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

The duty to refuse relief under the Senior Courts Act 1981, section 31(2A)(a), is displaced only through the two-stage mechanism in section 31(2B). The court must first identify reasons of exceptional public interest, after which relief remains discretionary.

There is no automatic exceptional-public-interest category for secondary legislation creating criminal offences, affecting liberty, or engaging protected characteristics. The inquiry is fact-specific. Where a later compliant equality assessment shows that the same legislation would have been made, the court may refuse to quash it. Legislation remains legally effective unless set aside by a competent court.

The claimants challenged three Orders designating XL Bully dogs and regulating possession, exemption and rehoming under the Dangerous Dogs Act 1991. Lang J found breaches of the public sector equality duty under section 149 of the Equality Act 2010, but held that a May 2024 assessment made it highly likely that the outcome would not have been substantially different and refused relief under section 31(2A)(a) of the Senior Courts Act 1981.

The appeal, from [2024] EWHC 3252 (Admin), was limited to whether section 31(2B) should be invoked because the Orders created criminal offences or affected people with protected characteristics.

Appeal dismissed. Singh LJ gave the judgment, with which Warby LJ and Dame Victoria Sharp P agreed.

1. Section 31(2B) of the Senior Courts Act 1981 requires a two-stage exercise. The court must first make an evaluative assessment of whether reasons of exceptional public interest justify departing from the mandatory duty in section 31(2A). If that threshold is met, the court has a discretion to grant relief.
2. There are no categories of case in which exceptional public interest arises automatically. The fact that secondary legislation creates criminal offences, affects liberty, or engages protected characteristics does not itself satisfy section 31(2B). The statutory words must be applied according to their ordinary meaning through a highly fact-specific inquiry.
3. The section 31(2B) inquiry must not reopen the section 31(2A) question. Here, the Judge had concluded that, if the public sector equality duty had been discharged before the Orders were made, the same Orders would still have been made. The argument based on possible parliamentary reactions or other affected persons therefore did not establish exceptional public interest.
4. The Orders were not legally invalid merely because the Secretary of State had initially breached the public sector equality duty. Applying the principles reaffirmed in R (Majera) [2021] UKSC 46, public decisions and subordinate legislation remain effective unless set aside by a court of competent jurisdiction. The appeal could not proceed on the assumption that the Orders were unlawful between February and May 2024.
5. Earlier authorities, including R (C) (A Minor) [2008] EWCA Civ 882 and R (West Berkshire District Council) [2016] EWCA Civ 441, had to be understood in their statutory and factual context. The former pre-dated sections 31(2A) and (2B) and concerned general remedial discretion. The later compliant assessment in the present case distinguished the circumstances in C. Quashing the Orders in their entirety would over-remedy the breach and create a windfall for persons affected after compliance had been achieved.
6. A limited declaration marking a breach without quashing the underlying measure may sometimes be appropriate, but the suggestion was made too late and did not meet the claimants’ primary objective. The Judge was therefore not wrong to refuse relief.

• Court of Appeal (Civil Division): Appeal dismissed. Permission was limited to the application of section 31(2B) of the Senior Courts Act 1981.
• Administrative Court, King’s Bench Division: The claim was allowed on the public sector equality duty grounds, but relief was refused under section 31(2A)(a) of the Senior Courts Act 1981: [2024] EWHC 3252 (Admin) .