Re Toner [2017] NIQB 49
- Lillian Pollack
- Nov 22, 2022
- 24 min read
Updated: Mar 12
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.
