Sophie Coulthard & Anor, R (on the application of) v Secretary of State for the Environment, Food and Rural Affairs [2024] EWHC 3252 (Admin)

“An Act to prohibit persons from having in their possession or custody dogs belong to types bred for fighting; to impose restrictions in respect of such dogs pending the coming into force of the prohibition; to enable restrictions to be imposed in relation to other types of dog which present a serious danger to the public; to make further provision for securing that dogs are kept under proper control; and for connected purposes.”

“1. Dogs bred for fighting. (1) This section applies to - (a) any dog of the type known as the pit bull terrier; (b) any dog of the type known as the Japanese tosa; and (c) any dog of any type designated for the purposes of this section by an order of the Secretary of State, being a type appearing to him to be bred for fighting or to have the characteristics of a type bred for that purpose. (2) No person shall - (a) breed, or breed from, a dog to which this section applies; (b) sell or exchange such a dog or offer, advertise or expose such a dog for sale or exchange; (c) make or offer to make a gift of such a dog or advertise or expose such a dog as a gift; (d) allow such a dog of which he is the owner or of which he is for the time being in charge to be in a public place without being muzzled and kept on a lead; or (e) abandon such a dog of which he is the owner or, being the owner or for the time being in charge of such a dog, allow it to stray. (3) After such day as the Secretary of State may by order appoint for the purposes of this subsection no person shall have any dog to which this section applies in his possession or custody except- (a) in pursuance of the power of seizure conferred by the subsequent provisions of this Act; or (b) in accordance with an order for its destruction made under those provisions; but the Secretary of State shall by order make a scheme for the payment to the owners of such dogs who arrange for them to be destroyed before that day of sums specified in or determined under the scheme in respect of those dogs and the cost of their destruction. (4) ….. (5) The Secretary of State may by order provide that the prohibition in subsection (3) above shall not apply in such cases and subject to compliance with such conditions as are specified in the order and any such provision may take the form of a scheme of exemption containing such arrangements (including provision for the payment of charges or fees) as he thinks appropriate. (6) A scheme under subsection (3) or (5) above may provide for specified functions under the scheme to be discharged by such persons or bodies as the Secretary of State thinks appropriate. (6A) ….. (7) 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 except that a person who publishes an advertisement in contravention of subsection (2)(b) or (c) - (a) shall not on being convicted be liable to imprisonment if he shows that he published the advertisement to the order of someone else and did not himself devise it; and (b) shall not be convicted if, in addition, he shows that he did not know and had no reasonable cause to suspect that it related to a dog to which this section applies. (8) An order under subsection (1)(c) above adding dogs of any type to those to which this section applies may provide that subsections (3) and (4) above shall apply in relation to those dogs with the substitution for the day appointed under subsection (3) of a later day specified in the order. (9) The power to make orders under this section shall be exercisable by statutory instrument which, in the case of an order under subsection (1) or (5) or an order containing a scheme under subsection (3), shall be subject to annulment in pursuance of a resolution of either House of Parliament.”

“2 Other specially dangerous dogs. (1) If it appears to the Secretary of State that dogs of any type to which section 1 above does not apply present a serious danger to the public he may by order impose in relation to dogs of that type restrictions corresponding, with such modifications, if any, as he thinks appropriate, to all or any of those in subsection (2)(d) and (e) of that section. (2) An order under this section may provide for exceptions from any restriction imposed by the order in such cases and subject to compliance with such conditions as are specified in the order. (3) An order under this section may contain such supplementary or transitional provisions as the Secretary of State thinks necessary or expedient and may create offences punishable on summary conviction with imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale or both. (4) In determining whether to make an order under this section in relation to dogs of any type and, if so, what the provisions of the order should be, the Secretary of State shall consult with such persons or bodies as appear to him to have relevant knowledge or experience, including a body concerned with animal welfare, a body concerned with veterinary science and practice and a body concerned with breeds of dogs. (5) The power to make an order under this section shall be exercisable by statutory instrument and no such order shall be made unless a draft of it has been laid before and approved by a resolution of each House of Parliament.”

“49. …. Supplementary means what it says: it is added to the power in s.9 to fill in details or machinery for that which the Act, and in particular section 9(2), does not itself provide. It enables that which the Act empowers to be effective.”

“Conclusion Interpreting the phrase 'of the type known as the pit bull terrier' in s.1(1) of the statute simply by the normal canon of construction, i.e. by giving the words their ordinary meaning, I entirely agree with the decision of the Crown Court in both cases that the word 'type' is not synonymous with the word ‘breed'. The definition of a breed is normally that of some recognised body such as the Kennel Club in the United Kingdom. I agree with the Crown Court in both cases that the word 'type' in this context has a meaning different from and wider than the word 'breed'. I would so conclude by reading only s 1 of the 1991 Act. But that this is so is made even clearer by reference to a subsection to which I have not so far referred, namely s 2(4) of the 1991 Act. This provides: 'In determining whether to make an order under this section in relation to dogs of any type ... the Secretary of State shall consult with such persons or bodies as appear to him to have relevant knowledge or experience, including ... a body concerned with breeds of dogs.' In that subsection the two words are being used in contradistinction to each other. We have been referred to two judgments of the High Court in Scotland on appeals by case stated from decisions of the Sheriff Court at Linlithgow in trials for offences against s 1(3) of the 1991 Act. Both judgments were given by the Lord Justice General (Hope) on 17 December 1992. In Parker v Annan 1993 SCCR 185, the first of the two judgments to be delivered, the question whether the word 'type' in s.1 is synonymous with the word breed was considered. In his judgment, the Lord Justice General said (at 190-191): 'There is an absence of any precise criteria by which a pit bull terrier may be identified positively as a breed and by this means distinguished from all other dogs. One must of course be careful not to extend the application of the section to dogs other than those which are described in it. A dog must be of the type known as the pit bull terrier if the section is to apply to it. But the phrase used by the statute enables a broad and practical approach to be taken, in a field in which it has been recognised that the pit bull terrier cannot, in this country at least, be precisely defined by breed or pedigree. For these reasons we do not think that the sheriff misdirected himself when he regarded as highly significant Mr Hayworth's evidence that Kim resembled a pit bull terrier more than any other type of dog and declined to rely on Dr Peachey's opinion that although she resembled a pit bull terrier she was not in fact one but was a mongrel. He was right to approach the case on the basis that a dog could be of the type known as the pit bull terrier although it was not purebred as such on both sides. We do not find anything in his use of words to suggest that he applied the wrong test in his approach to the evidence. The question whether the evidence as to Kim's characteristics was sufficient to show that she was not a dog of this type was a question of fact for him to decide.' I would respectfully agree with and adopt that passage. Having decided that the word 'type' has a wider meaning than the word 'breed', a court then has to adopt some guide for determining the limits of the phrase 'any dog of the type known as the pit bull terrier'. What that guide should be, and where those limits lie, are questions of fact for the decision of the magistrates or the Crown Court, on the evidence. In these matters, the courts in both cases heard evidence that the ADBA American Dog Breeders’ Association laid down a breed standard for pit bull terriers in the USA. The Crown Court in both cases was therefore entitled to use the ADBA standard as a guide. However, both courts were also entitled to find, on the evidence before them, that the fact that a dog does not meet that standard in every respect is not conclusive. Thus both courts could properly conclude that a dog was of the type known as the pit bull terrier if, as the Crown Court at Wood Green found, its characteristics substantially conformed to the ADBA's standard or, to use the words of the Crown Court at Knightsbridge, if the dog approximately amounted to, was near to, or had a substantial number of the 8 characteristics of the pit bull terrier as set out in the ADBA's standard.”

“2. The type of dog known as the XL Bully is designated for the purposes of section 1 of the Dangerous Dogs Act 1991, being a type appearing to the Secretary of State to be bred for fighting or to have the characteristics of a type bred for that purpose.”

“The principal objective is to introduce controls on the existing population of the XL Bully dog type to reduce the risk that they pose to public safety and to reduce the overall number of dogs of the XL Bully type in the dog population.”

“An expert group was convened to develop a conformation standard for the XL Bully dog type to help with the identification of this type of dog as there is no recognised Royal Kennel Club breed standard for the XL Bully (which is also sometimes described as the American XL Bully or American Bully XL). This expert group contained representatives from the police, local authorities, vets and other animal welfare experts.”

“A type of dog may be prohibited under section 1 if, and only if, it is a dog bred for fighting or has the characteristics of a dog bred for that purpose. The Claimants’ case is that the XL bully is not such a dog and that the Defendant erred in law in deciding that it was.”

“Designation for the purposes of section 1 of the Dangerous Dogs Act 1991 2. The type of dog known as the XL Bully is designated for the purposes of section 1 of the Dangerous Dogs Act 1991, being a type appearing to the Secretary of State to be bred for fighting or to have the characteristics of a type bred for that purpose.”

“6. Legislative Context 6.1 The Secretary of State makes this Order in exercise of the powers conferred by section 1(1)(c) and (8) of the Dangerous Dogs Act 1991. 6.2 Article 1 of the Order sets out the coming into force date and the extent of the legislation (England and Wales). 6.3 Section 1(1)(c) of the 1991 Act enables the Secretary of State to designate by order, for the purposes of section 1 of that Act, any dog of a type being a type appearing to the Secretary of State as being bred for fighting or to have the characteristics of a type bred for that purpose. Article 2 of the Order designates any dog of the type known as the XL Bully for the purposes of Section 1 of the 1991 Act. Once this Order comes into force, it will be an offence to breed, sell, advertise, transfer, offer for sale, gift, abandon or let such dogs stray. It will be an offence for owners of dogs of the XL Bully type not to keep their dogs on a lead and muzzled when in a public space. 6.4 Article 3 of the Order sets out the end date of the “transition period”, after which it will be an offence to possess an XL Bully type dog. 7. Policy background What is being done and why? 7.1 Following the announcement of the Prime Minister on the 15 September, we are taking urgent action to bring forward certain prohibitions and other controls relating to XL Bully dog types under Section 1 of the Dangerous Dogs Act 1991. 7.2 This follows a concerning rise in serious attacks and fatalities, which appear to be driven by this type of dog. 7.3 The principal objective is to introduce controls on the existing population of the XL Bully dog type to reduce the risk that they pose to public safety and to reduce the overall number of dogs of the XL Bully type in the dog population. 7.4 The instrument will add the XL Bully type of dog to the list of types of dog to which the offences in Section 1 of the Dangerous Dogs Act 1991 apply. 7.5 An expert group was convened to develop a conformation standard for the XL Bully dog type to help with the identification of this type of dog as there is no recognised Royal Kennel Club breed standard for the XL Bully (which is also sometimes described as the American XL Bully or American Bully XL). This expert group contained representatives from the police, local authorities, vets and other animal welfare experts. The conformation standard will be published in guidance alongside this instrument. 7.6 Once it comes into force on 31st December 2023 the offences in section 1(2) of the 1991 Act will apply to the XL Bully type. This will mean that all owners of dogs of the XL Bully type must keep their dogs on a lead and muzzled when in a public space. This will reduce the risk that they pose to public safety. It will also mean that anyone doing any of the following will be committing an offence under section 1(2) of the 1991 Act: • breeding, or breeding from, a dog of the XL Bully type. • selling, gifting or exchanging XL Bully type dogs (this will include rehoming). • abandoning or allowing XL Bully type dogs to stray. • advertising XL Bully type dogs for sale, exchange or gifting. 7.7 These measures should lead to a significant reduction in the number of these dogs in England and Wales over time. 7.8 The offence in section 1(3) of the 1991 Act of possessing a dog to which section 1(1) of the 1991 Act applies or having custody of such a dog will only apply on or after 1st February 2024. 7.9 We intend to set out in a further statutory instrument what owners will be required to do to ensure that they are not committing an offence under section 1(3) from 1st February 2024. A compensation scheme will be set up in accordance with section 1(3) of the 1991 Act for the payment of compensation to owners of XL Bully types who arrange for them to be destroyed on or before 31st January 2024.”

“116. ….. A useful summation of the law was given by Simon Brown LJ in R v Somerset County Council, Ex p Fewings [1995] 1 WLR 1037, 1049, in which he identified three categories of consideration, as follows: “… [T]he judge speaks of a ‘decision-maker who fails to take account of all and only those considerations material to his task’. It is important to bear in mind, however, … that there are in fact three categories of consideration. First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had. Second, those clearly identified by the statute as considerations to which regard must not be had. Third, those to which the decision-maker may have regard if in his judgment and discretion he thinks it right to do so. There is, in short, a margin of appreciation within which the decision-maker may decide just what considerations should play a part in his reasoning process.” 117. The three categories of consideration were identified by Cooke J in the New Zealand Court of Appeal in CREEDNZ Inc v Governor General [1981] NZLR 172, 183: “What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the [relevant public authority] as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision.”

“… it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such. This view is I think supported by the judgment of Schiemann J in R v Nottingham City Council, Ex p Costello (1989) 21 HLR 301, to which Mr Luba referred us. That case concerned the degree of inquiry which an authority was obliged to undertake into issues of priority need and intentional homelessness. Schiemann J said, at p 309: “In my view the court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient.”

“The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable housing authority could have been satisfied on the basis of the inquiries made.” “In my view the court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient.” “The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable housing authority could have been satisfied on the basis of the inquiries made.”

“C. EVIDENCE OF DISPROPORTIONATE INVOLVEMENT IN FATAL DOG ATTACKS 17. The Policy Options Paper set out that since 2005 Defra had recorded 60 fatalities due to dog attacks, nine of which had been caused by XL Bully breed types at the time of writing (with an additional suspected death caused by an XL bully breed type). It also stated that the majority of fatalities involving XL Bully type dogs that Defra had recorded had taken place over the past two years. This information was sourced from a data table maintained by Defra (“Data Table”). The latest Data Table is exhibited [GBH3/06/22]. Since the Policy Options Paper was prepared, there have been five further fatalities which are recorded in the Data Table I exhibit (dated 20 May 2024, 3 February 2024, 25 November 2024, 3 October 2023, 14 September 2023 . Of these five recent fatalities four resulted from an attack by an XL Bully dog(s)). The police have provided permission to disclose partially redacted versions of the reports they provided to Defra of the incidents on 14 September 2023 [GBH3/07/34] and 3 October 2023 [GBH3/08/36]. Names and certain other information provided within the confidential police report have been redacted so as not to prejudice any ongoing investigations. In the majority of cases, where this information is available, the Data Table records the setting of the incident as a home or specifically the dog owner’s home. Notably, however, there are five cases where the incident is recorded as taking place in a public location, and five cases where the incident reportedly took place in a garden, outside the owners’ premises or in a scrap yard that belonged to the owner of the dog. 18. Police forces are not required to report dog attack incidents or fatalities to Defra. However, when a fatality from a dog attack occurs the National Police Chiefs’ Council dangerous dogs working group prepares confidential reports from the relevant DLOs for Defra Ministers. These reports outline the circumstances of the fatality and confirm whether or not the dog was a banned breed type. DLOs are specially trained in all dog-related legislation and are trained in and have a good knowledge of the identification of the prohibited types. DLOs only formally assess whether a dog is a prohibited breed type against the existing guidance and standards for prohibited breed types. However, they also have a good knowledge in identifying dog breeds more widely due to their professional experience investigating and handling a range of dog breeds which may be involved in wider dog control offences that can involve any breed of dog. 19. In the absence of a centralised data collection system, Defra uses publicly available information in the press or media and these confidential police reports as the best available data to monitor dog attack fatalities and breed types involved. Each time a dog attack fatality occurs the Secretary of State and other Defra Ministers are briefed on the individual incident based on the details provided by the local DLOs and/or press reports. The briefing is provided in the form of a written summary of the circumstances of the incident (details typically provided by the police), the breed type involved (details typically provided by the police), and an update to the Data Table which is continuously updated as a working document. When a dog related fatality occurs, the Secretary of State is sent the updated Data Table in full so that any broader trends are apparent. From 2022 onwards the table distinguishes between the media and the police as the source of information about the incidents. 20. In the First De Minimis Assessment (“the First DMA”) that officials completed for the Dangerous Dogs (Designated Types) (England and Wales) Order 2023 (“the Designation Order”) it was stated that attacks by XL Bully type dogs had accounted for 11 of the 24 deaths resulting from dog attacks in the UK since 2020 [RCB/419]. These figures were informed by collated data from the tracking of police and press reports mentioned above. 21. Unfortunately, two dog attacks occurred in the days leading up to the announcement on 15 September 2023. A dog attack fatality occurred on 14 September 2023 in Staffordshire. The police informed Defra on the day of the incident that it involved two suspected XL Bully type dogs [GBH3/09/38]. The Data Table records that incident as taking place in a public location. This was relayed to Ministers on the 15 September 2023 from a confidential police report to Defra [GBH3/07/34]. Also, on 15 September 2023 Defra officials informed the Secretary of State of the details of a non-fatal attack on 11 September 2023 in Newham, London, referring to the report in the media that a boy had been attacked by an XL Bully type dog [GBH3/10/39]. 22. Another dog attack fatality occurred on 3 October 2023. The fatality was later confirmed by the police on 13 October 2023 to have involved two XL Bully breed types [GBH3/08/36]. This fatality was not included in the figures prepared for the First DMA however it appears in the Data Table. The Data Table records that incident as taking place outside a home. 23. The report by the campaigning organisation Bully Watch, to which the Claimants refer, was cited in the First DMA but was not provided to the Secretary of State by Defra officials. As is stated above, the Secretary of State is routinely provided with updates to the Data Table.”

“41. The XL Bully type dog was a relatively well understood type before development by Defra of a conformation standard. The XL Bully had been bred and sold as a distinct type of dog for many years, and the population within the UK is now significant in size. Breed standards existed for the American Bully type dog that were published by hobbyist breed registries and which informed the development of the Defra standard. Whilst there was no existing detailed specification for the XL Bully breed type, some of the American Bully standards did include brief descriptions of the XL size of the American Bully. Thus, there was a general understanding of the basic characteristics of the XL Bully (for example, large, powerfully built and blocky) even before those characteristics were articulated by Defra into guidance. The initial draft of the conformation standard was prepared by police enforcement experts with knowledge of those characteristics [GBH3/16/93].”

“Public sector equality duty (1) 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.”

“(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213; [2006] EWCA Civ 1293 at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. (2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (QB) (Stanley Burnton J (as he then was)). (3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 at [26 – 27] per Sedley LJ. (4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a “rearguard action”, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) at [23 – 24]. (5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), as follows: i) The public authority decision maker must be aware of the duty to have “due regard” to the relevant matters; ii) The duty must be fulfilled before and at the time when a particular policy is being considered; iii) The duty must be “exercised in substance, with rigour, and with an open mind”

“75. As was made clear in a passage quoted in Bracking, the duty “must be exercised in substance, with rigour, and with an open mind” (per Aikens LJ in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), [2009] PTSR 1506, para 92. And, as Elias LJ said in Hurley and Moore, it is for the decision-maker to determine how much weight to give to the duty: the court simply has to be satisfied that “there has been rigorous consideration of the duty”

“We accept (as is common ground) that the PSED is a duty of process and not outcome. That does not, however, diminish its importance….”

“134. Mr Westmoreland Smith sensibly concentrated in his oral submissions on arguing that I should refuse relief under s. 31(2A) or (3C) of the SCA 1981. Even before that provision came into force, there were dicta indicating that the court should be slow to quash decisions in circumstances where the duty had been substantively complied with after the event: see e.g. R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin), [2012] HRLR 13, at [98]-[99] and [102] (Elias LJ and King J). In R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441, [2016] 1 WLR 3923, [87] Laws and Treacy LJJ, with whom Lord Dyson MR agreed, said this at [87]: “…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, [counsel for the claimant] 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.” 135. That can be taken as an authoritative statement of the principles governing the exercise of the court’s remedial discretion in this area. However, since the coming into force of s. 31(2A), (2B), (3C) and (3D) of the SCA 1981, the position is no longer one of discretion. As Coulson LJ pointed out in Gathercole at [38], those provisions impose a duty, which the court cannot shirk. … 139. In those circumstances, if I were to quash EQIA1 and remit the matter to the Secretary of State, I would be requiring a re-run of a process which has already been undertaken. The outcome of the decision following consideration of EQIA2 shows that the result is highly likely to be the same. There would be no point in doing that. …” “…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, [counsel for the claimant] 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.”

“273. It would not be appropriate to give any exhaustive guidance on how these provisions should be applied. Much will depend on the particular facts of the case before the court. Nevertheless, it seems to us that the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is “highly likely” that the outcome would not have been “substantially different” if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law. Furthermore, although there is undoubtedly a difference between the old Simplex test and the new statutory test, “the threshold remains a high one” (see the judgment of Sales L.J., as he then was, in R. (on the application of Public and Commercial Services Union) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin); [2018] 1 All E.R. 142, at paragraph 89).”

“52. The proper approach to this test is not in dispute between the parties. It has been considered in a number of authorities and it seems to me that the central points can be summarised as follows: i) The burden of proof is on the defendant: R (Bokrosova) v Lambeth Borough Council [2016] PTSR 355 [8]; ii) The “highly likely” standard of proof sets a high hurdle. Although s. 31(2A) has lowered the threshold for refusal of relief where there has been unlawful conduct by a public authority below the previous strict test set out in authorities such as Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1988) 57 P & CR 306, the threshold remains a high one: R (Public and Commercial Services Union) v Minister for the Cabinet Office [2018] ICR 269 at [89] per Sales LJ, approved by Lindblom, Singh and Haddon-Cave LLJJ in R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214, [2020] PTSR 1446 at [273]. iii) The “highly likely” test expresses a standard somewhere between the civil standard (the balance of probabilities) and the criminal standard (beyond reasonable doubt): R (Ron Glatter) v NHS Herts Valleys Clinical Commissioning Group [2021] EWHC 12 (Admin) at [98] per Kerr J. iv) The court is required to undertake an evaluation of the hypothetical or counterfactual world in which the identified unlawful conduct by the public authority is assumed not to have occurred: R (Public and Commercial Services Union) v Minister for the Cabinet Office (supra) [89], R (Plan B Earth) v Secretary of State for Transport (supra) [273], R (Ron Glatter) v NHS Herts Valleys Clinical Commissioning Group (supra) [98]. v) The court must undertake its own objective assessment of the decision-making process and what the result would have been if the decision-maker had not erred in law: R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] 1 WLR 5161, judgment of the whole court at [55], R (Gathercole) v Suffolk County Council [2020] EWCA Civ 1179, [2021] PTSR 359 at [38] per Coulson LJ, (Asplin and Floyd LLJJ concurring at [78] and [79]). vi) The test is not always easy to apply. The court has the unenviable task of (i) assessing objectively the decision and the process leading to it, (ii) identifying and then stripping out the “conduct complained of” (iii) deciding what on that footing the outcome for the applicant is “highly likely” to have been and/or (iv) deciding whether, for the applicant, the “highly likely” outcome is “substantially different” from the actual outcome’: R (Ron Glatter) v NHS Herts Valleys Clinical Commissioning Group (supra) [98]-[99]. vii) It is important that a court faced with an application for judicial review does not shirk the obligation imposed by section 31(2A); the matter is not simply one of discretion but becomes one of duty provided the statutory criteria are satisfied: R (Gathercole) v Suffolk County Council (supra) at [38], [78] and [79] and R (Plan B Earth) v Secretary of State for Transport (supra) at [272]. viii) 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: R (Gathercole) v Suffolk County Council (supra) at [38], [78] and [79]. ix) The provisions ‘require the court to look backwards to the situation at the date of the decision under challenge’ and the ‘conduct complained of’ means the legal errors that have given rise to the claim: R (KE) v Bristol City Council [2018] EWHC 2103 (Admin) at [139] per HHJ Cotter QC, citing Jay J in R (Skipton Properties Ltd) v Craven DC [2017] EWHC 534 (Admin) at [97]-[98]. x) The Court can, with due caution, take account of evidence as to how the decision-making process would have been approached if the identified errors had not occurred. Section 31(2A) is not prescriptive as to material which the Court may consider in determining the “highly likely” issue: R (Enfield LBC) v Secretary of State for Transport [2015] EWHC 3758 at [106], per Laing J. Furthermore, a witness statement could be a very important aspect of such evidence: R (Harvey) v Mendip District Council [2017] EWCA Civ 1784 at [47], per Sales LJ, although the court should approach with a degree of scepticism self-interested speculations by an official of the public authority which is found to have acted unlawfully about how things might have worked out if no unlawfulness had occurred: R (Public and Commercial Services Union) v Minister for the Cabinet Office (supra) [91]. xi) Importantly, the court must not cast itself in the role of the decision-maker: R (Goring-on-Thames Parish Council) v South Oxfordshire District Council (supra) at [55]. While much will depend on the particular facts of the case before the court, ‘nevertheless the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is “highly likely” that the outcome would not have been “substantially different” if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law.’ R (Plan B Earth) v Secretary of State for Transport (supra) [273]. xii) It follows that where particular facts relevant to the substantive decision are in dispute, the court must not ‘take on a fact- finding role, which is inappropriate for judicial review proceedings’ where the ‘issue raised…is not an issue of jurisdictional fact’. The court must not be enticed 'into forbidden territory which belongs to the decision-maker, reaching decisions on the basis of material before it at the time of the decision under challenge, and not additional evidence after the event when a challenge is brought'. To do otherwise would be to use s.31(2A) in a way which was never intended by Parliament: R (Zoe Dawes) v Birmingham City Council [2021] EWHC 1676 (Admin), unrep., at [79] – [81] per Holgate J. xiii) The impermissibility of the court assuming the mantle of the decision-maker has been particularly emphasised in the planning context where e.g. it may require an assessment of aesthetic judgment or adjudicating on matters of expert evidence: R (Williams) v Powys CC [2018] 1 WLR 439 per Lindblom J at [72] and R (Thurloe Lodge Ltd) v Royal Borough of Kensington & Chelsea [2020] EWHC 2381 (Admin) at [26] per David Elvin QC (sitting as a Deputy High Court Judge). xiv) Finally, the contention that the s.31(2A) duty is restricted to situations in which there have been trivial procedural or technical errors (see e.g. the dicta of Blake J in R (Logan) v Havering LBC [2015] EWHC 3193 (Admin) at [55] ) was rejected by the Court of Appeal in R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] 1 WLR 5161 [47] and [55] and in R (Gathercole) v Suffolk County Council (supra) [36], [77] and [78].” i) The burden of proof is on the defendant: R (Bokrosova) v Lambeth Borough Council [2016] PTSR 355 [8]; ii) The “highly likely” standard of proof sets a high hurdle. Although s. 31(2A) has lowered the threshold for refusal of relief where there has been unlawful conduct by a public authority below the previous strict test set out in authorities such as Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1988) 57 P & CR 306, the threshold remains a high one: R (Public and Commercial Services Union) v Minister for the Cabinet Office [2018] ICR 269 at [89] per Sales LJ, approved by Lindblom, Singh and Haddon-Cave LLJJ in R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214, [2020] PTSR 1446 at [273]. iii) The “highly likely” test expresses a standard somewhere between the civil standard (the balance of probabilities) and the criminal standard (beyond reasonable doubt): R (Ron Glatter) v NHS Herts Valleys Clinical Commissioning Group [2021] EWHC 12 (Admin) at [98] per Kerr J. iv) The court is required to undertake an evaluation of the hypothetical or counterfactual world in which the identified unlawful conduct by the public authority is assumed not to have occurred: R (Public and Commercial Services Union) v Minister for the Cabinet Office (supra) [89], R (Plan B Earth) v Secretary of State for Transport (supra) [273], R (Ron Glatter) v NHS Herts Valleys Clinical Commissioning Group (supra) [98]. v) The court must undertake its own objective assessment of the decision-making process and what the result would have been if the decision-maker had not erred in law: R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] 1 WLR 5161, judgment of the whole court at [55], R (Gathercole) v Suffolk County Council [2020] EWCA Civ 1179, [2021] PTSR 359 at [38] per Coulson LJ, (Asplin and Floyd LLJJ concurring at [78] and [79]). vi) The test is not always easy to apply. The court has the unenviable task of (i) assessing objectively the decision and the process leading to it, (ii) identifying and then stripping out the “conduct complained of” (iii) deciding what on that footing the outcome for the applicant is “highly likely” to have been and/or (iv) deciding whether, for the applicant, the “highly likely” outcome is “substantially different” from the actual outcome’: R (Ron Glatter) v NHS Herts Valleys Clinical Commissioning Group (supra) [98]-[99]. vii) It is important that a court faced with an application for judicial review does not shirk the obligation imposed by section 31(2A); the matter is not simply one of discretion but becomes one of duty provided the statutory criteria are satisfied: R (Gathercole) v Suffolk County Council (supra) at [38], [78] and [79] and R (Plan B Earth) v Secretary of State for Transport (supra) at [272]. viii) 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: R (Gathercole) v Suffolk County Council (supra) at [38], [78] and [79]. ix) The provisions ‘require the court to look backwards to the situation at the date of the decision under challenge’ and the ‘conduct complained of’ means the legal errors that have given rise to the claim: R (KE) v Bristol City Council [2018] EWHC 2103 (Admin) at [139] per HHJ Cotter QC, citing Jay J in R (Skipton Properties Ltd) v Craven DC [2017] EWHC 534 (Admin) at [97]-[98]. x) The Court can, with due caution, take account of evidence as to how the decision-making process would have been approached if the identified errors had not occurred. Section 31(2A) is not prescriptive as to material which the Court may consider in determining the “highly likely” issue: R (Enfield LBC) v Secretary of State for Transport [2015] EWHC 3758 at [106], per Laing J. Furthermore, a witness statement could be a very important aspect of such evidence: R (Harvey) v Mendip District Council [2017] EWCA Civ 1784 at [47], per Sales LJ, although the court should approach with a degree of scepticism self-interested speculations by an official of the public authority which is found to have acted unlawfully about how things might have worked out if no unlawfulness had occurred: R (Public and Commercial Services Union) v Minister for the Cabinet Office (supra) [91]. xi) Importantly, the court must not cast itself in the role of the decision-maker: R (Goring-on-Thames Parish Council) v South Oxfordshire District Council (supra) at [55]. While much will depend on the particular facts of the case before the court, ‘nevertheless the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is “highly likely” that the outcome would not have been “substantially different” if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law.’ R (Plan B Earth) v Secretary of State for Transport (supra) [273]. xii) It follows that where particular facts relevant to the substantive decision are in dispute, the court must not ‘take on a fact- finding role, which is inappropriate for judicial review proceedings’ where the ‘issue raised…is not an issue of jurisdictional fact’. The court must not be enticed 'into forbidden territory which belongs to the decision-maker, reaching decisions on the basis of material before it at the time of the decision under challenge, and not additional evidence after the event when a challenge is brought'. To do otherwise would be to use s.31(2A) in a way which was never intended by Parliament: R (Zoe Dawes) v Birmingham City Council [2021] EWHC 1676 (Admin), unrep., at [79] – [81] per Holgate J. xiii) The impermissibility of the court assuming the mantle of the decision-maker has been particularly emphasised in the planning context where e.g. it may require an assessment of aesthetic judgment or adjudicating on matters of expert evidence: R (Williams) v Powys CC [2018] 1 WLR 439 per Lindblom J at [72] and R (Thurloe Lodge Ltd) v Royal Borough of Kensington & Chelsea [2020] EWHC 2381 (Admin) at [26] per David Elvin QC (sitting as a Deputy High Court Judge). xiv) Finally, the contention that the s.31(2A) duty is restricted to situations in which there have been trivial procedural or technical errors (see e.g. the dicta of Blake J in R (Logan) v Havering LBC [2015] EWHC 3193 (Admin) at [55] ) was rejected by the Court of Appeal in R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] 1 WLR 5161 [47] and [55] and in R (Gathercole) v Suffolk County Council (supra) [36], [77] and [78].”

“Methodology and Findings 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.”

“Conclusions on the XL Bully ban We conclude that the decisions to designate the breed and to introduce an exemption and a compensation scheme could have potentially impacted on a small number of people living with disabilities and could potentially continue to have an impact on this group of people. We also conclude that the steps we have put in place are sufficient to minimise this impact on individuals with protected characteristics. In summary, for the reasons set out more fully above: 1. People in social housing who may have protected characteristics might not have been allowed by their housing provider to keep their dog. Ultimately, however, this was a decision for the housing provider. 2. A person who uses assistance dogs that are XL Bully type dogs might not have been able to continue to use their current assistance dogs because of the new restrictions. However, no individuals have been identified that have been affected. Some owners may also have experienced emotional distress as a result of the ban, but there is no evidence that this has had a greater impact on individuals with protected characteristics. In any case, exceptions would not be possible while maintaining public safety. 3. Considerable steps have been put in place to make the guidance and application process accessible and to support any owners that were struggling with the transition period and application processes under the exemption and compensation schemes. 4. Some owners might have struggled to pay the cost associated with the XL Bully ban, and this may conceivably have had a greater impact on those with protected characteristics, but the measures were introduced in a staged way which spread the costs and there is no evidence that individuals with protected characteristics were disproportionately affected. 5. A small number of individuals may be affected by the condition requiring dogs to be kept at the same address as their owners except for any 30 days in a 12-month period, but exceptions to this would not be possible while maintaining public safety. 6. Compliance with the neutering requirement in the exemption scheme may present challenges, including for some individuals with disabilities or non-English speakers. The proposed extension to the deadline for the receipt of neutering forms will mitigate any potential impacts on individuals with protected characteristics with complying with the neutering condition. Defra will continue to monitor the impacts of all of the measures introduced as part of the XL Bully ban, including through monitoring emails, calls, and correspondence from XL Bully owners to understand how the ban is affecting them. Defra will continue to engage with vets, animal welfare stakeholders, the police, local authorities, and the devolved administrations to identify and mitigate any future risks. Defra will continue to launch targeted communication pushes including on social media and via stakeholders, including dog welfare charities, to ensure XL Bully owners are aware of any changes to exemption requirements and upcoming neutering deadlines. Defra will also continue to update our GOV.UK webpage using easily accessible language and continue to keep the dedicated helplines available to provide support and reasonable adjustments to individual owners if requested.”

“Outline of evidence gathering process Following the announcement of the intention to ban the XL Bully type dog on 15th September 2023, we engaged immediately with stakeholders to monitor implementation of the new legislation, including the impact on owners. We arranged weekly meetings starting on the 26th September 2023 with expert stakeholders which included representatives from the British Veterinary Association (BVA) (the UK’s largest membership community for the veterinary profession), animal welfare charities and experts including the Dogs Trust, RSPCA, Battersea and the Blue Cross and the Kennel Club (the UK's largest organisation devoted to dog health, welfare and training). These meetings continued on a weekly basis until March 2024 at which point the meetings moved to twice a month. During this time conversations between these stakeholders and Defra officials continued via emails and on individual calls. Defra officials still meet these stakeholders twice a month to discuss the implementation of the policy. Separately, Defra officials have also met regularly with colleagues from the Local Government Association, representatives from local authorities and the police as we developed the measures and, following their introduction, to understand how the ban is being implemented and enforced in practice. We have also continued to monitor the correspondence, emails and phone calls from the public and XL Bully owners received since the announcement of the ban. For the purposes of preparing this assessment, on 1st May 2024 officials conducted a review of correspondence, helpline conversations and emails received through our public shared mailboxes. From 14th November 2023 (the launch date of the exemption scheme) until 1st May 2024, we received approximately 45,000 emails to the index inbox. The email address to the index inbox was included in the guidance on GOV.UK so that owners could contact us with queries or concerns. This is separate to the applications that we received to the exemption scheme. 107 of the emails to the index inbox included a reference to a disability, 105 to low income, 43 to social housing and 322 referenced mental health. In addition to the index inbox, owners could call the Defra helpline. Our helpline staff informed us they have not identified any cases of individuals being unable to apply for the exemption or compensation schemes because they were not able to access or use online content. Two individuals raised concerns about their ability to apply for the exemption scheme and were provided with advice on how to do this. No requests were made for an interpreter to provide advice in a different language other than English. The correspondence team also analysed 290 items of ministerial correspondence received from 15th September 2023 to 29th February 2024. In these cases, disability is mentioned in 10 letters, domestic abuse in 1, financial difficulties in 8, mental health in 13 and impacting on their tenancy in 7 letters.”