Incentivo para la culminación del proyecto “Refinería del pacifico”

A third outcome of the Red Tape Challenge was the announcement of a review into how the PSED was working in practice. The decision to order a review so soon after

126

the duty had been implemented led commentators to raise concerns that the review would lead to the abolition of the PSED (O’Brien 2013). In the event the review concluded that it was too early to reach conclusions about how the PSED was working in practice and that it should be reviewed again in 2015 (GEO 2013). The majority of submissions to the review were positive about the PSED; the main complaint from public bodies was of lack of leadership and guidance on the duty and from civil society of the failure of public bodies to meet their legal obligations (Stephenson 2014). However the review report was largely negative claiming that there was a lack of evidence of positive impact, that the duty had increased bureaucracy for organisations tendering to deliver public services and for public sector organisations themselves and that it had led to unnecessary and intrusive collection of personal data because of ‘gold plating’ or over compliance with the requirements of the duty. These conclusions were reproduced in much of the press coverage over the launch of the report with several newspapers repeating claims by the report’s Chair that there was ‘little evidence of positive impact’ and that the duty had left public bodies ‘bogged down with bureaucracy’ and ‘swamped with box ticking exercises’ (Stephenson 2014). The review also argued that the Government should consider whether there were ‘quicker and more cost effective ways of

reconciling disputes relating to the PSED than judicial review’ (GEO 2013 p16). The Government’s response to the review welcomed the reviews conclusions and

recommendations, which it said should be implemented fully ‘in particular to reduce procurement gold-plating by the public sector’ (DCMS 2013a). Changes to judicial review were introduced in the Criminal Justice and Courts Act 2015 (see below). As will be seen in subsequent chapters the decision to review the PSED, and the negative comments in the press which followed the launch of the review report, created a climate of uncertainty within local government about the future of the duty which sometimes made it hard for equality officers to develop strategies in response to the duty since they did not know if it might suddenly be repealed. This was reinforced by a series of public statements made by Ministers, including the Prime Minister, associating action to comply with the PSED with ‘box ticking’ and

bureaucracy. In November 2012 the Prime Minister David Cameron announced that the Government was ‘calling time’ on Equality Impact Assessments saying:

127

We have smart people in Whitehall who consider equalities issues while they’re making the policy. We don’t need all this extra tick-box stuff. So I can tell you today we are calling time on Equality Impact Assessments. You no longer have to do them if these issues have been properly considered (Cameron 2012).

The following month Brandon Lewis, Minister of State for Local Government, wrote to all local authorities to emphasise that Equality Impact Assessments were not a legal requirement, describing them as ‘time consuming, bureaucratic, tick-box exercises’, which ‘in many cases took staff away from planning and delivering important public services’ (DCMS 2012).

Both interventions were carefully worded to say that Equality Impact Assessments were not a legal requirement so long as public bodies had had due regard to equality and were able to demonstrate this. However the media coverage for Cameron’s speech focussed on his claim that he was ‘calling time’ on impact assessments, suggesting that there had been a legal obligation to carry out impact assessments which the Prime Minister was announcing would now be removed. This was misleading; while there is no requirement to carry out a process called an Equality Impact Assessment, Cameron’s speech did not remove the requirement to have ‘due regard’ to equality, nor the need to be able to demonstrate this in some way. There have been a series of judicial review challenges under the PSED and previous equality duties where public bodies have been found to be in breach of the law because they had not carried out a proper impact assessment and therefore could not demonstrate that they had had due regard to equality. In R (Kaur) v London

Borough of Ealing [2008] Ealing Council was judged to have breached the Race Equality Duty when cutting funding for the specialist domestic violence group Southhall Black Sisters. In an oral judgment, Lord Justice Moses reiterated the importance of undertaking an equality impact assessment, and also the importance of carrying out an impact assessment before policy formulation. In R (Brown) v

Secretary of State for Work and Pensions [2008] the court found that there was no statutory duty on the public bodies to carry out a formal impact assessment (in this case under the Disability Equality Duty) but set out a series of principles through which the duty to have due regard could be met, which have become known as the

128

Brown Principles. These include the need for public bodies to be aware of the duty, to exercise the duty ‘with rigor and an open mind’ before any decision is made, that it is good practice to make reference to the duty in any assessment it carries out and that it is good practice to keep adequate records showing relevant questions have been considered conscientiously (EHRC guidance on case law, undated).

These principles make clear that while a public authority does not have to carry out a process called an Equality Impact Assessment they do have to rigorously assess equality impact and keep records of how this has been done. More recently in Child Poverty Action Group v. Secretary of State for Work and Pensions [2011] the courts made clear that a body subject to the duty would need to show that it had considered adequate evidence to have due regard to equality. In R. (on the application of (1) Luton Borough Council and Nottingham City Council (2) Waltham Forest London Borough Council (3) Newham London Borough Council (4) Kent County Council (5) Sandwell Metropolitan Borough Council) v. the Secretary of State for Education [2011] the court found the Secretary of State in breach of the general duty and emphasised the importance of consultation, observing that ‘...if only the Secretary of State had consulted with them [the claimants] they would have been able (if they wished) to highlight those special equality considerations to him.’ These elements of rigorous consideration of equality impact based on collection and assessment of adequate data and if necessary consultation with affected groups, combined with the need to keep adequate records in order to show that due regard has taken place are the elements of an Equality Impact Assessment, whatever the process may be called. In the light of these and other judgements it would not be surprising if public

authorities found Cameron’s comments that Equality Impact Assessments were not necessary confusing. As I will detail in subsequent chapters equality officers in the case study areas were clear that Equality Impact Assessments were the best way of ensuring compliance with the Public Sector Equality Duty, but sometimes had difficulty convincing their colleagues of this because of the confusion caused by the media coverage around Cameron’s speech.

129