QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (on the application of The Equality & Human Rights Commission)
|- and -
|The Secretary of State for Justice
The Secretary of State for the Home Department
& Ms Kirsten Heaven (instructed by Legal Department) for the Claimant
Sam Grodzinski (instructed by Treasury Solicitor) for the Defendant
Hearing date:15 December 2009
Crown Copyright ©
Mr Justice Wyn Williams:
"1. Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need
a) to eliminate unlawful racial discrimination; and
b) to promote equality of opportunity and good relations between persons of different racial groups."
Section 1 provides a definition of racial discrimination for the purposes of the Act. It is in the following terms:-
"(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if
a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or
b) he applies to that other requirement or condition which he applies or would have applied equally to persons not of the same racial group as that other but
i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and
ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or other national origins of the person to whom it is applied; and
iii) which is to the detriment of that other because he cannot comply with it."
"1. Every public authority shall in carrying out its functions have due regard to
a) the need to eliminate discrimination that is unlawful under this Act;
b) the need to eliminate harassment of disabled persons that is related to their disability;
c) the need to promote equality of opportunity between disabled persons and other persons;
d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;
e) the need to promote positive attitudes towards disabled persons;
f) the need to encourage participation by disabled persons in public life."
The documentary evidence
This notice is to advise you that it is the expectation that all foreign national prisoners will be transferred from Erlestoke to Dartmoor, Guys Marsh or the Verne by the end of July. (This date has been extended from original deadline of end of June).
..participation on courses is not seen as an acceptable reason to delay a transfer and the end of June deadline must be adhered to and the PMU has said there can be no exceptions.
"Your letter of 30 April 2009 re the above has been forwarded to this office for response.
A Service Level Agreement has been developed between NOMS and UKBA to provide better management of the foreign national population within prisons in England and Wales. The rationale behind this is to reduce the number of prisons within which foreign national prisoners are held. By doing this UKBA will be able to provide a far better service to those prisoners in facilitating the casework and removal when appropriate. Additional resources have been recruited by UKBA to facilitate this.
All sentenced foreign national prisoners are likely to be affected by this. All moves are being managed centrally through population management. It is expected that all moves will be completed by July 2009.
"a) [the policy] irrationally fails to take into account the individual circumstances of each prisoner and it is said by HMP Erlestoke to permit no exceptions. In particular it fails to take into account whether or not a FNP is likely to be deported at all (e.g.: EEA citizens resident over 10 years are very rarely deported); a prisoner's particular link to his current establishment or geographical area such as through course work of family links and the availability of course work/family links at Dartmoor, Guys Marsh or the Verne.
b) it is likely to result in direct discrimination on racial grounds for the majority of FNPs. In relation to these particular claimants the implementation of the policy would constitute a breach of section 1(1)(a) of the RRA 1976. In transferring the claimants from Erlestoke their current course work would be interrupted and have to stop. This constitutes less favourable treatment on racial grounds, which includes grounds of nationality s3(1) of the RRA.
d) there is no indication that NOMS has had due regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity to persons of different racial groups pursuant to the policy of statutory duty contained in s71 of the RRA."
As well as identifying, in detail, the proposed ground of challenge the pre-action protocol letter sought disclosure from the Defendant of copies of all relevant documentation relating to the policy including copies of all notes of discussions/consultations leading to the policy itself. The letter went on to seek disclosure of "any document containing specific consideration given to the Prison Service's s71 duty at the time that the policy was being considered."
"The claimant's argument that the policy directly discriminates against FNPs contrary to s1(1)(a) RRA is erroneous because the basis for the difference in treatment is the claimant's legal status rather than any impugned racial characteristic."
He also wrote:-
"s71 RRA 1976 requires the defendants to "have due regard" to the need to eliminate unlawful racial discrimination and to promote equality of opportunity. There was no statutory requirement to carry out a formal impact assessment. In light of the fact that the policy does not discriminate against individuals on the grounds of race, the defendants' obligation under s71 RRA 1976 is very limited."
As Mr Beloff QC submits those observations are somewhat surprising given what is now submitted on behalf of the Defendant namely that NOMS did have due and proper regard to s71 of the 1976 Act.
"Phil Riley said that section 71 RRA was given due regard; they sought and received advice that they could proceed to implement the policy without prior consultation or impact assessments. Community and family ties were not considered; health issues and disability should also be considered. Race and equality impact assessments are now being conducted retrospectively (by Colin Speedie), and they are inviting any interested party to contribute their views ."
The second paragraph of importance says:-
"Access to immigration advice and immigration tribunals were not looked at when creating the policy, but matters such as video conferencing etc will now be considered."
"To achieve these potential benefits as quickly as possible, we took the decision to move forward with rationalisation ahead of an EIA, but were mindful of our duty to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity between the relevant groups."
"3.16 To assess the effects of the policy, or the way a function is being carried out, public authorities could ask themselves the following questions.
a) Could the policy or the way the function is carried out have an adverse impact on equality of opportunity for some racial groups? In other words, does it put some racial groups at a disadvantage?
b) Could the policy or the way the function is carried out have an adverse impact on relations between different racial groups?
c) Is the adverse impact, if any, unavoidable? Could it be considered to be unlawful racial discrimination? Can it be justified by the aims and importance of a policy or function? Are there other ways in which the authority's aims can be achieved without causing an adverse impact on some racial groups?
d) Could the adverse impact be reduced by taking particular measures?
e) Is further research or consultation necessary? Would this research be proportionate to the importance of a policy or function? Is it likely to lead to a different outcome?"
Paragraph 3.17 concludes this chapter by indicating that if the assessment suggests that the policy, or the way the function is carried out, should be modified, the authority should do this to meet the general duty.
Mr. Riley's statement
The Relevant Legal Principles
Conclusion on Principal Ground
The second issue for my determination