HOW TO USE THE PUBLIC SECTOR EQUALITY DUTY

& THE HOME OFFICE VANS CASE

Louise WhitfieldDeighton Pierce Glynn

August 2013

What is the “PSED”?

Section 149 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.

Who has to meet the PSED?• Public authorities listed in Schedule 19, Equality Act

2010 (in relation to all functions, s.150):– government departments/ministers– local authorities– police– health bodies

• 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): s.149(2)

What does “due regard” mean?

• What is proportionate and reasonable in the circumstances

• How relevant is the issue to equality?– ads on vans saying “go home” is highly relevant to

race equality – “regard” needed would be considerable

• No legal requirement to do an equality impact assessment but should have some analysis and courts expect to see a written record

Fostering good relations

s.149(5) EA 2010:

“Having due regard to the need to foster good relations…involves having due regard, in particular to the need to –

(a)tackle prejudice, and

(b)promote understanding.”

The ads on vans: our arguments

• We said breach of PSED as failed to have due regard to need to eliminate harassment and to foster good relations, and failed to consult

• Highly relevant to race equality, due regard hurdle high

• We said: agree to consider race equality and consult in future

• Breach of PSED makes decision unlawful and susceptible to challenge by judicial review

Home Office’s response

“If the Home Office were to carry out any further campaigns we would have due regard to the effect this will have on migrants living lawfully in those communities and, in doing so, would consider the views of your clients and others as set out in your correspondence.”

Other key points

• Home Office had already said they didn’t need to do EIA as only a pilot and “we are not treating any individual groups differently on race/gender/age etc”

• This is wrong in law and reveals fundamental misunderstanding of the equality duty

• Home Office failed to address this point in correspondence and interviews

Using the PSED in future campaigns

• Point out what s.149 says and what you think the public body should do to meet it

• Ask them how they’ve met the duty and ask them to give you the documents where they’ve recorded how they’ve had “due regard”

• Look at the EHRC’s Technical Guidance on the PSED: public bodies should follow this unless they have a good reason not to

• Stop the Government scrapping the PSED

How to use the public sector equality duty

Louise WhitfieldDeighton Pierce Glynn

August 2013