By Declan O’Dempsey and Catherine Casserley
David Cameron has decided that it is important to release public authorities from what he calls red tape. He has decided that such authorities should not have to carry out “equality assessments”. These are generally understood to be detailed written documents that give evidence of the fact that the public authority has had due regard to certain equality objectives set out in the Equality Act 2010, s149. The Labour government willed the means and reasoned that to ensure that equality was built into the decision making process of authorities, a means by which there could be evidence of the process would be helpful for authorities. It imposed a duty on certain authorities to produce equality impact assessments conforming to formal requirements. It also allowed the EHRC to take enforcement action against a public authority that failed to observe these formal requirements. This difference represents a philosophical difference between the government and Labour. The former apparently does not think that the choice of means can affect whether you attain the aim.
Judicial review, brought promptly and within 3 months of the decision can be used to challenge a public authority decision (using section 149), regardless of whether a formal impact assessment has been conducted, on the basis that the authority, in the exercise of its functions, has not had due regard to the need to:
(a) eliminate discrimination, harassment, victimisation and any other conduct that is
prohibited by the Equality Act;
(b) advance equality of opportunity between persons who share a relevant protected
characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic
and persons who do not share it.
The Coalition government initially relaxed the formal requirements on these public authorities stating that they need only be transparent about their equality objectives and set out fewer formal requirements for such assessments. The requirement of transparency never made it into legislation, but is enshrined, for example, in the local authority model code of conduct which replaces the ethical standards regime for councillors. In other words there remains a legitimate expectation that councillors, regardless of anything else will need to be transparent in relation to all their decision making and this includes the exercise of all their functions to which the public sector equality duty is relevant. Similarly people wishing to challenge relevant decisions will be able to make FOI requests for information. Of course the alternatives are much more time consuming for the local authority and for the citizen seeking to ensure proper standards of decision making.
Case law on the public sector equality duty itself, and not on the formal aspects of impact assessment, also shows that it is important for public authorities to be transparent about their reasoning processes in order to demonstrate that they have had due regard to the equality objectives. It is important to note that this requirement from the case law has nothing to do with whether an authority is obliged to carry out an impact assessment.
The Prime Minister therefore can be accused with some justification of making a merely symbolic gesture by introducing plans to remove the requirement for impact assessments. He can do this without having to resort to primary legislation. He cannot remove the duty on public authorities to have due regard to equality without resorting to primary legislation. However it is a gesture which influences standards and the Prime Minister must know this. Local government authorities in particular will now face the dilemma that if they want to be able to show evidence that they have been having due regard they will have to justify the expenditure on any information gathering steps necessary to do so. Those opposed will point to the supposed conclusion that any such exercise is unnecessary. Only individual cases calling the authorities to account by means of judicial review (e.g. in planning cases) will ensure that those seeking to promote equality will have some reply.
Judicial review is a vital part of any democracy enabling citizens to challenge the actions of government and those carrying out public functions, within reason. The increase that we have seen in challenges to decision making of late is perhaps not because it is too easy to do, but because sometimes those decisions are being made rashly, with little consideration for equality, or rationale. They are decisions which in times of limited resources and increasing need will have lasting and often dire ramifications and so they must be soundly made and open to public scrutiny. Equality is not, however a good times luxury. It is a central pillar of a stable society.
However, the government has also announced a review of the equality duty itself. Setting aside the obvious point that removal of it would run counter to the rhetoric surrounding the removal of the assessment requirement, it would represent a very serious undermining of the aim of achieving equality of opportunity in the UK and in the highly influential sphere of public decision making. Yet time and time again it has been shown (by objective and credible research) that considerations of equality have made a significant and positive difference to the workings of local and central government.
Of course, if the Coalition were to announce plans to curtail the ability of individuals to seek judicial review, or curtail time limits for bringing these claims (which must be brought “promptly” in any event) that would give much more serious cause for concern. Good heavens…