Sophie Coulthard & Anor, R (on the application of) v Secretary of State for the Environment, Food and Rural Affairs

The claim concerned judicial review of the Defendant’s decisions to designate the XL Bully dog type under section 1(1)(c) of the Dangerous Dogs Act 1991 and to make consequential statutory instruments and guidance. The court considered (inter alia) the proper scope of the powers in sections 1 and 2 of the 1991 Act, the legality and certainty of the non-statutory Conformation Standard, the duty of inquiry (Tameside), and the public sector equality duty under section 149 of the Equality Act 2010.

The judge held that the Defendant was sufficiently informed and entitled to exercise judgment in designating XL Bullies under section 1(1)(c); the claimants had not shown irrationality or unlawful reliance on demonstrably baseless assumptions, nor had they shown other public law errors in respect of the substantive designation or the Conformation Standard. However, the Secretary of State’s early equality assessments (September/October 2023) were inadequate and amounted to a breach of the PSED. A comprehensive equality impact assessment completed in May 2024 cured the substantive deficiency, and under section 31(2A) of the Senior Courts Act 1981 the court concluded it was highly likely the outcome would not have been substantially different, so relief was refused.

Background and parties. The claimants (an individual owner and an organisation) sought judicial review of three statutory instruments and guidance implementing the designation of the XL Bully dog type as a type to which the Dangerous Dogs Act 1991 applies: the Dangerous Dogs (Designated Types) (England and Wales) Order 2023 (the Designation Order), the Dangerous Dogs (Compensation and Exemption Schemes) (England and Wales) Order 2023 (the Compensation and Exemption Order) and the Dangerous Dogs (Exemption Schemes and Miscellaneous Provisions) (England and Wales) Order 2023 (the Rehoming Order). They also challenged the non‑statutory Conformation Standard published to assist identification.

Procedural posture. The claim is a first instance judicial review before Mrs Justice Lang. Permission had been the subject of earlier interlocutory decisions: an initial refusal on the papers, partial grant of permission by Dias J (13 May 2024) with certain grounds refused, interlocutory orders by Swift J in July 2024 limiting expert evidence and disclosure, and refusals of permission to appeal certain interlocutory orders by the Court of Appeal in October 2024. The substantive hearing took place in November 2024 and judgment was handed down on 17 December 2024.

Nature of the claim and relief sought. The claim sought declaratory and quashing relief in respect of the designation and the related statutory instruments and guidance, on grounds including ultra vires, irrationality, failure to take or to exclude particular considerations, breach of the Tameside duty of inquiry, breach of the public sector equality duty (PSED) under section 149 Equality Act 2010, and lack of legal certainty in the Conformation Standard.

Issues framed by the court. Key issues were: (i) whether the Defendant had lawfully and rationally exercised the judgment conferred by section 1(1)(c) DDA 1991 (as distinct from a challenge to merits), (ii) whether the Defendant failed in the Tameside duty to make sufficient inquiries or relied on demonstrably baseless assumptions, (iii) whether the early equality assessments complied with the PSED, (iv) whether the Conformation Standard had sufficient legal certainty, and (v) if a PSED breach was found, whether relief should nonetheless be refused under section 31(2A) Senior Courts Act 1981 because it was highly likely the outcome would not have been substantially different.

Court’s reasoning (concise account).

• The court accepted that Parliament entrusted the Secretary of State with a fact‑sensitive judgement under section 1(1)(c) to designate types it appears to the Secretary of State are bred for fighting or have the characteristics of such types; judicial interference is limited to public law errors.
• The evidence before the Secretary of State (briefings, a contemporaneous Defra Data Table, police and media reports, and expert input on a conformation standard) sufficed for a rational decision. The judge rejected challenges that the Secretary of State failed the Tameside duty or acted irrationally in relying on available evidence, population estimates or on the chosen height thresholds in the Conformation Standard.
• The Conformation Standard, being non‑statutory guidance to assist identification of a broad statutory term “type”, was within the Secretary of State’s discretion and provided sufficient practical certainty for enforcement even though difficult cases would remain.
• However, the Secretary of State’s early equality assessments (September/October 2023) were perfunctory and did not amount to the rigorous consideration required by the PSED. This constituted unlawful conduct.
• The Defendant subsequently produced a comprehensive May 2024 equality impact assessment which addressed the relevant equality issues. Applying section 31(2A) Senior Courts Act 1981, the court concluded it was highly likely the outcome would not have been substantially different had that later assessment been available earlier, and accordingly refused relief despite finding a PSED breach.

Wider context noted by the court: the judgment records the limited role of the court when reviewing fact‑sensitive executive judgements and the statutory remedial constraint imposed by section 31(2A) SCA 1981 where later compliance with PSED is shown to make quashing pointless.

The Court allowed the claim in respect of a breach of the public sector equality duty (Grounds A(iv) and B(iii)), finding the early equality assessments inadequate, but refused relief because a comprehensive May 2024 equality impact assessment had thereafter addressed the deficiencies and, under section 31(2A) Senior Courts Act 1981, it was highly likely the outcome would not have been substantially different; all other grounds of challenge were dismissed. In short: PSED breach established but no remedial relief granted because the deficiency was subsequently cured and would not likely have produced a different outcome.

The judgment records prior procedural history. Permission was initially refused on the papers (order sealed 29 January 2024). On renewal Dias J granted permission in part (order sealed 13 May 2024) and refused permission on certain grounds. Swift J made interlocutory orders on 17 July 2024 refusing expert evidence and disclosure; those interlocutory orders were the subject of an application to the Court of Appeal which refused permission to appeal on 25 October 2024. (Dates and judges are taken from the judgment.)