THE PUBLIC SECTOR EQUALITY DUTY Joanne Clement - 11kbw

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information as possible about any potential equalities issues (and if that information is not already available to the public authority, it may need to consult just to obtain that information). If a full and detailed EIA is then produced and considered before the decision under challenge is taken, that will be sufficient to discharge the duty. D. Challenges to Budgets 19. Attempts have been made to challenge decisions to adopt the overall budget for central and local government on the basis that there was a failure to comply with the PSED. The Courts have been reluctant to entertain such challenges. (i) Challenge to central Government budget 20. In R (Fawcett Society) v Chancellor of the Exchequer & others [2010] EWHC 3522 (Admin) Ouseley J refused to grant the Fawcett Society permission to judicially review the Coalition Government’s 2010 Emergency Budget on the grounds that the Chancellor had failed to comply with s.76A of the Sex Discrimination Act 1975. The criticism was that the Chancellor had failed to carry out a gender EIA of the Budget when it was proposed. 21. The first part of the challenge focussed on the whole Budget and the public spending envelope which set departmental spending limits. No EIA had been produced that evaluated the potential impact on gender in respect of the budget. The Court accepted that the provisions of section 76A of the Sex Discrimination Act were in principle broad enough to apply to government action such as the preparation and presentation of the Budget, including public expenditure limits. Such actions would now clearly fall within section 149 of the 2010 Act. 22. The Government argued that it was appropriate and legitimate to decide that the impact of the provisions of the Budget on gender equality objectives should be dealt with by reference to the impact of the various specific individual items within the Budget rather than on an overall basis. The claimant argued that this approach was unlawful, because it would cause the cumulative effect of the Budget on equality of opportunity to be ignored. Ouseley J accepted the Government’s submission that the varied measures, differing in nature, introduced or flagged in the Budget made impact assessment of the Budget as a whole inappropriate: “...if the analysis of gender equality impacts can adequately be undertaken by consideration of the line items in the Budget, the duty is fulfilled or rather not breached by its being dealt with in that way at that stage. For my part, I cannot see any reason why Joanne Clement, 11KBW t. 020 7632 8500 e. Joanne.Clement@11kbw.com 8
the government is acting unlawfully if that is the way in which it proposes to deal with gender equality issues on the Budget.” [8]. 23. So far as setting the departmental spending envelope was concerned, no door had been irretrievably closed, and a departmental budget would inevitably have considerable scope for the reallocation of monies within it. It was lawful to consider the impact of particular measures in advance of specific implementation. 24. Criticism was also made of the lack of EIA in respect of specific budget items (such as the increase in VAT). As to some of these, the Government conceded that more should have been done but the Judge accepted that, those matters now having been enacted in legislation, the challenge in respect of them was academic (see [11] and [12]). As to others, the Government had formed the view that an EIA would be carried out at a later point when the policy was more fully developed. Ouseley J said that that judgement having been rational, there was no basis for holding the absence of EIA unlawful at the earlier stage ([15]). So this is a helpful case for central government in its relatively generous approach as to the latitude it has to determine when an assessment of equality impact is required. 1 25. The Court also emphasized the need for any challenge to budget setting to be brought expeditiously. It was obviously imperative that the public and corporate world (individual and foreign) had certainty about the budgetary affairs of the United Kingdom. The original proceedings to quash the Budget were started some five weeks after the Budget, and after some of the measures had been passed into legislation. What is “prompt” in this context is likely to be very short indeed. (ii) Challenges to budget setting by local authorities 26. There have been a number of challenges to the budgets set by local authorities, which have been equally unsuccessful. 1 On 25th November 2010, the Equality and Human Rights Commission (“the EHRC”) announced that it would assess formally, under s.31 of the Equality Act 2006 the extent to which HM Treasury complied with the duties when considering the impact of the decisions contained in the Spending Review on protected characteristics. This is described on the EHRC’s website as follows: “The assessment is an opportunity for the Commission to continue its ongoing constructive work with HM Treasury to evaluate what steps it has undertaken to comply with the legislation and identify any potential opportunities for improvement and any lessons to be learnt across Government to improve outcomes for protected groups by putting fairness and transparency at the heart of difficult decisions.” The terms of reference were settled on 12 th January 2011. The EHRC has obtained evidence from HM Treasury and representations from nine outside bodies. Oral evidence was received during May and June 2011. The EHRC intended to report its findings in the Autumn, so that it could be taken into account in the preparations for the 2012 budget. To date, the EHRC has not published its report. Joanne Clement, 11KBW t. 020 7632 8500 e. Joanne.Clement@11kbw.com 9
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THE PUBLIC SECTOR EQUALITY DUTY Joanne Clement - 11kbw

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