THE PUBLIC SECTOR EQUALITY DUTY Joanne Clement - 11kbw

14. At first instance (in R (Bailey) v London Borough of Brent [2011] EWHC 2572
(Admin)) the Judge gave this submission short shrift. He referred to the statutory
language used in section 149(1), and concluded that the PSED had to be discharged
at the time at which the Council exercised its functions. The point at which the
Council exercised its library functions was the point at which they took the decision to
close six libraries. At paragraph 122, he stated:-
“The formative stage at which the duty must be performed, in the sense
meant by the guidance and decisions, is not one or all of the earlier stages
when the officers or Council are contemplating and working up various
options. It must be performed before the decision is made and be part of the
decision-making process, rather than as a justification for the decision after it
has been taken. The issue has to be addressed in the exercise of the
functions, using the statutory language rather than judicial exegesis. The
point at which the Council here exercised its functions under s.7 was when it
decided, at the April 2011 meeting, that the LTP should proceed, including
the six closures ....”
15. Ouseley J held that the issue was very much bound up with the contention that the
Council approached the issue of equality and closures in April 2011 with a closed
mind. He concluded that there was no evidence to support that contention. The EIA
was a conscientious and thorough effort to grapple with the duty in section 149, in
substance and with rigour. It set out to answer the relevant questions which library
closures give rise to in relation to the equality duty. He concluded that the EIA was
genuinely “a core part of the decision-making process”. It could not fairly be said that
the decision to close six libraries had already been taken.
16. The Equality and Human Rights Commission intervened before the Court of Appeal
to make written submissions on this issue. The EHRC argued that the PSED applied
at each stage of a decision-making process, and could not be “put to one side”
pending an ultimate decision as to the adoption of a policy. It was argued that if a
policy had been closely formulated without the duty being addressed, there was a
real risk that any consideration would be too late to secure effective compliance.
17. The Court of Appeal unanimously agreed that the Council had exercised its functions
with due regard to the requirements under section 149. However, they retreated
somewhat from the Judge’s conclusion that, so long as an EIA was produced before
the ultimate decision was taken, that was sufficient to discharge the duty.
(1) Pill LJ stated that it was not necessary for an EIA to be conducted before
the formulation of the proposals on which the public were to be consulted
(paragraph 84). He accepted that the Council had had section 149
properly in mind from an early stage, and for that reason had decided to
Joanne Clement, 11KBW
t. 020 7632 8500 e. Joanne.Clement@11kbw.com
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