Passed in the final days of the last government, the Equality Act 2010 (EA) is largely a consolidating measure.

It updates private law remedies that challenge discrimination in the workplace, in the education system, or when someone buys, receives, or is denied a service on an inferior basis, on the grounds that they enjoy certain protections.

The EA also broadens and strengthens the ‘positive equality duties’ previously found in section 71 of the Race Relations Act 1976 (RRA), section 49A of the Disability Discrimination Act 1995 (DDA), and section 76A(1) of the Sex Discrimination Act 1975 (SDA).

This means that ‘due regard’ to eliminating unlawful discrimination, advancing equality and fostering good relations must now be promoted by public bodies and private ones that discharge public functions, based on age, disability, gender reassignment, pregnancy and maternity, religion or belief, and sexual orientation.

Regulations impose further requirements on some of the public bodies affected by section 149 duties.

Section 149 and the regulations are, respectively, underpinned by the Equality and Human Rights Commission (EHRC) and Government Equalities Office guidance.

Of particular importance to lawyers and campaigners is the role that positive equality duties, both current and future, will play in challenging decisions to cut public sector spending.

Scope of the new section 149 duties

While there are some gaps in the broadened scope of section 149, notably in the provision of public services to children, the new duties it creates are an improvement.

Far more policies, proposals and decisions will be subject to the duties.

Section 150 provides that bodies not explicitly identified as being subject to section 149 duties in the schedules appended to the EA, will nevertheless be caught, provided that the functions in question are ‘public’ ones (a definition intended to encompass functions of hybrid authorities which are subject to the Human Rights Act 1998).

Besides having due regard to the need to eliminate discrimination prohibited by the EA, regard must now be had to the need to ‘advance equality of opportunity’ between those sharing a protected characteristic and those who do not, rather than merely its promotion.

This includes having regard to the need to meet needs differently, so as to promote equality of outcome and encourage equal participation in public life.

Fostering good relations is explicitly linked to tackling prejudice and promoting understanding.

Enforcement of positive equality duties

The RRA, DDA and SDA provided the EHRC with an arsenal of special regulatory powers to enforce the original positive equality duties.

More importantly, the courts have taken a principled and purposive approach in many of the cases decided so far.

This stance allows individuals and NGOs to seek judicial review of decisions made without adequate due regard, in many cases quashing them and returning the decision-making process to an early stage while preserving the status quo.

In the most cutting-edge cases, the courts have gone further still, using an unlawful failure to discharge a positive equality duty as the basis for a finding that discrimination that might otherwise be legally justified (such as an indirectly discriminatory policy, or a failure to make reasonable adjustments) in fact cannot be.

The range of decisions successfully challenged (including by favourable settlements) is remarkable.

They include decisions to deny compensation to British civilians interned by the Japanese during the Second World War if they could not establish a ‘blood link’ to UK soil by their own or an ancestor’s birth here (Secretary of State for Defence v Elias [2006] EWCA Civ 1293).

Another case involved doctors prescribing Alzheimer’s medicines on the basis of a language test that took no account of cognitive impairments, or having English as a second language (R (Eisai) v National Institute for Clinical Excellence & Others [2007] EWHC 1941 (Admin)).

The granting of planning permission for a development of chain stores and luxury flats was challenged in R (Harris) v London Borough of Haringey [2010] EWCA Civ 703.

The challenge stemmed from the impact of the development on a series of small, street-front shops where the shops (and the flats above them) were overwhelmingly occupied by black and minority ethnic (BME) traders and residents.

Decisions to cut funding from charitable and voluntary sector organisations have also been successfully challenged on several occasions.

In R (Talawa) v Arts Council of England CO/7705/2005, the UK’s leading black theatre company saw off an Arts Council funding cut, while R (Chavda) v Harrow LBC [2007] EWHC 3064 (Admin) involved a successful challenge to funding cuts that would have disproportionately affected BME and disabled people.

Southall Black Sisters overturned a cut in funding for their services in R (Kaur and Shah) v London Borough of Ealing [2008] EWHC 2026 (Admin).

What principles emerge from positive equality duty cases and what difference will the EA make?

The basic structure of the duties remains the same as those under the RRA, DDA and SDA.

They are triggered by the exercise of functions (section 149 begins ‘A public authority must, in the exercise of its functions….’) and so potentially catch any decision-making that has equality implications, from the point of consultation onwards.

‘Due regard’ must still be had to particular ‘needs’ when those functions are exercised, so having equality in mind at a general or policy level is not enough.

But the duties do not require a particular outcome; what the body chooses to do once it has had the required due regard is for it to decide, subject, importantly, to ordinary constraints of public and discrimination law (see R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) at paragraph 82).

Specific additional duties are directed at particular bodies, intended to facilitate a better interpretation of the general duties.

Against this background, the following seven key principles developed by the courts will apply in the section 149 context.

Principle 1 – the duties are triggered whenever ‘an issue arises’

There will be some decisions made by public authorities – and now hybrid ones – exercising public functions which do not have equality implications for section 149 purposes.

In these circumstances, the amount of regard needed will inevitably be negligible.

That said, the threshold for one or more of the duties to be triggered is a low one.

In Elias at first instance [2005] EWHC 1435 (Admin) it was said to have been crossed because there was an ‘issue which needed at least to be addressed’ (see paragraph 98).

The responsibility to identify whether there is such an issue and to discharge the duty remains that of the decision-maker (see Eisai at paragraphs 92-96).

Principle 2 - the duties arise before a decision is made or a proposal is adopted, and are ongoing

In Elias both the first instance court and the Court of Appeal stressed ‘[i]t is the clear purpose of section 71 to require public bodies … to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them…’ In Brown at paragraphs 91–92, the Divisional Court emphasised the need for conscientiousness, rigour and an open mind when due regard is had.

Its contribution to decision-making will have much in common with a proper consultation process.

Once triggered the obligation is an ongoing one (see Brown at paragraph 95).

There may be an unlawful failure to frame a policy with equality considerations in mind followed by a failure to consider them when applying it to an individual’s circumstances.

For example, in R (Watkins-Singh) v Governing Body of Aberdare Girls High School [2008] EWCA 1865 (Admin) not only did the uniform policy ignore equality issues, but the school compounded that when refusing to make an exception to it for a Sikh girl who wished to wear her kara.

Principle 3 – the decision-maker must be aware of the section 149 needs

In Harris, the council accepted section 71 was engaged in the planning decision under challenge, but contended it had been discharged through a process of ‘mainstreaming’, whereby all council policies, including its development plan, were said to have been audited for equality purposes, with the result that any decision made consistently with them would ‘automatically’ discharge the duty.

The CA rejected this argument.

A policy might help a decision-maker address each element of their positive equality duties (as had happened in a number of gypsy and traveller cases), but to do that it would need to be ‘focused on specific considerations raised’ by the duties. High-level, aspirational policies were insufficient.

Principle 4 – the impact of the proposal or decision must be properly understood to enable due regard to be had

The amount of regard that is ‘due’ (that is, the degree of attention demanded by the needs set out in section 149) will depend on the circumstances of the case; the greater the potential impact of a decision, the greater the regard that must be had.

The courts have stopped short of holding that formal assessments are necessary to establish the extent of any impact save where the body has given a commitment to undertake one.

But there can be no due regard at all if the decision-maker or those advising it make a fundamental error of fact, as a result of failing to properly inform themselves about the impact of a particular decision.

This was one of the flaws of the taxi licensing decision in R (Lunt and another) v Liverpool City Council [2009] EWHC 2356 (Admin).

A taxi licensing committee deciding whether its fleet was accessible to wheelchair users could not lawfully exercise its discretion if it did not ‘properly understand the problem, its degree and extent’, and section 49A compelled it to do so (see paragraph 44).

It follows that regardless of whether or not there is an impact assessment or, to use the phraseology of the new EHRC guidance, ‘impact analysis’, due regard will entail:

  • collection and consideration of data and information in relation to the people directly and indirectly affected by the decision, policy or proposal in play;
  • ensuring that data and information are sufficient to enable the body in question to assess whether the decision might amount to unlawful discrimination and/or might impact on the promotion of equality of opportunity and/or might impact on the promotion of good relations, and;
  • if there may be an impact, proper appreciation of the extent, nature and duration of that impact.

Principle 5 – where negative effects are identified, potential mitigation must ­be considered

If the authority concludes that unlawful discrimination will be the result of a proposal, it cannot lawfully proceed with it.

Where a proposal under consideration potentially could have negative effects (in that it may lead to unlawful discrimination, undermine equality of opportunity or good relations between person of different racial groups) due regard as required by section 149 would entail evaluating the extent of such effects on affected persons and considering whether there are any means (in the proposal itself or available to the authority itself as part of its functions) by which they may be mitigated.

For example, in Kaur and Shah at paragraph 43 the court noted that once Ealing had ‘identified a risk of adverse impact’ resulting from the proposed cuts ‘it was incumbent upon the borough to consider the measures to avoid that impact before fixing on a particular solution’.

Principle 6 – responsibility for discharging the duties cannot be delegated or sub-contracted

Although any process of impact assessment need not be undertaken personally by the person or persons actually taking the decision in question, and can thus be undertaken by officers or others, the decision-maker must be sufficiently aware of the outcome of any assessment to enable them to personally discharge the section 149 duties (see Eisai at paragraphs 92-96).

Principle 7 – the process of having due regard should be documented and transparent

As Lord Justice Moses noted in Kaur and Shah at paragraph 25: ‘The process of assessments should be recorded… Records contribute to transparency.

They serve to demonstrate that a genuine assessment has been carried out at a formative stage.

They further tend to have the beneficial effect of disciplining the policy-maker to undertake the conscientious assessment of the future impact of his proposed policy, which section 71 requires.’

Enforcing section 149, meanwhile, presents a number of new challenges for public authorities and equality lawyers.

First, at present, the government has decided against better performance duties of the kind imposed under the existing positive equality duties.

Article 2 of the old Race Relations Act 1976 (Statutory Duties) Order 2001 (SI 2001/3458) required certain public authorities to periodically publish, assess and monitor a Race Equality Scheme which identified each function the authority considered engaged section 71.

Instead, assuming the draft Equality Act 2010 (Statutory Duties) Regulations 2011 are finalised in their current form, there will be two lesser duties to publish ‘sufficient information to demonstrate compliance’ with section 149 at a general level and ‘objectives that further one or more of the aims set out in section 149(1)’.

The old duty focused the minds of at least some public authorities on the functions to which the positive duties applied.

Many constructive schemes were produced in consultation with affected groups.

Now the requirement (thought by the coalition government to be too administratively burdensome and costly) is gone, there will be a temptation for public bodies to be far less proactive.

Limited emphasis on impact assessment

The government has also said that there should be a shift away from process and towards substantive outcomes.

This is difficult to understand in the context of a process-based set of duties, especially as the monitoring obligations proposed are so limited.

There are also no plans for any specific duty that would require an impact assessment on, say, a major decision to cut a particular public service or the funding of a charity, or NGO that advocated for women’s rights.

Subject to the courts taking into account the Government Equalities Office and EHRC guidance (both of which encourage impact assessment and analysis), at best, impact assessments will be a non-mandatory means to help discharge the duty which the more conscientious authorities will continue to use.

The courts?

In some of the early cases (Elias, BAPIO and Eisai), even where a breach of a duty was established, the policy or decision might be allowed to stand, especially if an ex post facto impact assessment had taken place.

This trend was reversed by a challenge to policy on child restraint in secure training centres, R (C) v Secretary of State for Justice [2008] EWCA Civ 882.

The CA held the failure to produce an assessment at the proper time was ‘a defect... that is of very great substantial, and not merely technical, importance’ and the rule of law itself therefore required that the restraint rules be quashed (paragraphs 54-55).

There is likely to be an increase in litigation once the new duties are in force, particularly around cuts to public services.

It remains to be seen just how much additional leeway the courts will allow decision-makers when they are obliged to make invidious decisions about increasingly restricted resources.

There are already unsettling signs of some judges backing away from the progressive stance taken in the past when decisions of this kind are challenged.

For example, permission was recently twice refused to the Fawcett Society’s judicial review of the emergency budget.

On the other hand, nationwide family legal aid contracting arrangements were quashed in R (Law Society) v Legal Services Commission [2007] EWCA Civ 126 because the implications of reduced provision had not been properly anticipated.

In R (Hajrula) v London Councils [2011] EWHC 151, Mr Justice Calvert-Smith allowed a judicial review challenge to London Councils’ decision to cut £10m of funding from 200 voluntary sector organisations in London.

In the most recent positive equalities duty case, R (Luton Borough Council and others) v Secretary of State for Education [2011] EWHC 217 (Admin) Mr Justice Holman ruled that the government’s cancellation of the previous administration’s school-building programme was unlawful, holding that there had been inadequate consultation and a ‘complete failure’ to have due regard to the equality duties.

The last paragraph of the Luton judgment contains a note of caution – even though the secretary of state would be obliged to reconsider and consult, provided he did so with his equality duties in mind, the final decision on the buildings programme would be one for him to take.

‘No one should gain false hope from this decision,’ the judge concluded at paragraph 126.

That is right, but it helps to underscore perhaps the most important thing about section 149 – at best it will ensure public and hybrid authorities are willing to listen with an open mind to voices that are unlikely to be those of the majority.

But substantive changes to proposals and policies will only occur when those voices collectively speak up.

John Halford and Saadia Khan are solicitors at Bindmans