for Mr Straw and Ms Slarks to communicate with each other and hopefully agree the terms of a declaration, as I contemplated in paragraph X above. After that, we had turned to consideration of costs, and eventually there was a short break so that Miss Waddoup and Ms Slarks could draft an appropriate provision as to costs, on the one hand to give effect to my decision that in principle the claimants, being the unsuccessful parties, should pay the costs of the Secretary of State for Justice, being the successful party; yet, on the other hand, have the costs protection afforded by section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

In the event, Miss Waddoup and Ms Slarks were out of court for about half an hour. When they returned, Ms Slarks drew my attention for the first time at any stage in this case to the provisions added to section 31 of the Senior Courts Act 1981 by the Criminal Justice and Courts Act 2015.

I mention that, from the outset of these proceedings, one of the forms of relief claimed by the claimants in their original claim form was a freestanding declaration that the defendant was in breach of section 149 of the Equality Act 2010. So from the very outset of these proceedings, quite apart from any other elements of the claim or remedies sought, there was that claim for a freestanding declaration. However, nowhere in any of the formal pleadings, nor the written skeleton arguments of counsel, nor, so far as I can recall, the oral submissions of counsel, was any reference made at any stage to the recently added provisions to section 31. Yesterday, Ms Slarks, in effect, very frankly said that it was only at that very late stage indeed, when actually she was outside considering the correct drafting of the order as to costs, that it had first struck her that the new provisions of section 31 were, or might be, in point in this case.

Of course it might be thought that a judge such as myself sitting as a judge of the Administrative Court would have those provisions personally in mind. But if ever there was room for a fiction that knowledge of the law reposed in the bosom of a judge, that fiction has long since been exploded by the pace, volume and complexity of modern legislation. Like most judges of the Administrative Court, I personally only sit intermittently and not continuously in this court. Frankly, I have not previously had any occasion to consider the added provision in section 31(2A), nor, so far as I am aware, has it ever been specifically drawn to my attention.

That, at any rate, is the background to how it is only at this very late stage of this judgment, and after I had already said that I would make a declaration, that it now falls to me to reconsider that part of my decision. I might perhaps have revised and substituted new wording for what I had already said in paragraphs X and X above. Since I have not yet made an order, I am probably entitled to revise my judgment. But I do not choose to do so, since that would lack intellectual honesty and would mask the true way in which this issue with regard to the grant of a declaration has unfolded.

Today Mr Straw has appeared again to present his submissions, as has Ms Slarks to present her contrary submissions. The issue arises from the impact and effect of section 31(2A) and (2B) of the Senior Courts Act 1981 as inserted by the Criminal Justice and Courts Act 2015. These particular inserted provisions took effect from 13 April 2015, which was before the date of commencement of the present proceedings. They provide as follows:-

The essential submission of Ms Slarks is that subsection (2A) is directly in point in this case, and that there are no reasons of exceptional public interest such that it may be disregarded pursuant to subsection (2B).

It seems to me, first, that the word "relief" where it appears in subsection (2A)(a) must refer back to the word "relief" where it appears in subsection 31(1). In that subsection the relevant forms of "relief" are identified, and they include "a declaration". So far as is material to the present case, therefore, it seems to me that I should read subsection (2A)(a) as if it read "must refuse to grant a declaration..." The words of paragraph(a) are of course mandatory and completely binding upon me, if the gateway words at the conclusion of subsection (2A) appear to me to be made out. I have already said at paragraph X above:

I do not resile in any way at all from what I said in that paragraph. Accordingly, it seems to me crystal clear that it does indeed appear to me to be highly likely that the outcome for the claimants would not have been substantially different if the conduct complained of, namely the failure to have due regard to the public sector equality duty as section 149 requires, had not occurred.

Mr Straw seeks to avoid that particular conclusion by arguing as follows (this is in fact the second of his four main submissions today). He says that, bearing in mind the intention of Parliament behind section 149, the duty under that section is a freestanding, explicit statutory duty. He says that it is, or would be, "an important outcome" for the claimants to establish by declaration that there has been a breach of that duty. With respect to the ingenuity of Mr Straw, however, it seems to me that that particular submission is circular; and if I acceded to it, it would effectively negative the impact and intended effect of section 31(2A), and I do not accept that submission.

Mr Straw submits also (this was his first numbered submission today) that section 149 of the Equality Act is an important statutory provision, intended to create a positive duty on public authorities to have due regard to all the matters elaborated in that section. He says that it is important that effect be given to it by making it an "enforceable duty". He submits that it would "emasculate that section" if I declined in the present case to grant a declaration or construed section 31(2A) as preventing me from doing so. I cannot accept that submission either. Of course, I fully accept that the public sector equality duty is a very important statutory duty indeed, bearing down on all public authorities. That, indeed, was made very clear by the Court of Appeal in Bracking, if indeed it was not already clear. Even a formal declaration itself is not "enforceable" against a public authority, and does not give rise to any additional or subsequent remedies. The added provisions in section 31 are recently enacted and appear to me to be entirely general and unqualified in their reach and impact, subject to subsection (2B). If Parliament had wanted in some way to "ring fence" the public sector equality duty under section 149 of the Equality Act from the reach and impact of section 31(2A), it could easily have done so by some suitable words of exception. It seems to me, however, that the reach and purpose of the added subsection (2A) is quite clear and is general, and I should not seek to cut down or limit its scope.

My attention has been drawn to some words of Blake J in Logan v London Borough of Havering [2015] EWHC 3193 (Admin) in which he gave judgment on 6 November 2015. It is clear, however, from paragraph 57 of his judgment in that case that there were "other reasons" why in any event he concluded that it was not appropriate to make a formal declaration, and accordingly his words are in fact obiter. It is to be noted that in any event he concluded his judgment at paragraph 61 by saying:

He thus was making what he had described as "a declaratory judgment" at paragraph 58 of his judgment, without making any formal declaration.

In my view, the facts and circumstances of the present case fall fair and square within the embargo in section 31 (2A), subject only to the exception in subsection (2B) to which I now turn. In relation to this, Mr Straw submits that this is a case in which the embargo should be disregarded and that "it is appropriate to do so for reasons of exceptional public interest". He stresses, first, the considerable importance of the statutory public sector equality duty. I fully recognise the importance of that duty, but it is only one of hundreds if not thousands of statutory duties upon the whole spectrum of public authorities. There is nothing in fact in section 149 to elevate the public sector equality duty to some specially prestigious position above many other no less important statutory duties upon public authorities. It does not seem to me that there is about the present case some "exceptional public interest", although there is obviously significant public interest.

Mr Straw submits, however, that if the claimants in this case cannot get a declaration then no one can get a declaration who cannot show that the outcome for them would have been substantially different. Essentially, that is the intended purpose and effect of subsection (2A). I agree with him that if my judgment stands, then it may be difficult for individual claimants, who cannot show that the outcome for them would have been substantially different if the conduct complained of had not occurred, to obtain a freestanding declaration that there has been a breach of section 149. That, as I say, appears to me to be the intended purpose and effect of these recently added provisions. But it is not an absolute and inevitable effect. Just to take two possible examples: If even after a "declaratory judgment" a public authority persisted in failing to discharge its public sector equality duty under section 149, then there may come a time when, on proof of that failure, a claimant may be able successfully to persuade the court that enough is enough and that the exceptional public interest under subsection (2B) has become engaged. Alternatively (without in any way deciding the point), it may be that if a body such as the Equality Commission, which has very express responsibilities in this field, reached a considered decision that a public authority was in such continuing breach of the public sector equality duty that it was necessary to obtain a formal declaration from the court, then such a body may be able to persuade the court that the exception in subsection (2B) is engaged, even though, by the nature of the body, it would not be able to show that the outcome for it would have been substantially different.

So, for these reasons, I am clear, now that it has been drawn to my attention, that section 31(2A) of the Senior Courts Act 1981 does apply in this case and that the exception under subsection (2B) is not established. I am therefore forbidden by statute from granting the declaration which in paragraph X above I had previously contemplated granting. The formal outcome of the case will therefore be, not as I expressed it under the heading "Outcome" in paragraph X above, but that the whole of the claim for judicial review is dismissed.

I nevertheless conclude this judgment by repeating what I said in paragraph X above: that I am not satisfied on the facts and in the circumstances of this case that the Secretary of State for Justice or his officials of staff have given the positive due regard which section 149 of the Equality Act 2010 requires, and on the facts and in the circumstances of this case, there has been a failure by the Secretary of State for Justice to discharge his duties under that section. I intend those words to represent "a declaratory judgment" of the kind contemplated by Blake J in paragraphs 58 and 61 of his judgment in Logan. I am confident that the Secretary of State for Justice or appropriately senior officials will consider and take heed of what I have said.

[END OF JUDGMENT]

MR STRAW: My Lord, can I very briefly address you on appeal.

MR JUSTICE HOLMAN: Well, you are being a little hasty. Before you get to appeal, is there anything else which I have omitted to do or should have done in this case, either of you? No. So, so far as the substantive order is concerned then, it will be in the terms and language that we have already discussed. You want to make an application for permission to appeal. What is the error of law and what is the aspect of the case that you seek to appeal?

MR STRAW: I am conscious that your Lordship made some observations on appeal yesterday.

MR JUSTICE HOLMAN: Well, I've never yet been able, when I have just given a considered judgment in a case, to readily contemplate that I made an error. That many seem a little Pilate like but it is the position.

MR STRAW: I hope it helps just to limit my submissions to these then. Firstly, for the reasons already given, an appeal has real prospects of success.

MR JUSTICE HOLMAN: On what point?

MR STRAW: All of the points on which we lost.

MR JUSTICE HOLMAN: Well, you are just inviting me to come to the view that everything I said is wrong.

MR STRAW: Precisely. Part of it --

MR JUSTICE HOLMAN: I am unable intellectually to come to that view.

MR STRAW: Of course, and it is in part a formality, but there is one point that may assist which is the point raised by my learned friend regarding subsection (2A) of the Senior Courts Act. It was raised at a very late stage. It has the potential of having a wider impact on other cases, and it is unsatisfactory that a potentially important point has been, you have been invited to --

MR JUSTICE HOLMAN: You can go and persuade the Court of Appeal if you can that there is an important point there, when they have the benefit of what I have said.

MR STRAW: Thank you.

MR JUSTICE HOLMAN: So I am afraid the answer is that the application for permission to appeal is refused. I will fill in the form now so you know what I have said on it. Claimant's application for leave refused. Reasons for decision: I do not consider I have even arguably made any error of law. The point under SCA 31(SA) arose at a regrettably late stage but I am crystal clear that it precludes a formal declaration in this case.

Mr Straw, you can have that and kindly take the order and perfect that and lodge that with today's associate. In order that I can correct the judgment, I will retain the bundles for the time being. Is there anything else now at all with which we need to deal? No. Mr Straw, I am extremely grateful for the re-arrangements you made in order to be here this afternoon. It really did seem to me that we could not allow grass to grow under this, particularly as I am ending in the Administrative Court tomorrow, so I am very very grateful to you.

MR STRAW: Thank you for your patience and allowing us an extra hearing.

MR JUSTICE HOLMAN: There is no question of patience. I am only too delighted. I am sorry obviously that the point arose so late because otherwise we could have considered it earlier and I obviously would have dealt with it in the judgment all at one go, but I can assure you that my patience is not taxed. And, Ms Slarks, thank you, too, and for your clerk's neat footwork in arranging this; and thank you, too, to the solicitors that support both of you.