Understanding the Public Sector Equality Duty


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Understanding the Public Sector Equality Duty

  1. 1. PUBLIC SECTOR EQUALITY DUTIES: WHERE ARE WE NOW? Helen Mountfield QC South West Equality Nework
  2. 2. “it is incumbent upon every institution to examine their policies and the outcome of their policies and practices to guard against disadvantaging any section of our communities” Sir William MacPherson Purpose and History
  3. 3. • From restitution to mainstreaming • From tort model to public law duty • Pre-emptive duty of consideration • From avoiding to discrimination to promoting equality A new approach to equality
  4. 4. S149 Equality Act 2010 • “(1) A public authority must, in the exercise of its functions, have due regard to the need to – • (a) Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this 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. • • (2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
  5. 5. Protected characteristics • Age • Disability • Gender reassignment • Pregnancy and maternity • Race • Religion or belief • Sex • Sexual orientation
  6. 6. Eliminating discrimination • Direct, indirect • Harassment • Victimisation • Breach of equality clauses or rules • Breach of non-discrimination rules • (s149(1)(a) and (8))
  7. 7. Equality of opportunity • Advancing equality of opportunity • - removing/minimising disadvantages; • - taking steps to meet different needs; • - encouraging participation in public life • - steps to take account of disabilities • (s149(1)(b), (3) and (4))
  8. 8. Fostering good relations • Tackling prejudice • Promoting understanding
  9. 9. General Principles (1) • Decision makers must be aware of duty to have ‘due regard’ • Awareness must be of specific content of the duty, not just of ‘equality issues’
  10. 10. General Principles (2) • ‘Due regard’ is that which is appropriate and proportionate • The severity of effect and numbers affected are significant • Rigor and an open mind
  11. 11. General principles (3) • Timing is key • Focus on equality is an essential preliminary, not a rearguard action • An integral part of policy development • Duty is ongoing/continuing • A duty of consideration – EIA is a tool not and end in itself
  12. 12. Content of analysis • EIA is a tool, not an end in itself • Object is evidence-based policy not policy-based evidence • Equality impact assessment may require focused consultation (see Rahman) unless adequate alternative sources of information
  13. 13. “Cuts” cases • Domb • Hajrula • Rahman • W • Fawcett & EHRC s31 assessment • Libraries challenges • Tuition fees (Hurley & Moore) • Isle of Wight (JM) case • R(JL) v Lancashire CC
  14. 14. A turning tide? • MacDonald, SC • Police v SSWP (RPI/CPI index linking) (CA) 2 12 11 • R(RP) v Brent 7 12 11 (changes to adult social care) • Bailey v Brent (CA 19 December 2011) • MA (the bedroom tax challenge) • The Unison case (only procedure)?
  15. 15. • The Equality Act 2010 (Specific Duties) Regulations 2011 • Reg 2: Scheduled public authorities must publish information to demonstrate compliance with PSED by either 31 January 2012 (Sch 1 authorities) or 6 April 2012 (Sch 2 authorities), and annually thereafter. • Regulation 3 each public authority must prepare and publish “specific and measurable” objectives by 6 April 2012 and every 4 years thereafter Specific Equality Duties
  16. 16. • "there is no dichotomy between the promotion of equality and cohesion and the provision of specialist services to ... a minority" [which can be] "anti-discriminatory and further the objectives of equality and cohesion… • "An equal society protects and promotes equality, real freedom and substantive opportunity to live in the ways people value and would choose so that everyone can flourish. An equal society recognises people's different needs, situations and goals and removes the barriers that limit what people can do and can be"". (per Moses LJ in the context of specialist services for black minority ethnic victims of domestic abuse, R(Kaur & Shah) v London Borough of Ealing [2008] EWHC 2062 (Admin) [55] and [58]). But substance remains
  17. 17. Bracking [2013] EWCA Civ 1345 [2014] EqLR 40 26-27 and 60-61 • “… a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate that discharge. It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of the formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude. • It is for this reason that advance consideration has to be given to these issues and they have to be an integral part of the mechanisms of government … There is a need for a ‘conscious approach’ and the duty must be exercised ‘in substance, with rigour and with an open mind’ (per Aikens LJ in Brown). In the absence of evidence of ‘a structured attempt to focus upon the details of equality issues’ (per my Lord Elias LJ in Hurley & Moore) a decision maker is likely to be in difficulties if his or her subsequent decision is challenged.”
  18. 18. • Is this a political opportunity? • What should public authorities be publishing? • What are equality problem areas? • What could they do which is specific and measurable? Specific Equality Duties
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