Exceptional Public Interest and Offence‑Creating Secondary Legislation:
Coulthard & Anor v Secretary of State and the Limits of Section 31(2B) Senior Courts Act 1981

1. Introduction

This Court of Appeal decision addresses a tightly focused but highly significant remedial issue in public law: whether the statutory “no difference” rule in section 31(2A) of the Senior Courts Act 1981 (“SCA 1981”) should be disapplied for reasons of “exceptional public interest” under section 31(2B) where the impugned measure is secondary legislation that creates criminal offences and was made in breach of the Public Sector Equality Duty (“PSED”).

The litigation concerns three statutory instruments made under the Dangerous Dogs Act 1991 to bring “XL Bully” type dogs within the statutory regime for “dangerous dogs”. The key features were:

• Designation of XL Bully dogs as a prohibited type,
• Criminalisation of possession/custody without an exemption from 1 February 2024,
• Compensation and exemption schemes for owners, including stringent conditions on where the dog lives,
• A rehoming scheme for rescue organisations.

The appellants are:

• First appellant: an individual director of the second appellant;
• Second appellant: a campaigning organisation opposed to breed‑specific controls and the designation of XL Bullies.

At first instance, Lang J held that the Secretary of State breached the PSED in making the orders, because the equality assessments undertaken in September/October 2023 were inadequate. However, she refused to grant any remedy, applying section 31(2A) SCA 1981 on the basis that it was “highly likely” that the outcome would not have been “substantially different” for the claimants even if the PSED had been complied with at the right time, and finding no “exceptional public interest” to justify departure from that rule under section 31(2B).

The Court of Appeal (Singh LJ giving the main judgment, with Warby LJ and Sharp P agreeing) was asked only one narrow question: whether Lang J should have invoked section 31(2B) SCA 1981 so as to disregard section 31(2A) and grant relief (in substance, to quash the orders), on the basis that offence‑creating secondary legislation made in breach of the PSED automatically or inherently raises “reasons of exceptional public interest”.

The judgment establishes an important precedent on the operation of sections 31(2A)–(2B) in relation to secondary legislation, including regulations that create criminal offences and affect liberty.

2. Summary of the Judgment

The Court of Appeal dismissed the appeal. The key points can be summarised as follows:

• No categorical carve‑out for criminal‑offence legislation: There is nothing in the text or structure of sections 31(2A)–(2B) SCA 1981 which excludes secondary legislation creating criminal offences. Such measures are not a special category where the “no difference” rule must always be disapplied.
• “Exceptional public interest” is not category‑based: The phrase “reasons of exceptional public interest” in section 31(2B) must be applied in its ordinary sense. It does not create presumptive classes of cases (such as criminal‑offence regulations or measures affecting protected groups) where section 31(2A) is automatically disapplied.
• Presumption of validity of subordinate legislation: Delegated legislation, including these dog‑control orders, remains legally effective unless and until set aside by a court of competent jurisdiction. A breach of the PSED in the making of the instruments does not itself render them void or “unlawful” in the sense contended by the appellants.
• No “retroactive cure” problem: Applying section 31(2A) after a later, adequate equality assessment does not retrospectively validate convictions or legislation. Rather, the court is exercising a statutory duty regarding remedies in judicial review proceedings in light of the presumption of validity and the “no substantial difference” finding.
• PSED breach was real but limited in remedial significance: Lang J had correctly found a breach of the PSED at the time the orders were made (September/October 2023 assessments were inadequate). The later May 2024 Equality Impact Assessment did lawfully discharge the PSED. On the judge’s findings, even if the duty had been complied with at the right time, it was highly likely the same orders would have been made in any event.
• Avoiding “over‑remedy”: Quashing the orders (or declaring them invalid) across the board would be an over‑correction, conferring a “windfall” on persons convicted or affected after the PSED was lawfully discharged and where no real difference would have occurred even if the duty had been complied with from the outset.
• Judge not “wrong” on section 31(2B): Applying the conventional appellate standard, the Court held that Lang J was not wrong to conclude that there were no reasons of exceptional public interest to justify disapplying section 31(2A) and refusing relief.

Thus, the new legal message can be put simply: even where offence‑creating secondary legislation is made in breach of the PSED, a court remains bound to apply the section 31(2A) “no difference” rule unless, on the specific facts, it identifies truly exceptional public interest reasons to depart from it under section 31(2B). There is no automatic or category‑based exception.

3. Statutory and Factual Framework

3.1 Dangerous Dogs Act 1991 and the XL Bully Orders

The 1991 Act was enacted in response to serious dog attacks. Section 1:

• identifies specified types (e.g. pit bull terrier, Japanese tosa), and
• allows the Secretary of State under section 1(1)(c) to designate additional types by order where they appear to be bred for fighting or have such characteristics.

Key powers:

• s.1(2) – restrictions on breeding, sale, advertising etc.
• s.1(3) – power to prohibit possession or custody after a specified date, backed by criminal penalty.
• s.1(5) – power to create exemption schemes.
• s.1(7) – criminal offence for contravention (up to 6 months’ imprisonment and/or a level 5 fine).
• s.1(8) – ban on possession of newly designated types kicks in from a date specified in the designation order.
• s.1(9) – orders made by statutory instrument under the negative resolution procedure.

Three sets of orders were challenged:

1. The Designation Order – SI 2023/1164
   • Designated XL Bully dogs as a prohibited type under s.1.
   • From 31 December 2023: no breeding, selling, gifting, advertising; mandatory muzzling and lead in public; no abandonment.
   • From 1 February 2024: section 1(3) offence of possession or custody applied to XL Bullies (unless exempt).
2. The Compensation and Exemption Order – SI 2023/1204
   • Part 2 – compensation scheme for owners who had their XL Bully destroyed before 31 January 2024.
   • Part 3 – exemption scheme allowing individual owners to keep their dogs post‑1 February 2024, subject to conditions.
   • A key condition: the dog must live at the same address as the exemption certificate holder, save for any 30 days in a 12‑month period (art. 7(c)(i)). This created issues for people needing more extended absence from home (e.g. medical treatment, domestic abuse escape).
3. The Rehoming Order – SI 2023/1407
   • Created an exemption scheme for organisations that rescue and rehome dogs.

A more detailed PSED assessment was only carried out in May 2024 (before a later amending order not in issue). This assessment explicitly acknowledged adverse impacts on:

• disabled people needing to be away from home for more than 30 days for medical care;
• women fleeing domestic abuse who rely on pet‑fostering schemes to allow refuge access.

3.2 The Public Sector Equality Duty (PSED)

Section 149 Equality Act 2010 requires public authorities, when exercising functions, to have “due regard” to the need to:

• eliminate discrimination and other prohibited conduct,
• advance equality of opportunity between those who share protected characteristics and those who do not, and
• foster good relations between different groups.

It is a procedural duty: decision‑makers must consciously consider equality impacts at the formative stage of policy‑making; they need not necessarily change their substantive decision as long as they have properly considered relevant impacts and proportionately justified their approach.

The short assessments undertaken in September and October 2023 merely stated that there was no evidence that XL Bullies were disproportionately owned by people with protected characteristics, and that impacts were not considered unfair. The Court accepted Lang J’s finding that these did not meet the PSED’s legal standard.

3.3 Senior Courts Act 1981 – Sections 31(2A)–(2C)

The 2015 amendments to section 31 SCA 1981 introduced a statutory “no difference” rule:

s.31(2A): “The High Court – (a) must refuse to grant relief on an application for judicial review… if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

Section 31(2B) creates a narrow gateway out of that rule:

s.31(2B): “The court may disregard the requirements in subsection (2A)(a)… if it considers that it is appropriate to do so for reasons of exceptional public interest.”

Section 31(2C) requires the court, if it relies on section 31(2B), to certify that the condition is satisfied. The certification emphasises that disapplication of the “no difference” rule is intended to be rare and transparent.

4. Precedents and Authorities Discussed

4.1 Authorities on Section 31(2A) (“no difference” rule)

The Court notes a well‑developed line of authority on section 31(2A) (and its close relatives at the permission stage, s.31(3D)–(3E)), but much less on section 31(2B).

• Plan B Earth v Secretary of State for Transport [2020] EWCA Civ 214; [2020] PTSR 1446
  The Court (Lindblom SPT, Singh and Haddon‑Cave LJJ) considered both s.31(2A) and (2B) in the context of climate‑related challenges to the Airports National Policy Statement, emphasising the structured approach to the “no difference” rule and the exceptional nature of disapplying it.
• Hippolyte v SSHD [2025] EWCA Civ 1493 (summarised within the judgment)
  Singh LJ there restated the principles from Plan B Earth, Bradbury and Greenfields, stressing that courts must apply section 31(2A) as the will of Parliament but that the developed guidance assists first‑instance courts in doing so consistently.
• Bradbury v Brecon Beacons NPA [2025] EWCA Civ 489; [2025] 4 WLR 58 and Greenfields (IOW) Ltd v Isle of Wight Council [2025] EWCA Civ 488; [2025] 2 P&CR 16
  Lewis LJ in both cases, and Singh LJ in Greenfields, explained how to assess whether it is “highly likely” that the outcome would not have been “substantially different”. These decisions reinforce that:
  • the inquiry is fact‑sensitive,
  • the focus is on outcome rather than process per se, and
  • quashing an inevitably replicated decision wastes public resources.
• Goring‑on‑Thames Parish Council v South Oxfordshire DC [2018] EWCA Civ 860; [2018] 1 WLR 5161
  At paragraph 47, the Court remarked that section 31(2A) has been applied across “the whole spectrum of administrative action, including… planning”. Although that was obiter and not specifically about offence‑creating secondary legislation, it supports the broad reach of the provision.
• Gathercole v Suffolk CC [2020] EWCA Civ 1179; [2021] PTSR 359 (Coulson LJ)
  Emphasised that courts must not “shirk” the obligation imposed by section 31(2A); it exists to prevent pointless quashing where the same decision would very likely be taken again.

4.2 Section 31(2A) and delegated legislation: Christchurch

In R (Christchurch BC) v Secretary of State for Housing, Communities and Local Government [2018] EWHC 2126 (Admin); [2019] PTSR 598, Sir Ross Cranston held that section 31(2A) can apply even where regulations are ultra vires the enabling Act. He considered there was no conceptual bar to applying the “no difference” principle to subordinate legislation, rejecting an argument that ultra vires regulations are incapable of being subject to the statutory “no difference” rule.

Coulthard endorses this reasoning as persuasive authority that the “no difference” rule applies to secondary legislation, and by extension to offence‑creating instruments.

4.3 PSED breach and remedial discretion: C (A Minor) and West Berkshire

• R (C) (A Minor) v Secretary of State for Justice [2008] EWCA Civ 882; [2009] QB 657
  Concerned secure training centre rules made without a race equality impact assessment under section 71 of the Race Relations Act 1976 (a precursor to the PSED). The Divisional Court found a breach but declined to quash. The Court of Appeal reversed that decision and quashed the rules.
  
  Key points:
  • Buxton and Keene LJJ stressed that unlawful delegated legislation should normally be quashed.
  • The failure to conduct the mandatory equality assessment before laying the rules was described as a defect of “very great substantial… importance”, requiring an order marking the failure.
  • No adequate assessment had been carried out even by the time of the Divisional Court hearing; the belated assessment was produced only to defend existing rules.
• West Berkshire DC v Secretary of State for CLG [2016] EWCA Civ 441; [2016] 1 WLR 3923
  Laws and Treacy LJJ (Lord Dyson MR agreeing) revisited C (A Minor) and made several important clarifications:
  • C (A Minor) does not mean that whenever an equality assessment is late, quashing must follow.
  • The court should avoid using quashing purely as a disciplinary measure.
  • The focus should be on the adequacy and good faith of any later assessment and the overall circumstances.
  • On the facts there, quashing was not required where a satisfactory EIA was produced later and would not have altered the decision.

Coulthard builds on this line of authority but under a new statutory regime: after 2015, courts are directed by section 31(2A) to refuse relief where the “no difference” test is met, unless exceptional public interest under section 31(2B) justifies otherwise. General discretion is now more structured and constrained.

4.4 Other authorities cited by the appellants

• R (Abid) v SSHD [2017] EWHC 1962 (Admin)
  A permission decision by Helen Mountfield QC (as she then was) about detention in the immigration context. She applied the permission‑stage equivalent of section 31(2A) (s.31(3D)–(3E)) but concluded that there was exceptional public interest in allowing the claim to proceed, notwithstanding that it was overwhelmingly likely the same detention decision would be made.
  
  Coulthard treats Abid as of limited assistance: it concerns permission, is fact‑specific, and is not about offence‑creating secondary legislation or PSED breaches in law‑making.
• Reilly (No 2) v Secretary of State for Work and Pensions [2014] EWHC 2182 (Admin); [2015] QB 573 (Lang J)
  The case concerned retrospective legislation passed to validate prior sanctions imposed on jobseekers who had refused to participate in workfare schemes. Lang J considered that retrospective legislation designed to defeat ongoing litigation offends rule of law principles unless justified by compelling reasons. The case centred on Article 6 ECHR and the principle of legality.
  
  The Court in Coulthard held that Reilly (No 2) was dealing with a different issue: primary legislation retrospectively altering the legal consequences of past events and litigation, not the remedial operation of section 31(2A) in relation to subordinate legislation.

4.5 Presumption of validity and collateral challenge: Majera, Smith v East Elloe, Hoffmann‑La Roche, Boddington

The Court relies heavily on fundamental public law principles reaffirmed by the Supreme Court in R (Majera) v SSHD [2021] UKSC 46; [2022] AC 461.

• Smith v East Elloe RDC [1956] AC 736 (Lord Radcliffe)
  An order, even if unlawfully made, remains legally effective until set aside:

  “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.”

• Hoffmann‑La Roche v Secretary of State for Trade and Industry [1975] AC 295
  The House of Lords held that a statutory order is “as much the law of the land as an Act of Parliament unless and until it has been found to be ultra vires”. Lord Diplock warned against using private‑law concepts of “void” or “voidable” to describe subordinate legislation before a court has ruled on its validity.
• Boddington v British Transport Police [1999] 2 AC 143
  Established that the validity of subordinate legislation can be challenged collaterally in criminal proceedings (e.g. as a defence to a prosecution), not only via judicial review. Although Lord Irvine spoke in terms of invalid regulations being recognised as “never having had legal effect” once quashed, Majera explains that this does not mean that they were legally void before the court’s intervention.

Majera synthesises these authorities and clarifies:

• Unlawful administrative acts and subordinate legislation are presumed valid until quashed.
• If no challenge is brought, or permission is refused, or relief is declined on discretionary/statutory grounds, the act remains in legal effect.
• The labels “void” and “voidable” are misleading in public law; the only meaningful distinction is between measures set aside by a competent court and those that are not.

Coulthard directly applies this doctrine to rebut the appellants’ claim that the XL Bully orders were “unlawful” between February–May 2024 in a way that would itself generate exceptional public interest.

5. The Court’s Legal Reasoning

5.1 The narrow issue on appeal

Permission to appeal was deliberately narrow. The Court did not reconsider:

• whether the PSED had in fact been breached (Lang J had already found that it was), or
• whether section 31(2A)’s “highly likely/no substantial difference” test was met (that finding was not under challenge).

The sole issue was whether Lang J should have held that there were “reasons of exceptional public interest” such that section 31(2B) required her to disregard section 31(2A) and grant some form of relief (principally, quashing the orders).

The Court adopts a two‑stage structure to section 31(2B):

1. Stage 1 – threshold: Is the court satisfied that there are “reasons of exceptional public interest” which justify not applying the duty under section 31(2A)?
2. Stage 2 – discretion: If yes, the court then may grant relief despite section 31(2A). This second stage is a conventional remedial discretion question (albeit conditioned by the certification requirement in section 31(2C)).

On appeal, the Court’s role is to ask whether the first‑instance court was “wrong” (CPR 52.21(3)(a)), not to rehear the case. Regarding the exercise of discretion at stage 2, the appellate inquiry is the familiar one: did the judge misdirect herself or reach a conclusion outside the range reasonably open to her?

In this case the focus is on stage 1: did Lang J err in concluding that there were no reasons of exceptional public interest?

5.2 No inherent categories of “exceptional public interest”

The appellants advanced two broad propositions:

1. When secondary legislation creates criminal offences (or affects liberty), there is inherently an exceptional public interest in ensuring its lawfulness, so section 31(2A) should be disapplied.
2. Where unlawfulness relates to equality impacts on people with protected characteristics, especially in a context like the XL Bully ban affecting disabled people and survivors of domestic abuse, exceptional public interest should be presumed.

The Court rejects the idea that section 31(2B) contains or implies categorical exceptions:

• The wording “reasons of exceptional public interest” is plain. It does not carve out particular types of case (e.g. criminal offences, liberty, protected groups) as always or inherently exceptional.
• Courts should not add glosses to that language. They are accustomed to applying “exceptionality” tests in a fact‑sensitive way.
• Offence‑creating regulations and PSED breaches may be highly relevant and may, in certain factual contexts, help to demonstrate exceptional public interest, but they do not automatically do so.

This is the core doctrinal holding: section 31(2B) does not recognise fixed “classes” of exceptional cases; it requires a case‑specific assessment in every instance.

5.3 The importance, but not dominance, of PSED breaches

The Court accepts and reiterates that:

• Timely compliance with the PSED is of real constitutional and policy importance.
• Equality impact assessments inform decisions, especially in relation to measures that disproportionately affect minorities and vulnerable groups.

However, in light of post‑West Berkshire doctrine and the new statutory framework:

• A failure to comply with the PSED at the right time does not automatically lead to quashing, especially if a later assessment adequately addresses impacts and would not have changed the decision.
• Section 31(2A) obliges the court to focus on the practical “outcome” for the applicant, rather than to impose relief purely as a “disciplinary” measure for failure to follow proper process.
• On the factual findings here, the May 2024 Assessment was a lawful and comprehensive PSED exercise, and there was no realistic prospect that earlier compliance would have altered the content or timing of the XL Bully orders.

Against that background, the PSED breach was significant enough to be recorded in the High Court’s order, but not so serious, on these particular facts, as to require quashing despite the “no difference” rule.

5.4 Rebutting the “unlawful until cured” and “retroactive validation” arguments

A central plank of the appellants’ case was that, until the May 2024 Assessment was carried out, the XL Bully orders were unlawful and any criminal proceedings brought on their basis during that period were therefore unjust, creating exceptional public interest.

The Court identifies several flaws in this reasoning:

1. Presumption of validity
   Drawing on Majera, Smith v East Elloe and Hoffmann‑La Roche, the Court reiterates:
   • Subordinate legislation is presumed lawful and effective until a competent court sets it aside.
   • A finding that a statutory instrument was made in breach of the PSED does not itself nullify the instrument; it only establishes an error in the decision‑making process.
   • Here, Lang J expressly refused to quash the orders, so they remained and remain valid for all purposes.
2. No “retroactive cure” of unlawfulness
   The appellants suggested that applying section 31(2A) in light of the May 2024 Assessment effectively “cured” the unlawfulness after the event, akin to retrospective legislation. The Court rejects the analogy:
   • The orders were always presumptively valid; no court has ever set them aside.
   • Section 31(2A) is a remedial provision: it guides the court’s decision on whether to quash or grant relief after a finding of error; it does not change the nature of the underlying legislation.
   • There is no retrospective change in the law: the orders were, and remain, legally binding unless and until quashed.
3. Mischaracterisation of the period February–May 2024
   The appellants spoke of that period as one in which the orders were unlawful and any prosecutions under them inherently unjust. The Court says this assumes the conclusion:
   • The High Court did not hold the orders unlawful; it held the PSED had been breached but refused quashing.
   • Absent a quashing order or declaration of invalidity, the orders never ceased to be law during that period.
   • Any prosecutions could have raised a Boddington-type collateral challenge; no evidence was produced of specific prosecutions or of injustice in particular cases.

5.5 Avoiding over‑remedy and “windfall” relief

The Court accepts Sir James Eadie KC’s submission that quashing the orders now would be an “over‑remedy”. Such an order would:

• Invalidate the XL Bully regime for its entire period of operation, not just February–May 2024;
• Benefit individuals convicted in 2025 and later, when:
  • the PSED had been lawfully discharged via the May 2024 Assessment, and
  • it was highly likely that the same regime would have been enacted even with earlier compliance;
• Potentially undermine public safety aims of the 1991 Act by suddenly removing the control regime without substantive justification.

This leads to a broader remedial principle implicit in the judgment:

Courts should be wary of granting system‑wide quashing orders where the statutory “no difference” test is satisfied and where doing so would provide unmerited advantages (a “windfall”) to persons who have suffered no real practical prejudice from the unlawfulness.

In the Court’s view, marking the PSED breach via the High Court’s order and judgment, without quashing the orders, was a proportionate and principled response.

5.6 Representative claimants and the focus on “the applicant”

The appellants argued that section 31(2A)’s reference to “the outcome for the applicant” makes it unsuitable for public interest or representative litigation, where many others are affected. The Court rejects this:

• Lang J’s assessment of “outcome” was not confined to the personal position of the two appellants.
• The second appellant was a campaigning body representing a wide constituency; the court could, and did, consider wider impacts.
• Public interest litigation routinely proceeds on the basis of evidence about other affected individuals (even when they are not formally parties). The appellants could have adduced such evidence; they did not.

Accordingly, the “outcome for the applicant” language does not insulate representative claims from section 31(2A). The “no difference” rule applies equally in such cases, though the court will naturally assess outcome at a systemic level when appropriate.

5.7 Limited declarations as a remedial alternative

The Court notes, by way of context, that in some cases courts have issued declarations recording PSED breaches without quashing the decision (e.g. Hurley and Moore v BIS [2012] EWHC 201 (Admin)). That route can mark the legal error while avoiding disruptive or disproportionate quashing.

In this case:

• Lang J’s order explicitly recorded that the claim was “allowed” on the PSED grounds but that relief was refused under section 31(2A).
• The appellants’ consistent position, until very late, was that only quashing the orders would meet their objectives. A late suggestion of a more limited declaration came “far too late” and would not have advanced their principal aim of invalidating the XL Bully regime.

This reinforces the message that PSED breaches will be taken seriously and can be officially recorded, but quashing is not an automatic or disciplinary response, especially post‑2015.

6. Complex Concepts Simplified

6.1 The Public Sector Equality Duty (PSED) in practice

Think of the PSED as a mandatory equality “checklist” that must be consciously worked through whenever a public body makes an important decision or policy, especially one that might affect vulnerable groups.

It requires:

• Gathering relevant equality information (e.g. data, consultation feedback).
• Assessing potential adverse impacts on people with protected characteristics (e.g. disability, sex, race).
• Considering whether impacts can be mitigated or less harmful alternatives adopted.
• Doing this before the decision is finalised, so the analysis can genuinely influence the outcome.

If the assessment is perfunctory or after‑the‑event, the duty is breached. But the remedy (quashing versus declaration/no relief) now also depends on section 31(2A).

6.2 Section 31(2A)–(2B) SCA 1981 in plain terms

• Section 31(2A): the “no difference” rule
  Even if there has been a public law error, the court must not grant a remedy (such as quashing) if it concludes that it is highly likely that, had the error not occurred, the outcome would have been substantially the same for the claimant.
  
  Example: a council consults improperly before granting planning permission, but all the evidence shows the same permission would have been granted even with a perfect consultation. The court may have to refuse to quash.
• Section 31(2B): the “exceptional public interest” escape valve
  If there are reasons of exceptional public interest, the court may ignore section 31(2A) and grant relief anyway. This might arise, for example, in a case exposing a systemic abuse of power or a fundamental constitutional failure where quashing is needed to uphold rule‑of‑law values, even though the individual claimant’s outcome would not change.

6.3 Negative resolution procedure

Most statutory instruments in the UK are laid before Parliament subject to either:

• affirmative resolution – they only come into force if positively approved; or
• negative resolution – they automatically come into force unless annulled by Parliament within a set period (usually 40 days).

The XL Bully orders were subject to the negative resolution procedure. Parliament could have annulled them but did not. Coulthard emphasises (echoing C (A Minor) and earlier case law) that Parliament’s failure to annul does not cure defects in the executive’s discharge of duties (such as the PSED) in making the instrument. Those executive errors remain for courts to police through judicial review.

6.4 Collateral challenge in criminal proceedings (Boddington)

“Collateral challenge” means challenging the validity of a regulation as a defence when prosecuted for breach of it. Under Boddington:

• A defendant can argue in the Magistrates’ Court or Crown Court that the statutory instrument is unlawful (e.g. made outside statutory powers, PSED not complied with).
• If successful, the court may refuse to convict because there is no valid offence‑creating provision.

Coulthard notes that any defendant prosecuted under the XL Bully orders could have raised a Boddington defence based on the PSED. No such prosecutions were evidenced, and no concrete injustices were identified.

6.5 “Over‑remedy” and “windfall” effects

An “over‑remedy” occurs where the remedy goes beyond correcting the actual harm caused by an illegality and creates unjustified benefits (a “windfall”) for some individuals without serving public interest objectives.

In Coulthard, quashing the orders:

• would have erased the entire XL Bully regime,
• would have benefited individuals convicted or regulated under a regime that, after May 2024, complied fully with the PSED and would in any case have been enacted in that form,
• without bringing any practical improvement for the appellants or the broader class they represented.

Section 31(2A) is expressly designed to guard against this sort of over‑remedy.

7. Impact and Future Significance

7.1 Challenges to offence‑creating secondary legislation

Coulthard has clear implications for future attempts to carve out special remedial rules for offence‑creating regulations (e.g. in criminal justice, immigration, counter‑terrorism, public health):

• Even where such instruments are made unlawfully (including PSED breaches), courts must still apply section 31(2A) unless truly exceptional public interest is shown.
• “Offence‑creating” status alone is not enough; nor is a general appeal to the importance of liberty.
• Where a subsequent, lawful process (such as a later EIA) shows that the same regime would have been adopted, the prospect of avoiding quashing is strengthened.

7.2 PSED enforcement and remedies

The judgment continues a trend (reflected also in West Berkshire and later cases) towards a more nuanced, outcome‑focused approach to PSED breaches:

• PSED remains an important constitutional safeguard, especially for minorities and vulnerable groups.
• However, breaches do not automatically entitle claimants to quashing orders.
• Courts may instead:
  • record the breach in their orders or judgments,
  • encourage or rely on subsequent lawful equality assessments, and
  • refuse to disturb decisions where those later assessments are adequate and the outcome would not change.

This can be seen as both:

• protective of good administration and public resources, and
• a potential concern for equality advocates, as it may reduce the deterrent effect of PSED litigation if unlawful processes are not regularly met with quashing.

7.3 Public interest and representative litigation

Coulthard confirms that section 31(2A) applies straightforwardly to public interest cases brought by NGOs or campaign groups:

• The statutory language (“outcome for the applicant”) does not confine the analysis to purely individual circumstances; courts can and do look at systemic consequences.
• Representative claimants should be prepared to adduce evidence of impact on the wider class they purport to represent if they wish to resist a “no difference” finding.
• Section 31(2B) requires something truly out of the ordinary to justify disapplying section 31(2A); mere significance of the issue is not enough.

7.4 Criminal prosecutions under potentially unlawful SIs

The case also indirectly clarifies the position of criminal defendants prosecuted under regulations alleged to be unlawful:

• They retain the right to collateral challenge under Boddington.
• However, even if a later judicial review establishes some unlawfulness in the making of the SI, the instrument remains valid unless and until quashed.
• If the court in the judicial review refuses relief under section 31(2A), the SI is deemed valid for all purposes, and prior convictions are not automatically called into question.

This underlines the strategic importance, for those seeking to avoid conviction, of raising validity arguments directly in the criminal proceedings rather than relying on separate judicial review challenges hoping for retrospective invalidation.

8. Conclusion

Coulthard & Anor v Secretary of State for the Environment, Food and Rural Affairs is a significant appellate decision on the interface between:

• the PSED under the Equality Act 2010,
• the remedial regime in sections 31(2A)–(2B) SCA 1981, and
• offence‑creating secondary legislation affecting personal liberty and vulnerable groups.

The Court of Appeal firmly establishes that:

• There is no automatic or category‑based exception to the “no difference” rule for criminal‑offence regulations or for PSED breaches.
• “Exceptional public interest” must be assessed case by case, on concrete facts, not assumed from subject‑matter alone.
• Subordinate legislation, however flawed in process, remains valid and enforceable unless and until quashed.
• Where later, adequate equality assessment shows the same decision would have been made, quashing may amount to an over‑remedy, producing unjustified windfalls without practical benefit.

The case will likely be cited as a leading authority for:

• the application of sections 31(2A)–(2B) to secondary legislation (including offence‑creating SIs),
• the high threshold for “exceptional public interest” disapplying the “no difference” rule, and
• the proper understanding of PSED breaches in the post‑2015 remedial landscape.

For policymakers, the message is two‑fold: they must take equality duties seriously at the formative stage, but they can also take some comfort that genuinely outcome‑neutral procedural mistakes, subsequently corrected, will not always lead to the dismantling of complex regulatory regimes. For litigants, especially campaign groups, the decision underscores the importance of demonstrating actual or likely practical difference – and of identifying truly exceptional public interest – if they wish to secure quashing orders in the face of the statutory “no difference” rule.