[Published in slightly reduced form in the New Law Journal 2-9 April (Easter edition) 2021: http://bit.ly/SocioEcNLJEaster2021at p9.]
According to the Equality Trust, despite its democratic governance and vast wealth by global standards, and 50 years of anti-discrimination legislation, the UK is one of the most economically and socially unequal countries in the developed world. Socio-economic disadvantage impacts all aspects of life, including health, life expectancy and educational attainment. These impacts have been brought into sharp relief by the pandemic and its all too apparent disproportionate effects upon socio-economically disadvantaged communities.
So what hope does UK anti-discrimination law offer, and does the pandemic provide real potential to take stock and effect real change.
With regard to the public sector, s1 of The Equality Act 2010 provides (ex. statutory immigration control) for a socio-economic duty (“SED”):
An authority to which this section applies must, when making decisions of a strategic nature about how to exercise its functions, have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.
This is a duty which has not yet been put to the test. Successive Westminster governments have refused to bring the duty into force, though a number of local councils in the UK adopted some of the key policies of the socio-economic duty. However, as from 1 April 2018 the Scottish Parliament used its devolved legislative power to bring the duty into force whilst rebranding it the “Fairer Scotland Duty”: Equality Act 2010 (Commencement No. 13) (Scotland) Order 2017.
Now, with effect from 31 March 2021 (delayed by Covid19 from the original proposed date of 29 September 2020), the duty also formally applies in Wales. It was already policy in Wales, during the 2011-16 4th Assembly/Senedd and Welsh Government, in which I served as Counsel General, but could not be effected by Welsh Ministers until the Equality Act was amended by ss44-5 of the Wales Act 2017 to permit it: Equality Act 2010 (Commencement No. 15) (Wales) Order 2021.
Whilst the statutory duty expressly covers only the public bodies specified in s1 (essentially in Wales the Welsh Ministers, Local Health Boards; NHS Trusts & Wales-only Special Health Authorities, county/borough councils, the Welsh Revenue Authority, Fire and Rescue Authorities, and National Park Authorities), following the responses to consultation A More Equal Wales – Commencing the Socio-economic Duty to 17 January 2020, it now seems that all public bodies are expected to act in the spirit of the duty, presumably with potential governmental funding implications for non-compliance rather than court order.
What s1 does not do, however, is include socio-economic status (disadvantage) as a protected characteristic, and it follows that, for example, the EHRC does not have available its enforcement powers in relation to the duty and will not undertake ‘unlawful act’ enforcement; it is limited to to promotion of, provision of advice and guidance upon, and publishing research as to the duty and its implementation and development, though it may lend support to individuals or groups who by judicial review challenge relevant decisions for breach of the duty.
In Wales the duty runs alongside the procedural requirements for public decision-making under the Well-being of Future Generations Act 2015 whereunder local well-being plans under Part 4 are developed and managed by a range of partner bodies. Those of them which are public bodies subject to the SED will now also need to ensure that they are discharging their duties consistent with the SED ie. with the specific aim to reduce inequalities of outcome caused by socioeconomic disadvantage.
Moreover, it will be noted that, like the public sector equality duty in s149, the SED is a “due regard” duty, which some regard as a pretty weak one. Rather than placing obligations and liability upon individuals for their failure to prevent or mitigate disadvantage, the focus is instead upon establishing full engagement of appropriate agencies (together) operating systems for decision-making which build-in proper consideration of the evils to be avoided and the positives to be aspired to. This is reflective of the constraints upon judicial review self-imposed by the courts by limiting to consideration of decisions which are bad because the decision-maker failed to take into account relevant factors, or took into account irrelevant ones, ie. a test of the process rather than the merits of the decision itself.
The view of WG set out in its overview guidance is that:
The duty will be a key mechanism in supporting the most vulnerable in our society and something which will be extremely important when we recover from the current crisis.
Others remain to be convinced. A recent ECHR report Evaluating the socio-economic duty in Scotland and Wales (March 2021) has concluded that while public bodies were largely positive about the duty, more support is needed to achieve effective implementation. The researchers found that staff in public bodies in Scotland considered the duty encourages them to review and formalise their consideration of socio-economic disadvantage within strategic decision-making processes, using revised impact assessments tailored to socio-evidence of economic disadvantage. In the Welsh bodies interviewed, there is, it seems, a lack of clarity ahead of the change about how to implement the duty or how it differs from current approaches, but most respondents felt that the key change would be the formal incorporation of poverty and socio-economic disadvantage into the decision-making process with modification of existing equality impact assessments. They have begun to take preparatory steps, providing internal guidance and training sessions about the duty; engaging with those with lived experience of socio-economic disadvantage; and integrating the duty into corporate plans and strategies, equality impact assessments, and equality plans.
Challenges ahead
Clearly there are challenges which need addressing. Some cultural change is necessary, and identification of what is a ‘strategic decision’ is not entirely straightforward. All seem to agree that a strong evidence base relating to socio-economic disadvantage is needed. They have to develop systems that avoided ‘box-ticking’ consideration of socio-economic disadvantage, set realistic success criteria and relevant outcomes, and allocate time ,budget and general human resources to implement the duty, with assessment processes and reporting mechanisms that avoid duplication of the work elsewhere. Despite these challenges, the enactment of a statutory duty, even if in some respects vague or difficult to apply or enforce, is seen as helping public bodies prepare for, and effectively implement the duty to ensure that inequalities of outcome resulting from socio-economic disadvantage are considered as part of strategic decision-making. There was evidence from some Scottish public bodies that the duty had begun to influence and change the outcomes of decisions, though others felt that it had not, as yet, made any significant changes to the outcome of decisions, and had not so far been used to meet specific priorities.
Achieving real and measurable improvements to people’s lives was seen as a longer-term aspiration in both countries, expressed as a desire to reduce or eliminate poverty, or to see improvements in specific outcome indicators. There was a widely held view that the duty, guidance and structural arrangements need to be more ambitious if these desires are to be met. A number of elements are needed: clear success criteria and measures for effective monitoring of the impact upon inequalities of outcome; further guidance and support from governments on data-use and consultation with victims of socio-economic disadvantage;mechanisms that really do hold public bodies accountable; collective responsibility for the duty among all staff members; and applying the express statutory focus on outcomes rather than decision-making processes. Increasing accountability via high quality data consistently obtained and made available, including under Freedom of Information legislation, is a crucial driver for progress here.
What can the lawyers do?
The law can be used to set structure and parameters to begin cultural change in the area of equality and non-discrimination. However, as our experience with race and gender discrimination shows us, it is insufficient without that cultural change developing beyond the strict requirements of statute to a general attitude of fairness. Socio-economic disadvantage does not manifest itself as vividly as with overt and malign forms of racism or sexism or violence against women and LGBT+ individuals and groups. It works insidiously at the more subtle level of prevention of opportunity to prosper economically and the denial of resources to meet the challenges of life as well as those enjoyed by the ones “doing well”. It cuts across - and often underlies - forms of indirect discrimination against those with the protected characteristics.
So what can the lawyers do? Our job is to deploy all reasonable arguments in support of our clients' cases. The more public bodies put in place systems to make decisions based in part upon evidence-based evaluation of socio-economic disadvantage and what can be done to overcome it, as the early evidence shows is already being done in Scotland and Wales, the easier it will become to challenge processes in other such bodies which do not enable that or simply do not do it. As departmental etc. practice relating to socio-economic disadvantage and government to reduce it develops and spreads through governance networks, it will become more difficult for other bodies subject of judicial review to contend that they need not take account of that practice in their decision-making, and, provided a principal right is engaged (Art.3 and Art.8 spring to mind), Art.14 of the European Convention on Human Rights provides a broad anti-discrimination protection which has already been deployed imaginatively and can surely help in this context. I hope I may assume that legal colleagues will share the aims of these sorts of provision, and we can be alert to make them part of challenges to decisions wherever sensibly arguable.
We are entitled, moreover, to assume that courts will comply with their duty to interpret legislation so as to give real content to a duty expressly provided for by statute, and we will appeal them if they do not. The extent of disclosure available to reveal how decisions were made will be a limiting factor, but as ever lawyers must be tenacious to obtain appropriate disclosure of documents/evidence relied upon by the decision-maker in addressing socio-economic factors as required by an express statutory duty. One would like to think that such disclosure is entirely consistent with and in context required by the conventional duty of candour: Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650.
Well done to Scotland and Wales for leading the way again, and I for one look forward in my usual optimistic way to real progress - driven by colleagues - in the fight against physical and mental ill-health, foodbanks and hunger, homelessness, and unemployment, all of which, in the second decade of the 21st century no less, seem every bit as problematical in the UK as when returning servicemen voted in 1945 to remove from power a victorious and celebrated War leader - now thought by many to be the greatest of all Britons - because they were not prepared to take it any longer. We are all but at the end of another human lifetime since then, and Man has been to the Moon. Some time ago.