‘(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. ….’
‘(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. (3) The relevant protected characteristics are – … race; ….’
‘23. On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material differences between the circumstances relating to each case. ….’
‘(2) An employer (A) must not discriminate against an employee of A’s (B) – (a) as to B’s terms of employment; (b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service; (c) by dismissing B; (d) by subjecting B to any other detriment.’
‘37 … Many companies based in Great Britain also carry on business in other countries and employment in those businesses will not attract British law merely on account of British ownership. The fact that the employee also happens to be British or even that he was recruited in Britain, so that the relationship was “rooted and forged” in this country, should not in itself be sufficient to take the case out of the general rule that the place of employment is decisive. Something more is necessary.’
‘39. Another example is an expatriate employee of a British employer who is operating within what amounts for practical purposes to an extra-territorial British enclave in a foreign country. This was the position of Mr Botham working in a military base in Germany. And I think, although the case is not quite as strong, that the same is true of Mr Lawson at the RAF base on Ascension Island. While it is true that Mr Lawson was there in a support role, employed by a private firm to provide security on the base, I think it would be unrealistic to regard him as having taken up employment in a foreign community in the same way as if Serco Ltd were providing security services for a hospital in Berlin. I have no doubt that Bryant v. Foreign and Commonwealth Office (unreported)10 March 2003 , in which it was held that section 94(1) did not apply to a British national locally engaged to work in the British Embassy in Rome, was rightly decided. But on Ascension Island there was no local community. In practice, as opposed to constitutional theory, the base was a British outpost in the South Atlantic. Although there was a local system of law, the connection between the employment relationship and the United Kingdom was overwhelmingly stronger. 40. I have given two examples of cases in which section 94(1) may apply to an expatriate employee: the employee posted abroad to work for a business conducted in Britain and the employee working in a political or social British enclave abroad. I do not say that there may not be others, but I have not been able to think of any and they would have to have equally strong connections with Great Britain and British employment law. For the purposes of these two appeals [the Lawson and Botham appeals], the second of these examples is sufficient. It leads to the conclusion that the appeals of both Mr Lawson and Mr Botham should be allowed.’
‘3. … she was engaged and employed at all times outside the United Kingdom; her post did not … involve reporting back to or taking instructions from the Respondent’s offices in the United Kingdom; her duties were carried out entirely in Italy; she was paid at local rates, and employed on local terms and conditions, and the conclusion of the Tribunal was that her employment was subject to Italian law.’
‘9. It is therefore clear that the right [not to be unfairly dismissed] will only exceptionally cover employees who are working or based abroad. The principle appears to be that the employment must have much stronger connections both with Great Britain and with British employment law than with any other system of law. There is no hard and fast rule and it is a mistake to try and torture the circumstances of one employment to make it fit one of the examples given, for they are merely examples of the application of the general principle. 10. The employment tribunal rightly held that neither of Lord Hoffmann’s specific examples applied to teachers employed by the British Government to work in European Schools abroad. The tribunal thought that their employment was much more firmly rooted in the European Schools than in Great Britain. However, the teachers’ argument is that, although their actual work might have strong connections with the particular school in which they were employed, their employment relationship had virtually no connection with the system of law in the country to which that particular school happened to be. They were not employed in a British enclave but they were employed in an international enclave. There is no applicable international system of employment law to which they can turn. In this respect they are very similar to Mr Lawson and Mr Botham, where there was a local system of law, but “the connection between the employment relationship and the United Kingdom was overwhelmingly stronger”.’
‘16. In our view, these cases do form another example of an exceptional case where the employment has such an overwhelmingly closer connection with Britain and with British employment law than with any other system of law that it is right to conclude that Parliament must have intended that the employees should enjoy protection from unfair dismissal. This depends upon a combination of factors. First, as a sine qua non, their employer was based in Britain; and not just based here but the Government of the United Kingdom. That is the closest connection with Great Britain that any employer can have, for it cannot be based anywhere else. Second, they were employed under contracts governed by English law; the terms and conditions were either entirely those of English law or a combination of those of English law and the international institutions for which they worked. Although this factor is not mentioned in Lawson v. Serco Ltd, it must be relevant to the expectation of each party as to the protection which the employees would enjoy. The law of unfair dismissal does not form part of the contractual terms and conditions of employment, but it was devised by Parliament in order to fill a well known gap in the protection offered by the common law to those whose contracts of employment were ended. Third, they were employed in international enclaves, having no particular connection with the countries in which they happened to be situated, and governed by international agreements between the participating states. They did not pay local taxes. The teachers were there because of commitments undertaken by the British Government; the husbands in the Wallis case[2011] ICR 617 were there because of commitments undertaken by the British Government; and the wives were there because the British Government thought it beneficial to its own undertaking to maximise the employment opportunities of their husbands’ dependants. Fourth, it would be anomalous if a teacher who happened to be employed by the British Government to work in the European School in England were to enjoy different protection from the teachers who happened to be employed to work in the same sort of school in other countries; just as it would be anomalous if wives employed to work for the British Government precisely because their husbands were so employed, and sacked because their husbands ceased to be so employed, would be denied the protection which their husbands would have enjoyed. 17. This very special combination of factors, and in particular the second and third, distinguishes these employees from the “directly employed labour” of which Mrs Bryant was an example. There, the closer analogy was with a British, or indeed any other company, operating a business in a foreign country and employing local people to work there. Those people are employed under local labour law and pay local taxes. They do not expect to enjoy the same protection as an employee working in Great Britain, although they do expect to enjoy the same protection as an employee working in the country where they work. They do, in fact, have somewhere else to go. (It would indeed be contrary to the comity of nations for us to assume that our protection is better than any others’.) To admit the cases before us as another example of the principle laid down in Lawson v. Serco Ltd[2006] ICR 250 is scarcely to extend those exceptional cases very far or to offend against the sovereignty and equality of nations.’
‘27 … the starting point needs to be more precisely identified. It is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive. But it is not an absolute rule. The open-ended language of section 94(1) leaves room for some exceptions where the connection with Great Britain is sufficiently strong to show that this can be justified. The case of the peripatetic employee who was based in Great Britain is one example. The expatriate employee, all of whose services were performed abroad but who had nevertheless very close connections with Great Britain because of the nature and circumstances of employment, is another. 28. The reason why an exception can be made in those cases is that the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that s. 94(1) should apply to them. The expatriate cases that Lord Hoffmann identified as falling within its scope were referred to by him as exceptional cases: para [36]. This was because, as he said in para [36], the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation. It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive. The case of those who are truly expatriate because they not only work but also live outside Great Britain requires an especially strong connection with Great Britain and British employment law before an exception can be made for them. 29. But it does not follow that the connection that must be shown in the case of those who are not truly expatriate, because they were not both working and living overseas, must achieve the high standard that would enable one to say that their case was exceptional. The question whether, on given facts, a case falls within the scope of s. 94(1) is a question of law, but it is also a question of degree. The fact that the commuter has his home in Great Britain, with all the consequences that flow from this for the terms and conditions of his employment, makes the burden in his case of showing that there was a sufficient connection less onerous. Mr Cavanagh [leading counsel for the employer] said that a rigorous standard should be applied, but I would not express the test in those terms. The question of law is whether s. 94(1) applies to this particular employment. The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.’
‘44. The starting point in considering whether the claimants’ employment was governed by British employment law, so that they could bring claims for unfair dismissal etc., is that they were not expatriate workers or peripatetic workers however widely those terms might be understood and were described in the cases to which I have referred. They had no physical contact or connection with Great Britain at all. They were staff locally engaged by HMG to provide local support, albeit vital support and in roles that exposed them to danger. Such staff covered a wide range of tasks. The connection with Great Britain was, in truth, limited to the identity of their employer albeit engaged in vital work. In my judgment, the factors relied upon by the claimants fall far short of being so powerful as to support the contention that the employment relationship had a closer connection with Great Britain than with Afghanistan. They do not have stronger connections with Great Britain and with British employment law than with Afghanistan and Afghan employment law. Their contracts were not governed by English law. True it is that they worked in and from both Camp Bastion and the British Embassy, but that was far removed from operating in an international enclave of the sort discussed by Lady Hale in Duncombe. There is, to my mind, no analogy with Ascension Island. I do not consider that their position can be distinguished as a matter of law from the locally employed member of staff in a British Enbassy, as considered in Bryant. It is difficult to imagine that the reach of the 1996 Act could embrace an employment relationship in which a person was engaged, albeit by HMG, in a foreign country to work exclusively in that foreign country.’
‘45. … the 2010 Act itself recognises many exceptions to the basic non-discrimination rules which reflect sensibilities and traditions in the United Kingdom. There are many countries in the world where different views are taken on matters which are no longer the subject of serious debate in Western Europe. In the case of expatriate and peripatetic workers, it is not difficult to imagine circumstances where the application of the 2010 Act to their employment could conflict with local laws and customs. Should such a case arise, the issue will need consideration. In Duncombe the Supreme Court heard submissions about the need for international comity. That could become a live issue in other foreign discrimination cases which it is said are governed by Part 5 of the 2010 Act.’
‘First, as a sine qua non, their employer was based in Britain; and not just based here but the Government of the United Kingdom. This is the closest connection with Great Britain that any employer can have, for it cannot be based anywhere else.’
‘3. … in accordance with the NATO Status of Forces Agreement of 1951 he was part of the “civil component” of the British Forces in German and treated as resident in the UK rather than Germany for various purposes, including taxation.’
‘39. … in practice, as opposed to constitutional theory, the base was a British outpost in the South Atlantic. Although there was a system of law, the connection between the employment relationship and the United Kingdom was overwhelmingly stronger.’
‘28 … the circumstances would have to be unusual for an employee who works and is based abroad to come within the scope of British labour legislation. It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive. The case of those who are truly expatriate because they not only work but also live outside Great Britain requires an exceptionally strong connection with Great Britain and British employment law before an exception can be made for them.’
‘(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service … (6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation. … (9) In the application of this section, so far as relating to race or religion or belief, to the granting of entry clearance (within the meaning of theImmigration Act 1971 ), it does not matter whether an act is done within or without the United Kingdom. (10) Subsection (9) does not affect the application of any other provision of this Act to conduct outside England and Wales or Scotland.’
‘(2) This Part does not apply to discrimination, harassment or victimisation – (a) that is prohibited by Part 4 (premises), 5 (work) or 6 (education), or (b) that would be so prohibited but for an express exception.’
‘47. There is a fundamental difficulty with this part of the claim. Section 28 is framed to ensure that no claim can be made under Part 3 of the 2010 Act if there is, or would be but for an express exception, a claim under Part 5 (work). If my conclusion on the reach of section 39(2) is correct, the reason why the claimants fail under Part 5 is not because of an express statutory exception, but because no intention can be imputed to Parliament to apply that provision to the claimants’ employment. Can Parliament have intended that a claim which relates to terms and conditions of employment which is outside the territorial reach of Part 5 is nevertheless within any territorial reach of Part 3? Such a result would be at least anomalous and in my judgment cannot have been within the contemplation of Parliament. 48. Understandably, Mr Swift did not argue that the introduction and application of the Afghan Policy were not “public functions” for the purposes of section 29(6) of the 2010 Act. It was not suggested that any help might be derived in determining its geographical reach from the reference in section 31(4) to the Human Rights Act. It is possible to envisage an argument that a function of government (or other public function of a body subject to the Human Rights Act) which falls outside the jurisdiction of the Convention is also outside the territorial reach of section 29(6). But the question is whether the application of a scheme devised and approved in London to provide non-contractual benefits to individuals employed in Afghanistan was something which Parliament intended should be governed by section 29(6). We raised the question whether section 29(6) governed the activities of the Foreign Office abroad, foreign policy in general and (for example) the distribution of aid by the Department for International Development. It does not appear that there is any clear answer. Express exemptions in schedule 3 relating to combat readiness of the Armed Forces and the activities generally of the intelligence agencies shed no light on the territorial reach of section 29(6) of the 2010 Act in connection with activities of HMG which are carried out abroad, some of which, by their nature, are likely to involve discrimination. 49. It is nonetheless clear that Parliament cannot have intended that employment related issues which are not subject to Part 5, because it lacks the necessary territorial reach, nevertheless fall within Part 3. The contrary conclusion would produce a nonsense. That can be tested by having regard to the many exceptions which apply by virtue of schedule 9 to discrimination under Part 5 which find no echo in schedule 3 relating to claims brought under Part 3. Were the claimants right in their submissions, an exemption that could be relied upon to defend a claim under Part 5, upon which it was unnecessary to rely because Part 5 had no application, would not be available under Part 3.’
‘60. The scheme of section 149 is to apply the PSED by reference to the functions of the relevant body. In the formulation of policy it does not matter, in my view, that the policy may have an impact wholly or partly outside Great Britain. The territorial limitations implicit in section 149(1)(a) follow the substantive parts of the Act but otherwise there are no territorial limitations. Although Mr Swift’s written material suggests otherwise, I did not understand him to press the point in his oral argument. 61. It follows that, in the formulation of the Afghan Policy, the defendants should have had regard to the matters identified in section 149(1)(b) and (c) of the 2010 Act. ….’
‘… (i) a difference in treatment between one person and another person (real or hypothetical) from a different … racial group; (ii) that the treatment is less favourable to one; (iii) that their relevant characteristics are the same or not materially different; and (iv) that the difference in treatment is on … racial grounds.’
‘… It is not, therefore, necessary to identify the appropriate comparator at all and it is usually better not even to engage in the exercise. The point was put with his customary lucidity by Lord Nicholls in Shamoon v. Chief Constable of the Royal Ulster Constabulary (Northern Ireland)[2003] UKHL 11 ;[2003] ICR 337 , paras 7-11.’
‘51. Whilst it is correct to say that [LES] provided assistance to British forces in both theatres and that in doing so many exposed themselves to risk, it cannot be said that the circumstances were the same. The security considerations were different; the ability to investigate threats was different; the possibility of differentiating between an intimidation policy and ex gratia benefits to reflect service arose only in Afghanistan. The two schemes were developed to reflect the circumstances prevailing at different time in different countries. … 56. The claimants are, in my view, right to suggest that, in so far as the two schemes provide opportunities to relocate to the United Kingdom, the Iraqi one was more generous to locally employed staff than the Afghan. However, the reason why the schemes provide for different opportunities to relocate to the United Kingdom is not because of the nationality of those who provided services to HMG. It is because they did so in different countries, at different times, with different levels of threat and risk and in circumstances which generated different opportunities to investigate that risk. For that reason, I do not accept that there was direct discrimination on grounds of nationality. Furthermore, for the purposes of direct and indirect discrimination there were material differences between the circumstances in the two countries and in the circumstances of [LES] in each.’
‘Thus, in every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. … The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred. For the purpose of direct discrimination … as distinct from indirect discrimination … the reason why the alleged discriminator acted on racial grounds is irrelevant. Racial discrimination is not negatived by the discriminator’s motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant’s job application was racial, it matters not that his intention may have been benign. For instance, he may have believed that the applicant would not fit in, or that other employees might make the applicant’s life a misery, If racial grounds were the reason for the less favourable treatment, direct discrimination … is established.’
‘50. The claimants advanced a subsidiary argument that their treatment is unlawful at common law. The point merited a passing mention in the claimants’ skeleton argument but was not developed orally. It is based on the proposition that like cases should be treated alike. It is submitted that the position of [LES] in Iraq is indistinguishable from [LES] in Afghanistan so that precisely the same terms should be applied to both. 51. Whilst it is correct to say that [LES] provided assistance to British forces in both theatres and that in doing so many exposed themselves to risk, it cannot be said that the circumstances were the same. The security considerations were different; the ability to investigate threats was different; the possibility of differentiating between an intimidation policy and ex gratia benefits to reflect service arose only in Afghanistan. The two schemes were developed to reflect the circumstances prevailing at different time in different countries. This is in reality a Wednesbury challenge. It cannot prosper on the facts.’
‘149. A public authority must, in the exercise of its functions, have due regard to the need to – (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. … (7) The relevant protected characteristics are – … race; … (8) A reference to conduct that is prohibited by or under this Act includes a reference to – (a) a breach of an equality clause or rule; (b) a breach of a non-discrimination rule. (9) Schedule 18 (exceptions) has effect.’ … (3) A public authority specified in Schedule 19 is subject to the duty imposed by section 149(1) in relation to the exercise of all its functions unless subsection (4) applies. (4) A public authority specified in that Schedule in respect of certain specified functions is subject to that duty only in respect of the exercise of those functions.’
‘60. The scheme of section 149 is to apply the PSED by reference to the functions of the relevant body. In the formulation of policy it does not matter, in my view, that the policy may have an impact wholly or partly outside Great Britain. The territorial limitations implicit in section 149(1)(a) follow the application of the substantive parts of the Act but otherwise there are no territorial limitations. Although Mr Swift’s written material suggested otherwise, I did not understand him to press the point in his oral argument. 61. It follows that, in the formulation of the Afghan Policy, the defendants should have had due regard to the matters identified in section 149(b) and (c) of the 2010 Act. …’
‘a. That the provisions of section 149(1)(b) and (c) of the [2010 Act] were applicable to the decision taken by the Defendants to make the Afghan Scheme, save to the extent they are dis-applied by paragraph 2 of schedule 18 to the 2010 Act; and b. That, contrary to section 149(1)(b) and (c) of the [2010 Act], the Defendants failed to have regard to those provisions when formulating the Afghan Scheme.’
‘61. … The Intimidation Policy does not raise any issue that might be touched by those subsections [section 149(1)(b) and (c)]. It applies to anyone who was employed by HMG in Afghanistan without reference to any relevant protected characteristics. It is designed to respond as necessary and appropriate to threats. The assessment carried out in February this year identified the differences between the Afghan and Iraqi policies including on the scope for relocating to the United Kingdom. It concluded that the financial package available to [LES] in Afghanistan was more generous than that available to Iraqis. Mr Jaffey complains that the analysis did not adequately consider alternative policies to minimise the differences, albeit that his concern was centred on the relocation options. By contrast, Mr Swift submits that the work done recently, had it been done as the policy was developed would have satisfied the PSED. That submission is, in my view, correct. 62. It would not be appropriate to quash the Afghan Scheme (or either of the policies comprised within it) on account of the failure to undertake an equality analysis before it was put in place. On any view, quashing the scheme would have an adverse impact on those who might wish to take advantage of the Intimidation Policy or who are currently in receipt of the training package with continuing financial support. Something temporary would have to be put in place immediately. Furthermore, given the analysis that has now been done, which additionally covered aspects of the scheme which I have concluded fall outside the scope of the PSED, it does not seem to me that, as a matter of discretion, a quashing order is necessary. Equally, a mandatory order requiring a fresh analysis limited to the aspects which should have been covered would serve no useful purpose. The appropriate remedy for the failure to have due regard to the matters in section 149(1)(b) and (c) of the 2010 Act is a declaration.’
‘67. … if a decision is reached without due regard to the PSED then it is an unlawful decision and, subject to any overarching discretionary features, the decision should be quashed. That is the course that I would adopt in this case.’
‘40. At its para 48 the Divisional Court cited, and apparently were much influenced by, some observations of Webster J in R v. Secretary for Social Services, Ex p Association of Metropolitan Authorities[1986] 1 WLR 1 , 15. The 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 number of people.’
‘49. 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 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 taken place. 50. I therefore consider that the reasons given by the Divisional Court for not quashing the Amendment Rules were mistaken. That court should have quashed those Regulations.’
‘51. Although much is said about the decision of the lower court in this matter being one of “discretion”, it was not suggested that it was an exercise of discretion with which this court can only interfere on Wednesbury grounds. We have to make up our own mind as to the proper course now to be followed.’
‘53. … As I have indicated when discussing the position before the Divisional Court, the present issue is as to the procedural legality of the Amendment Rules, and not as to the merits of the regime they introduced. A change in the latter will not cure the former defect. The only issue is, therefore, whether quashing remains an appropriate remedy in view of events that have occurred in the five months since the hearing before the Divisional Court. 54. 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 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 done. Miss Lieven [leading counsel for the Secretary of State] 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 a proper apology. Neither of those things is true in this case.’
‘70. It does not however justify the quashing of the rules change. In any event, there was a subsequent [REIA] the sufficiency of which has not been challenged. In these circumstances there will be a declaration [as to the Secretary of State’s relevant failure].’
‘… The judge declared that there had been a failure to comply with the duty but, in the light of the unchallenged [REIA] which was subsequently made, declined to hold that the rule change was vitiated by the omission. This conclusion, which was essentially an exercise of discretion to withhold relief, is not challenged.’
Showing the 50 most senior of 54.