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

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.

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.