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 — – 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 Equality Scheme (Schedule 9) Equality Commission Complaints Mechanism (‘breach of scheme’) S75 ‘ due regard’ Judicial Review Approach PA, public campaign, use evidence

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

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 – 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

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’: 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

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 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?