Legislative Scrutiny: Equality Bill - Human Rights Joint Committee Contents


27.  Clause 1 of the Bill creates a new duty on certain listed public sector bodies, when making strategic decisions, "to have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage". Witnesses to the Public Bill Committee (PBC) described the new duty as a "helpful but modest measure"[38] with small cost implications.[39] The EHRC told the PBC that the existing public sector equality duties provide good examples of how such duties can make a difference.[40]

28.  The human rights memorandum on this Part of the Bill is brief. It merely states that it is highly unlikely that a public body subject to the duty will enjoy Convention rights and "therefore no Convention rights are engaged".[41] No consideration is given to the implications of the proposed new duty for individuals. We therefore asked the Minister to explain how, in practice, the proposed new duty will enhance human rights for individuals.[42] In reply, she told us that the new duty "should have a positive effect on the provision of education, housing, health, employment and other public services to those who are most disadvantaged".[43] Whilst we agree with the human rights memorandum that public authorities do not enjoy rights under the European Convention on Human Rights (ECHR), it is disappointing that the Government did not spell out in the memorandum how, if at all, the duty would affect the human rights of service users. In our view, the new duty has the potential power to enhance human rights for individuals receiving public services, including in particular their socio-economic rights. However, we are concerned that the Clause, as currently drafted, will not apply to all recipients of public services, as socio-economic inequalities experienced as a result of being subject to immigration control[44] are specifically excluded from the duty in Clause 1.[45] When we asked the Minister to explain why immigration measures are exempt from the Bill, she told us that the Bill did not alter existing statutory duties, nor prevent authorities from going further than they are legally obliged, but that it meant that public authorities would not be forced to go beyond their existing responsibilities. She said:

    The Government is aware that there are people suffering socio-economic disadvantage who have no right to remain in this country. The Government's position in regard to such people is clear: it wants to deter people from entering or remaining in the country illegally, and to remove them if they are not entitled to be here.[46]

29.  Of course, the definition of those subject to immigration control also includes those who are legally present in the UK who are pursuing asylum appeals. Whilst inquiring into the Treatment of Asylum Seekers, we noted many instances of asylum seekers who faced substantial difficulties and delays in obtaining even the most basic support whilst their claims for asylum were being processed. We concluded that a failure to protect asylum seekers from destitution amounts in many cases to a failure to protect them from inhuman and degrading treatment under Article 3 ECHR.[47] We are disappointed that the Government has chosen to exclude from the remit of the new duty people who experience amongst the greatest socio-economic inequality and disadvantage in the UK. The Government is entitled to exercise control over its borders but, in our view, has failed to establish why it is necessary and proportionate to exclude those subject to immigration control from the operation of the new socio-economic duty in relation to all public services.

30.  Individuals will not have a claim in private law (breach of statutory duty) for a failure by a public authority to comply with Clause 1.[48] However, individuals will be able to bring a claim for judicial review "if they believe the public authority has not considered socio-economic disadvantage when taking decisions of a strategic nature".[49] When the Solicitor-General gave evidence to us on the Bill, we asked her to provide examples of the types of claims for judicial review which she envisaged. She provided the example of a local authority which, when formulating its transport strategy, failed to provide a bus service between an area of high unemployment and a major new employer.[50] During the PBC debates, the Equality and Diversity Forum expressed concern that the new duty is not enforceable and questioned whether greater transparency could be encouraged by requiring authorities to say what they are doing to implement the provision.[51] The Solicitor-General told the PBC that the new duty would be reported on by inspectorates, such as the National Audit Office and Ofsted.[52] One of the problems with this argument is that inspectorates themselves would not be bound to have regard to socio-economic disadvantage when, for example, setting the targets or other performance indicators that they expect those who they inspect to meet, which could mean that they impose criteria which lead to public authorities producing policies to meet those criteria which work against the interests of the socio-economically disadvantaged. This would, at the very least, not represent a joined-up approach.

31.  In our Report on a Bill of Rights for the UK, we concluded that the case was made out for including economic and social rights in a UK Bill of Rights and proposed a model of progressive realisation with a closely circumscribed judicial role. We recommended a scheme which would impose a duty on the Government to achieve the progressive realisation of the relevant rights, by legislative or other measures, within available resources, and to report to Parliament on the progress made; and to provide that the rights are not enforceable by individuals, but rather that the courts have a very closely circumscribed role in reviewing the measures taken by the Government.[53] In its response to our Report, the Government expressed concerns at the possibility of any new constitutional document resulting in increased judicial intervention in areas involving resource allocation in the socio-economic sphere.[54]

32.  Consistent with our approach in our Bill of Rights Report, we do not go so far as to suggest that the new socio-economic duty should be directly enforceable by individuals. However, as in the case of the existing equality duties, we do consider that there is a role for courts in reviewing whether public authorities have given effect to their procedural obligation to "have due regard" to the desirability of reducing inequality and are pleased to note that such decisions will be subject to judicial review on that ground. We recommend that guidance should specifically require public authorities to explain what steps they have taken to comply with their duty. Such transparency will allow the public to determine whether public authorities are meeting their new obligations and, where they feel that they are not, seek judicial review if they so wish. Without this requirement, the possibility of bringing judicial review proceedings will be rendered less effective.

38   PBC Deb, 2 June 2009, col 4. Back

39   PBC Deb, 2 June 2009, col 5. Back

40   PBC Deb, 2 June 2009, col 5. Back

41   Ev 22, para. 74 Back

42   Ev 58 Back

43   Ev 67 Back

44   Defined in Section 115(9) Immigration and Asylum Act 1999 and includes people who do not have leave to enter or remain, people who have leave but no recourse to public funds, those who have given a maintenance undertaking and people who have leave whilst their appeals are being considered. Back

45   Clause 1(7). Back

46   Ev 67 Back

47   Tenth Report of Session 2006-07, The Treatment of Asylum Seekers, HL Paper 81, HC 60. Back

48   EN, para 46 and Clause 3. Back

49   EN, para. 46. Back

50   Q 21 Back

51   PBC Deb, 2 June 2009, col 4-5. Back

52   PBC Deb, 9 June 2009, col 114. Back

53   Twenty-Ninth Report of Session 2007-08, A Bill of Rights for the UK?, HL Paper 165-I, HC 150-I, para. 192. Back

54   Third Report of Session 2008-09, A Bill of Rights for the UK? Government Response to the Committee's Twenty-ninth Report of Session 2007-08, HL Paper 15, HC 145. Back

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