Recently we’ve blogged about the Fawcett Society’s attempt to get a judicial review of the UK Government’s July emergency budget, and also the Treasury’s equality impact assessment of the comprehensive spending review. In both cases, the underlying question has been: Did the decision-maker pay due regard to the need to eliminate discrimination and promote equality?
But you might wonder: why should they? I mean, yes, it would be nice, but are they really required to? So I thought it might be worth saying something about the legislative framework behind all this, because it deserves to be better known.
Impact assessments are centrally about looking for possible unintended consequences before you take a decision, so the decision can be fully informed. Environmental impact assessments date back to the 1960s, and in 1995 the Beijing World Conference on Women called on governments to
mainstream a gender perspective into all policies and programmes so that, before decisions are taken an analysis is made of the effects on women and men respectively.
In Britain, though, the idea of requiring public sector organisations actively to eliminate discrimination and promote equality is usually traced back to the 1999 enquiry into the Metropolitan Police’s investigation of the murder of Stephen Lawrence. Stephen Lawrence was killed by a gang in 1993 in a vicious racially motivated attack, but the police response and subsequent investigation were incompetent in the extreme. The enquiry led by Sir William Macpherson found that the police were institutionally racist:
6.34 “Institutional Racism” consists of the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness, and racist stereotyping which disadvantage minority ethnic people.
They also said that
[46.27] …our conclusions as to Police Services should not lead to complacency in other institutions and organisations. Collective failure is apparent in many of them, including the Criminal Justice system. 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.
The Race Relations (Amendment) Act 2000 therefore introduced a positive duty on public bodies to have due regard to the need to eliminate discrimination, and to promote equality of opportunity and good relations between people of different ‘racial’ groups (the general duty).
In addition, public bodies have had a specific duty to collect evidence and assess the impact of their activities on people from different ‘racial’ groups, in order to identify policies and criteria which – even if not intentionally – put certain groups of people at a disadvantage. Public bodies then have to take steps to eliminate or reduce that disadvantage, unless they can set out an objective justification for continuing to apply the policies or criteria. They have to set out the steps they plan to take in a Race Equality Scheme (here, for instance, is Oxford University’s). And, crucially, they have to publish these ‘equality impact assessments’, so that their decisions – and the evidence on which they based them – are transparent.
The Disability Discrimination Act 2005 extended the same sort of positive equality duty to disabled people, and the Equality Act 2006 extended the duty to equality between men and women. From April 2011, the Equality Act 2010 brings these together into a single Public Sector Equality Duty which will also cover religion and belief, pregnancy and maternity, sexual orientation, gender reassignment and age.
Since 2007 the Equality and Human Rights Commission (EHRC) has had powers to investigate and enforce the specific duty to carry out equality impact assessments, while persons with an interest in a decision of a public sector body have been able to enforce the general duty to have due regard by seeking judicial review. One of the best-known cases enforced this way was taken by Southall Black Sisters after Ealing Council decided to withdraw funding for their project supporting black women experiencing violence and abuse; the court found that Ealing’s decision was unlawful because they had failed to have due regard to the need to promote equality (they only conducted an equality impact assessment after the decision had been taken).
And the Fawcett Society? Well, they lost at the hearing on Monday, but not because the court found that the Government had fulfilled its obligations. According to Fawcett,
The purpose of the hearing was for a judge to decide whether to grant us a ‘review’ of the budget. While the judge did not grant us a review, we can count some major gains:
* The government admitted it had not carried out an adequate gender impact assessment of the budget – and expressed “regret” that this had not happened.
* The government committed to individual departments carrying out assessments of many of the measures in the budget as policies are developed further.
* The judge was clear that government budget decisions are subject to equality law, and so must recognise the need to promote equality between women and men and eliminate harassment. The Treasury’s lawyers agreed that this was the case.
* Finally, the court found that with budget policies set to have such a dramatically different impact on women and men, they do merit further scrutiny.
In fact, on 25 November the EHRC launched a formal assessment of the Treasury’s compliance with its equality obligations in the Comprehensive Spending Review. They’re developing the terms of reference for that assessment at this moment.
So now it’s up to the EHRC…