March 29

Alison Young: Efficiency v Equality

Judicial review is essential component of the rule of law. When governmental officials act beyond the scope of their powers, or harm rights, individuals can go to court and receive an appropriate remedy. Justice, however, is not cheap; especially in the United Kingdom. However, if judicial review provides you with an appropriate remedy, you may be willing to pay the price, the remedy outweighing the costs. Your decision to go to court is even more likely if you can obtain an order to cap costs, or find a public interest organisation willing to champion your case. The connection between costs, remedies and standing – determining access to justice – and the rule of law are well known. This is why the reforms found in Part IV of the UK’s Criminal Justice and Courts Act 2015 were subject to widespread criticism, before and after its enactment.

This short blog post is not the place to reiterate these well-known criticisms. Rather, I hope to draw attention to one specific implication of these reforms – its impact on the public sector equality duty, found in section 149 of the UK’s Equality Act 2010. This section requires that public authorities, when exercising their functions, ‘must have due regard’ to ‘the need to eliminate discrimination, harassment, victimisation’; the need to ‘advance equality’; and to ‘foster good relations between persons who share a relevant protected characteristic and persons who do not share it.’ This positive duty facilitates the rule of law in a different manner. It aims to prevent public authorities from acting unlawfully through creating positive obligations. This can be a more cost-effective and efficient means of protecting rights. It can also empower those with protected characteristics to engage more effectively in the development of policies, rather than bringing judicial review actions when rights are harmed. Yet, if this obligation is incapable of being enforced, it devolves into a means of paying lip-service to equality.

The 2015 Act places a restriction on when an individual can obtain a remedy having succeeded in demonstrating that the action of a public authority was unlawful. The court must ‘refuse to grant relief’ or ‘make an award’ if ‘it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’. The only exception occurs through the provision of a discretion to make an award or grant relief ‘for reasons of exceptional public interest’. Difficulties arise as, often, those whose rights have been harmed bring a claim for judicial review due to the discrimination they believe they have suffered, coupled with a claim for a breach of the public service equality duty. However, an individual may be in a situation where their discrimination claim fails, it being concluded that the public authority had made sufficient reasonable accommodation of a disability, but the breach of the public sector equality duty succeeds. Even though the action of the public authority is unlawful, it is ‘highly likely’ that there would have been no ‘substantial difference’ to the outcome of the applicant even if the decision had been lawful. This is because, despite the lack of compliance with the public sector equality duty, the applicant was not harmed. They had not been discriminated against.

A clear example of this is found in Hawke v Secretary of State for Justice. Mr Hawke had been convicted of rape, an offence requiring imprisonment as a long-term category B prisoner. Although he was incarcerated in the nearest suitable prison to his home, Mrs Hawke’s disabilities were so severe that it made travelling to visit her husband so painful to undertake that she felt she was no longer able to visit her husband. The Hawkes applied for Mr Hawke to be moved to a prison nearer to Mrs Hawke – either a category B prison for temporary prisoners or a category C prison. The Secretary of State refused to agree to this transfer. Mr Hawke’s offence was too serious to merit imprisonment in a category C prison and a temporary category B prison would be unable to provide rehabilitation. The court, whilst expressing sympathy for Mrs Hawke’s situation, agreed that the Secretary of State had not failed in his duty to make reasonable accommodation of Mrs Hawke’s disability. However, it was also clear that there was negligible evidence of any attention being paid to the public sector equality duty when formulating policies governing the transfer of prisoners, and no real regard paid to the duty by officials or front line staff when deciding Mr and Mrs Hawke’s situation. Nevertheless, as it was highly unlikely that the prison authorities would have decided differently if the public sector equality duty had been applied, given that the court had concluded that there had been no discrimination against Mrs Hawke, Mr and Mrs Hawke received no remedy. Nor was the court sympathetic to the argument that exceptional public interest exception could be applied. Much as the public sector equality duty was important, this did not mean that there was an ‘exceptional public interest’ to grant a remedy.

It would be unfair to conclude that the courts are unaware of the difficulties caused by Part IV of the 2015 Act. In Logan v London Borough of Havering, the court sought to distinguish between a ‘declaratory judgment’ and a ‘declaratory order’. Whilst the latter is a remedy, and therefore is unable to be granted by the court, the former is not. Although it is hard to know what a ‘declaratory judgment’ is, other than ‘a judgment’. The divisional court has decided both Hawke and Logan, the decisions are reported and they do provide an account of the law which can be referred to in future cases. But this does little to help the applicant. The judgments in both Logan and Hawke suggested that, where a particular public authority faced a series of ‘declaratory judgments’ then ‘there may come a time when, on proof of that failure, a claimant may be able successfully to persuade the court that enough is enough and that the exceptional public interest’ (Hawke, para 96) can be pleaded and a remedy granted. Or this may prompt the Equality Commission to Act. Neither of these solutions, however, are satisfactory. A series of applicants obtaining ‘declaratory judgments’ is unlikely to occur given the balance to be made between high costs of litigation and the risk of no remedy at the end of it. The Equality Commission may also be unwilling to act given that the 2015 Act also reduces its ability to obtain a cost order (Criminal Justice and Courts Act 2015, sections 84(2) and 88, inserting section 31 (3C) into the Senior Courts Act 1981), and, even if it acts as an intervenor, may, if unsuccessful, be required to pay the costs of the other side incurred in response to this intervention (Criminal Justice and Courts Act 2015, section 87(6)). It is also, to put it mildly, hardly achieving the Act’s purported aims of ‘streamlining’ judicial review, cutting the costs incurred by pointless judicial review actions, by indirectly encouraging more judicial review actions in order to ensure public sector equality duties are complied with.

A better solution is the approach of the court in R (DAT) v West Berkshire Council to the exceptional public interest test. The council had failed to apply the public sector equality duty correctly and the court was unwilling to speculate as to whether they would have reached a different decision – cutting funding used to provide breaks for disabled children and their carers – had they received correct instruction. The court concluded, therefore, that it was not highly likely that the outcome for the applicant would not have been substantially different had the council paid due regard to its public sector equality duty. The court was also willing to accept in the alternative that a remedy could be granted, adopting the submission of counsel that ‘there is an exceptional public interest in ensuring that when local authorities cut spending in a way which affects vulnerable children, they are seen to observe the relevant legal provisions, particularly where, as here, the amounts at stake are, in relation to the budget as a whole, not large, and where there was flexibility in the money available to accommodate a smaller cut’ (DAT para 68).

In times of austerity, public bodies have to make cuts. These will often be to services provided to individuals with protected characteristics under the Equality Act 2010, especially those with disabilities. The public sector equality duty may provide a cost-effective means of protecting rights against a backdrop of difficult budgetary decisions. Not all can be protected But a system which encourages public bodies to pay attention to equality issues, especially if combined with the engagement of groups protecting the interests of those with protected characteristics, may enable decision to be made which are sympathetic to the needs of all when faced with difficult budgetary choices. The 2015 Act, whilst aiming to cut costs and promote efficiency, runs the danger of eviscerating the public sector equality duty. Whilst this may be efficient, it undermines the rule of law and leaves the vulnerable unable to effectively protect their rights.

Alison L Young is Professor of Public Law at Hertford College, University of Oxford