Local authorities have for many years provided funding to voluntary bodies set up to address community needs. A typical example is the London Borough of Ealing (the council) who had, since the mid 1980s, financially supported the Southall Black Sisters (the Sisters), a community organisation that provides specialist services to Asian and Afro-Caribbean women who have suffered domestic violence.
In 2007 the council opted to streamline its community support for organisations providing these services, with a view to inviting funding applications only from organisations capable of providing a borough-wide service. It is apparent that the council’s motivation for insisting on a borough-wide service was because they believed that to provide a service aimed at a specific ethnic group would not promote cohesion and would be contrary to section 35 Race Relations Act 1976.
However, it was not for this reason that the Sisters challenged the proposals; but rather because the council had not conducted an equality impact assessment in accordance with their own policies before deciding on opting for a borough-wide approach.
Section 19B Race Relations Act 1976 provides that it is unlawful for a local authority, in carrying out its functions, to discriminate on race, ethnic or national origin grounds. Local authorities are required to have due regard to the need to eliminate unlawful racial discrimination, and promote equality of opportunity and good relations between persons of different racial groups. There is also a statutory requirement to take account of codes of practice issued by the Equality Commission in furtherance of this objective. Finally, article 2(b) (ii) Race Relations Act 1976 (Statutory Duties Order) 2001 provides that any proposed policy should be assessed and steps to obviate any adverse impact considered before the adoption and implementation of the proposed policy.
Recent case law has also established the following:
- a public body may only depart from the statutory code for reasons that are clear and cogent – R (Munjaz) v Mersey Plan NHS Trust  2 AC 148;
- the impact assessment should form part of the development of a policy not a justification for its adoption – R (BAPI and Another) v Secretary of State for the Home Department and the Secretary of State for Health  EWCA Civ 1139; and
- the impact assessment must be undertaken as a matter of substance, the process of assessment is not satisfied by ticking boxes – R (Baker and Others) v Secretary of State and the London Borough of Bromley  EWCA 141.
The High Court held that the council’s decision to proceed without having carried out a full equality impact assessment was unlawful. The court also seized the opportunity to correct a misunderstanding the council appeared to have as to the effect of section 35 Race Relations Act 1976. The court clarified that section 35 is not a derogation or departure from the Act. Its purpose is to allow positive discrimination so as to promote equality and address the problem of indirect discrimination.
What lessons can be learned from Ealing’s experience and the recent cases?
- Local authorities need to pay more than lip service to the exercise of carrying out equality impact assessments. They must be carried out as part of the process of formulating policies, rather than as an aside, or an after-thought, or simply seen as a process that involves ticking boxes.
- The advice issued by the Equality Commission will be given considerable weight by the courts in the event that a local authority’s conduct is challenged.
- Local authorities need to remember that taking steps to positively discriminate in certain circumstances forms part of a wider obligation to have due regard for the need to eliminate unlawful racial discrimination and promote equality of opportunity and good relations between persons of different racial groups.