Re Toner [2017] NIQB 49

In Northern Ireland, one of the most significant human rights instruments resulting from the Good Friday/Belfast Agreement in 1998 is Section 75 (s. 75) of the Northern Ireland Act 1998. It legally binds public authorities to not only have due regard to the promotion of equality of opportunity amongst nine protected categories of persons (those of differing religious belief, political opinion, racial group, age, marital status, sexual orientation, gender, those with dependents and those without, those with a disability and those without) but also to have regard to the desirability of promoting good relations amongst those of differing political opinion, religious belief or racial group. As part of s. 75, public authorities are required to assess through policy screenings and equality impact assessments (EQIAs) whether their policies would have any adverse impact on the protected categories of persons.[1]

Whilst s. 75 has been praised for its innovation,[2] the breadth and magnitude of what it seeks to accomplish provides a challenge in terms of its enforceability. Traditionally, s. 75 could only be enforced by its accompanying monitoring body, the Equality Commission for Northern Ireland (ECNI). However, a recent decision in the case of Re Toner,[3] where a complaint was brought by a blind woman against Lisburn City Council on a number of grounds for failing to consider the needs of blind persons in the development of a Public Realm Scheme (PRS),[4] has changed this. It very significantly opened the door for complaints of ‘substantive’ breaches of s. 75 to be brought under judicial review,[5] an idea put forward in Re Neill’s Application[6] that had previously yet to gain traction. Although not clearly defined in the dicta of Re Toner, a ‘substantive’ breach in this particular case would seem to constitute a failure on the part of public authorities greater than ‘some simple technical omission or procedural failing’ as well as a failure to take action when concerns arose earlier in the implementation of the PRS.[7] Additionally, the court specifies that the breach was longstanding in nature and must be weighed against the benefits there might have been if the proper s. 75 considerations had been made.[8] Allowing complaints of substantive breaches invites questions about the extent to which the court should get involved in determining the legality of a public authority’s decision under Wednesbury unreasonableness.[9] In Re Toner, the issue centred not on the legality of the final decision made by the public authority but rather on whether the correct process had been taken to reach that decision, as the court maintained a pre-existing principle derived from R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills[10] that it is for the public authority to make the final decision.[11]

Nevertheless, by giving s. 75 complaints access to judicial review; Re Toner opens the door to the possible scrutiny of decisions under Wednesbury. I foreshadow there will be increased scrutiny of public authorities’ decisions under Wednesbury, given the complexities that arise due to Northern Ireland’s history of conflict. This is because the current principles underpinning ‘due regard’, which I will shortly discuss, largely derive from England and Wales and do not account for the difficulties in ascertaining what adverse impact looks like for the groups of ‘political opinion’ and ‘religious belief’, which require unique considerations in a context such as Northern Ireland. Additionally, it is difficult for public authorities with limited resources to extract the evidence necessary to measure the adverse impact within these groups. This can be attributed in part to a lack of funding for public authorities to carry out meaningful consultations with those from the s. 75 groups on how a policy may impact them.[12] With little evidence to draw on, public authorities are arguably more susceptible to complaints of a ‘substantive breach’ and, therefore, subject to the possibility of both an ECNI investigation and judicial review. Decisions made on ‘political opinion’ and ‘religious belief’ are therefore more likely to be questioned because public authorities will have had to make them on the basis of their own judgement and personal experience due to lack of evidence. Because such decisions would be highly politicised, the courts may need to intervene through Wednesbury to ensure impartiality.

To demonstrate how the new possibility of judicial review may influence public authorities, I consider how the Arts Council of Northern Ireland (ACNI), Northern Ireland’s leading arts and cultural development agency, may be affected. Although quite a niche public authority, it serves as an interesting example of a public authority that may be more susceptible to committing a ‘substantial’ breach of s. 75, given the complex nature of obtaining evidence and measuring impact in relation to the arts.[13] Before turning to a more detailed discussion of how the issues may play out in practice, I will firstly discuss Re Toner’s facts, issues, and reasoning.

Facts

Joanna Toner (the applicant) was a blind woman who utilised both a guide dog and a cane to walk.[14] In 2008, Lisburn City Council (hereafter ‘Council’) commissioned a report on how Lisburn’s central area could be regenerated through a Public Realm Scheme (PRS).[15] The height of kerbs in the new PRS had been lowered from the standard 100-130mm to a mere 30mm, which caused Joanna to lose confidence in getting around, subsequently leading her to make a complaint.[16] Despite lobbying attempts during the planning stages to change the kerb height from 30mm to at least 60mm, the Economic Development Committee (EDC) of the Council decided not to change the heights, a decision supported by the broader Council in 2014.[17] Leave to apply for judicial review was granted in 2015; however, at this stage, it was too late to reverse the kerb heights of 30mm, which had already been implemented.[18]

Another key figure, in this case, is a landscape architect, Mr Watkiss, who was appointed to come up with concept design work for the purpose of economic appraisal in the report.[19] He was later appointed as the lead consultant for the scheme.[20] Crucial to this case is research made available to Mr Watkiss from the University College London (UCL) conducted in 2009[21] that suggested kerb heights of 40mm or less should be avoided and that 60mm kerbs ‘induced the greatest confidence’.[22] However, Mr Watkiss deemed that there was no clear conclusion on kerbs less than 60mm being dangerous and that there were methodological issues with the study.[23] This research was not made aware to the Lisburn City Council until 2014,[24] despite Mr Watkiss having received it in 2010.[25]

The remaining facts of this case are mostly concerned with whether or not the issue of a 30mm kerb height had been mentioned during presentations, whether it had been disputed during the consultation, and if this was taken into account prior to the approval of the planning scheme by the Lisburn City Council. For the sake of brevity, the chronological timeline of consultation events will not be recounted here. I will instead highlight the most significant conclusions the court has made with respect to the findings of fact.

The court was satisfied that the issue of 30mm kerb heights was flagged by Mr Watkiss in consultation presentations and that there was no opposition expressed during the consultation process. Lisburn City Council, therefore, went forward with planning permission in January of 2013, assuming that there was no opposition to the kerb height. No issues were raised until after work had already begun,[26] with controversy emerging after a seminar held in October of 2013, the main issue being the UCL research. The EDC, the body that ultimately decides on any change in the scheme,[27] became involved in 2014 and, after hearing varying viewpoints, maintained its position with no discussion. After another raising of the issue later in 2014, the EDC declined to go through another consultation process and decided not to take action on the issue any further. This decision was ratified by Lisburn City Council as well without debate.[28]

Issues

This case flags up two broad sets of issues. The first set of issues under consideration are procedural, related to s. 75 and its consultation process. These are reflected under [101] and concern issues of procedural fairness,[29] whether the consultation process was flawed,[30] the fettering of discretion both by the Committee and the Council, [31] and failure to conduct an Equality Impact Assessment (EQIA)[32] that considered the potential impact of the scheme on disabled persons (especially those that are blind),[33] as well as failure to give reasons for the decisions made.[34] It also considers more substantive issues of human rights violations, such as whether the decisions were in breach of ECHR Articles 8, 11 and 14,[35] as well as whether the actions of the respondent (Lisburn City Council) acted in opposition to the Disability Discrimination Act 1995.[36] However, although peripheral to s. 75, these issues will not be discussed in detail here, given my primary concern with s. 75. The issue most relevant to s. 75 is whether there was a breach of s. 75 in failing to conduct an EQIA and will therefore be my primary focus. This raises questions about the meaning and application of ‘due regard’ in a judicial setting.

The second substantive issue concerns what the broader role of judicial review should be in relation to the already existing statutory compliance mechanism within ECNI. One of the grounds considered is whether the Council’s actions met the Wednesbury standard.[37]This portion of the case clarifies the difference between what constitutes a ‘procedural’ versus ‘substantive’ breach of s. 75 duties.

Rules and application

1. The issue of s75 compliance

In respect to whether Lisburn City Council was in compliance with its s. 75 duty, the court draws on some of the guidance provided by the Equality Commission on the meaning of ‘due regard’.[38] This guidance includes the point that due regard is not a final outcome but rather the process of giving the ‘appropriate level of consideration’ to statutory goals.[39] What constitutes appropriate consideration is variable, depending on the case and the public authority involved.[40] A high level of relevance must be proportionate to a high level of consideration and vice versa.[41] Although the court does not clarify what is meant by ‘high level of relevance’, the Equality Commission guidance states that ‘having ‘due regard’ or ‘regard’ entails taking a proportionate approach in determining the relevance of equality of opportunity and/or good relations to a particular function or policy’.[42]

The Council, in its approved Equality Scheme, set out a process for screening policies for any potential impact on equality of opportunity. This subsequently leads to a decision on whether an equality impact assessment will be conducted, depending on whether the screening of the policy has determined that there will be either major, minor or no impact.[43]

The court took stock of principles highlighted by the Court of Appeal of England and Wales in Bracking and Others v Secretary of State for Work and Pensions.[44] One such principle is that a decision-maker or Minister has a responsibility to ensure that they record the steps taken to fulfil their statutory requirements as established in R (BAPIO Action Ltd) v Secretary of State for the Home Department[45] and that the duty falls upon the Minister making the decision, what matters being ‘what he or she took into account and what he or she knew’,[46] regardless of what their officials know or offered in the way of advice, a principle derived from R (National Association of Health Stores) v Department of Health.[47] Ministers must also assess the adverse impact before (emphasis added) adopting a policy and not after a decision has been made, following Kaur & Shah v LB Ealing.[48]

Bracking also draws on the dicta of R (Brown) v Secretary of State for Work and Pensions, which reviewed and contributed to a number of points concerning ‘due regard’ specifically.[49] In sum, the public authority must be aware of the duty to have ‘due regard’, the duty must be fulfilled before and when a policy is under consideration, as well as ‘exercised in substance, with rigour and with an open mind’.[50] There is, however, no duty for a public authority to expressly refer to the regard paid; however, if they do, the ‘scope for argument as to whether the duty has been performed will be reduced’, a principle derived from Baker.[51] Finally, the duty is non-delegable and continuous, and it is considered good practice for the decision-maker to keep records of their consideration.[52] Further, as established in R (Meany) v Harlow DC,[53] regard cannot be general – it must be specific and conscious of the statutory criteria.[54]

Officials reporting to the Minister should be rigorous both in their enquiry of them and also in reporting to them, as per R (Domb) v Hammersmith & Fulham LBC.[55] Finally, yet another few principles under consideration, in this case, are derived from Elias LJ’s judgement in R (Hurley and Moore) v Secretary of State for Business, Innovation and Skills.[56] Firstly, the decision-maker is responsible for weighing the factors that influence a decision, a principle derived from Baker.[57] Expanding on this, Elias LJ argues that if the decision-maker has taken the statutory criteria into account, the court cannot interfere in the decision-maker’s balancing of factors.[58] Secondly, there is a principle establishing that public authorities be informed before making any decision[59] – and that they must acquire the relevant information if they do not have it, ‘frequently meaning that some further consultation with appropriate groups is required.[60]

The court, in this case, acknowledges the importance of separating the fulfilment of the s. 75 duty from the management of the PRS, as the duty, falls on Lisburn City Council and not Mr Watkiss.[61] There is little evidence in this case that the Council performed its s. 75 duties,[62] as no documentation of the Council’s fulfilment of the s. 75 duties were presented to the court.[63] Although Mr Watkiss performed a consultation exercise, the court is of the view that the Council should have conducted consultations themselves.[64]

The Council argued that a need for an EQIA was screened out due to the lack of material signifying the impact of the PRS on disabled persons during the consultation exercise – however, this was found unacceptable by the court, as the court does not understand how the PRS was screened out, stating that:

‘If the right question had been asked viz in relation to the impact of the proposals on the position of the blind and partially sighted, it is difficult to see how this would not have led to a consideration by the Council of the UCL research…’.[65]

Although the UCL research had not been seen by the Council until 2014, ‘unmistakable concern’ had been expressed regarding the kerb heights on the basis of the UCL research prior to 2014.[66] The Council did react to the kerb height opposition at this stage, but the court found that ‘[the Council] does not seem to have been alive to its continuing duty under section 75’. There was no evidence to suggest that, when the issue was raised, the Council associated the issue with s. 75 – rather, the Council associated the issue with the expenses involved in adjusting kerb heights as well as the project timeline.[67] While the matter did go to the agenda of the EDC and Council, only a reminder of the consultation with specific disability groups was given by the Equality Officer, which does not equate to the Council’s performance of equality duties.[68] The court was not satisfied that the s. 75 duty had been given rigorous enough attention, requiring a ‘conscious approach’ at this stage, inclusive of consideration of the UCL research and an EQIA.[69]

The court, therefore, found a clear breach of the s. 75 duty, given the lack of enquiry throughout the entirety of the process. Although the decision ultimately reached by the Council is still theirs to make, the court ruled that the appropriate steps in the process of making this decision were not taken. In other words, if they had taken the appropriate steps to enquire and still reached the same decision, they would not have been in breach of their s. 75 duty.[70]

The court, in their analysis, does not apply any of the previously discussed principles directly as they come to reach this decision – but it would seem that their ratio decidendi falls directly in line with that of the principles taken stock of in Bracking.[71] For example, they are not refuting the principle established in Hurley regarding the decision maker’s discretion in balancing factors[72] - rather, they acknowledge that the Council’s lack of consideration and enquiry is a breach of s. 75 duties, corresponding to the principles established in Brown, particularly the requirement that the duty ‘must be exercised in substance, with rigour and with an open mind’.[73] What the court in Re Toner seems to be arguing is that there was a lack of rigour and substance in exercising the duty, although they do not explicitly draw this connection themselves.

2. The issue of s. 75’s enforceability

The respondent (Lisburn City Council) also sought to argue that s. 75 cannot be remedied by judicial review – however, the court argues that similar cases have been brought in England and Wales, such as Bracking.[74] The respondent argued that in Northern Ireland, recourse is sought through the Equality Commission for Northern Ireland (ECNI) under s. 75(4) and Schedule 9 of the 1998 Act.[75] Re Neill’s Application[76] sheds some light on these issues. The court ultimately decided that parliament intended consequences arising from a failure to comply with s. 75 are political,[77] with judicial review not being the default. However, they are not suggesting that the jurisdiction of the court can never be relied on in relation to s. 75 breaches and must be taken on a case-by-case basis.[78] A distinction was also made between procedural and substantive breaches of s. 75 – it was suggested that substantive breaches might be dealt with in a judicial review setting, with procedural breaches dealt with through the Equality Commission complaints procedure.[79] This was left open for development, as ‘the Court of Appeal studiously did not identify the circumstances in which judicial review may be available’.[80]

In the instant case, the court believes the correct approach is one that relies on the specific facts of a case.[81] They have found that the Council’s failure to consider blind persons constitutes a substantive breach rather than merely a procedural one, as the failure constitutes something ‘far greater’ than a ‘technical omission or procedural failing’.

They state:

In this case, the failure appears to the court to have been longstanding in nature, as at no stage in the PRS’s development, was the issue of the public sector equality duty subjected to a s. 75 compliant process. Most particularly, when the matter came before the EDC and the Council (twice) in 2014 the opportunity was not taken to rectify the situation, notwithstanding that the matter had by this stage become one of high controversy.[82]

Thus, judicial review as an enforcement mechanism was found to be acceptable in this particular case.[83] Their decision turns in part on the Council’s lack of awareness of the UCL research at an earlier date, where consideration of the research may have led to a different outcome.[84] The court also accepted the applicant’s view that the remedy sought through the Equality Commission would be ‘unlikely to achieve a potential change of view [of the Council]’, whereas if the Council had performed their s. 75 duty properly in the first instance or even at the time the judicial review was sought, they may change their view.[85]

Analysis

This case was hugely significant in allowing s. 75 complaints to be brought by way of judicial review, albeit apprehensively. The court was careful to say that judicial review was appropriate in this instance ‘due to the exceptional circumstances of this particular case’,[86] emphasising the ‘case by case’ principle upheld in Neill.[87] It is important to bear in mind that s. 75 and ECNI were established with a view to avoid litigation, [88] making Re Toner significant in that it marked a shift towards breaches of s. 75 being more litigious. McCrudden foresaw this shift, arguing that judicial review ‘should be seen as part of the armoury of weapons available to both the Equality Commission and non-governmental organisations in seeking compliance with s75 in the future’.[89]

The shift brings a number of complex questions to light when considered in the context of public authorities, where the nature of work might not be as easily quantifiable, making it harder to recognise when there has been a failure to comply with s. 75. Take, for example, the Arts Council of Northern Ireland (ACNI), Northern Ireland’s leading arts and cultural development agency. In Re Toner, the applicant sought to remedy an adverse impact that was specific and measurable and for which there was supporting research - the height of kerbs. However, ACNI’s work in disseminating funds and supporting arts and cultural policy initiatives in accordance with necessarily expert and niche judgement perhaps makes pinpointing adverse impact on any one group more difficult, despite the amount of funding given to a particular policy initiative being a quantifiable action.

This difficulty is compounded when trying to conceive of how a complaint of adverse impact on the basis of political opinion or religious belief might be raised. The criteria that such a claim would rely on would almost certainly be less quantifiable – and if it is at all quantifiable, experience to date would suggest that the level of non-response around issues concerning political and religious belief would render measurement of adverse impact extremely difficult.[90] Additionally, within the arts, the adverse impact of a policy decision would appear to centre on an opportunity lost or never had to begin with because of a specific funding call or a specific funding decision.

Take, for instance, a politically controversial decision made by Paul Givan, previous Department for Communities (DfC) minister, to provide £98,000 more than originally planned for band instruments (most of which went towards Protestant marching bands) in July 2016.[91] ACNI was provided with the funding to administer the scheme. Colum Eastwood, SDLP leader and chair of the Assembly’s communities committee, drew attention to the fact that in December 2016, the DfC also decided it could not continue funding the Líofa Gaeltacht Bursary Scheme (a scheme to help those who want to learn the Irish language financially) because of ‘efficiency savings’.[92] In this instance, it would be difficult for those opposing the decision to fund band instruments to make a case as to why this decision led to an adverse impact – or alternatively, it would be difficult for them to argue how the decision not to fund the Líofa Gaeltacht Bursary Scheme causes an adverse impact. Whilst there are quantifiable funding figures, it is far more difficult to argue why such funding decisions bear such significant weight, as there are cultural and political undertones to consider. The effect is that arguments of the adverse impact made in relation to ‘political opinion’ or ‘religious belief’ pose a unique set of challenges that the court at present is not equipped to handle.

Decisions such as this, which stoke community tensions, present unique challenges for public authorities (such as ACNI) under the Minister’s direction. When a government minister makes a decision that is perceived to give preferential treatment to one political/religious group over another group, there may be potential to argue that there was no due regard to equality of opportunity, s. 75’s primary legislative purpose. The meaning of ‘equality of opportunity’ within s. 75 encapsulates a more substantive approach to equality given that it is a positive obligation and can be understood as the fair distribution of society’s benefits, including ‘access to facilities, education, training and services’.[93]Did the Minister, in this instance, have ‘due regard’ to equality of opportunity? Even if he had taken all of the relevant information into consideration when reaching his decision, his own political preferences, and any minister’s preferences for that matter – can dictate the final decision. Additionally, questions are raised as to what role ACNI played in administering the scheme and whether they can also be held to account in the same way for simply taking direction. ACNI thus needs to be careful when making certain funding decisions so as not to prioritise one programme with a certain political undertone over another.

The court in Re Toner was careful to uphold the principle cited in Hurley[94] (originating from Baker[95]) that it is for the public authority to weigh the factors influencing a decision and not the court.[96] Quoting Lord Justice Elias in Hurley,

In short, the decision-maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors [emphasis added]. If Ms Mountfield’s submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.[97]

This raises interesting issues around Wednesbury unreasonableness that were largely avoided throughout Re Toner. I anticipate that with the opening up of judicial review for substantive s. 75 breaches, a need to question the decisions of public authorities more deeply under Wednesbury may arise in situations where substantive breaches of ‘due regard’ have been found, and a decision clearly advantages one side of the community more than the other. This would seem to apply to the s. 75 groupings of ‘political opinion’ and ‘religious belief’ the most. However, there is debate as to how much the court should step into the role of being what Laws LJ has termed ‘arbiters of political controversy’.[98] Decisions that would adversely impact the s. 75 groups of political opinion and religious belief (such as Paul Givan’s, for instance) may warrant the court to step more into the territory of being a political arbiter, given the highly politicised nature of some decisions.

The court’s reasoning in finding that the Council did not have ‘due regard’ also played a part in their finding of a ‘substantive’ breach, as the court argues that the failure was ‘longstanding’ due to the lack of a s. 75 compliant process throughout the Public Realm Scheme’s (PRS) development.[99] In other words, if it were found that the Council had proper ‘due regard’, it would be unlikely that the court should find a ‘substantive breach’. The court did not take care to apply the specific principles it relied on to the facts of the case directly, as there were no paragraph pinpoints to the relevant case law. Although the list of authorities found in Bracking was referred to, the court did not expand on these in a direct sense.

It would seem that the lack of assessment on the part of the Council in the form of an equality impact assessment (EQIA) was a major deciding factor for the court. They argue that despite ‘unmistakable concern being expressed based on the UCL research’ and the Council finally catching sight of the research in 2014, the Council still opted to neglect the issue.[100] In moving forward, public authorities should take care to follow the Brown principles discussed earlier underpinning Bracking, which were also applied in the instant case. The initial consultation undertaken on behalf of Mr Watkiss was not enough to satisfy the obligation to have ‘due regard’.[101] Therefore, public authorities such as ACNI should take care to ensure a number of things in moving forward.

One such lesson includes that public authorities should be attuned to what the officials acting on their behalf are doing in relation to a proposed policy at all times, as the s. 75 duty is non-delegable,[102] with the sole responsibility of the duty resting with the public authority. Lisburn City Council could have enquired at any point more deeply into the information drawn on by Mr Watkiss– had they done so, they may have discovered the UCL research sooner, leading to a more rigorous enquiry at an earlier stage before the PRS work began. Policy screenings and EQIAs should also be conducted at the earliest stage possible, before and during[103] a policy’s implementation, which is also indicative of ‘due regard’. The consistent application of these principles from the earliest stages of a policy’s development is therefore necessary in order for a public authority to avoid a ‘substantive’ breach of s. 75. The case also established that it is not enough for public authorities to think vaguely about one s. 75 groups, such as those who are disabled – ‘a high level of consideration of the position of the blind and partially sighted ought to have flowed from the relevancy of the issue to this group’.[104] Therefore, public authorities must take into consideration how their policies will impact specific sub-groups within the broader nine s. 75 categories.

This brings us back to the difficulty of measuring potential adverse impact within certain s. 75 groups, such as political opinion and religious belief, where, within ACNI’s data collection, there is a high level of non-response in quantitative survey results (as evidenced in their Audit of Inequalities). This is something the case law from England and Wales has not developed, as Northern Ireland’s public sector equality duty differs from England’s significantly in this respect. Imagine a hypothetical scenario where a complaint was brought against ACNI for not having had ‘due regard’ to the s. 75 categories of political opinion or religious belief. How can a public authority be at fault for not having ‘due regard’ when, despite attempts to collect this data, they are left with little to nothing to work with evidentially? Unless the decision-maker draws on their own personal experience or can devise a strategy for collecting meaningful qualitative evidence that better informs their judgement, evidence will continue to be ill-informed. These are barriers that I imagine affect other public authorities as well and would face significant challenges if tested in the courts. In the instance of a complaint of this nature being brought forward, the court may find that the only way to handle such complaints is to scrutinise the public authority’s final decision under Wednesbury unreasonableness.

Conclusion

The decision in Re Toner to allow for ‘substantive’ breaches to be brought forward under judicial review significantly expands the opportunity to seek accountability for breaches of s. 75. Previously, complaints could only be brought through ECNI, as legislated. The decision raises a number of interesting issues around what constitutes a ‘substantive’ versus ‘procedural’ breach and was careful to maintain that cases should be dealt with on a case-by-case basis. The case also relied extensively on case law principles in relation to the ‘due regard’ standard and maintained that so long as the correct process is applied in making a decision, the decision is for the public authority to make.

However, with the door now open for judicial review complaints, it can be anticipated that courts will step more into the territory of being a ‘political arbiter’ by subjecting decisions of public authorities to the Wednesbury test. This is because I anticipate that the current principles relied on from case law in England and Wales when determining whether an authority has had ‘due regard’ will not be sufficient in the unique political context of Northern Ireland, particularly in cases involved with the s. 75 categories of ‘political opinion’ and ‘religious belief’, as it is much harder to measure adverse impact in these categories. Therefore, if a complaint is brought against a public authority under these two groups, it will be harder to pinpoint how a decisionmaker rationalised their decision – therefore, scrutiny of their actual decision may be warranted.

With more avenues for complaints to be brought against public authorities, extra care should be taken to abide by all the principles established in relation to ‘due regard’, – such as conducting an EQIA early and being attuned to the activity of any public officials acting on their behalf (as their duty is non-delegable). Additionally, knowing that scrutiny under Wednesbury is not necessarily ruled out, solutions as to how to measure adverse impact within the groups of ‘political opinion’ and ‘religious belief’ need to be sought in order to mitigate any potentially controversial decisions. It will be interesting to see how any claim brought forward on the grounds of political opinion or religious belief will play out and whether the decision of the public authority will be subjected to the Wednesbury test.

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Dr Lillian Pollack

Dr Lillian Pollack, a recent graduate of Queen’s University Belfast, successfully defended her doctoral thesis concerning the intersection of equality legislation and cultural policy in Northern Ireland this past spring. She recently won the best paper prize at the Leicester Law School Postgraduate Research Conference, and will commence a training contract with a commercial law firm in 2023.

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[1] ECNI, ‘Section 75 of the Northern Ireland Act 1998: A Guide for Public Authorities’ (ECNI, April 2010) 29, 41, 51. [2] Colin Harvey, ‘Democracy in Transition: Mainstreaming Human Rights and Equality in Northern Ireland’ (1999) 4 Journal of Civil Liberties 307. [3] [2017] NIQB 49. [4] ibid [1]. [5] See [161]-[164]. [6] [2006] NICA 5. [7] Re Toner (n 3) [163]. [8] ibid [163]-[164]. [9] Briefly described, Wednesbury is a standard of judicial review to hold public authorities to account on the decisions they have reached, the test being ‘that a decision was so unreasonable that no reasonable decision-maker could have come to it’. It is also known as ‘irrationality’. See Justin Leslie and Gavin McLeod, ‘Judicial review: Wednesbury unreasonableness’ (Westlaw, last reviewed in 2015). The test is derived from the case, Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). [10] [2012] EWHC 201 (Admin) (Divisional Court) [77]. The principle states that it is for the decision-maker to weigh all of the relevant factors in making a decision. [11]Although the court in Re Toner does not explicitly state that they are upholding this principle, it can be inferred through their statement at [164], ‘…it is far from clear that if the section 75 duty had been rigorously performed even at that date that councillors would have reached the same conclusions as those which, in fact, they did reach’. Their lack of challenging the issue indicates their maintenance of the principle. [12] Tahnya Barnett Donaghy, ‘Mainstreaming: Northern Ireland’s participative-democratic approach’ (2004) 32 The Policy Press 49, 57. [13] See Eleonora Belfiore, ‘‘Impact’, ‘value’ and ‘bad economics’: Making sense of the problem of value in the arts and humanities’ (2015) 14 Arts & Humanities in Higher Education 95; Victoria D. Alexander, ‘Heteronomy in the arts field: state funding and British arts organisations’ (2018) 69 The British Journal of Sociology 23; Clive Gray, ‘Part 1: Intellectual and political landscape – Instrumental policies: causes, consequences, museums and galleries’ (2008) 17 Cultural Trends 209. [14] ReToner (n 3) [1]. [15] ibid [3]. [16] ibid [2]. [17] ibid [6]. [18] ibid [7]. [19] ibid [14]. [20] ibid [26]. [21] ibid [80]. [22] ibid [85]. [23] ibid [89]-[90]. [24] ibid [92]. [25] ibid [89]. [26] ibid [79]. [27] ibid [54]. [28] ibid [79]. [29] ibid [101b]. [30] ibid [101a]. [31] ibid [101d] [101f]. [32] Please note that in the official case, the court refers to Equality Impact Assessments as EIAs, however ECNI refers to them as EQIAs – therefore, I will also be referring to them as EQIAs. [33] ibid [101e]. [34] ibid [101j]. [35] ibid [101g]. [36] ibid [101h]. [37] ibid [101i]. [38] They do not specify which guidance, but it is assumed they are referring to the ECNI (n 1). [39] ReToner [135]. [40] ibid. [41] ibid. [42] ECNI (n 1) 27. [43] Re Toner (n 3) [137]. [44] [2013] EWCA Civ 1345 [25]. [45] [2007] EWHC 199 (QB). See [69] per Stanley Burnton J. [46] Bracking (n 44) [26(3)]. [47] [2005] EWCA Civ 154 at [26] – [27] per Sedley LJ. [48] [2008] EWHC 2062 (Admin). [23] – [24] as per Moses LJ. [49] [2008] EWHC 3158 (Admin). [50] ibid [92]. [51] This principle is quoted from Baker & Ors, R (on the application of) v Secretary of State for Communities & Local Government & Ors [2008] EWCA Civ 141, [38] but cited in Brown (n 49) at [93]. [52] These duties are discussed in Bracking (n 44) [25 (6)] but originated from Aikens LJ in Brown (n 49), paragraphs [90]-[96]. [53] [2009] EWHC 559 (Admin). [54] ibid [84] per Davis J. [55] [2009] EWCA Civ 941 [79] per Sedley LJ. [56] (n 10). [57] (n 51) [34] per Dyson LJ. [58] Hurley & Moore (n 10) [78] per Elias LJ. [59] Also informed by Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014. [60] Hurley & Moore (n 10) [89] per Elias LJ. [61] Re Toner (n 3) [141]. [62] ibid [142]. [63] ibid [143]. [64] ibid [144]. [65] ibid [145]. [66] ibid [146]. [67] ibid [147]. [68] ibid [148]. [69] ibid [149]. [70] ibid [151]. [71] Bracking (n 44) [25]. [72] Hurley & Moore (n 10) [78] per Elias LJ. [73] Brown (n 49) [92] per Aikens LJ. [74] Re Toner (n 3) [153]-[154]. [75] ibid[155]. [76] (n 6). [77] ibid [28]. [78] ibid [30]. [79] ibid. [80] Re Toner (n 3) [158]. [81] ibid[163]. [82] ibid. [83] ibid [166]. [84] ibid [164]. [85] ibid [165]. [86] ibid [166]. [87] See (n 77). [88] Christopher McCrudden, ‘Mainstreaming Equality in Northern Ireland 1998-2004: A Review of Issues Concerning the Operation of the Equality Duty in Section 75 of the Northern Ireland Act 1998’ in Eithne McLaughlin and Neil Faris, ‘Section 75 Review – The Section 75 Equality Duty – An Operational Review’ (Volume 2, 2004) Annex B, 10. [89] ibid 74. [90] For instance, in ACNI’s 2017 Audit of Inequalities (which is not available to the public), in relation to religion, there was a high level of non-returned data in both the Annual Funding Survey and the Support for Individual Artists Programme. The same was true of political opinion in the latter (p. 4-6). [91] Robbie Meredith, ‘Eastwood criticises decision to fund band scheme but cut Irish language bursary’ (BBC News, 4 January 2017) < https://www.bbc.co.uk/news/uk-northern-ireland-38513338> accessed 20 June 2022. [92] ibid. [93] Katherine E Zappone, ‘Charting the Equality Agenda: A Coherent Framework for Equality Strategies in Ireland North and South’ (Commissioned by the Equality Authority and the Equality Commission for Northern Ireland, no publication date) 36-7 <https://www.ihrec.ie/download/pdf/charting_the_equality_agenda.pdf> accessed 23 June 2022. [94] Hurley & Moore (n 10) [77]. [95] Baker (n 51) [34]. [96] Re Toner (n 3) [151]. [97] Hurley & Moore (n 10) [78]. [98] R (on the application of MA & Ors) v Secretary of State for Work and Pensions & Ors [2013] EWHC 2213 (QB) [74] (Laws LJ). [99] ReToner (n 3) [163]. [100] ibid [146] [150]. [101] ibid [152]. [102] Brown (n 49) [94] (Aikens LJ). [103] ibid [91] (Aikens LJ). [104] Re Toner (n 3) [163].