Equality Impact Assessments (EIAs) were introduced by the Labour Government under the Race Relations Amendment Act 2000, as a way of requiring public service providers to assess the likely impact of policy decisions on particular groups (now classed as groups with protected characteristics under the Equality Act 2010) their aims to ensure that the needs of specific groups are taken into account in policy making.
Since the introduction of the Equality Act 2010 and specifically s149 (which sets out the public sector equality duty applicable to public authorities and those organisations exercising a public function), EIAs are no longer a requirement in England (there are different rules in Scotland and Wales). However, they have traditionally been used, and continue to be used, by public service providers as a way of demonstrating compliance with the public service equality duty, a key element of which is the requirement of that provider to show it had “due regard” in its decisions to the elimination of discrimination, harassment and victimisation and other conduct prohibited under the Equality Act, as well as the advancement of equality of opportunity and the fostering of good relations between persons sharing a relevant protected characteristic and those who do not (for example by tackling prejudice and promoting understanding). Such methodology has also been favoured by the Courts and the Equality and Human Rights Commission to ensure that the effects of a particular policy decision are analysed.
The end of EIAs?
In November 2012, the Prime Minister, David Cameron announced Coalition Government proposals to end the use of EIAs in order to reduce the administrative burden on public bodies, cut out “bureaucratic nonsense” and invigorate the economy. The Prime Minister explained that, instead, the favoured approach is that equality impact is considered as part of policy making rather than as an additional “tick-box exercise”. According to the Prime Minister, as long as the issues have been considered then the requirement for an EIA would be removed.
The Prime Minister’s statement was followed, in December 2012, by a letter from the Parliamentary Under-Secretary of State, Brandon Lewis, to all leaders and chief executives of local authorities in England. In that letter he said that those bodies subject to the public sector equality duty under the Act, should keep in mind that:
- EIAs are not a legal requirement under the Equality Act 2010;
- EIAs can be resource intensive and time consuming and take staff away from planning and delivering public services;
- Public service providers should use their judgement to pay due regard to equality (pursuant to the Public Sector Equality Duty under s149 of the Act) without having to resort to time consuming, tick-box exercises at the end of the policy making process; and
- Public service providers should ensure that a proportionate, timely approach is taken to equality assessment at the outset of the policy making process and that an audit trail is kept to ensure that “due regard” has been had to these issues.
This last point about audit trails is key. Whilst some may welcome the decluttering of work and requirements for EIAs, nevertheless it will remain incumbent on public bodies, public services provides, local authorities and others to demonstrate that they have had “due regard” to equality considerations. This means being able to show clearly the following:
- at what stage the duty was considered;
- what considerations were made;
- how it undertook the assessment and reached conclusions to establish full compliance with the duty.
Public bodies may well take the view that the best way to ensure and demonstrate that they have complied with their duties is to conduct an EIA, notwithstanding recent statements by Government Ministers.