Transcript Title

HOW TO USE THE PUBLIC SECTOR
EQUALITY DUTY
& THE HOME OFFICE VANS CASE
Louise Whitfield
Deighton 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 Whitfield
Deighton Pierce Glynn
August 2013