Case No. Case-No.-CO-5942-2017

[2017] PTSR 1041 at 1060: “It is not necessary for [counsel for the appellants] to show that the minister would, or even probably would, have come to a different conclusion. He has to exclude only the contrary contention, namely that the minister necessarily would still have made the same decision.” 118.Such a submission would have failed here in my judgment since the discretion to refuse relief on the basis that the error would not have made a difference is a bold submission in the face of a complete failure by the Council to consider the discretion at all and in the context that the Council at that time were maintaining that the s. 20 duty had not arisen. The possibility, considered in GE (Eritrea), of applying the discretion to remedy early unlawfulness would simply not have occurred to, or been accepted by, the Council at the time. The fact that the Council would have had a potentially wide range of options, as GE (Eritrea) makes clear, does not assist the Council, contrary to Mr Carter’s submission, but in fact makes it more difficult for the Court to conclude that the Council would necessarily have made the same decision had it conscientiously considered its discretion, which it failed to do. See e.g.