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PM's announcement on equality impact assessments is "surprising and puzzling" says expert

The Prime Minister's announcement that equality impact assessments are to be "abolished" is not a major change in the equality legislation affecting the public sector, an expert has said, since public bodies have had no legal requirement to carry these impact assessments since April 2011.20 Nov 2012

Christopher Mordue of Pinsent Masons, the law firm behind Out-Law.com, said that it was "initially very unclear" what David Cameron meant when he told the Confederation of British Industry (CBI) that he was "calling time" on equality impact assessments.

"Cameron's speech was taken to mean that the equality laws which apply to the public sector were being relaxed as part of a 'war on red tape'," he said. "In fact he was not announcing any change in legislation, just confessing that the civil service have continued to carry out equality impact assessments on Government policy and regulations even though they have had no legal obligation to do so for over 18 months."

"It's an admission that the Government have in effect ignored their own legislative reforms and imposed unnecessary red tape burdens on themselves. Cameron's announcement that this will stop is a change in practice, not a new policy or a change to the law," he said.

"This announcement will not however prevent the public sector equality duties being used as a means to challenge decisions by public bodies - including local authorities and central government - through judicial review," he said. "That could only be achieved by repealing the public sector equality duty itself."

Under the Equality Act, the need for public bodies in England to undertake or publish an equality impact assessment of their policies, practices and decisions was removed in April 2011 when the 'single equality duty' was introduced. Public bodies must still give "due regard" to the need to avoid discrimination and promote equality of opportunity for all protected groups when making policy decisions. They are also required to publish information showing how they are complying with this duty – but can do that without having to carry out lengthy and detailed impact assessments.

Equality impact assessments are still required under devolved legislation in Scotland and Wales, however Mordue pointed out that these rules were outside Coalition Government control.

"When the new single equality duty was introduced under the Equality Act, the requirement to carry out impact assessments was dropped in England - the Government considered that these rules introduced a formulaic tick box approach and were unnecessarily bureaucratic; the same case for "abolition" made by Cameron in his speech to the CBI," Mordue said.

"The Government is reviewing the public sector equality duty, but it has not made any specific proposals for its reform. This announcement was pretty confused and confusing and actually amounts to no more than the Government saying it won't do something which it's not legally obliged to do anyway, rather than heralding any further reform to the equality duties themselves," he said.

In his speech, Cameron said that the Government had "gone way beyond" the letter of the law by producing an equality impact assessment for every decision.

"Let me be very clear – I care about making sure that government policy never marginalises or discriminates," he told the conference. "I care about making sure we treat people equally. But ... [w]e have smart people in Whitehall who consider equalities issues while they're making the policy. We don't need all this extra tick-box stuff."

Discontinuing this practice of equality impact assessments was one of several measures trailed by Cameron to speed up public sector decision-making, along with more flexible consultation requirements and measures intended to "get a grip" on applications for judicial review.

The number of applications brought to have public authority decisions reviewed by a judge has "almost tripled in a decade", Cameron said. Last year, however, applications for judicial review were around five times more likely to be refused than granted, he said.

He told the conference that the Government would reduce the time limit for cases, charge more for review applications and cut the number of opportunities unsuccessful challengers are given to appeal a decision from four to two.

Justice Secretary Chris Grayling said that the changes were intended to reduce the number of "ill-founded" applications and prevent the use of judicial review as a means of "tactical delay". The Government would publish its proposals "shortly", he said.

"Judicial review is an important way to hold authorities to account and ensure decisions are lawful," he said. "However there has been a huge growth in the use of judicial review, far beyond what was originally intended ... We plan to renew the system so that judicial reviews will continue their important role but the courts and economy are no longer hampered by having to deal with applications brought forward even though the applicant knows they have no chance of success."