ON APPEAL FROM THE HIGH COURT OF JUSTICE (ADMINISTRATIVE COURT)
MR JUSTICE CRANSTON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LADY JUSTICE BLACK
| THE QUEEN ON THE APPLICATION OF GREENWICH COMMUNITY LAW CENTRE
|- and -
|GREENWICH LONDON BOROUGH COUNCIL
Mr Jason Coppel (instructed by Greenwich London Borough Council) for the Respondent
Hearing date : 20 March 2012
Crown Copyright ©
Lord Justice Elias :
The public sector equality duty.
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low …..
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) tackle prejudice, and
(b) promote understanding.
Grounds of appeal.
"Equality Impact Assessments will be carried out for all proposed new policies or policies for which significant changes are proposed."
The judgment below.
"48. Due regard is the regard that is appropriate in all the circumstances: R (Baker) v Secretary of State for Communities and Local Government  EWCA Civ 141;  PTSR 809, . In that case Dyson LJ said: "The question is whether the decision-maker has in substance had due regard to the relevant statutory need. It is necessary to turn to the substance of the decision and its reasoning": . Paying due regard is an essential preliminary to any decision: R (BAPIO) v Secretary of State for the Home Department  EWCA Civ 1139, . While the circumstances may point strongly in favour of undertaking a formal equality impact assessment, that is not a statutory requirement: R (Brown) v Work and Pensions Secretary  EWHC 3158 (Admin);  PTSR 1506, . In that case the Divisional Court identified a number of helpful principles that demonstrate how a public authority should fulfil its due regard duty: -. These included that the due regard duty must be fulfilled before and at the time that a particular policy which might affect relevant persons is being considered; the duty has to be integrated within the discharge of the public functions of the authority; and the duty is a continuing one. Clearly the duty applies not only to the formulation of policies, but also to the application of those policies in individual cases: Pieretti v Enfield LBC  EWCA Civ 1104;  HLR 3. "
49. Stepping back from the details, it seems to me that what the Council was attempting to do was to mitigate inequalities in what it thought was the most effective way, against a background of a significant reduction in government expenditure. The Council conducted an equalities impact assessment in March 2011 in advance of its decision not to award funding for legal advice services and instead to conduct a fresh commissioning round. The whole purpose of its funding legal advice services was to assist priority groups. That theme runs through the whole of the commissioning exercise, in particular under the heads mentioned earlier in the judgment, "equalities", "location of services", and "expanding the reach of the services". It then selected those organisations which in terms of the criteria would best achieve the objectives.
50. As a matter of law there is no obligation to conduct a formal equality impact assessment before every decision. Here the Council conducted an equality impact assessment in March 2011 in advance of its decision not to award funding for legal advice services and instead to conduct a fresh commissioning round. It paid due regard in substance to its equalities duties under the Equality Act 2010 by remaining faithful to the focus on priority groups in the tendering exercise. In my view there was no need for a further equality impact assessment with regard to the outcome since the logic of the tender process meant that performance of the duty was integral to the outcome. Selection of the winning tenders would inevitably pay due regard to the equalities objectives. No new or different equalities considerations arose.
51. Mr Manning's submissions on accessibility were based on several faulty premises. Notwithstanding the assertion, later abandoned, Greenwich CLC is not at the centre of the borough. (When Cllr. Drury called in cabinet's September decision it was because not funding Greenwich CLC might deprive the western part of the borough of legal advice and assistance). More importantly, accessibility was in fact considered by the Council during the tender process. As we saw that was an issue on which Greenwich CLC scored badly in the tender evaluation. Whatever the effectiveness or otherwise of outreach services, that was identified by Councillors, amongst others, as necessary to take the services to the priority groups. Greenwich CLC proposed inadequate outreach services. By contrast the successful tenderers had thought through outreach proposals, including in children's and community centres, albeit that they were not finalised until later. Mr Manning's submissions in this regard were self-defeating."
Lady Justice Black:
Lord Justice Ward: