2. The case no longer directly concerns the third limb of the judicial review application, which Stanley Burnton J determined against the executive and which has not been the subject of any cross-appeal. This arose out of the failure of the Home Secretary to comply, otherwise than in retrospect, with the duty imposed on him by section 71 of the Race Relations Act 1976 to have due regard, in carrying out his functions, to the need to eliminate unlawful racial discrimination and to promote equality of opportunity. The judge declared that there had been a failure to comply with the duty but, in the light of the unchallenged race equality impact assessment which was subsequently made, declined to hold that the rule change was vitiated by the omission. This conclusion, which was essentially an exercise of the discretion to withhold relief, is not challenged.

3. Such a finding does not in any way diminish the importance of compliance with section 71, not as rearguard action following a concluded decision but as an essential preliminary to any such decision. Inattention to it is both unlawful and bad government. It is the Home Office’s good fortune that the eventual assessment did not force it to go back to the drawing board.