Public Sector Equality Duty: Recent useful Guidance

Griffiths v Secretary of State for Justice & Equality and Human Rights Commission; Coll v Secretary of State for Justice & Equality and Human Rights Commission [2013] EWHC 4077 (Admin)

The Claimants in these matters were women prisoners approaching the date of the consideration of their release on licence to “approved premises” (previously known as bail, or probation hostels). Residence in approved premises may be required as part of an order remanding a person on bail, as part of a community sentence, or as a licence condition when releasing a person from custody.  In England and Wales there are some 94 approved premises suitable to accept male prisoners released on licence, but only 6 suitable for women. None of these are in London or Wales. The applicants argued that they are therefore facing a significant likelihood of being placed into approved premises many miles from their homes and families, which would in turn have a detrimental effect on their rehabilitation and reintegration into the community which only arises as a result of their gender. In short, they argued,  the situation favours male prisoners over female, subjects the female prisoners to particular disadvantage over men, is particularly disadvantageous towards Welsh women, and constitutes a breach of the Public Sector Equality Duty (PSED) by failing to give due regard to the adverse effects on women in the current provision.

The criticism was specifically not that there are inadequate numbers of places available for women (there are), but rather that the geographical location of these places renders them inadequate for women. This is despite the presumption that offenders should be placed in approved premises within their home probation area, which can be deviated from for a number of reasons, such as avoiding proximity with victims, avoiding certain likely triggers for reoffending, or putting distance between an offender and an abusive or controlling partner.

The Applicants relied on a number of official documents which supported their case.

Back in 2007 Baroness Corston undertook a Home Office commissioned report on the position of women in the criminal justice system, in which she argued for a fundamental re-think and a more women-centred approach, since women had been marginalised within a system largely designed for men.  She recommended smaller units for females, closer to home and more easily accessible for visitors. She gave the view that the first principle of every resettlement should be to release prisoners into their home areas.

Also in 2007, the House of Commons Welsh Affairs Select Committee reported in “Welsh Prisoners in the Prisoner Estate” that the rehabilitation and settlement of many prisoners was hampered by the distance from home. Losing contact with families and the community made resettlement more difficult. The distances agencies were required to travel placed a strain on their resources and restricted the scope of their work. Family participation in formal rehabilitation programmes was hampered as a result. This was reiterated in a further report in February 2010.

The Joint Inspection Report (March 2008) agreed that “in terms of successful rehabilitation and integration back into the community, location was probably more important than the number of beds available and that, therefore the current provision was inadequate. The number and location of hostels for women perpetuated the discrimination experienced by women in prison in that a higher proportion than men were forced to stay a long way from home.”

The case was pursued on three fronts: Direct discrimination, Indirect discrimination and breach of Public Sector Equality Duty (PSED).

Cranston J was not satisfied that there had been discrimination, either direct or indirect, and that in the event that he was wrong about the indirect discrimination he found that it would in any event be justified as a proportionate means of achieving a legitimate aim. This article does not focus on the discrimination element of the, but full & helpful consideration of this issue is contained within the judgment itself. He did find however that sufficient regard had not been paid to the PSED.

S149 contains the public sector equality duty so that a public authority must in the exercise of their functions have due regard to the need to eliminate discrimination and any other conduct prohibited by the Act, and to advance equality of opportunity between persons who share a relevant protected characteristic and those who do not. The duty imposed is a condition precedent to the lawful exercise of power, and is an ongoing duty. The role of the Court is to decide whether due regard has been paid, and if so, whether there has been a rational weighing of the different factors. He specifically found that:

 “The equality duty applies not only with discrete decision-making, but also with situations which develop organically.  There is legislative support for this in section 212 of the 2010 Act.  Moreover, the case-law makes clear that it is a continuing duty and requires ongoing review and assessment.”

“…there is no evidence that the Secretary of State has fulfilled his equality duty, at least not since 2008.  What is required is that he address possible impacts, assessing whether there is a disadvantage, how significant it is, and what steps might be taken to mitigate it.  In the context of advancing equality of opportunity – one aspect of the duty – that means taking the opportunity to see whether more might be done for women, having regard to their particular circumstances.  Nothing even approaching this has been done.  The equality duty is not outcome orientated […] Nor does it demand a minutely detailed examination of all possible equality impacts.  However, as Laws LJ expressed it in R (MA) [2013] EWHC 2213, [72], it is an important standard for public decision-making.  In this case the Secretary of State has not met the standard.” (para 65).

This case and the guidance contained therein can only serve to highlight to all practitioners representing both public bodies and individuals to have consideration to the impact of the Equality Act 2010 upon the circumstances of each case, whatever the area of law. Following the fact-based consideration by the Court, there was found to be no discrimination  however the failure to properly satisfy the requirements of the PSED was fatal to the legality of the Secretary of State for Justice’s exercise of power.

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