If you want a sombre take on equality then seventeenth-century poet James Shirley is your man.

For he reminds us that we all share a certain mortal destiny. And since death will eventually lay ‘his icy hand on kings’ so ‘Sceptre and crown/Must tumble down/And in the dust be equal made’.

A more upbeat tone pervades both the Equality Act 2010 (a measure consolidating and enhancing discrimination law across a range of ‘protected characteristics’) and the guidance on the Public Sector Equality Duty (PSED) issued by the Government Equalities Office last month (the guidance).

This was to support the coming into force on 5 April 2011 of the PSED in section 149 of the 2010 act. The guidance can be viewed at the Equalities Office site.

Public sector equality duty

This duty requires a public authority in the exercise of its functions ‘to have due regard’ to three key areas.

These are the need: (i) to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the 2010 act;

(ii) to advance equality of opportunity between persons who share a relevant protected characteristic and those not sharing it; and (iii) to foster good relations between persons who share a relevant protected characteristic and those not doing so.

Public authorities are those local and other public bodies listed in schedule 19 to the act, together with other organisations when conducting public functions.

The guidance indicates that a ‘public function is a function of a public nature for the purposes of the Human Rights Act 1998’. Following Aston Cantlow and Wilmcote with Billisley Parochial Church Council v Wallbank [2003] UKHL 37 and subsequent caselaw, several factors need to be taken into account in determining this issue.

These include the extent to which, in carrying out the relevant function the organisation is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service.

Protected characteristics

But what are ‘protected characteristics’ for the purposes of the PSED?

These reach out well beyond the three ­previous public sector equality duties of race, disability and gender, and cover: age, disability, gender reassignment, pregnancy and maternity, race (including ethnic or national origins, colour or nationality), religion or belief (including lack of belief), sex and ­sexual orientation.

The guidance points out that having ‘due regard’ means ‘consciously thinking about the three aims as part of the process of decision-making’.

As relevant caselaw indicates, the ‘due regard’ duty must be fulfilled both before and at the time that a particular policy that might affect those with protected characteristics is being considered by the public authority in question.

In practice, this means that relevant considerations must be part of the strategic policy formulation process.

The duty in practice

The guidance advises that due regard concerning equality of opportunity involves considering the need to meet the needs of, and to remove or minimise disadvantages suffered by, those with protected characteristics.

It also involves encouraging such people to participate in public life or in other activities where their participation is low. Fostering good relations ‘involves tackling prejudice and promoting understanding between people who share a protected characteristic and others’.

The PSED may also involve treating some people better than others, so far as permissible under discrimination law, for example, utilising an exception or the positive action provisions (the voluntary measures concerning recruitment and promotion which commenced on 6 April 2011).

The PSED also explicitly recognises that the needs of disabled people may be different from those who are not disabled.

This clearly has an impact on decisions by public bodies in relation to policies and services.

It follows that public bodies will need consciously to think about the three PSED aims as part of the entire decision process.

While the duty will be only one of a number of factors in consideration, the weight to be given to the PSED will, says the guidance ‘depend on how much that function affects discrimination, equality of opportunity and good relations’ as well as ‘the extent of any disadvantage that needs to be addressed’.

The guidance extracts six essential principles from the various relevant caselaw decisions.

These are: knowledge, timeliness, real consideration, sufficient information, no delegation, and review.

The ‘knowledge’ element requires those exercising the public body’s functions to be aware of the PSED requirements, since compliance involves a conscious approach and state of mind.

‘Timeliness’ requires the duty to be complied with ‘before and at the time’ of considering a particular policy or decision, that is ‘in the development of policy options and in making a final decision’.

Tempting to some as it may be, it will not be possible to satisfy the duty by seeking to justify a decision after the event. Consideration must also be a real and integral part of the decision-process.

For the PSED is ‘not a matter of box-ticking’ and ‘must be exercised in substance, with rigour and with an open mind in such a way that it influences the final decision’.

Proper consideration of the PSED also requires sufficient information to be before the decision-maker.

It is for the public body in question to ensure that any third parties conducting functions on its behalf to ensure compliance with the PSED which is consequently non-delegable.

The PSED is also a continuing duty, requiring continuing attention and a review of decisions post-implementation.

While there is no explicit requirement to refer to the PSED in recording the process in question, it is clearly good practice, and also useful, to have a demonstrable audit trail evidencing substantive compliance.

People to involve

The guidance lists a range of indicative types of people in public bodies who need to be aware of the PSED requirements so that it can be properly and conscientiously discharged.

The list (which encompasses board/cabinet members, senior managers, equality and diversity and human resources staff as well as policy-makers, communication staff, analysts, frontline staff and those responsible for procurement and commissioning) is clearly not exhaustive.

Therefore, it is essential for the duty to be properly understood throughout the entire organisation as a key requirement underpinning all its decisions, policies and actions.

Misunderstandings

Many years ago Eric Burdon, lead singer with rock/blues band, The Animals, sang: ‘I’m just a soul whose intentions are good/Oh Lord, please don’t let me be misunderstood.’

An apologia to similar (if less musical) effect appears in the guidance, so as to avoid public bodies taking ‘unnecessary, inappropriate, disproportionate or counter-productive action in the name of equality’.

Since the current focus is on performance rather than process, the PSED should, indicates the Guidance, be applied so as to ‘reverse the overly-bureaucratic and burdensome approach often used under the previous duties’.

The guidance therefore outlines and explains six ‘common misunderstandings about the Equality Duty’.

These are: (i) no requirement to conduct an Equality Impact Assessment; (ii) equality issues do not need to be examined where irrelevant to the matter in hand;

(iii) no requirement to take disproportionate action on equality; (iv) public bodies are not required to treat everyone the same; (v) public bodies are also not required to treat all religions as being equal or to treat all religious festivals equally.

So displaying a Christmas tree annually would not breach the duty; and (vi) the duty does not require homogeneity of service or endeavours to remove or ignore differences between people.

Other matters

Assessing compliance with and enforcement of the duty is a matter for the Equality and Human Rights Commission which has the power to issue compliance notices, or to apply to the courts for an order requiring compliance.

The duty can also be enforced by judicial review.

Indeed, there have been several recent such challenges concerning Birmingham City Council and other authorities.

Local authority lawyers and others interested in this area will also wish to take a look at the Policy Review Paper: The public sector Equality Duty: reducing bureaucracy, issued by the Government Equalities Office on 17 March 2011, as well as delegated legislation as it appears.

While the aims of equality legislation are clearly entirely commendable, its requirements equally lay a lethal minefield for unwary public bodies, and particularly those considering cutting or reducing grants to voluntary bodies which provide services to people with protected characteristics.

The decision of Mr Justice Blake on 31 March in R (Rahman) v Birmingham City Council [2011] EWHC 944 (Admin) is a case in point.

Here the court’s aim was to ensure the continuation of current funding until operative service recommissioning or ‘a lawful decision to terminate funding before recommission is taken having regard to the . . .’ public sector equality duties.

The breadth of this area that needs thoroughly to be understood by all advising local authorities and public bodies was also well canvassed in an excellent recent article on this site.

For in equalities, as in so many other areas of public authority life, a stitch in time will certainly save not only nine but also much expense, embarrassment, administrative inconvenience and perhaps even a career.

Dr Nicholas Dobson is a senior consultant with Pannone specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors