55. In my judgment, any consideration of whether the outcome was highly likely to have been substantially the same even if due regard had been had to the PSED should normally be based on material in existence at the time of the decision and not simply post-decision speculation by an individual decision maker. Any other course runs the risk of reducing the importance of compliance with duties of procedural fairness and statutory or other requirements that certain matters be taken into account and others disregarded. Indeed, it would undermine the efficacy of judicial review as an instrument to ensure that the rule of law applies to decision making by public authorities, by deterring claimants from bringing a case or the court from granting permission by a declaration by a decision maker who has failed to obey the law to the effect that obedience would have made no difference. Whatever else Parliament may have intended to achieve by this legislation, I cannot infer that it included so draconian a modification of constitutional principles. It may well be that the new provision was only intended to apply to somewhat trivial procedural failings that could be said to be incapable of making a material difference to the decision made. If recourse can be had to the drafting history and statements of sponsoring Ministers to assess the purpose of the legislation and the mischief to be cured there may be material support for such a conclusion. Such an approach is permissible without impugning Parliamentary privilege where the issues of justification, proportionality and compatibility with European norms are engaged (see for example Age UK [2009] EWHC 2336 (Admin) at [42] to [59]).

56. I recognise that there is evidence at the time of the decision pointing to the proposition that due regard to the PSED by all decision takers would not have made a difference: there was a pressing economic case to increase revenue by reducing the scheme; the cabinet properly advised by its officers after considering all options supported the scheme without any evidence of dissent; there were no dissentient voices in the debate before the full council where the cabinet recommendation was adopted without a division; no council member has stated that he was unaware of the EIA and would have opposed the new scheme if s/he had been.

57. In the end, I do not propose to refuse relief on the basis of a conclusion that these indicators when taken alongside the other evidence before me made it ‘highly unlikely’ that the full Council would have done other than adopt the recommendation of the cabinet. This is because, for other reasons, I have concluded that it is not just and convenient for a formal declaration to be granted to the claimant in respect of this point.

58. At the conclusion of the hearing, I invited the parties to make submissions on whether the terms of SCA 1981 s31(2A) ‘any relief’ precluded the court giving a declaratory judgment. The defendant was prepared to concede not in this case, whilst reserving the position for the future. I am satisfied that ‘relief’ in that section must be read alongside the definition of relief set out in section 31(1) that does not include a declaratory judgment and whatever the outcome of the ‘highly likely’ assessment, permission having been granted there are no restraints on the court delivering its judgment on the issue.

59. Such a course might not have been open, if the debate had been at the permission stage where SCA 1981 s31(3D) precludes the grant of permission ‘if it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different.’ I do not rejoice in the prospect of having to make such assessments in cases like the present at the permission stage. It seems to me to have the potential for increasing the length, cost and complexity of the proceedings and bringing an unwelcome constraint on the court’s flexible assessment of the interests of justice. In the absence of clear pointers at the time that the flaw was a technical one that made no difference, the court will inevitably be drawn into some degree of speculation or second guessing the decision of the public authority that has the institutional competence to make it.