“Any person who contravenes this section is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both …”
“3. In completing this assessment, we have considered correspondence received on the issue of XL bully breed types. 4. We are not aware of any evidence that XL bully breed types are disproportionately owned by individuals with protected characteristics and so we do not consider that the proposed measures would impact unfairly on individuals with protected characteristics. 5. A further assessment will be completed on the introduction of the compensation scheme.”
“Public Sector Equality Duty 36. In completing this assessment, we have considered correspondence received on the issue of XL Bully dogs. We are not aware of any evidence that XL Bully dogs are disproportionately owned by individuals with protected characteristics and so we do not consider that the proposed measures would impact unfairly on individuals with protected characteristics.”
“However, it is part of the established basis under which dangerous type dogs are controlled. We consider that the negative impact on affected owners – some of whom might have protected characteristics – is proportionate in view of the policy aim to protect the public from dog attacks by XL Bully type dogs. Keeping a dangerous type of dog at a fixed, secure address is key for both public safety and enforcement purposes. Exceptions for these individuals as part of the exemption scheme would therefore not be appropriate. …”
“We … consider that potential impacts can be mitigated by continuing to assist owners to take steps that will enable them to continue to meet this condition in these situations, and we will keep this under review. However, we do recognise that the condition requiring dogs to live at a specified address may make it more difficult for a person to leave their home to flee domestic violence if they own an XL Bully type dog and wish to take it with them. They do, of course, have the option of leaving without the dog, but this would risk the dog potentially being seized and euthanised. We acknowledge that the XL Bully ban adds a potential additional complication to the lives of those suffering from domestic violence, but without undermining the ban itself, the only option is to manage the issue as sensitively as possible where it arises. Ultimately any impact is justified and proportionate in light of the necessity of the condition for public safety and enforcement purposes …”
“If the court grants relief … in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.”
“I have carefully considered the principles set out above … and applied them to this case. I am satisfied, in the light of the comprehensive May 2024 [Assessment], that it is highly likely that the outcome for the Claimants would not have been substantially different if the conduct complained of had not occurred. Therefore, section 31(2A)(a) [of the 1981 Act] applies, and I must refuse the grant of relief on this ground. There are no reasons of exceptional public interest which make it appropriate to depart from the general rule.”
“The claim for judicial review is allowed in respect of Grounds A(iv) and B(iii) (breach of the public sector equality duty undersection 149 of the Equality Act 2010 ). Section 31(2A)(a) of theSenior Courts Act 1981 applies and accordingly relief is refused.”
“I do not consider that the Claimants have a real prospect of success on appeal, for the reasons I have set out in my judgment. Nor is there some other compelling reason why the appeal should be heard. I refer to the points made in the Defendant’s Submissions lodged in response to the Claimants’ Grounds of Appeal (both of which are attached hereto).”
“5. … At the hearing the Claimants argued orally that there was no authority that a ‘cure’ can be found for defects when the defective decision is in the form of a statutory instrument. In response, the Defendant produced an authority where s.31(2A) has been found to apply to a statutory instrument: R (Christchurch BC) v SSHCLG[2019] PTSR 598 §68). There is no substance at all in the argument that s.31(2A) is somehow limited in relation to ‘offence-creating regulations’ whether on grounds of exceptional public interest or otherwise. Nor did the Claimants rely upon any evidence of prosecutions relevant to the PSED point that could conceivably have supported a case of exceptional public interest. 6. The residual discretion under s.31(2A) was for the Judge to consider, which she did at J123. There is no error. The submissions are that the Orders were ‘unlawful until the May 2024 [Assessment] was drafted, that any criminal prosecutions between February to May 2024 or even the risk of them is ‘unjust’, and that the Orders have been ‘retroactively cured’ by the application of s.31(2A). Those submissions fundamentally misunderstand the Court’s function in judicial review proceedings, and the operation of s.31(2A). The lawfulness of any secondary legislation is presumed; the outcome of the judicial review claim is that the Orders have been upheld as lawful; the Judge has not given any law ‘retroactive’ effect. There is no authority, or justification, for the proposition that statutory instruments that create potential criminal sanctions are to be treated differently.”
“I accept, of course, that courts have a duty to apply section 31(2A), since that is the will of Parliament. Nevertheless, the important guidance which this Court has given in a number of case, including Plan B Earth, Bradbury and Greenfields, should enable first instance courts and tribunals to apply that provision without undue difficulties.”
“It is important that a court faced with an application for judicial review does not shirk the obligation imposed by section 31(2A). The provision is designed to ensure that, even if there has been some flaw in the decision-making process which might render the decision unlawful, where the other circumstances mean that quashing the decision would be a waste of time and public money (because, even when adjustment was made for the error, it is highly likely that the same decision would be reached), the decision must not be quashed and the application should instead be rejected. The provision is designed to ensure that the judicial review process remains flexible and realistic.”
“The duty [in section 31(2A)] has regularly been applied to substantive decision-making across the whole spectrum of administrative action, including in the sphere of planning, both at first instance and in decisions of this Court …”
“The outcome for the claimant, is, usually, the decision or other measure that the public authority has taken.”
“It is wrong for casual and careless risk assessments to form the basis for detention.”
“Although these principles emanate from decisions of the ECtHR, in my view they also accurately reflect fundamental principles of the UK’s unwritten constitution. The constitutional principle of the rule of law was expressly recognised insection 1 of the Constitutional Reform Act 2005 . It requires, inter alia, that Parliament and the executive recognise and respect the separation of powers and abide by the principle of legality. Although the Crown in Parliament is the sovereign legislative power, the courts have the constitutional role of determining and enforcing legality. Thus, Parliament’s undoubted power to legislate to overrule the effect of court judgments generally ought not to take the form of retrospective legislation designed to favour the executive in ongoing litigation in the courts brought against it by one of its citizens, unless there are compelling reasons to do so. Otherwise it is likely to offend a citizen’s sense of fair play.”
“… I firmly endorse the views expressed by Buxton LJ at para 41 about the appropriate course to be taken by a court when delegated legislation is found to be ultra vires. Such a finding should normally lead to the delegated legislation being quashed, and only in unusual circumstances would one expect to find a court exercising its discretion in such a way as to allow such legislation to remain in force. Such legislation normally changes the law for the public generally or for a class of persons. It should not generally be allowed to stand if it has not come into being in accordance with the law, and certainly not merely because certain checks which should have been carried out beforehand are to be made subsequently. Such a course may well prejudge the outcome of those checks, and yet the public is expected to conduct its life in accordance with such delegated legislation in the meantime. That cannot normally be appropriate.”
“The omission of an REIA was … a serious matter.”
“Leading judges have stressed the importance of REIAs as an instrument in guarding against race discrimination. They include Arden LJ in R (Elias) v Secretary of State for Defence[2006] 1 WLR 3213 , para 274 and Sedley LJ in R (BAPIO Action Ltd) v Secretary of State for the Home Department[2007] EWCA Civ 1139 . In the latter case Sedley LJ said, at para 3, that the decision in that case not to interfere with the trial judge’s decision not to quash the alteration of the Immigration Rules that had taken place without an REIA does not in any way diminish the importance of compliance with section 71, not as a rearguard action following a concluded decision but as an essential preliminary to any such decision. Inattention to it is both unlawful and bad government. I respectfully agree. In the present case, absence of an REIA was the result not of inattention but of a mistake made by the Secretary of State. It was however a mistake that the Divisional Court found very surprising: see para 38 above. In my view it sent out quite the wrong message to public bodies with responsibilities under section 71 to allow that deficit to be cured by a review only undertaken eight months after the Amendment Rules had been laid, and in the face of an adverse court decision; and only completed a year after the Amendment Rules were laid, and four days before the hearing in this court. That process has also produced the result that the REIA needed to come to a particular conclusion in order to preserve Regulations that the court has found to have been introduced unlawfully. I do not of course in any way doubt the good faith of the grade seven civil servant who has produced an REIA that demonstrates that PCC is not applied in a discriminatory fashion. But as a matter of principle it cannot be right that a survey that should have been produced to inform the mind of government before it took the decision to introduce the Amendment Rules was only produced in order to attempt to validate the decision that had already been taken.”
“In considering that issue I am strongly influenced by the failure to produce an REIA. Although here characterised as a procedural defect, it is a defect in following a procedure that is of very great substantial, and not merely technical, importance, as the observations of Arden and Sedley LJJ make clear. It continues to be of the first importance to mark that failure by an appropriate order. That an REIA has now been produced, more than a year after it should have been, is by no means conclusive on this issue of principle, granted the unsatisfactory conditions under which that work was undertaken. Miss Lieven pointed out that despite this court’s strictures in the BAPIO case[2007] EWCA Civ 1139 it did not interfere with the refusal of the trial judge to quash the Regulations. But that was a case where the mistake had been realised and corrected before the matter came to court, and was the subject of proper apology. Neither of those things is true in this case.”
“86. … We have to consider the effect of the failure to consider section 149 at the right time in the light of our conclusion that the eventual equality statement satisfies the statutory requirements. A reading of Buxton LJ’s comments at para 49 of C’s case … might appear to favour the quashing of the decision solely by reason of the fact that the equality statement was not prepared as part of the decision, and post-dated it. However, reference to para 54 of C’s case shows that late preparation of the assessment is not necessarily conclusive on the question of whether quashing the decision should automatically follow. There seems to us to be some degree of tension between paras 49 and 54, and there have been situations in which this court has not quashed a decision, notwithstanding a failure to address equality impacts at the correct point in time. 87. Nothing we say should be thought to diminish the importance of proper and timely compliance with the PSED. But we have strong reservations about the proposition that the court should necessarily exercise its discretion to quash a decision as a form of disciplinary measure. During the course of argument, Mr Forsdick accepted that if an assessment, subsequently carried out, satisfied the court, there would be no point in quashing the decision if the effect of doing that and requiring a fresh consideration would not have led to a different decision. We think this was a correct concession. The court’s approach should not ordinarily be that of a disciplinarian, punishing for the sake of it, in these circumstances. The focus should be on the adequacy and good faith of the later assessment, although the court is entitled to look at the overall circumstances in which that assessment was carried out. In C’s case a particularly dilatory state of affairs was identified which was of importance to the exercise of the court’s discretion as to remedy. The decision in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2008] ACD 20 appears to represent the other end of the spectrum. The present case falls somewhere between the two on that spectrum. We do not think that C’s case necessarily demonstrates that an order quashing the decision must follow.”
“An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.” (Emphasis added)
“Accordingly, if an unlawful administrative act or decision is not challenged before a court of competent jurisdiction, or if permission to bring an application for judicial review is refused, the act or decision will remain in effect. Equally, even if an unlawful act or decision is challenged before a court of competent jurisdiction, the court may decline to grant relief in the exercise of its discretion, or for a reason unrelated to the validity of the act or decision, such as a lack of standing (as in Durayappah v Fernando[1967] 2 AC 337 ) or an ouster clause (as in Smith v East Elloe). In that event, the act or decision will again remain in effect. An unlawful act or decision cannot therefore be described as void independently of, or prior to, the court’s intervention.”
“34. … The case of Hoffmann-La Roche … concerned an application by the Crown for an interim injunction to enforce the application of a statutory order pending the determination of proceedings in which the validity of the order was challenged. The sole issue arising was whether the Crown should be required to give a cross-undertaking in damages. It was held that it should not. Lord Reid observed at p 341 that ‘an order made under statutory authority is as much the law of the land as an Act of Parliament unless and until it has been found to be ultra vires’. He went on to state that ‘the order which the appellants seek to annul is the law at present and if an interim injunction is refused that means that the law is not to be enforced and the appellants are to be at liberty to disregard it’ (p 342). Similar observations were made by the other members of the majority. 35. Lord Diplock … commented at p 366 that ‘it leads to confusion to use such terms as “voidable”, “voidable ab initio”, “void” or “a nullity” as descriptive of the legal status of subordinate legislation alleged to be ultra vires for patent or for latent defects, before its validity has been pronounced on by a court of competent jurisdiction’. These were, he said, ‘concepts developed in the private law of contract which are ill-adapted to the field of public law’. All that could usefully be said, in his view, was ‘that the presumption that subordinate legislation is intra vires prevails in the absence of rebuttal, and that it cannot be rebutted except by a party to legal proceedings in a court of competent jurisdiction who has locus standi to challenge the validity of the subordinate legislation in question’. ”