Structured, Anonymized Summary of the Opinion

Factual and Procedural Background

This appeal arises from a judicial review challenge to secondary legislation made by the Secretary of State (the "Respondent") that designated the XL Bully type dog under powers conferred by the Dangerous Dogs Act 1991 and created criminal offences for possession or custody of that type of dog after 1 February 2024 (subject to exemptions). The legislation included a designation instrument, a compensation and exemption scheme, and an exemption scheme for rehoming organisations.

The claim was brought by two appellants: an individual ("Appellant") who is director of an organisation ("Company A") that campaigns against breed-specific control, and Company A itself. The High Court (before Judge [Last Name]) granted the claim for judicial review in part, finding breaches of the public sector equality duty (PSED) in section 149 of the Equality Act 2010 in relation to how the orders had been made. Nevertheless, the High Court refused substantive relief on the basis of section 31(2A)(a) of the Senior Courts Act 1981, concluding it was "highly likely" that the outcome would not have been substantially different absent the breach and that there were no reasons of "exceptional public interest" to depart from that rule (an implicit reference to section 31(2B)). Permission to appeal to this Court was granted only on a limited point by Judge [Last Name]; the sole issue on appeal is whether the lower court should have applied section 31(2B) to disregard the requirements of section 31(2A) because the legislation created criminal offences.

Legal Issues Presented

1. Whether the court below should have relied on section 31(2B) of the Senior Courts Act 1981 and disapplied the duty in section 31(2A) on grounds of "exceptional public interest" because the secondary legislation under challenge created criminal offences.
2. Whether there exists an exceptional public interest in granting relief where an alleged illegality affected persons with protected characteristics, given the PSED breach found by the High Court.

Arguments of the Parties

Appellants' Arguments (presented by Attorney [Last Name])

• There is an exceptional public interest in applying section 31(2B) where the challenged instrument creates criminal offences because offence-creating measures affect important rights, including potential deprivation of liberty.
• No authority has been identified where section 31(2A) was used to refuse relief in relation to unlawful offence-creating secondary legislation; hence the court should be cautious about allowing a "cure" by later assessment.
• The May 2024 Equality Impact Assessment (EIA) was produced only after the Orders came into force; therefore individuals may have been prosecuted under instruments that, as a matter of the Appellants' case, were unlawful at the time of the alleged offences — creating a risk of serious injustice that constitutes exceptional public interest.
• Allowing the post hoc application of section 31(2A) to “cure” offences would be analogous to retroactive legislation and offend the principle of legality; Parliament could not have intended that judicial review remedies would be used to validate past convictions obtained under instruments later found procedurally defective.
• The statutory test in section 31(2A) (which focuses on the "applicant") does not adequately capture the public interest in cases of public-interest litigation impacting many persons not before the court.
• There is an additional limb: where unlawfulness affects those with protected characteristics (as identified by the May 2024 Assessment), there is an exceptional public interest in remedial relief because the Secretary of State failed to consider those impacts before making the Orders, and the outcome for those groups might have been different (e.g., delay, modification, or Parliament rejecting the draft by negative resolution).

Respondent's Arguments (presented by Attorney [Last Name])

• There is nothing in the statutory language of section 31(2A) or 31(2B) to suggest a different regime applies where a decision or instrument has criminal consequences.
• Authority exists (as relied on in the Respondent's written response) showing that section 31(2A) has been applied to statutory instruments; there is no basis for treating offence-creating regulations as a distinct category for exceptional public interest.
• The presumption of lawfulness applies to public law decisions and legislation: they remain valid until set aside by a court of competent jurisdiction; therefore the mere possibility of prosecutions does not automatically generate exceptional public interest.
• There was no evidence of prosecutions based on the Orders, and the May 2024 Assessment did not lead to changes in the Orders — this indicates it is highly likely the Secretary of State would have made the Orders in the same form even with a proper assessment in September/October 2023.
• Any question about the legality of enforcement could have been raised collaterally as a defence by those prosecuted (Boddington principle), and Parliament’s negative resolution procedure does not alter the presumption that instruments are lawful until set aside.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in this Opinion
Case A — [2019] PTSR 598	Demonstrated that section 31(2A) has been applied to a statutory instrument (i.e. the "no difference" principle can apply to subordinate legislation).	The court accepted this authority supports that section 31(2A) can apply to secondary legislation and so there is no textual reason to exclude offence-creating instruments from s.31(2A)'s scope.
Boddington v British Transport Police — [1999] 2 AC 143	Principle that the validity of subordinate legislation may be raised as a collateral defence in criminal proceedings.	Referenced to show that alleged unlawfulness of the Orders could have been relied on in prosecutions as a collateral challenge.
Case B (Plan B Earth) — [2020] PTSR 1446	Consideration and application of section 31(2B); part of the recent authorities on the statutory framework for refusing relief under s.31.	Identified as a key authority summarised in the line of cases that set out principles for s.31(2A)/(2B); used to show how this Court has approached the statutory duty.
Case C (Hippolyte) — [2025] EWCA Civ 1493	Recent summary of the key authorities on section 31(2A); sets out principles for applying the "no difference" test.	Used to summarise the established authorities and to confirm the court's duty to apply s.31(2A) while following guidance from previous decisions.
Case D (Bradbury) — [2025] 4 WLR 58	Statement that the outcome for a claimant is usually the decision or measure taken by the public authority; indicates "other measure" can include subordinate legislation.	Cited for limited support that s.31(2A) can apply to measures such as subordinate legislation, though the court noted the present appeal raises a distinct question not specifically addressed in Bradbury.
Case E (Greenfields) — [2025] 2 P & CR 16	Part of recent authorities cited summarising application of s.31(2A).	Included among the line of cases used to explain the well-established principles governing s.31(2A).
Case F (Gathercole) — [2021] PTSR 359	Emphasises the obligation imposed by section 31(2A) and the need not to avoid applying it where appropriate.	Relied upon to support the proposition that courts must not shirk the obligation imposed by s.31(2A).
Case G (Goring-on-Thames) — [2018] 1 WLR 5161	Observed that s.31(2A) had been applied across the whole spectrum of administrative action (passage said to be obiter in that decision).	Cited by the Respondent to support that the spectrum of administrative action includes secondary legislation; the court noted the passage was obiter and not dispositive on the present specific issue.
R (Abid) — [2017] EWHC 1962 (Admin)	Permission-stage decision involving related statutory provisions concerning permission to bring judicial review where public interest in detaining persons arose.	Discussed by the Appellants in support of a public interest argument concerning detention; the court held the decision was not an instructive precedent for the present s.31(2B) appeal.
R (Reilly) — [2015] QB 573	Concerned retrospective provisions and principles of legality; addressed in relation to the rule of law and retrospective legislation.	Cited by the Appellants for principles of legality; the court considered the passage but found it not directly helpful to the discrete statutory issue on s.31(2B).
R (C) (A Minor) — [2009] QB 657	Held that delegated legislation produced without required equality assessment should normally be quashed where omission was of substantial importance.	Discussed at length as a major authority. The court distinguished that decision from the present facts because there an adequate assessment was not produced even at the time of hearing; here a later assessment (May 2024) complied with the PSED.
Simplex GE (Holdings) Ltd v Secretary of State for the Environment — (cited)	Older authority recognising a discretion to refuse relief where the outcome would inevitably have been the same.	Noted as part of the precedential context on remedial discretion prior to the 2015 statutory amendments to section 31.
R (Bancoult) — [2008] QB 365	Addresses the court's role in judicial review where parliamentary approval may be unaware of procedural impropriety.	Used to reinforce the principle that courts, not Parliament, enforce executive compliance with procedural obligations.
R v Secretary of State for Health, Ex p United States Tobacco International Inc — [1992] QB 353	Illustrates Parliament's limited role in addressing executive procedural failure when subordinate legislation is laid.	Cited in support of the proposition that parliamentary inaction does not remedy executive procedural defects.
R (Elias) — [2006] 1 WLR 3213	Emphasises importance of equality impact assessments in guarding against discrimination.	Referred to as supporting authority for the importance of REIAs/PSED compliance.
R (BAPIO Action Ltd) — [2007] EWCA Civ 1139	Highlights the importance of compliance with equality duties and the consequences of inattention.	Used to emphasise the significance of compliance with equality obligations and as context for discretionary relief.
R (Hurley and Moore) — [2012] HRLR 13	Example where a declaration marking a PSED breach was made without quashing the measure.	Noted to show courts sometimes mark PSED breaches by declaration rather than quashing.
R (Majera) — [2021] UKSC 46; [2022] AC 461	Reaffirmed the principle that subordinate legislation is the law of the land until set aside and that unlawful administrative acts remain effective until a competent court intervenes.	Quoted to support the proposition that instruments remain valid until quashed and that an unlawful act is not void independently of court intervention.
Smith v East Elloe RDC — [1956] AC 736	Quoted in Majera for the proposition that an order remains effective until set aside.	Used indirectly via Majera to support the presumption of validity of subordinate legislation until judicially set aside.
Hoffmann-La Roche — [1975] AC 295	Held that an order made under statutory authority is law until found ultra vires; discusses interim enforcement.	Quoted to demonstrate that subordinate legislation operates as law until declared otherwise by a court.
Durayappah v Fernando — [1967] 2 AC 337	Example cited on standing and reasons a court might decline relief unrelated to validity.	Mentioned in the context of illustrating reasons a court may decline relief unrelated to validity (e.g., lack of standing).
R (West Berkshire District Council) — [2016] 1 WLR 3923	Discusses effect of late equality assessments and discretionary approach to quashing decisions where later assessments satisfy statutory requirements.	Considered as an authority that late preparation of an equality assessment does not automatically require quashing if a later assessment is adequate and the overall circumstances are considered.

Court's Reasoning and Analysis

The court confined the appeal to a narrow legal issue: whether the lower court should have invoked section 31(2B) and disregarded the duty in section 31(2A) because of exceptional public interest arising from the fact that the challenged subordinate legislation created criminal offences (and because the PSED breach affected persons with protected characteristics).

The court outlined the correct approach as a two-stage evaluative exercise under section 31(2B):

1. Stage 1 — evaluative assessment: determine whether there are reasons of exceptional public interest that would justify not applying the duty in section 31(2A) (a high threshold); and
2. Stage 2 — discretionary grant of relief: if the court concludes Stage 1 is satisfied, it may grant relief notwithstanding section 31(2A), and must certify that the s.31(2B) condition is satisfied.

Applying those stages, the court made the following analytical points (based solely on the material in the opinion):

• The court rejected the submission that there exist categories of case in which exceptional public interest is inherently established (for example, any case involving criminal consequences). Parliament's plain language ("exceptional public interest") was to be taken at face value and applied in a fact-specific way; no automatic gloss or categorical exception should be read into the provision.
• The judge below had already made the s.31(2A) assessment and concluded it was "highly likely" that the outcome would not have been substantially different if the PSED had been properly discharged earlier. The present appeal did not permit re-litigating that "no difference" conclusion because permission to appeal on that issue was not granted.
• The Appellants' argument relied on the premise that the Orders were "unlawful" between 1 February and late May 2024 because of the PSED breach. The court emphasised settled principles that subordinate legislation remains effective and is presumed lawful until set aside by a court of competent jurisdiction; an alleged procedural defect does not render an instrument void in law prior to judicial determination.
• The court observed that the High Court concluded the May 2024 Assessment complied with the PSED and would, in substance, have led to the same outcome had it been done earlier. The Appellants had an opportunity to produce evidence about other affected persons and had not done so.
• The court identified a risk of "over-remedy" if it quashed the Orders: quashing would affect the entire period the Orders had been in force and could operate as a windfall for persons who were subject to prosecutions or other consequences at times when the Orders complied with the PSED on any view (including after May 2024).
• On the particular point of harms to persons with protected characteristics, the court noted the May 2024 Assessment acknowledged potential adverse impacts but concluded those impacts were proportionate to the public-safety aims; the court concluded that the apposite exceptional public interest threshold was not met.

Holding and Implications

Holding: The court dismissed the appeal. The court agreed with the lower court that there were no reasons of exceptional public interest to justify disapplying the duty in section 31(2A) by relying on section 31(2B). The lower court's refusal to grant relief therefore stood.

APPEAL DISMISSED

Implications:

• The High Court's order stands: the claim for judicial review was allowed in respect of breaches of the PSED, but relief was refused under section 31(2A) and the Orders were not quashed.
• The practical consequence is that the subordinate legislation challenged in the proceedings remains in effect; the court emphasised the constitutional principle that subordinate legislation is effective law until set aside by a competent court.
• The court declined to create a categorical exceptional public interest rule for offence-creating instruments and did not treat such instruments as intrinsically engaging the section 31(2B) threshold.
• No new broad precedent altering the statutory approach to section 31(2A)/(2B) was established; the decision applies the established two-stage evaluative approach and reaffirms the fact-specific nature of the "exceptional public interest" inquiry.

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Note on anonymization: All persons and institutional identifiers have been replaced by consistent generic placeholders (e.g., "Appellant", "Company A", "Respondent", "Judge [Last Name]", "Attorney [Last Name]") to comply with the summary instructions. The summary is restricted to information expressly contained in the provided opinion and does not add, infer or invent facts beyond that text.