55. Today Mr Straw has appeared again to present his submissions, as has Ms Slarks to present her contrary submissions. The issue arises from the impact and effect of section 31(2A) and (2B) of the Senior Courts Act 1981 as inserted by the Criminal Justice and Courts Act 2015. These particular inserted provisions took effect from 13 April 2015, which was before the date of commencement of the present proceedings. They provide as follows:

56. The essential submission of Ms Slarks is that subsection (2A) is directly in point in this case, and that there are no reasons of exceptional public interest such that it may be disregarded pursuant to subsection (2B).

57. It seems to me, first, that the word ‘relief’ where it appears in subsection (2A)(a) must refer back to the word ‘relief’ where it appears in subsection 31(1). In that subsection the relevant forms of ‘relief’ are identified, and they include ‘a declaration’. So far as is material to the present case, therefore, it seems to me that I should read subsection (2A)(a) as if it read ‘must refuse to grant a declaration … ‘ The words of paragraph(a) are of course mandatory and completely binding upon me, if the gateway words at the conclusion of subsection (2A) appear to me to be made out. I have already said at paragraph 47 above:

‘However neither claimant has suffered any loss as a result, since even if the Secretary of State for Justice or his staff or officials had fully and duly discharged their duties under that section, the outcome would have been, and will still be, the same.’

58. I do not resile in any way at all from what I said in that paragraph. Accordingly, it seems to me crystal clear that it does indeed appear to me to be highly likely that the outcome for the claimants would not have been substantially different if the conduct complained of, namely the failure to have due regard to the public sector equality duty as section 149 requires, had not occurred.

59. Mr Straw seeks to avoid that particular conclusion by arguing as follows (this is in fact the second of his four main submissions today). He says that, bearing in mind the intention of Parliament behind section 149, the duty under that section is a freestanding, explicit statutory duty. He says that it is, or would be, ‘an important outcome’ for the claimants to establish by declaration that there has been a breach of that duty. With respect to the ingenuity of Mr Straw, however, it seems to me that that particular submission is circular; and if I acceded to it, it would effectively negative the impact and intended effect of section 31(2A), and I do not accept that submission.

60. Mr Straw submits also (this was his first numbered submission today) that section 149 of the Equality Act is an important statutory provision, intended to create a positive duty on public authorities to have due regard to all the matters elaborated in that section. He says that it is important that effect be given to it by making it an ‘enforceable duty’. He submits that it would ‘emasculate that section’ if I declined in the present case to grant a declaration or construed section 31(2A) as preventing me from doing so. I cannot accept that submission either. Of course, I fully accept that the public sector equality duty is a very important statutory duty indeed, bearing down on all public authorities. That, indeed, was made very clear by the Court of Appeal in Bracking, if indeed it was not already clear. Even a formal declaration itself is not ‘enforceable’ against a public authority, and does not give rise to any additional or subsequent remedies. The added provisions in section 31 are recently enacted and appear to me to be entirely general and unqualified in their reach and impact, subject to subsection (2B). If Parliament had wanted in some way to ‘ring fence’ the public sector equality duty under section 149 of the Equality Act from the reach and impact of section 31(2A), it could easily have done so by some suitable words of exception. It seems to me, however, that the reach and purpose of the added subsection (2A) is quite clear and is general, and I should not seek to cut down or limit its scope.

61. My attention has been drawn to some words of Blake J in Logan v London Borough of Havering [2015] EWHC 3193 (Admin) in which he gave judgment on 6 November 2015. It is clear, however, from paragraph 57 of his judgment in that case that there were ‘other reasons’ why in any event he concluded that it was not appropriate to make a formal declaration, and accordingly his words are in fact obiter. It is to be noted that in any event he concluded his judgment at paragraph 61 by saying:

‘[The claimant] will obtain no personal benefit from a declaration. Following the grant of permission, a useful public purpose has been achieved for the future, if the defendant accepts the conclusions in this judgment on the requirements to have due regard …’

62. He thus was making what he had described as ‘a declaratory judgment’ at paragraph 58 of his judgment, without making any formal declaration.

63. In my view, the facts and circumstances of the present case fall fair and square within the embargo in section 31(2A), subject only to the exception in subsection (2B) to which I now turn. In relation to this, Mr Straw submits that this is a case in which the embargo should be disregarded and that ‘it is appropriate to do so for reasons of exceptional public interest’. He stresses, first, the considerable importance of the statutory public sector equality duty. I fully recognise the importance of that duty, but it is only one of hundreds if not thousands of statutory duties upon the whole spectrum of public authorities. There is nothing in fact in section 149 to elevate the public sector equality duty to some specially prestigious position above many other no less important statutory duties upon public authorities. It does not seem to me that there is about the present case some ‘exceptional public interest’, although there is obviously significant public interest.

64. Mr Straw submits, however, that if the claimants in this case cannot get a declaration then no one can get a declaration who cannot show that the outcome for them would have been substantially different. Essentially, that is the intended purpose and effect of subsection (2A). I agree with him that if my judgment stands, then it may be difficult for individual claimants, who cannot show that the outcome for them would have been substantially different if the conduct complained of had not occurred, to obtain a freestanding declaration that there has been a breach of section 149. That, as I say, appears to me to be the intended purpose and effect of these recently added provisions. But it is not an absolute and inevitable effect. Just to take two possible examples: If even after a ‘declaratory judgment’ a public authority persisted in failing to discharge its public sector equality duty under section 149, then there may come a time when, on proof of that failure, a claimant may be able successfully to persuade the court that enough is enough and that the exceptional public interest under subsection (2B) has become engaged. Alternatively (without in any way deciding the point), it may be that if a body such as the Equality Commission, which has very express responsibilities in this field, reached a considered decision that a public authority was in such continuing breach of the public sector equality duty that it was necessary to obtain a formal declaration from the court, then such a body may be able to persuade the court that the exception in subsection (2B) is engaged, even though, by the nature of the body, it would not be able to show that the outcome for it would have been substantially different.

65. So, for these reasons, I am clear, now that it has been drawn to my attention, that section 31(2A) of the Senior Courts Act 1981 does apply in this case and that the exception under subsection (2B) is not established. I am therefore forbidden by statute from granting the declaration which in paragraph 47 above I had previously contemplated granting. The formal outcome of the case will therefore be, not as I expressed it under the heading ‘Outcome’ in paragraph 48 above, but that the whole of the claim for judicial review is dismissed.

66. I nevertheless conclude this judgment by repeating what I said in paragraph 45 above: that I am not satisfied on the facts and in the circumstances of this case that the Secretary of State for Justice or his officials of staff have given the positive due regard which section 149 of the Equality Act 2010 requires, and on the facts and in the circumstances of this case, there has been a failure by the Secretary of State for Justice to discharge his duties under that section. I intend those words to represent ‘a declaratory judgment’ of the kind contemplated by Blake J in paragraphs 58 and 61 of his judgment in Logan. I am confident that the Secretary of State for Justice or appropriately senior officials will consider and take heed of what I have said.