Practical Law

PLC Public Sector reports:

So it might still be August but the days are getting shorter, the evenings cooler and those lawyers left in the office are beginning to turn their minds to the implementation of the behemoth that is the Equality Act 2010, parts of which will begin to come into force from October 1 2010.

One of the major changes for lawyers working in the public sector will – eventually – be the introduction of a single public sector equality duty to cover nine protected characteristics – sex, race, disability (which are all protected under existing individual public sector duties), sexual orientation, religion and belief and age and also pregnancy, maternity and gender re-assignment. Although the Government Equalities Office and the new ministerial team for women and equalities – Theresa May and Lynne Featherstone – have yet to announce the Coalition’s detailed plans for implementation, the last scheduled date for the new duty to come into force was April 2011. The Government has also not yet published any secondary legislation in respect of its power to impose specific duties designed to help public bodies meet the requirements of the general duty (about which it consulted in 2009). The EHRC has however stated that it will start to consult on draft guidance for the new public sector equality duty in the autumn of 2010.

However, despite this general uncertainty many public authorities have already begun preparing expanded and combined equality schemes and impact assessments in anticipation of the move towards a single duty.

Challenges under the equality duties

The race duty was the first of the public sector duties to come into force, in 2001, followed by the disability duty in 2006 and the sex equality duty in 2007. Each strand uses a slightly different legislative formulation but the general effect is virtually the same. Interestingly it was not until 2008 that the first judgments began to appear and some general principles were established. In particular the early cases emphasised the need for the decision maker genuinely to grapple with the duty, before the decision was taken, and to be able to produce convincing evidence (usually a written record) that it had done so (see R (Elias) v SoS for Defence, R (Bapio) v Home Secretary, R (Eisai) v Nice). It is the race and disability duties that have been the main targets for litigation. The race duty in respect of changes to immigration rules, planning decisions for travellers, school admissions and school uniform, the management of foreign nationals within the UK prison service and the withdrawal of funding from community groups assisting ethnic minority service users. The disability duty in respect of challenges to decisions regarding the closure of care homes, the limitation of benefits and care allowances and introducing charges for adult community care services (R (Domb) v London Borough of Hammersmith and Fulham). What is certainly clear from this growing body of case law is that many public authorities have not been able to produce sufficient evidence to demonstrate that they have given the equalities implications of decisions the proper degree of substantive consideration.

Challenge to emergency budget

So it was against this background that on 1 August 2010 news broke of a challenge to two government departments over their failure to assess in advance the impact of the government’s budget proposals on equality between women and men. The Fawcett Society (Fawcett) has launched a judicial review application against the Chancellor of the Exchequer, HM Treasury and HMRC alleging that, in respect of the emergency budget on 22 June 2010, all had failed to fulfil their duty to conduct a gender equality impact assessment under the ‘general duty’ contained in section 76A and the ‘specific duties’ enacted under section 76B of the Sex Discrimination Act 1975. Fawcett argue that, if the government failed to conduct an assessment and publish its findings, in compliance with the positive duties to eliminate discrimination and promote equality of opportunity, the courts would be entitled to declare the budget unlawful.

According to Fawcett’s press release about the action:

“even a top line assessment of the emergency budget measures show 72% of cuts will be met from women’s income as opposed to 28% from men’s. This is because many of the cuts are to the benefits that more women than men rely on, and the changes to the tax system will benefit far more men than women.”

So some £5.8 billion of the £8 billion of cuts contained in the budget will be taken from women, who make up 52% of the population. Fawcett also allege that women will also be worst affected by the planned cuts to public services as 65% of public sector workers are women.

Literally days after the claim was filed, a letter from Theresa May sent to the Chancellor on 9 June 2010, prior to the Budget, was leaked to the national press. The letter reminded the Chancellor that the government needed to ensure it had considered the potential for its budget proposals to have a disproportionate impact on women, the disabled and ethnic minorities and that a successful legal challenge might follow if it ignored its duties. The Government responded by suggesting that the Minister for Women and Equalities had written to all departments to remind them of their equalities duties and hadn’t singled out the Chancellor. It has also emerged that the EHRC wrote to government departments in June reminding them of their equality duties.

The government has not responded by making any statement that any assessment took place. Fawcett must be pleased to see that the issue had at least been raised at Cabinet level. However what can be read into the fact that the Chancellor seems not to have taken any action as a result?

So what is Fawcett hoping to achieve by the proceedings? Intheir press release they state:

“We are calling on the government to look again at the budget, and to ensure that all government departments undertake a robust and transparent gender equality impact assessment of proposals being discussed in the current spending review before final decisions are made.”

The government has no time to lose if this impact assessment is to be carried out and the results considered before the Spending Review on 20 October 2010. The government is expected to acknowledge service of Fawcett’s claim this week or before 23 August 2010 and thereafter the court will consider whether to grant permission, for more information on judicial review procedure, see our practice note. It is also possible that interested third parties, such as the EHRC, may intervene.  Samantha Mangwana of Russell Jones & Walker Solicitors is instructed by Fawcett.  Karon Monaghan QC of Matrix Chambers and Sandhya Drew of Tooks Chambers are instructed as counsel.

The gender equality duty has only been in force since April 2007 and most of the reported cases focus on the race and/or disability duties, but, says Samantha Mangwana:

“the case law is crystal clear … an equality impact assessment must be conducted before policy decisions are taken. Where an assessment reveals a risk of discrimination, urgent action must be taken to address those risks.  Clearly, if the equality impact is not even assessed as a starting point, a public authority cannot start to consider what steps to take to mitigate any inequality.”

Currently the details of the steps public authorities must take to enable them to meet their legal obligations under the existing general sex, race and disability equality duties are set out in specific duties and statutory codes of practice. We are still awaiting such detail to be published in respect of the new single equality duty so it remains to be seen whether, taken together, the new provisions will be more, or less, onerous.

PLC Public Sector will be publishing a practice note on the current sex, race and disability equality duties and relevant case law written with Holly Stout of 11KBW as well as a practice note on the new single equality duty by Karon Monaghan of Matrix (counsel for the Fawcett Society in the budget action).

Other resources dealing with aspects of the Equality Act 2010 relevant to employment lawyers, property lawyers, pensions lawyers and commercial lawyers will also be available through PLC over the coming weeks.