Neutral Citation Number: [2010] EWHC 147 (Admin)
Case No: CO/11454/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/02/2010

Before:

MR JUSTICE WYN WILLIAMS
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Between:

	The Queen (on the application of The Equality & Human Rights Commission)	Claimant	
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	The Secretary of State for Justice
The Secretary of State for the Home Department	Defendant
Interested Party	

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The Hon Michael Beloff QC & Ms Stephanie Harrison 
& Ms Kirsten Heaven (instructed by Legal Department) for the Claimant
Sam Grodzinski (instructed by Treasury Solicitor) for the Defendant 

Hearing date:15 December 2009
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Judgment

Mr Justice Wyn Williams:
Introduction

1.	On or about 1 May 2009 the National Offender Management Service (an organ of the Defendant and hereinafter referred to as NOMS) and the UK Border Agency (hereinafter referred to as UKBA) concluded an agreement entitled “Service Level Agreement to support the effective management and speedy removal of Foreign National Prisoners” (hereinafter referred to as “the SLA”).  Annexe F, in particular, contained a number of provisions which had as their aim the improvement of the process whereby foreign national prisoners were to be treated within the prison system and, thereafter, deported or removed from the United Kingdom. The provisions were to apply to a category of male foreign national prisoners only (see TB page 171); those prisoners were to be transferred from the prisons in which they were serving their sentences to a number of named prisons, primarily Dartmoor, Guys’ Marsh and the Verne (unless of course they were already serving sentences at those prisons). A fuller summary of the provisions of Annexe F of the SLA is to be found in the Statement of Facts and Grounds relied on by the Claimant.
2.	The SLA envisaged that the necessary transfers would take place by 30 June 2009. 
3.	The principal issue which arises in this case is whether NOMS had “due regard” to the requirements respectively of section 71 of The Race Relations Act 1976 and section 49A of the Disability Discrimination Act 2005 prior to the conclusion of the SLA. Essentially, that is a question of fact for the determination of the court. In this case it is a disputed question of fact. It is disputed because the Claimant asserts that NOMS did not have regard to the statutory provisions whereas the Defendant has filed and served a witness statement made by Philip Riley, a senior operational manager at NOMS, in which he positively asserts that proper regard was paid to the statutory requirements. As is obvious, it is not entirely straightforward to adjudicate upon disputed issues of fact when no oral evidence is adduced before the court. However, no one suggested that it was necessary to receive oral evidence.
4.	In the next section of this judgment I will describe and analyse the available documents with some care. Before doing so, however, it is worth setting out the relevant statutory provisions; it seems to me to be necessary to keep the provisions firmly in mind in making an assessment as to whether NOMS had due regard to their requirements.    
5.	Section 71 Race Relations Act 1976 is in the following terms:-
“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.”
6.	Section 49A Disability Discrimination Act 1995 provides:-
“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.”
7.	There is no dispute but that NOMS is a body within Schedule 1A of the 1976 Act; there is also no dispute that it is a public authority within section 49A of the 2005 Act.
The documentary evidence
8.	In July 2006 HM Inspectorate of Prisons published a paper entitled “Foreign National Prisoners; A Thematic Review.”  As its title suggests this paper focused upon the treatment of foreign national prisoners and its introduction made clear that the authors considered it essential that there be put in place a national strategy for the treatment of that category of prisoners.  In January 2007 the Inspectorate published a follow up report.  The introduction to that report was written by Anne Owers, then HM Chief Inspector of Prisons; she concluded the introduction by suggesting that the treatment of foreign national prisoners over recent years had been an object lesson in systems and procedures that lacked both efficiency and humanity.
9.	In the light of the trenchant criticisms contained within both reports a working party was set up.  It had as its object the rationalisation of procedures in relation to foreign national prisoners.
10.	The earliest document produced by or on behalf of the Defendant relating to the activities of the working party is the minute of a meeting which took place on 31 July 2008.  The minutes are headed “Rationalisation of FNPs – Working Group Meeting”.  The minutes disclose that a meeting took place on 31 July 2008 between 11.00 and 11.30 on that day.  The meeting was chaired by Angela Pearce and attended by Victoria Wiseman, Richard Bateman, Irene Hall and Angana Modi.  The minutes record that a number of persons apologised for their absence.
11.	The minutes are quite detailed and difficult to follow in the absence of any explanation.  No witness statement has been served to explain the contents of the minutes.  However, nothing within the minutes suggest that those present addressed their minds expressly to the Race Relations Act 1976 or the Disability Discrimination Act 2005.  
12.	The minutes record that the next meeting was due to take place on 7 August 2009.  No minutes of a meeting on that date have been disclosed.
13.	The next available minutes relate to a meeting which took place on 4 September 2008 between 11.00 and 12.00.  On this occasion Mick Fallon was in the chair; Victoria Wiseman, Irene Hall, Bob Daw and Alan Lowe attended the meeting.  These minutes are much shorter.  They contain no reference to the 1976 Act or the 2005 Act.  They show that the next meeting was scheduled for 25 September 2008.
14.	No minutes have been disclosed for a meeting on 25 September 2008.  There are, however, minutes for a meeting which took place on 2 October 2008 between 3.00 and 4.15pm.  The chair of this meeting was Irene Hall.  It was attended by Huma Allahwala, Richard Bateman, Mick Fallon, Bob Daw and Victoria Wiseman.  It is clear from these minutes that the possibility of transferring foreign national prisoners to designated prisons was under discussion (see TB page 100).  Again, however, there is no express reference within the minutes to the Race Relations Act 1976 or the Disability Discrimination Act 2005.
15.	The minutes refer to the date of the next meeting as being 8 October 2008.  In fact no minutes have been disclosed relating to such a meeting or for any subsequent meeting of the working party.
16.	The Defendant has also disclosed a number of undated documents.  The first is a draft of a letter which was proposed to be sent to the governors of a number of prisons.  The second is a letter sent, jointly, to governors by representatives of NOMS and UKBA and the third is a letter sent by NOMS and UKBA to unspecified area managers.  Each of those documents alerted the recipients to the possibility of changes in the way that foreign national prisoners were dealt with.  
17.	On 28 April 2009 Mr Kevin Lockyer, a Deputy Director, Population Management at NOMS sent a memo to Mr Michael Spurr, the Chief Operating Officer of NOMS (copied to the NOMS management board) in which he set out what he described as “an acceptable negotiating position with UKBA on the joint SLA.”  The memo had two attachments, appendices A and B.  Nothing in those documents suggests that the requirements of the two Acts had been considered in the formulation of the SLA.
18.	As I understand it, therefore, as of the date when the SLA was concluded no document had come into existence which had referred, expressly, to the requirements of section 71 Race Relations Act 1976 or section 49A of the Disability Discrimination Act 2005.  If I am wrong in that conclusion no such document has been disclosed.
19.	Some days before Mr Lockyer wrote his memo, the Governor of HMP Erlestoke published a notice to all the prisoners within that prison.  Its terms were as follows:-
“Dear All
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.
Thank you”
20.	This notice came to the attention of the Prison Reform Trust.  On 30 April 2009 Ms Francesca Cooney, the Advice and Information Manager of the Trust wrote to the Governor of HMP Erlestoke referring to his notice and seeking information about it.  She received a letter dated 11 May 2009 from the Defendant in the following terms:-
“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.
…..”
21.	On 29 May 2009 solicitors acting for three prisoners being held at HMP Erlestoke sent a letter before claim (pre-action protocol letter) to the Treasury Solicitor.  One of the three prisoners was a Mr. Kayahan.  The pre-action protocol letter indicated that the prisoners wished to challenge the decision/policy of NOMS to transfer all foreign national prisoners out of their current establishment to one of three prisons, namely HMP Dartmoor, Guys Marsh and the Verne.  The following grounds of challenge which are relevant to these proceedings were identified in the pre-action protocol letter:-
“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.”
22.	No satisfactory response was received from the Defendant within the short time afforded by the letter before claim.  Accordingly, Mr Kayahan commenced proceedings by way of judicial review.  His grounds of challenge closely mirrored those which had been set out in the pre-action protocol letter.  The Defendants to the claim for judicial review were the Defendant in these proceedings and the Governor of HMP Erlestoke.  An Acknowledgement of Service was filed and served.  The principal point taken in the Acknowledgement of Service was that Mr Kayahan’s claim was academic since he had been informed by letter of 5 June 2009 that he would not be transferred from HMP Erlestoke without regard being given to any representations which he might make about transfer.
23.	It is noteworthy that the Acknowledgement of Service did not address the ground of challenge which was to the effect that there had been a failure to have due regard to the provisions of s71 Race Relations Act 1976.  In particular no positive assertion was made that the duty to have due regard had been performed.
24.	As it happened I considered the application for permission on the papers.  I refused permission for the reasons contained in the refusal notice (see TB page 318).  I did not address the issue of the alleged failure of the Defendant to have due regard to s71 of the 1976 Act.  
25.	Mr Kayahan renewed his application for permission to apply for judicial review.  It came on for hearing on 27 July 2009.  The renewed application was dismissed.  In advance of the application Counsel for the Defendant provided quite a detailed skeleton argument explaining why permission should not be granted.  In relation to the issue of whether or not the policy contained within the SLA discriminated against foreign nationals and whether or not NOMS had paid due regard to s71 of the 1976 Act Counsel wrote:-
“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.
26.	Shortly after Mr Kayahan commenced his proceedings by way of judicial review, Mr. Lockyer, of NOMS, wrote a letter which was circulated to a significant number of people potentially interested in the SLA. The letter was written to clarify “the new procedures for the allocation of foreign national prisoners” and to summarise the effect of the SLA. (see TB 121 and 122).   Nothing in that letter suggested that s71 of the 1976 Act or s49(A) of the 2005 Act were considered, expressly, in advance of the conclusion of the SLA.
27.	 On 7 July 2009 a meeting took place between Ms Francesca Cooney and Ms Naomi Lumsdaine of the Prison Reform Trust, Mr Riley and Mr Colin Speedie of NOMS and Ms Begum-Rob, a solicitor employed by the Prisoners’ Advice Service.  Ms Cooney and Ms Begum-Rob took separate notes of the meeting.  Thereafter Miss Begum-Rob typed an attendance note after consultation with Ms Cooney.  The note is not a verbatim record of the meeting.  However in a letter dated 30 November 2009 to a senior lawyer (Mr. Ashcroft) employed by the Claimant Ms Begum-Rob says that the note is a true record of what was said at the meeting to the best of her knowledge and belief.. Two paragraphs of the note are of particular importance in the context of this case.  I quote
“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.”
28.	Mr Grodzinski, on behalf of the Defendant, does not accept that the note produced by Ms Begum-Rob is entirely accurate.  However no alternative note of the meeting has been produced by Mr Riley or Mr Speedie and it seems obvious that a note made more or less contemporaneously with the relevant discussion is likely to be the best account of what was said.  In the absence of any substantial contradictory evidence I conclude that I should proceed on the basis that the note of the meeting is accurate.
29.	On 5 August 2009 Mr John Wadham, the Group Legal Director of the Claimant, wrote to Mr Spurr in relation to the SLA.  It is a long and detailed letter. It raised the prospect that the Defendant had not had due regard to section 71 of the 1976 Act and section 49A of the 2005 Act.  Further it voiced the concern of the Claimant that no impact assessment had been undertaken prior to the conclusion of the SLA and it sought the agreement of the Defendant to suspend further implementation of the policy contained within the SLA pending completion of such an assessment.  Mr Lockyer responded on 12 August 2009.  His letter asserted that the SLA was not intended to set out a new policy for the management of foreign national prisoners; rather it was intended to facilitate improved and closer working communication between NOMS and UKBA.  In summary, according to Mr Lockyer, the SLA constituted a rationalisation process.
30.	Mr Lockyer’s letter set out a number of potential benefits of this rationalisation process and then made this assertion:-
“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.”
31.	Later in his letter Mr Lockyer appeared to suggest that face to face briefings which had occurred in prisons in advance of the conclusion and implementation of the SLA did not focus on the management of prisoners with disability.  However Mr Lockyer suggested that Prison Service Order 2855 (Prisoners With Disabilities), issued in April 2008, dealt with this subject and set out the mandatory actions which governors had to undertake to comply with the 2005 Act.
32.	In the weeks that followed there was further correspondence.  On 9 September 2009 the Claimant sent a detailed pre-action protocol letter to the Treasury Solicitor.  The response was contained in a letter of 23 September 2009.  
33.	This application for judicial review was served on 2 October 2009.  The detailed grounds of defence were served on or about 16 November 2009.  In those detailed grounds the Defendant asserted, specifically, that he had had due regard to the duties under section 71 of the 1976 Act and section 49A of the 2005 Act.  He made the point that “for operational and other reasons connected to the need to implement the policy expeditiously, no formal equality impact assessment (EIA) was carried out before the policy was brought into effect.”  He recognised that the carrying out of a formal EIA in advance of the policy’s implementation would have provided contemporaneous documentary confirmation of the matters taken into account but, nonetheless, maintained his stance that due regard had been paid to the statutory duties.  The Defendant made the point that in any event an EIA had been carried out after the implementation of the SLA. This document was served at the same time as the detailed grounds of defence.  I will return to its contents later in this judgment.
Guidance
34.	In 2002 the Commission for Racial Equality published a document entitled “Code of Practice on the Duty to Promote Race Equality”.  The Code was published to offer practical guidance to public authorities on how to meet their duty to promote race equality.  The Code is ‘statutory’.  This means that it has been approved by Parliament; that it is admissible in evidence in any legal proceedings and a court should take the Code’s recommendations into account.  However it should be noted that the Code does not place any legal obligation on public authorities.
35.	Chapter 3 of the Code is entitled “Promoting Race Equality – the General Duty”.  Four guiding principles are identified.  First, promoting race equality is obligatory for all public authorities listed in Schedule 1A to the Act.  Second, public authorities must meet the duty to promote race equality in all relevant functions.  Third, the weight given to race equality should be proportionate to its relevance.  Fourth, the elements of the duty are complementary (which means they are all necessary to meet the whole duty).  Paragraphs 3.11 to 3.17 of the chapter provide practical advice upon how the public authority might meet its general duty.  In my judgment, paragraph 3.16 is of particular importance.  It provides:-
“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.
36.	There is also a statutory code of practice in relation to the duty to promote disability equality.  This document was published by the Disability Rights Commission in 2005.  The Commission has also published a document aimed specifically at the process of compiling a disability equality impact assessment (Authorities Bundle Tab 14).  I do not propose to quote from these documents.  It suffices that I say that these documents provide a substantial amount of useful guidance to public authorities so as to enable those authorities to comply with the statutory duties imposed upon them by the 2005 Act.
37.	It is common ground that a failure to undertake either an equality impact assessment or a disability equality impact assessment does not lead, automatically, to the conclusion that the public authority in question has failed to have due regard to its duties under the 1976 and the 2005 Acts.  Equally clearly, however, the published guidance to which I have referred makes it clear that good practice would dictate that a systematic assessment of the effect of a change in policy should be undertaken before the policy is agreed or implemented. Such a conclusion is not controversial.  It is consistent, entirely, with the thrust of Prison Service Orders 2800 and 2855 which are the standing instructions upon how the Prison Service should meet its legal obligations in relation to race equality and prisoners with disabilities. 
Mr. Riley’s statement
38.	Mr Riley is a Senior Operational Manager at NOMS.  He has made a witness statement specifically for the purpose of defending these proceedings.  It is dated 16 November 2009 i.e. it was made about six months after the SLA was concluded.  In the introduction to his statement he says that following an internal report relating to the removal of foreign national prisoners he was tasked to oversee work with UKBA to implement a number of recommendations made in the report.  Mr. Riley does not identify further the “internal report.” No document has been disclosed, so far as I am aware, which constitutes the internal report.  In paragraph 2 of his statement he refers to an internal review being undertaken in October 2008 and I proceed on the basis that Mr Riley’s involvement was from that time onwards.  The review apparently made 14 recommendations in total with the aim of reducing the number of time-served prisoners held in prison (immigration detainees) and to improve the effectiveness of the processes relating to removal.  No documents relating to an internal review in October 2008 have been disclosed by the Defendant or Interested Party.  
39.	Mr Riley expressly accepts that it would have been preferable for an equality impact assessment to have been carried out prior to the adoption and implementation of the SLA.  He says that in paragraph 6 of his statement and he repeats it in paragraph 18.  He justifies the absence of an equality impact assessment by the need to minimise delay.  
40.	Paragraph 18 is worded ambiguously.  On one reading it might be taken to suggest that a decision was taken in advance of the SLA that an equality impact assessment would be undertaken after implementation of the SLA.  If that is the suggestion being made in paragraph 18 there is no contemporaneous document which supports that suggestion.
41.	Much of the substance of Mr Riley's evidence is taken up with seeking to establish that due regard was paid to the duty under section 71 of the 1976 Act and section 49A of the 2005 Act during the process of formulating the SLA and prior to its implementation.  As Mr Beloff QC points out, however, there is a complete lack of detail about when important matters relating to those statutory duties were discussed, by whom and in what circumstances.  Further, of course, it is written with the benefit of the knowledge of the equality impact assessment which was undertaken.
42.	Mr Riley was not present at the meetings of the joint working party which are described earlier in this judgment.  Given his role – to oversee work with UKBA to implement a number of recommendations already made – it is difficult to see how his evidence begins to demonstrate that the sort of systematic assessments suggested as being necessary by the statutory codes was in fact carried out.
43.	There is this further difficulty.  In the absence of detailed evidence it is extremely difficult for me to accept that the time constraints were such that an equality impact assessment could not have been undertaken.  On Mr Riley's evidence 14 recommendations had crystallised at or about October 2008.  The SLA was concluded on 1 May 2009.  The equality impact assessment which first surfaced on 16 November 2009, inevitably, was produced in a much tighter time scale.
44.	It is also the case that much of the focus of Mr Riley's statement is upon race discrimination issues as they are likely to affect foreign national prisoners.  He does not deal, in any detail, with issues which relate to the duty under section 49A of the 2005 Act.  
The Relevant Legal Principles
45.	These are largely uncontroversial and are taken from recent decisions of the Court of Appeal and this court.  The duty to have due regard is a duty which is mandatory; it is also an important duty and one which must be fulfilled prior to the adoption or implementation of the decision, function or policy in question.  The duty requires the decision maker to embark upon a sufficient and proper decision making process so as to discharge the duty with an open mind.  The question in every case is whether the decision maker has in substance had due regard to the relevant statutory need.  In the written material produced by the decision maker he does not have to refer, expressly, to the relevant statutory duties; however, the evidence he adduces in any challenge must show that the substance of the duty was discharged.
46.	As I have said, all these propositions are properly derived from a series of comparatively recent decisions.  The most important of these decisions are Secretary of State for Defence v Elias [2006] EWCA Civ 1293; R (on the application of Baker & Others) v Secretary of State for Communities [2008] EWCA Civ 141; R (C) v Secretary of State for Justice [2008] EWCA Civ 882; R (on the application of Kaur & Another) v London Borough of Ealing [2008] EWHC 2062 and R(on the application of Brown) v Secretary of State for Work & Pensions [2008] EWHC 3158 (Admin).  It is unnecessary to quote from the judgments in those cases.  It is common ground that they support the principles set out above.
47.	Mr Beloff QC also submits that in order to have due regard to the statutory duties the decision maker must understand the scope of the duty i.e. he/she must correctly understand the ambit of the legal principles set out above.  That is not accepted by Mr Grodzinski.  For the purposes of this case, as will become clear, it is unnecessary for me to determine the point and, accordingly, I decline to do so.  
Conclusion on Principal Ground
48.	Although there was some prevarication about the point prior to the hearing before me, it was accepted, expressly, during the course of oral submissions that the duty to have due regard under sections 71 of the 1976 Act and section 49A of the 2005 Act did arise in the process of formulating the SLA and had to be complied with prior to its adoption and implementation. Suggestions to the opposite effect which had been trailed previously on behalf of the Defendant were not pursued.
49.	In my judgment, on balance of probabilities, NOMS did not have due regard to the duties under section 71 of the 1976 Act and section 49A of 2005 Act prior to the adoption and implementation of the SLA.  My reasons for reaching that conclusion can be stated quite shortly.  First, no document has been disclosed by either NOMS or UKBA which suggests that due regard was paid to the statutory duties in the months leading to 1 May 2009.  No formal impact assessments of any kind were undertaken.  Just as importantly no documents have been disclosed which show the sort of systematic approach suggested as being necessary by the statutory codes.  The note of the meeting of 7 July 2009 contains the assertion by Mr Riley that due regard was paid to section 71 of the 1976 Act.  Yet that same document demonstrates that matters which were important to the duty under section 71 were not considered e.g. community and family ties; access to immigration advice and immigration tribunals.  The note contains the assertion that health issues and disability should also be considered but no suggestion that it was.  The evidence demonstrates that no consultation was undertaken with interested bodies prior to the adoption of the SLA.  NOMS and UKBA do not assert that such consultation took place and the Claimant has filed evidence that demonstrates consultation was to be expected prior to the adoption of an SLA of the type in question.  The reason advanced for the failure to undertake equality impact assessments is unconvincing.  No detailed evidence has been put forward to demonstrate why it was that time did not permit such assessments to be undertaken.  Mr Riley's assertion to that effect does not sit happily with the statutory codes or Prison Service Order 2800 and 2855.
50.	I appreciate that Mr Riley has made a statement in which he asserts expressly that due regard was had to the duty under section 71 of the 1976 Act and invites the court to conclude that due regard must have been paid to the duty under section 49A of the 2005 Act.  
51.	Mr Riley's evidence is not to be ignored lightly.  There can be no suggestion, in my judgment, that he is acting in bad faith. No doubt Mr Riley genuinely believes that the matters he identifies in his statement has having been considered were in fact considered.  
52.	The difficulty is, as I have already observed, that Mr Riley provides no detail of any kind as to when matters which were important to section 71 and section 49A were considered and by whom.  He does not provide any context for that consideration; he does not provide any evidence of the nature and extent of the consideration which was given to relevant issues.  To the extent that his written statement contradicts the note of the meeting which Mr Riley attended on 7 July 2009 I prefer the note as an accurate statement of what transpired prior to the adoption and implementation of the SLA.  While I accept that there must have been many discussions involving both the working party and others in which issues relevant to section 71 and section 49A would have surfaced I am far from satisfied that the central issues in relation to each section were addressed systematically and substantively.
53.	I also acknowledge the force of the points made by Counsel for the Defendant in his Skeleton Argument.  However, it proceeds, as it must, on the basis that the court will accept at face value the evidence contained within Mr. Riley’s witness statement.  The plain fact is that there is a dearth of direct evidence which demonstrates how and in what circumstances the duties under section 71 and section 49A were addressed and considered.  I have also borne in mind, of course, the stance taken by the Defendant in the claim brought by Mr. Kayahan. That stance hardly inspires confidence in the assertion now made that the Defendant had paid due regard to the relevant duties.    
54.	In my judgment the Claimant is entitled to a declaration to the effect that the Defendant did not have due regard to its duties under section 71 of the 1976 Act and section 49A of the 2005 Act.  The precise form of the declaratory relief can be determined at the handing down of this judgment if it is in any way controversial.
The second issue for my determination 
55.	This was treated as a secondary issue, correctly in my judgment.  On 7 December 2009 Mr Wadham made a witness statement in which he concluded that the Defendant had, even now, failed to comply fully with its obligations under section 71 of the 1976 Act and section 49A of the 2005 Act.  He based that conclusion, essentially, on the inadequacies (as he sees them) of the equality impact assessment which the Defendant disclosed on 16 November 2009.  On the basis of Mr Wadham's statement, the Claimant seeks further declaratory relief.  As formulated in the Claimant’s skeleton argument the relief sought is a declaration that the equality impact assessment undertaken by the defendant is flawed and that the Defendant is continuing to act unlawfully and in breach of its duties under section 71 of the 1976 Act and section 49A of the 2005 Act.  
56.	It seems to me that there can be no basis for this court to grant a declaration to the effect that the equality impact assessment is “flawed”.  The Defendant was never under a legal obligation to undertake such an assessment; why therefore, should the court inquire into the alleged inadequacies of the document?
57.	It seems to me that the significance of the equality impact assessment, if any, is that it may demonstrate that the Defendant, even now, has failed to have due regard to its statutory duties.
58.	Mr Wadham deals with his specific criticisms of the equality impact assessment between paragraphs 28 and 40 of his statement.  Those paragraphs proceed on the basis that in the particular policy context what Mr Wadham describes as “a full and proper examination of the potential impact of the policy on the identified group of foreign national prisoners should have been undertaken” and that this should have taken the form of “a full impact assessment”.  Mr Wadham suggests that the Code of Practice published by the Disability Rights Commission, in particular, illustrates what was necessary. Under that model a full impact assessment would normally involve six stages; each stage is described in the Guidance, Disability Equality Impact Assessments issued by the Disability Rights Commission.  
59.	Mr Wadham does not accept that the Defendant has properly undertaken stage one in the process identified in the Guidance.  Stage one refers to the exploration of existing evidence and the obtaining of further evidence which is necessary.  The short point made by Mr Wadham is that it is difficult to tell from the assessment what existing evidence was reviewed.  So far as obtaining further evidence is concerned Mr Wadham makes the criticism that obvious avenues of exploration were not pursued (see paragraph 31 of his statement).  Stage two of the assessment is described as being the impact of the proposed policy/decision.  Mr Wadham deals with that in paragraphs 33 to 35 of his statement.  In summary, Mr Wadham suggests that he is concerned that no meaningful attempt appears to have been made to assess impact; rather the Defendant has relied upon assertion.  
60.	Stage three of the process advocated by Mr Wadham would involve the consideration of measures that might mitigate any adverse impact of the policy and alternative policies which might better achieve the promotion of the statutory duties.  Mr Wadham asserts that the Defendant has given no consideration to this stage of the process at least as demonstrated by what is written in the equality impact assessment.
61.	Stage four is the making of the decision itself.  Mr Wadham suggests that having developed an evidential base the decision maker should decide how much weight should be given to the general equality duties against other competing considerations.  A decision should then be made on which policy options to select and which if any mitigating steps should accompany it.  A decision should also be made on how the policy should be implemented in a way which gives due regard to the need to promote equality.  Mr Wadham's point is that it is difficult to see from equality impact assessment how the defendant has gone through this progress.
62.	Stages five and six relate to the publication of the results of the assessment and arrangements for monitoring and reviewing impact policy.  Mr Wadham accepts that stage five is complied with but notes that no specific reference is contained within the assessment to the monitoring of the impact of the policy on disabled prisoners nor its impact in relation to family or community ties.
63.	The Defendant has filed no evidence to contradict Mr Wadham's statement.  However Mr Grodzinski addresses the issues in his skeleton argument.  In my judgment he correctly summarises the position when he says that the principal concerns in Mr Wadham's statement are that the assessment has been carried out retrospectively and without an open mind in order to validate an already implemented policy and that the evidence gathering process has been insufficient with insufficient weight placed upon certain issues.  
64.	Mr Grodzinski submits that the suggestion that the assessment was carried without an open mind is pure assertion.  He submits that there is nothing in the substance of the assessment that suggests that it has been carried out without careful consideration of the issues or with a closed or predetermined mind.  In short, I agree.  I have read the assessment with care.  While, of course, it is true that it post dates the implementation of the policy there is nothing about its substance which leads me to the view that it was written with a closed mind.
65.	I also accept Mr Grodzinski’s submission that it must be for the Defendant to assess what weight is given to various factors relevant to the statutory duties.  I remind myself that there is no duty to undertake an impact assessment let alone undertake it in a particular way.  The obligation of the Defendant is to have due regard to the relevant statutory duties.  It must be for the Defendant to assess the weight to be given to the many factors which are necessarily to be considered.
66.	I am not persuaded that the Defendant, even now, has failed to have due regard to its statutory duties. I am satisfied that by 16 November 2009, at the latest, the Defendant had paid due regard to the duties specified under section 71 Race Relations Act 1976 and section 49A Disability Discrimination Act 2005.  Accordingly, I decline to grant the second declaration sought by the Claimant.