Equality of opportunity has been described in the Court of Appeal as a “fundamental value of our society.” This bold claim can seem at odds with the lack of success with which the various equality requirements in domestic and international law have been deployed in defence of social and economic rights in the UK.
The austerity agenda of the coalition government of 2010 to 2015 impacted severely on the social rights of many citizens. The negative impact of spending cuts has consistently been found to fall disproportionately on social groups protected under the equality legislation. However, legal challenges have often done little more than reveal the inability of heavily procedural equality duties to ensure substantive equality in practice.
Public bodies must have “due regard” to non-discrimination and the “advancement” (Equality Act 2010, GB) or “promotion” (Northern Ireland Act 1998, NI) of equality of opportunity between specified groups. In addition, the Human Rights Act 1998 incorporates the European Convention on Human Rights into domestic law, including article 14’s prohibition of discrimination in the enjoyment of the rights protected. A duty to have “due regard” to reducing “inequalities of outcome which result from socio-economic disadvantage” in strategic decision-making was legislated for under New Labour but never implemented.
Equality law was used to challenge austerity measures from one of the coalition’s first acts, its ‘emergency budget’ of 2010 – the subject of an unsuccessful judicial review application by the Fawcett Society. Although the Treasury conceded the key argument that it had failed to comply with its duty to assess the impact of most of its spending review, the High Court held that the fact that the policies being reviewed had already entered into legislation rendered the action “academic.”
On one level, the unwillingness of the judge to entertain a judicial review of fiscal policy already approved by Parliament is interpretable as another example of widespread judicial reluctance to intervene in questions of social and economic rights. This position is grounded in the questionable assertion that social rights are more expensive to uphold than civil and political rights and that democratically elected politicians, not the courts, should have the final say over the best use of large amounts of public money.
However, the verdict that a retrospective equality impact assessment on the spending review would be futile also hints at a fundamental weakness of the public sector equality duty. Even if a full EQIA had been completed, and had exposed a disproportionate impact on women, this would not have prevented implementation of the policies. At heart, the public sector equality duty is not a substantive one to advance or promote equality of opportunity, but a procedural one to give due consideration to this objective in the development and implementation of policy.
The courts therefore tend to focus less on whether equality of opportunity is promoted or advanced by a given policy than on whether “due regard” for the concept has been demonstrated. The leading judgment (Baker ) emphasises that there is no duty to “achieve a result,” merely a duty to have “the regard that is appropriate in all the circumstances” for equality of opportunity. This means that a negative impact on equality can normally be justified by competing policy objectives.
If the procedural nature of the equality duty limits its impact in Great Britain, in Northern Ireland few cases have even made it to court. With the Equality Commission charged with investigating alleged breaches of the duty, in one instance the High Court (partly overruled on appeal) held that alleged breaches should “be the subject of investigation and reporting with political consequences” rather than litigation (Re Neill ).
With the limitations of the public sector equality duty clear, challenges to alleged retrogression in social and economic rights have also been grounded in the anti-discrimination provision of the European Convention on Human Rights (article 14). The judicial review of the household benefit cap (SG ) on this basis produced conflicting judgments from a deeply divided Supreme Court, but ultimately failed to convince enough of the panel that the cap represents unlawful discrimination.
Lord Reed’s leading judgment echoes much of the case law on the public sector equality duty in ruling that although the benefit cap impacts disproportionately on lone parents, therefore on women, this discrimination can be justified by the “legitimate objectives” of the policy. These objectives include safeguarding the public finances, incentivising employment and ensuring ‘fairness’ in social security policy. Lady Hale and Lord Kerr, dissenting, agree that these objectives are potentially capable of justifying a discriminatory policy, but hold that in this case the negative impact falls so disproportionately on women that it cannot possibly represent a proportionate means of achieving these legitimate objectives.
Ultimately, the case hinged on the view of Lord Carnwrath that the negative impact of the benefit cap does not fall primarily on women, but on children. While a negative impact on children could not form the basis for a claim of discrimination against women, neither could a child challenge the policy in his or her own right as the social security benefits covered by the cap are paid to adults. This strange judgment, at odds with Lord Kerr’s view of the “indissociability of a child and his/her lone mother” in questions of household income, evades the question of the extent to which discrimination can be justified by other legitimate policy objectives that divided the other four members of the panel.
A final piece of the jigsaw concerns the unimplemented duty regarding socio-economic inequalities in the Equality Act 2010. Given the limitations of the wider equality duty and article 14 as a means of defending social and economic rights where competing policy objectives exist, it is worth asking whether this provision would have had a significant impact on strategic decision-making by public authorities, particularly Ministers and their departments in the development of policy.
An analogy can be found in Northern Ireland, where the devolved Executive is under a unique constitutional duty to devise a strategy “setting out how it proposes to tackle poverty, social exclusion and patterns of deprivation” (Northern Ireland Act 1998). A recent judicial review held that the document relied on from 2007 to 2015 does not represent a strategy for the purposes of the Act, consisting of a set of “principles” rather than a “plan of action” (CAJ & Gormally’s application ).
As the Northern Ireland Executive was found to have failed to live up to its duties under the devolution legislation, in recently-completed research by the author a Northern Irish civil servant argued that even if the coalition had implemented Labour’s socio-economic duty, there would have been little impact on policy because “they wouldn’t have believed in it.” Conversely, a Scottish civil servant suggested that the spirit of the duty remains alive and well, despite its non-implementation, in Scotland’s programme for government, which has a strong focus on equality and social justice.
Legal provisions for equality in the UK remain to a large extent subordinate to political priorities. The public sector equality duty is explicitly procedural, requiring consideration of impacts on equality of opportunity in the policy development process but mandating no particular outcome. At face value, article 14 ECHR more strongly prohibits discrimination in the enjoyment of the other Convention rights, but the judicial review of the benefit cap shows that where questions of economic and social welfare policy are at stake the courts are inclined to defer to elected representatives. The change of government in 2010 had a particularly profound impact on the socio-economic equality duty, which has not been implemented at all. Here, too, the longstanding non-compliance of the Northern Ireland Executive with its duties in respect of poverty and social exclusion and the importance placed on socio-economic inequality by a Scottish government subject to no such duty emphasise that policy in this area is more likely to be shaped by ideology than by legal obligations.
By Mark Simpson
School of Law, Ulster University
Research supervised by Gráinne McKeever and Ann Marie Gray and supported by an SLSA fieldwork grant.