Origins of the Public Sector Equality Duty The Public Sector Equality Duty (“PSED”) is encompassed in new legislation by virtue of s 149 of the Equality Act 2010 (“EqA”) which provides as follows: Public Sector Equality Duty
(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). (3)Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a)remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b)take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c)encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. That provision is due to enter into force on 6 April 2011, although most of the Act entered into force on 1 October 2010. The concept of PSED, is however, not entirely new and has precursors at least since 2001 in the form of s 71(1) of the Race Relations Act 1976 (“RRA”). Also there is s 76A of the Sex Discrimination Act 1975 (“SDA”)(since April 2006) and s 49A of the Disability Discrimination Act 1995 (“DDA”)(since December 2006), which provide respectively as follows: Specified authorities: general statutory duty.
(1)Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need— (a)to eliminate unlawful racial discrimination; and (b)to promote equality of opportunity and good relations between persons of different racial groups. Public authorities: general statutory duty
(1)A public authority shall in carrying out its functions have due regard to the need— (a)to eliminate unlawful discrimination and harassment, and (b)to promote equality of opportunity between men and women. (a)“public authority” includes any person who has functions of a public nature (subject to subsections (3) and (4)) General duty
(1)Every public authority shall in carrying out its functions have due regard to— (a) the need to eliminate unlawful discrimination and victimisation; (b)the need eliminate harassment of disabled persons that is related to their disabilities’ (c) the need to promote equality of opportunity between disabled persons and other persons; (d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons; (e) the need to promote positive attitudes towards disabled persons; and (f) the need to encourage participation by disabled persons in public life. A number of observations can be made at this stage: • The obligation now falls on public authorities as specified in Schedule 19 EqA and persons carrying out functions of a public nature as defined in the Human Rights Act 1998;1 • It has been harmonised into all-encompassing general duties with multiple specific duties to facilitate the attainment of them; • Although the essential flavour of the “due regard” duties as set out above have a common theme, the extent of the scope of the duty is now much broader than it was under the other three acts; • The duty is no longer in respect of individual single-issue discriminations, being Race, Gender and Disability, but now covers all “protected characteristics” which also includes age, gender reassignment, pregnancy and maternity, religion or belief and sexual orientation2. A policy statement setting out the former (Westminster) Government’s views on the proposed integrated equality duty on public bodies was published by the Government Equalities Office in early 2010. In essence, the PSED requires public authorities to take a proactive and anticipatory approach to discrimination issues that can impact upon the field of employment and public authority functions generally in order to provide a lever for change and to achieve greater levels of equality in respect of persons with protected characteristics. It does this, not by creating rights directly for individuals, as has been the case with legislation in the past, but by conferring duties on public authorities requiring them to act in accordance with equal rights. In other words, the promotion of equality, rather than the prohibition of discrimination is the approach taken. The phrase “due regard” connotes consideration of the proportionality and relevance of measures that might be taken. The duty has as its background the MacPherson report into the Stephen Lawrence murder and is aimed at countering practices and attitudes that were branded “institutional racism” in that report. The Equality and Human Rights Commission (“EHRC”) has now replaced the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission. It has the right to issue Codes of Practice addressing the issues associated with protected characteristics.3 Codes of practice are important since public authorities as employers are required to take them into account in relation to their treatment of employees as will be discussed below in relation to the already existing Codes of Practice in relation to racial and gender equality. As stated, s 149 EqA, the PSED comprises a general duty which is then supported by specific duties aimed at ensuring the delivery of the main duty. The general duty falls on public authorities when acting whether as service providers, policy makers or employers. The general duty also applies to services and functions which are contracted out by them. The specific duties include the requirement to gather statistics taking account of protected characteristics and to publish those statistics. That is aimed at increasing accountability of public authorities and to provide information on the progress that they are making: Public authorities with 150 staff or more must publish employment rates in respect of disability, race, gender and the gender pay gap. By December 2012 and every four years thereafter, the Scottish Ministers must publish proposals for activity which will assist the public sector to fulfil the general duty. They must also report on progress on those proposals by December 2014 and at intervals of not more than four years after publication So, how does all of this affect the work of the Scottish Government in practice? Part 1 of Schedule 19 EqA refers to non-devolved public authorities which may only be added to or amended by Westminster. The devolved authorities are contained in Parts 2 and 3. Part 3 relates to Scotland and stated briefly, covers the Scottish Administration, being “an office holder in the Scottish Administration (within the meaning given by s 126(7)(a) of the Scotland Act 1998),” the NHS, local government, other educational authorities and the police. The relevance of the first category obviously is the most immediate, however, the impact of the duty in relation to the other listed authorities and those carrying out functions of a public nature may be of relevance to the Scottish Government in a Part 1 of the Equality Act 2006 established the Commission for Equality and Human Rights which is now known as the Equality and Human Rights Commission (“EHRC”) to emphasise that “equality” and “human rights” come first. The Commission is invested with many investigatory and enforcement powers. In terms of s 31 of the 2006 Act, the Commission may assess the extent to which a person or public body has complied with the duties there listed under SDA, RRA and DDA. It may thereafter, in terms of s 32 issue a compliance notice if it considers that the public authority has failed to comply with such duties, requiring that person to comply with the duties listed in the notice and to provide the Commission with written information of the steps taken to comply with the duty and information necessary for the purposes of assessing compliance with the duty. Section 32(5) of the 2006 Act simply states that “a person who receives a notice under this section shall comply with it.” If the Commission considers that compliance has not followed the notice, s 32(8) empowers it to apply to the Court for an order requiring that person to comply. Actions in relation to the provisions of RRA, SDA and DDA listed above require to be brought in the Court of Session whereas actions in relation to the duty under other provisions may be brought in the Sheriff Court. Of more interest to litigators, the EHRC has the capacity to institute or intervene in legal proceedings, whether for judicial review or otherwise, if it appears to the Commission that the litigation is relevant to its functions. It is taken to have title and interest in any such proceedings here in Scotland and if taken under the Human Rights Act 1998, the EHRC need not be a victim or potential victim of the unlawful act to which the proceedings relate, so long as there is or would be one or more victims of the unlawful Since I have just touched on the issue of title and interest, this would be a good point to consider the scope for potential litigation at the instigation of private individuals or organisations in Scotland. Section 156 EqA provides as follows: Enforcement
A failure in respect of a performance of a duty imposed by or under this Chapter5 does not confer a cause of action at private law. 4 Equality Act 2006, s 30(3). 5 Chapter 1, i.e. the PSED Chapter. So, one might think, public authorities only need to concern themselves with the attentions of the EHRC, but that would be wrong. The authority to litigate granted to EHRC in terms of the 2006 Act is not only to instigate but to intervene in litigation which is within its purview.6 This of course implies that an action must already have commenced prior to the involvement of the Commission in respect of a subject-matter which is of relevance to it, potentially by a private litigant (as was the case in Brown). The Explanatory Notes to the EqA state the following in relation to s 156 at paragraph “This section is designed to make it clear that the duties imposed by or under Chaper 1 of Part II do not create any private law rights for individuals. These provisions are, however, enforceable by way of judicial review.” The Explanatory Notes then state that the provision is new but reflects the provisions under previous legislation (ie, the sections of RRA, SDA and DDA quoted above). The Notes proceed to provide an example of a local authority which fails to have due regard to the PSED when deciding to cease funding for a local women’s refuge. In such a case, it states, an individual would not be able to sue the local authority as a result and claim compensation, but she would be able to consider judicial review proceedings. That chapter of guidance lays bare the distinction between public law and private law challenges that exists in England but not in Scotland. It is perhaps the reason why the Act elsewhere refers to judicial review proceedings in England but is careful to refer to proceedings for the exercise of the supervisory jurisdiction of the Court in Scotland, which two phrases many Scots lawyers perhaps use interchangeably. The assumption that underlies the explanatory note is that if you do not have a private interest enabling you to bring an action in your own regard, there may be scope to do so as part of an identifiable group of litigants with a similar cause of action, brought in the public interest. That does not even now appear to be the case in Scotland. I am reminded of the Brent Spar environmental challenge brought by Greenpeace. That action required to be raised in England despite the fact that it had no obvious connection with that jurisdiction. And just last week, Greenpeace have obtained the right to challenge the grant of licences for deep water drilling for oil off the Shetland Coast – in the High Court in London. 6 For example, R (Brown) v Secretary of State for Work and Pensions [2009] PTSR 1506 discussed below. The oft quoted authority in respect of title and interest is still the 1915 case of D&J Nicol “By the law of Scotland a litigant, and in particular a pursuer, must always qualify title and interest. Though the phrase ‘title to sue’ has been a heading under which cases have been collected from at least the time of Morison's Dictionary and Brown's Synopsis, I am not aware that anyone of authority has risked a definition of what constitutes title to sue. I am not disposed to do so, but I think it may fairly be said that for a person to have such title he must be a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies.” It has been pointed out, that the above is a tract of great antiquity, was made before the concepts of public law had even been dreamed of and uses the concepts and language of private law.8 Since then, there has been the case of Scottish Old People’s Welfare Council, petitioners9 where it was held that the litigants campaigning against a restriction in severe weather payments had title to sue as individuals but no interest as they were not all directly affected by the measures in question. In other words, they could not act in any representative capacity on behalf of the general public who might at some future point be By same token, the case of Rape Crisis Centre v Secretary of State for the Home Department11, the petitioners in an action brought in the general public interest were found to have no title and interest. It was held that the petitioners had failed to demonstrate title and interest because the immigration rules in question conferred no express or implied right on any party (apart from the applicant for leave) and the 1971 Immigration Act and associated rules did not provide any legal nexus between the petitioners and the Home Secretary whose decision was impugned. 7 1915 SC (HL)7. 8 Jonathan Mitchell QC, Standing in Public Law Cases, SPLG Conference 7 June 2010. 9 1987 SLT 179. 10 One might now wonder, given that age is now a protected characteristic, whether a Court would after 6 April 2011 be able to come to that conclusion in the same way, given the PSED on the part of the Department of Work and Pensions, quite apart from the substantive issue of title and interest. 11 2000 SC 527. That is to be contrasted with the decision in Wilson v IBA12where it was held that there was no reason in principle why an individual should not sue in order to prevent a breach by a public body of a duty owed by that public body to the public, provided he could qualify an interest. In that case, the petitioners were voters in the referendum; they belonged to an organisation or group who believed that the answer should be in the negative; they wished to persuade other people to be of that opinion and they considered that political coverage of the issue on television was likely to influential on the electorate of Scotland. That case might be thought to be the high water mark regarding public interest litigation and yet, there still required to be some form of direct personal interest More recently, we have had the cases of Forbes v Aberdeenshire Council13 and AXA General Insurance Ltd, petitioners14 In the former case, Mrs Forbes attempted to obtain interim orders preventing the Trump development at Menie Estate from proceeding. She based her interest on the Aarhus Convention on access to information, public participation in decision making and access to justice in environmental matters. That Convention has validity virtue of being incorporated into the Public Participation Directive 2003/35/EEC and thence into UK law. The Trump development was undoubtedly of wider public interest and protection of the wider public interest appears to have been at the heart of the underlying convention. Yet, the Court held that she had no interest to sue as she was not affected in an identifiable way, living as she did over 1km away, and not having objected to the proposal at an earlier stage. 12 1979 SC 351. 13 [2010] Env LR 36. 14 2010 SLT 179. In the AXA case at an earlier stage, a motion was heard before Lord Uist in terms of Rule of Court 58.8(2) regarding 11 named persons diagnosed with pleural plaques who sought to enter process.15 The submission on behalf of those parties was that the application was in the nature of an actio popularis as it would not only affect the affected claimants but also the whole gamut of potential claimants not named in the motion. However, the Court decided the issue on a much narrower basis. Rule of Court 58.8(2) permits that “any person who is directly affected by the issue raised may apply by motion for leave to
enter the process.” (emphasis added). Lord Uist found without much difficulty that the 11 named individuals were directly affected as if the challenge to the legislation (Damages (Asbestos Related Conditions)(Scotland) Act 2009 was valid it would confer on them certainty or eliminate any uncertainty about their right to recover damages for wrongfully caused asymptomatic pleural plaques. It was expressly held to be a decision based upon the terms of the rule and not the common law test of title and interest to sue, despite the submission of counsel for the petitioners. The exercise of discretion to allow the 11 to enter process also included the discretion under the rule to deny any further parties from entering process in the future, where that might have the effect of prolonging the legal process. It follows that those proceedings took the issue of public interest litigation in Scotland no further, particularly given the wording of the rule. At the subsequent first hearing, the standing of the petitioners was challenged and Lord Emslie took the opportunity to provide useful comments on the issue of title and interest. Having reviewed all of the relevant authorities he concluded that it would “be an affront to justice if the petitioners’ locus standi were here to be denied.” He so found on the basis of common law and also in terms of art 34 ECHR as required by s 100(1) of the “On no view can the petitioners’ claimed interests in this matter be described as remote, tenuous, academic or theoretical…in my judgment these proceedings have none of the characteristics of an actio popularis, nor do they concern the rights
and interests of any third party.” (emphasis added)
Accordingly, it might be seen that on the most liberal and generous of applications regarding the rules on title and interest, there is still a clear requirement for genuine private interest on the part of the petitioner before an action for judicial review may proceed. That was also true in the case in Wilson, discussed above, since each of the petitioners had a direct interest in the outcome of the referendum and were not merely pursuing the case with no greater interest than any other member of the public might 15 AXA General Insurance & Others v Lord Advocate, Advocate General & Others [2010] CSOH 36. have.16 That will, it appears, continue to be the case until such time as a case based upon the Aarhus Convention or similar is upheld. I have made this sizeable digression in order to emphasise that as the law on title and interest stands at present, it is unlikely that a private party or group of individuals raising an action for judicial review based upon an alleged failure in the PSED would have title and interest to pursue their action in Scotland. It is undoubtedly, no accident that all of the cases concerning the PSED as have been litigated to date under the RRA, SDA and DDA provision set out above have been in England only. However, I would make three further observations: Firstly, it is perhaps always a matter of inevitability that trends that first take root in England end up finding a place in Scotland, so that the expansion of litigation solely in the public interest is possibly only a matter of time. We do perhaps see that for the first time in Scotland with the recent advent of Protective Expenses Orders (“PEO”) which derive directly from English Protective Costs Orders. In an incidental application prior to the AWPR case17 which at the time of writing is ongoing in the Outer House, Lord Stewart granted a PEO in favour of Road Sense pursuant to the Public Participation Directive and Aarhus Convention referred to above. It was agreed by the parties that the Court had the power to make a PEO. His Lordship stated that he was bound to do so in terms of the Directive and the governing principles known as the “Corner House Principles”, themselves an English import. (1) A protective costs order may be made at any stage of the proceedings, on such
conditions as the court thinks fit, provided that the court is satisfied that: (i) the
issues raised are of general public importance; (ii) the public interest requires that
those issues should be resolved; (iii) the applicant has no private interest in the
outcome of the case
; (iv) having regard to the financial resources of the applicant
and the respondent(s) and to the amount of costs that are likely to be involved, it
is fair and just to make the order; and (v) if the order is not made the applicant
will probably discontinue the proceedings and will be acting reasonably in so
(2) If those acting for the applicant are doing so pro bono this will be likely to
enhance the merits of the application for a PCO.
(3) It is for the court, in its discretion, to decide whether it is fair and just to make
the order in the light of the considerations set out above. (emphasis added)18
16 Cf MacCormack v Lord Advocate 1953 SC 396. 17 Road Sense & William Walton v Scottish Ministers [2011] CSOH 10. 18 R (Corner House Research) v Secretary of State for Trade & Industry [2005] 1 WLR 2600 at 2625, per Lord Phillips MR. The wording emphasised above, on the face of it, marks a radical departure from the direction of all of the cases discussed above in relation to title and interest to sue. It could potentially mark a new dawn of public interest cases in Scotland. Or perhaps not, since Road Sense subsequently accepted, shortly prior to the appeal commencing, that as an unincorporated association, it had no title to sue after all. In the case of McArthur v Lord Advocate19 which established the Court’s power to make a PEO, the question of private interest was restricted to “financial interest.” Also, in the unusual circumstances of the AWPR case, Mr Walton (the Chairman of Road Sense who remains in the action) was a “relevant person” during the inquiry held in Aberdeen in which he and Road Sense participated (unlike Mrs Forbes in the Trump inquiry) which provides him with title and interest as a result. Nonetheless, the concept of PEOs and title and interest as that term has been understood thus far do not sit comfortably together. At present, it remains theoretically possible for a petitioner to obtain a PEO at a preliminary stage of proceedings, having persuaded the Court, that the action is of purely public interest, only to have the action dismissed at the first hearing stage on the grounds of a want of title and interest on exactly the same grounds upon which the PEO was granted in the first place. Secondly, given the wide authority provided to EHRC in relation to enforcement of the PSED at its own hand, the principles established in the English authorities set out below, even if not replicated in Scotland, will inform the EHRC in its operations in this jurisdiction in the future in ensuring observance of the PSED; and Lastly, even if the “new dawn” prediction above is overstated, section 150(5) EqA which applies the scope of the PSED to functions of a public nature as defined by the Human Rights Act 1998 has the scope to be used imaginatively in the future in actions for judicial review, at least incidentally in order to bolster a substantive challenge. The English decisions therefore merit consideration. The English PSED cases under the prior provisions I discuss these according to the category of prohibited discrimination which they address. However, as there is inevitably considerable overlap between the principles applicable to the different categories, I shall consider most of the applicable principles in the context of the cases citing the PSED under the RRA.20 19 2006 SLT 170. 20 I am very grateful to Karon Monaghan QC of Matrix Chambers for her illuminating discussion of the PSED at the SPLG evening seminar held on 4 February 2011 and who acted in most of the cases discussed. The PSED applies both before any policy is adopted or decision made and also thereafter.21 In Bapio v Secretary of State for the Home Department22a challenge was made to government measures which altered, without consultation, Immigration Rules so as to abolish permit-free training for doctors of Indian origin who lacked a right of abode in the United Kingdom. That meant that some doctors who had undergone extensive training already and had made arrangements to continue to qualify as doctors in the UK suddenly could not do so. In that case, pursuant to the PSED which was alleged to have been breached, a race equality impact assessment was produced but only after the measures complained of. Sedley LJ stated compliance with s 71 RRA was an essential preliminary to such a decision being taken and that “inattention to it is both unlawful and 3.1.2. Codes of practice, guidance and equality impact assessments R (Kaur) v London Borough of Ealing24 underlines the importance of observance of the relevant Code of Practice and other guidance. It concerned the Southall Black Sisters which is an organisation providing specialist services to women of Asian and Afro- Caribbean origin, particularly in relation to domestic violence. It had been sponsored directly by the local authority but in 2008, the authority decided to change the funding arrangements so that it supported a single source provider throughout the borough, the selection of which was subject to certain predefined criteria, rather than individual organisations. The case was conceded on the second day of hearing but the Court was requested to issue a judgement to promulgate the relevant principles which 21 R (Watkins-Singh) v Governing Body of Aberdare Girls High School [2008] EWHC 1865 (Admin). (Exclusion of pupil for wearing religious steel bangle) 22 [2007] EWCA Civ 1139. 23 The duties are engaged where there is an issue which needs at least to be addressed: R (Elias) v Secretary of State for Defence [2005] EWCA 1435 (Admin)(Breach of s 71 RRA where criteria for payment of ex gratia prisoner of war payment limited by reference to place of birth of the applicant). 24 [2008] EWHC 2062 (Admin)(in which EHRC intervened). The Court found that (as in Bapio) there was no full racial equality impact assessment in relation to the proposed changes until some time after proceedings were launched. This it said represented a clear breach of of s 71 of RRA,and the specified duties which the authority was required to carry out in terms of the RRA (Statutory Duties) Order 2000 drawn under that provision as well as the CRE Code of Practice. It stated that there was a need for such assessments to be considered in advance and not, in the words of Sedley LJ, as a “rearguard action following a concluded decision.” In R (C) v Secretary of State for Justice25concerned with the use of restraint by permit officers in a secure training centre, the Secretary of State had not carried out a race equality impact assessment until a few day prior to the appeal heaing. The Court of appeal stated by way of clear rebuke that the absence of the assessment was not the result of inattention or mistake and it sent out the wrong message to bodies with responsibilities under s 71 RRA to allow that deficit to be cured by a review only taken eight months after the amendments to the relevant rules were laid. The failure in procedure was a defect that was very great, substantial and of not merely technical importance. The rule amendments were quashed. In terms of the statutory code and non-statutory guidance, an authority is only entitled to depart from it for reasons which are clear and cogent.26 Also, where a public authority has its own policy which is relevant to assessment of equality impact, good administration and fairness demands that the authority only departs from it where to do so represents a proportionate response to prevailing circumstances.27 The following quotation is of general relevance to the specific duty to maintain records and to report “The process of [equality impact] assessments should be recorded [as recommended in Bapio]. 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 policy which section 71 requires. But a record will not aid those authorities guilty of treating advance assessment as a mere exercise in the formulaic machinery. The process of assessment is not satisfied by ticking boxes. The impact assessment must be undertaken as a matter of substance and rigor.” 25 [2009] 2 WLR 1039. 26 See also the House of Lords case of Munjaz v Mersey Care NHS Trust [2006] AC 148 concerned with seclusion of psychiatric patients contrary to the Secretary of State’s Code of Practice pursuant to the Mental Health Act 1983. 27 See also Watkins-Singh, supra. The above quotation cited the case of R (Baker) v Secretary of State for Communities and Local Government28 in support of what was said. That is one of a number of planning cases involving gypsies or travellers, a recognised racial or ethnic minority. The situation which arose, as it does very frequently in England, perhaps less so in Scotland, was that the applicants sought planning permission to place their caravans on green belt land contrary to local and national planning policies. After a statutory appeal, a planning inspector (known as a reporter in Scotland) refused planning permission, holding that the considerations in Baker’s favour were not outweighed by the harm caused to the green belt. It was argued that the inspector in carrying out her function (which is in effect quasi-judicial) had failed to have due regard to the need to promote equality of opportunity between persons of different racial groups. The appeal was dismissed. The Court of Appeal held that a planning inspector did indeed have a duty in terms of s 71 RRA, whether or not the point was raised by any parties to the appeal. However, the duty was not to achieve a particular result (to eliminate unlawful racial discrimination and promote equal opportunity and good relations), rather it was to have due regard to the need to achieve those goals. The failure of the inspector to make explicit reference to that duty was not determinative of the question as to whether or not she had performed that duty as that would be to sacrifice substance to form. The question in every case was whether the decision-maker had in substance had due regard to the relevant statutory need. It was stated that it was good practice for an inspector to make reference to s 71 RRA in such cases to make it more likely to ensure that the relevant factors in terms of the PSED were taken into account, so seems to fall some way short of the more exacting requirements specified in the Kaur case decided a mere five The case of R (Brown) v Secretary of State for Work and Pensions30illustrates the inter- weaving nature of the principles which the English courts have applied to the PSED. In discussing the time at which the duty regard duty required to be fulfilled, the High Court cited with approval the RRA cases of Elias, C and Kaur discussed above. 28 [2008] JPL 1469. 29 For other planning cases involving consideration of s 71 RRA, see R (Smith) v South Norfolk Council [2006] EG 209 (C.S.); South Cambridge Council v Gammell [2008] EWCA Civ 1159 (race impact assessment required prior to applying for an injunction to prevent breach of planning control); R (Harris) v Haringey LBC [2010] JPL 1635 (failure to have due regard vitiated the local authority decision). 30 [2009] PTSR 1506. It went on to state that the PSED must be exercised “in substance, with rigour and an open mind” and that the duty has to be integrated within the discharge of the public functions of the authority. Those comments were echoed in the subsequent DDA case of R (Boyejo) v Barnet LBC31 and in that particular context, of the requirement to take account of disabled persons disabilities even where that involved treating disabled people more favourably than other persons. The latter duty arose in terms of s 49A(1)(d), but which after April 2011 forms part of the more generalised duty in terms of s 149(6) EqA so represents an extension of the application of that consideration. In R (Chavda) v Harrow LBC32 it was held that compliance with the duty required that local authority councillors were made aware of what they actually were in terms, rather than relying upon a good disability record in general and only vague references to conflicts with DDA in the report to committee. The point of principle which might guide the necessary approach to “An important reason why the laws of discrimination have moved from derision to acceptance, to respect over the last three decades was the recognition of the importance, not only of respecting rights, but also of doing so visibly and clearly In a later case relating to mental disability, it was held that it is no defence that the applicant’s medical history was not obvious: The reviewing officer acting for the local authority should have taken steps to take account of the applicant’s disability, namely he ought to have made further inquiries into whether it existed and if so, whether it was relevant to the local authority’s decision under section 191 of the Housing Act, Part VII regarding his homelessness.33 In terms of an authority carrying out public functions, the duty has been held to apply to the National Institute for Health and Clinical Excellence.34 31 [2009] EWHC 3261, concerned with the provision of residential wardens in sheltered housing. See also R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941 regarding home care charges 32 [2007] EWHC 3064 (Admin). 33 Pieretti v Enfield LBC [2010] EWCA 1104. 34 Eisai Limited v NICE [2007] EWCA 1941 (Admin) regarding prescription of “Aricept” for Alzheimers sufferers on the NHS (see paragraphs 92-96). Sex discrimination/Time limit for bringing proceedings To end with the most recent and topical of cases, in R (The Fawcett Society) v Chancellor of the Exchequer35 a challenge was raised against the comprehensive spending review on the grounds that the defendant George Osborne did not consider his duty in terms of 76A SDA in producing it. It was not disputed that the provisions of 76A are in principle broad enough to apply to government action such as the preparation and presentation of the Budget. However, permission to proceed was not granted as it was held that the case was academic and out of time because the proceedings were started some five weeks after the Budget and after some of the measures had been passed into law in the Finance Act The concept of the PSED is not new entirely new, however its new manifestation within the EqA reinforces it, unifies it and extends its protection to characteristics that were not previously covered. It might be expected that the EHRC in Scotland will start to assume a more proactive role in ensuring observance of the duty after April of this year. In addition, in terms of enforcement by way of private litigation, the prior English examples of challenges based on the PSED, together with the recent advent of Protective Expenses Orders in Scotland might well foreshadow an increase in litigation of this nature in the 35 [2010] EWHC 3522 (Admin). 36 Even although within the usual three month time limit for judicial review proceedings in England. SGLD MARCH SEMINAR

7 MARCH 2011


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