Coalition for Racial Equality & Rights

Enforcing the Equality Duty

Who enforces the Equality Duty?

The Equality and Human Rights Commission is responsible for enforcing the Equality Duty. The Commission may seek to take steps to encourage compliance by a public body, before moving to enforcement, where appropriate. The Commission has a number of special statutory powers that it is able to use to enforce the Specific Duties and the General Duty. Both the Commission and affected persons can apply to the High Court for a judicial review in respect of a failure to comply with the General Duty.

Commission enforcement powers: the general duty

Assessment

The Commission can conduct an assessment into the extent to which, or the manner in which, a body has complied with its general equality duty.

Compliance notice

If, following an assessment, the Commission thinks that a person has failed to comply with their general equality duty, it can issue a notice requiring the person to comply with its duty and to give the Commission, within the period of 28 days beginning with the date on which they receive the notice, written information of steps taken or proposed for the purpose of complying with the duty. This notice is known as a ‘compliance notice’.

The compliance notice can require a person to give the Commission information required for assessing compliance with the duty. If it does so, it must specify the period within which the information is to be given (beginning with the date on which the notice is received, and not exceeding three months), and the manner and form in which the information is to be given.

Whilst the notice can require information that is required for assessing compliance with the duty, the Commission cannot oblige the person to give information that he or she is prohibited from disclosing under an enactment or that he or she could not be compelled to give in proceedings before the Court of Session.

Failure to comply with a compliance notice

If the Commission thinks that a person to whom the notice has been given has failed to comply with a requirement of the notice, it may apply to the Court of Session for an order requiring the person to comply.

Commission enforcement powers: the specific duties

The Commission can also issue a compliance notice where it thinks that a listed authority has not complied with its specific duties. It can do this without the need to conduct an assessment.

If the Commission thinks that a person to whom the notice has been given has failed to comply with a requirement of the notice, it may apply to the Sheriff Court for an order requiring the person to comply.

Judical review

If the Commission thinks that a person to whom the notice has been given has failed to comply with a requirement of the notice, it may apply to the Sheriff Court for an order requiring the person to comply.

In addition to the Commission’s powers to enforce the duty, if a public authority does not comply with the general equality duty, its actions, or failure to act, can be challenged by means of a claim to the Court of Session for judicial review. A claim for judicial review could be made by a person or a group of people with an interest in the matter. A claim can also be made by the Commission.

Where a judicial review is successful, the court can quash the decision made by the public authority being challenged. That can result in the authority concerned having to repeat the decision-making process, this time ensuring it does give the due regard to the needs of the duty which it failed to do in reaching its original decision. A number of public authorities have been successfully challenged in this way in relation to the equality duties which preceded the public sector equality duty. For example:

  • The Department for Education (decision to end the Building Schools for the Future programme)
  • Birmingham City Council (decision to restrict access to care services to those with ‘critical’ needs).

A claim for judicial review cannot be made in respect of the specific duties – these can only be enforced by means of a compliance notice, as set out above. A failure to comply with the specific duties may nevertheless be used as evidence of a failure to comply with the general equality duty.