The intention to designate the XL Bully type under s.1 of the Dangerous Dogs Act 1991 (“DDA 1991”) was announced in September 2023 following a series of fatal and serious attacks against humans. The ‘ban’ was then introduced through a series of statutory instruments in 2023 and 2024, made by the Secretary of State for Environment, Food and Rural Affairs (“SSEFRA”) under the DDA 1991. The dog type was not defined in any official conformation standard, so the Government also published a conformation standard in non-statutory guidance.

The result is that no person may breed or breed from, sell, exchange or advertise or gift an XL Bully type dog; and all XL Bully type dogs must be muzzled and kept on a lead when in a public place and they may not be abandoned or allowed to stray. Individual owners were allowed to apply for an exemption that would allow them (subject to conditions such as muzzling the dog in a public place) to lawfully to keep their dogs. Approximately 57,000 exemptions were subsequently granted.

The judicial review claim was brought by an XL Bully dog owner, and a company that campaigns against breed-specific approaches to dog control. Various grounds of challenge were advanced. Following amendment to the statement of facts and grounds, permission for judicial review was granted at a renewal hearing by Mrs Justice Dias, although permission was refused on some grounds including those relating to the European Convention on Human Rights and to fettering of discretion.

The grounds on which permission was granted were A) the decision to prohibit XL Bully type dogs was unlawful; B) unlawfulness of the statutory instruments implementing the ‘ban’; and C) the conformation standard was unlawful. A key contention of the Claimants concerned the statutory criteria for designating a dog type under the DDA 1991. Section 1(1)(c) of the DDA 1991 enables the SSEFRA by statutory instrument to designate any dog of any type, if it appears to him or her to be a type bred for fighting, or to have the characteristics of a type bred for that purpose. The Claimants argued that the SSEFRA made a series of public law errors in designating the XL Bully dog type pursuant to this power, and argued that she breached her duty under s.149 of the Equality Act 2010 (“PSED”).

The substantive hearing took place on 26 and 27 November 2024 before Mrs Justice Lang. Judgment was handed down on 17 December 2024; the claim was dismissed.

On the Claimants’ main contention, the Judge found (at [47]) that the legislation clearly indicates that the decision whether a dog type is bred for fighting, or has the characteristics of a type bred for that purpose, is to be made by the Defendant, in the exercise of their judgment; and that the SSEFRA’s judgement was rational, based in part upon the available evidence regarding dog attacks and fatalities attributed to XL Bullies. Various other submissions were also dismissed, for example a submission that the evidence indicates that most dog attacks have occurred in the home, and the ‘ban’ will be ineffective in preventing attacks in the home. The Judge found that this point did not undermine the rationale for the ban, the primary aim of s.1 DDA 1991 being to reduce the population of designated dog types, in the interests of public safety, through the prohibitions on breeding, and requirements of the neutering and destruction of dogs. 

Regarding the PSED, the Judge found that initial equality impact assessments (“EIA”) did not contain the “rigorous consideration” required by the law [112], however she went on [114-124] to refuse relief, finding that an updated EIA was adequate to lawfully discharge the PSED. Notwithstanding that the updated EIA post-dated some of the statutory instruments, the authorities are clear that the PSED can be discharged by an EIA subsequent to the relevant decision. The Judge found that this assessment considered the entirety of the orders and thus lawfully discharged the PSED.

Permission to appeal was refused by Mrs Justice Lang, and the Claimants were ordered to pay the SSEFRA’s reasonable costs up to a costs cap imposed by Dias J.

Ned Westaway and Horatio Waller acted for the Secretary of State. They were led by Sir James Eadie KC.