Workshop: Challenging the Cuts

1. Workshop: Challenging the Cuts

2. Challenging the Cuts: S75 Equality Duty Debbie Kohner, CAJ Equality Coalition Co-convener

3. Challengingthe Cuts: S75 • Various approaches to challenge the cuts • S75 Northern Ireland Act 1998 • ECNI Complaints Mechanism • Possibilities for judicial review • Opportunities and pitfalls

4. S75 Northern Ireland Act 1998 • A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity between persons of different — • religious belief • political opinion • racial group • age • marital status • sexual orientation • men and women generally • persons with a disability and persons without • persons with dependants and persons without

5. S75 Northern Ireland Act 1998 • A public authority shall in carrying out its functions relating to Northern Ireland have due regard to the need to promote equality of opportunity between persons of different — • religious belief • political opinion • racial group • age • marital status • sexual orientation • men and women generally • persons with a disability and persons without • persons with dependants and persons without

6. Application of s75

7. Enforcement of s75 • Approach PA, public campaign, use evidence • Equality Scheme (Schedule 9) • Equality Commission Complaints Mechanism (‘breach of scheme’) • S75 ‘ due regard’ • Judicial Review

8. Content of Equality Schemes • Schedule 9 requirements • Arrangements for: • Assessing and consulting on likely impacts of policies • Monitoring of adverse impacts • Publishing results • Training staff • Ensuring public access to information and services • Publish the consideration of: • measures to mitigate adverse impact • alternative policies to promote equality of opportunity • Take results into account when coming to final decision • Timetable for measures • ECNI recommendations • must conform to ‘Guidelines’ as to form and content • ‘Screening’ • Use of evidence • Consider likely impact • None • Minor - mitigation • Major - EQIA • Publication of results • Review on receipt of evidence from stakeholders • ‘EQIA’ • More detailed • 3 month consultation • Involvement of affected groups • ECNI Model Scheme

9. Complains Mechanism – Para 10 • Formal requirements: • Give public authority notice and sufficient time to respond (usually one month, depends on urgency and complexity) • Make complaint in writing • Make complaint within 12 months from first knowledge of matters alleged • (Legitimately) claim to be directly affected • ECNI shall: • Investigate; or • Give reasons for not investigating

10. Complaints Mechanism – Para 11 • ECNI investigation powers • Following para 10 complaint; or • On belief of breach of equality scheme • ECNI self-generated investigation; or • On advice of stakeholder, but complete discretion to do so • Can be used strategically for significant impact • Report sent to PA, Sec of State and Assembly • Recommendations to be acted upon in reasonable time, or Sec of State directions

11. Complaints Mechanism – In Practice • Act as soon as possible • Find equality scheme and if/how breached • Ask public authority for screening template: • It should be published on website • Check date – it should be carried out in advance of policy implementation • Check use of evidence – provide evidence for review of screening decision • Write to PA setting out exactly how equality scheme is breached • Contact ECNI as early as possible, for support and advice (Paul O’Neill)

12. Content of Equality Schemes • Schedule 9 requirements • Arrangements for: • Assessing and consulting on likely impacts of policies • Monitoring of adverse impacts • Publishing results • Training staff • Ensuring public access to information and services • Publish the consideration of: • measures to mitigate adverse impact • alternative policies to promote equality of opportunity • Take results into account when coming to final decision • Timetable for measures • ECNI recommendations • must conform to ‘Guidelines’ as to form and content • ‘Screening’ • Use of evidence • Consider likely impact • None • Minor - mitigation • Major - EQIA • Publication of results • Review on receipt of evidence from stakeholders • ‘EQIA’ • More detailed • 3 month consultation • Involvement of affected groups • ECNI Model Scheme

13. Complaints Mechanism - Outcomes • Pressure on PA to impact assess decision and consult on impacts - EQIA • Report with recommendations – commitments in equality scheme, or Sec of State directions • Report, recommendations and directions laid before Assembly – political pressure • ECNI and stakeholder pressure on substance, following impact assessment • No guarantee that decision will be reversed • Flexibility in ECNI intervention (can comment on substance of case)

14. Judicial Review - NI • Limited jurisprudence in NI on s75 • Neill (HC 2005, CoA 2006) • Schedule 9 intended to be enforcement mechanism with political consequences • BUT doesn’t oust jurisdiction of court in all instances of breach of s75 • Tasers (QBD 2011) • Meaning of ‘due regard’ taken from GB caselaw • Preparedness to entre into dialogue and change position as a result • (EQIA took place; no use of complaints mechanism) • Judicial Review on s75 limited, but possible

15. PSED Judicial Review in GB - General Principles ‘Due regard’: • Is not a duty to achieve a result, but a duty to consider the need to promote equality of opportunity • Is the regard that is appropriate in all the circumstances: • The importance of the areas of life affected and the extent of the inequality • Countervailing factors relevant to the decision maker’s functions • Does not require mention or awareness of the statute, so long as the necessary regard has been had in substance Baker [2008] EWCA Civ 141

16. PSED Judicial Review in GB - General Principles • Decision-maker must be made aware of duty • Fulfil duty before and at the time of the decision, not as justification after the fact • Duty must be exercised in substance, with rigour and with an open mind (not tick box) • The duty is non-delegable • The duty is a continuing one • Good practice to keep an adequate record Brown [2008] EWHC 3158, confirmed in Domb [2009] EWCA Civ 941

17. PSED Judicial Review in GB - Cuts Cases • Expenditure of public resources is peculiarly in the competence of the executive • Effects of macro policy could be relevant BUT • not an excuse to avoid duty • Should request funds to undertake duty • Lawful to wait until a policy has been adequately formulated – issue of rationality • Timing and representations

18. Practical Advice • First approach public authority concerned • Specify breach of scheme from the outset • Contact the ECNI as early as possible • Respond to any associated consultation • If no action by PA or ECNI, consider JR: • Timing, support, resources, other representations • Collect evidence of extent to which due regard • In advance of decision; appropriate in circumstances; in substance, with rigour and an open mind

19. Any questions? • debbie@caj.org.uk