Workshop:
Challenging the Cuts
Challenging the Cuts:
S75 Equality Duty
Debbie Kohner, CAJ
Equality Coalition Co-convener
Challenging the Cuts: S75
• Various approaches to challenge the cuts
• S75 Northern Ireland Act 1998
• ECNI Complaints Mechanism
• Possibilities for judicial review
• Opportunities and pitfalls
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 —
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–
–
–
–
–
–
–
–
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
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
Application of s75
S75
‘ due regard’
Schedule 9
Equality
Scheme
Enforcement of s75
• Approach PA, public campaign, use evidence
• Equality Scheme
(Schedule 9)
• S75 ‘ due regard’
• Equality Commission
Complaints Mechanism
(‘breach of scheme’)
• Judicial Review
Content of Equality Schemes
• Schedule 9 requirements
• ECNI recommendations
– 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
– 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
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
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
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)
Content of Equality Schemes
• Schedule 9 requirements
• ECNI recommendations
– 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
– 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
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)
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
PSED Judicial Review in GB General Principles
‘Due regard’:
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•
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:
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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
PSED Judicial Review in GB General Principles
1. Decision-maker must be made aware of duty
2. Fulfil duty before and at the time of the
decision, not as justification after the fact
3. Duty must be exercised in substance, with rigour
and with an open mind (not tick box)
4. The duty is non-delegable
5. The duty is a continuing one
6. Good practice to keep an adequate record
Brown [2008] EWHC 3158, confirmed in Domb [2009] EWCA Civ 941
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
Practical Advice
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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
Any questions?
•[email protected]