Breach of the public sector equality duty (“PSED”) has become a key ground for judicial review, particularly in high-level challenges to cuts in public services, some of which we consider in this edition of the newsletter. Public bodies have responded by producing increasingly detailed equality impact assessments (EIAs). Recent experience is that courts are now more reluctant to micro-manage EIAs.
An Independent Steering Group established by the Home Department has published a strongly critical review of the PSED. The report recommends limits on the operation of the PSED, including counseling against ‘gold-plated’ EIAs, which it regards as burdensome and unhelpful. But of course it is for the courts, not the government, to determine the scope of this statutory duty. The report’s recommendations have no legal effect and where they depart from established legal principle they should be treated with extreme caution. EIAs must continue to be as detailed as is required in the circumstances of the decision being taken, even where that requires ‘goldplating’.
The report concedes that it is too early fully to evaluate the costs and benefits of the PSED, but recommends a Departmental review of the PSED within three years. The clear implication is that the government does not favour the PSED. The possibility has at least been raised that the PSED will be reformed or repealed in the coming years.