Examples of interventions

The Commission has intervened and made representations on public sector duty points in a number of cases. Below are some examples of these cases.

Example 1: R(X) v Secretary of State for Justice

High Court, January 2008. Case settled.

X, a wheelchair user, experienced inaccessible prison facilities and has also had problems accessing prison services.  He took action against the Secretary of State for Justice using the DDA and HRA.

The Commission made representations concerning the need under the Disability Equality Duties for the responsible public authorities to plan and take pro-active steps to improve the accessibility of prison services and facilities - something the authorities had failed to do - and to improve access to services and delivery of public functions without unlawful discrimination against disabled prisoners.  The positive obligations of public authorities were also supplemented by HRA rights that X has - particularly under articles 3, 8 and 14.

The MOJ conceded the claims, and they agreed terms of settlement with X and the Commission.  The settlement terms included action to revise the Ministry of Justice Disability Equality Scheme to identify and address disabled prisoner issues.  A new prison service order would also be created to cover their responsibilities under the public functions duties contained in the DDA.

Example 2: R (Kaur and Shah) v London Borough of Ealing

High Court, 17 and 18 July 2008. Judgment, 29 July 2008

 The case concerned the impact of proposed funding changes which threatened the survival of domestic violence support group Southall Black Sisters. The case explored the question of  compliance with equality duties - specifically an alleged failure to comply with the Race Equality Duty by failing to carrying out an impact assessment.  

The Commission argued that Ealing Council had failed to discharge their obligations under the race equality duties to assess the impact of changes in funding criteria. It was also argued that Ealing had failed to understand the correct interpretation of s35 of the Race Relations Act 1976, which allowed for the targeting of domestic violence services to particular 'hard to reach' communities as a form of lawful positive action to achieve equality and encourage integration. The Commission submitted to the court that funders must recognise that the drive to promote community cohesion and integration was not in conflict with the equality duties if both were considered properly, at the right stage, to reach balanced conclusions.

Ealing conceded the claims during the hearing, accepting that the Commission's position on relevant law was, in fact, correct. The effect of this is that Ealing will need to go back to the drawing board to re-consider the funding criteria and the process for inviting competitive bids for domestic violence services.  In addition to the direct significance that this outcome has for the parties involved - and for the service users that the dispute affected - the case also provides a lever to achieve broader change.   So, following the hearing, we have been working collaboratively with Ealing Council and the Local Government Association to disseminate the implications of the case for funders, including local authorities.  Our follow-up work should help funders improve equality outcomes.

Example 3: R (C) v Secretary of State for Justice

Court of Appeal, 16 and 17 July 2008. Judgment, 28 July 2008

This case challenged the use of restraint in Secure Training Centres (STCs) following the deaths of two young people in separate centres in 2004.   The MoJ, without undertaking an impact assessment, had changed rules concerning the circumstances in which restraint could be used on children in custody.  The High Court said that MoJ should have conducted an Equality Impact Assessment (EIA) but did not quash the Order bringing about the new rule.

The restraint rules violated Article 3 of the HRA, prohibiting “inhuman or degrading treatment or punishment,” and the MoJ had failed to determine the impact of the rule change for ethnic minority STC residents via an EIA, in breach of s71(1) of the Race Relations Act 1976.  Although the High Court had found that the race equality duty had been breached it did not quash the rules, and should have done so in the circumstances.

The Court of Appeal agreed with the Commission’s argument that restraint rules violated Art 3 and that the MoJ had failed to determine the impact of the rule change for ethnic minority STC residents via an EIA.  Following the judgment, the Commission demanded that the MoJ overhaul its child restraint rules.

Example 4: R (Baker and ors) v Secretary of State for Communities and Local Government and London Borough of Bromley

Court of Appeal, 13 & 14 February 2008.  Judgment, 28 February 2008

The case concerned a decision of the Secretary of State's Inspector to dismiss appeals against the refusal by the London Borough of Bromley to grant applications for planning permission for the retention of a number of touring caravans and mobile homes on a site near Orpington.  The appellants appeal points included that the Inspector failed to have due regard to the need "to promote equality of opportunity......between persons of different racial groups".

While the Appellant relied on a breach of the race equality duty, the Commission submitted that the full range of the equality duties should be considered, where relevant, on the basis that they provide a framework within which Parliament intends public authorities to ensure that equality has substantive, not merely formal, effect.   The Commission assisted the Court by informing it not only of the statutory requirements in relation to the equality duties, but also the relevant best practice which the legacy Commissions developed in relation to these requirements. The Court was taken through the relevant parts of the various Codes of Practice and other guidance and reports published by the former Commissions.

The Court made specific mention of the Commission's role as intervener and said, at the outset of its judgment, that it had been assisted by the intervention.  The Court found that the failure by the planning inspector to make explicit reference to section 71(1) of the RRA was not determinative of the question whether she had performed her duty under the Act.  However, the Court  judged that it was good practice to make such reference to the Act and to all other relevant material including the Code of Practice, observing:  "In this way, the decision maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced."   It found that there had been no breach of the duty as the inspector had had due regard to the need to promote equality of opportunity.  It was "immaterial"  whether or not she was aware of the existence of the s71(1) duty.   The Court of Appeal dismissed the appeal and leave to appeal to House of Lord was refused.

 

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