The Equality & Human Rights Commission), R (on the application of) v Secretary of State for Justice Secretary of State for the Home Department

The statutory duty to have due regard is mandatory and important. It must be discharged before a public authority adopts or implements the relevant policy or decision. The decision maker must undertake a sufficient and proper process with an open mind and must consider the substance of the statutory needs. A formal equality impact assessment is not invariably required, although systematic assessment and consultation may be important evidence of compliance. The court assesses whether the duty was substantively fulfilled, rather than requiring particular terminology or a prescribed document.

The Equality & Human Rights Commission sought judicial review of an agreement between NOMS and UKBA concerning the management and transfer of foreign national prisoners. It alleged that, before the agreement was adopted and implemented, NOMS had failed to have due regard to its duties under sections 71 of the Race Relations Act 1976 and 49A of the Disability Discrimination Act 1995.

The Defendant relied on a witness statement and a retrospective equality impact assessment. The central questions were whether the statutory duties arose before implementation, whether they had been fulfilled, and whether the later assessment was legally flawed.

1. The claim succeeded on the principal issue. The court declared that NOMS had not had due regard to the duties under section 71 of the Race Relations Act 1976 and section 49A of the Disability Discrimination Act 1995 before adopting and implementing the service level agreement.

2. The duty to have due regard is mandatory and important. It must be fulfilled before the relevant decision, function or policy is adopted or implemented. The decision maker must undertake a sufficient and proper process, with an open mind, so that the substance of the statutory needs is addressed. Express reference to the statutory duties is unnecessary if the evidence demonstrates substantive compliance.

3. The absence of a formal equality impact assessment does not automatically establish breach. Nor is there a legal obligation to conduct such an assessment in a particular form. Nevertheless, the relevant statutory guidance indicated that systematic assessment before implementation was good practice and was relevant evidence of whether due regard had been paid.

4. The evidence did not show a systematic or substantive consideration of relevant matters. There was no contemporaneous documentary evidence, no prior formal impact assessment, and no evidence of consultation with interested bodies. Matters including community and family ties, access to immigration advice and tribunals, health, and disability had not been adequately addressed. The explanation based on lack of time was unconvincing.

5. The court rejected the further request for a declaration that the retrospective equality impact assessment itself was flawed. The Defendant had no legal obligation to undertake an assessment, and the court was not required to examine its alleged inadequacies as a freestanding issue. By 16 November 2009, the Defendant had, at the latest, paid due regard to the statutory duties.