R (Baker) -v- Secretary of State for Communities & Local Government and the London Borough of Bromley  EWCA Civ 141
This case was an application for judicial review that originated in the refusal of Bromley Council to grant planning permission to three families to allow them to stay in their caravans on a site within a green belt zone. A deputy High Court Judge rejected the application for judicial review at first instance. The applicants appealed to the Court of Appeal and this summary relates solely to the Appeal Court’s decision.
The families were Irish Travellers, opening up a racial equality angle to the issue. The green belt issue was a countervailing factor: i.e. the Council was also required by planning law to consider preserving the green belt.
The Council refused planning permission to the applicants. The applicants lodged appeals to the Secretary of State. Under the relevant planning system, the Secretary of State appointed an Inspector to consider the appeals. The Inspector subsequently rejected the appeals. The legal challenge was concerned with the Inspector’s decision, not that of the Council.
The Inspector had not conducted an equality impact assessment (EQIA), but it was clear, nevertheless, in the Court’s view that she took into account various important factors, such as the fact that the applicants were Travellers and suffered various health, education and other disadvantages. She noted that there was an undisputed need for additional Traveller sites in this part of England. According to the Court, she also considered the applicants’ individual circumstances, such as his or her health and age and the educational needs of the children. She noted that the sites in dispute were not the most suitable locations for meeting those needs anyway in terms of proximity to healthcare providers and schools. She also considered their options for finding alternative accommodation.
The Court noted the Inspector’s conclusion that the need to preserve the green belt outweighed the work, health and family needs of the applicants.
The relevant equality law provision in issue was Section 71(1) of the Race Relations Act 1976, as amended – the predecessor to the current Public Sector Equality Duty contained in Section 149, Equality Act (2010). The allegation was that the Inspector, in making her decision, had failed to have due regard to the need to promote equality of opportunity between persons of different racial groups. The applicants did not allege that the Inspector had been in breach of a Race Equality Scheme when making her decision. Therefore, the case was only concerned with the due regard duty.
The Court of Appeal unanimously rejected the appeal. The significance of the case is the comments made by the Court about the nature of the ‘due regard’ duty. These have been cited with approval in nearly all of the equality duty cases ever since. The relevant comments are:
31. In my judgment, it is important to emphasise that the section 71(1) duty is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good relations between persons of different racial groups. It is a duty to have due regard to the need to achieve these goals. The distinction is vital. Thus the Inspector did not have a duty to promote equality of opportunity between the appellants and persons who were members of different racial groups; her duty was to have due regard to the need to promote such equality of opportunity. She had to take that need into account, and in deciding how much weight to accord to the need, she had to have due regard to it. What is due regard? In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing.
34. Thus, in discharging the duty to have due regard to the need to promote equality of opportunity in this case, the Inspector was required to take into account the need to promote equality of opportunity for the appellants to have housing which would enable them to have access to education, health care and other social needs. But she also had to take into account the powerful countervailing imperative of PPG2 [i.e. the relevant Government planning policy]. Ultimately, how much weight she gave to the various factors was a matter for her planning judgment.
35. [The applicant’s barrister] submits that a person does not perform the section 71(1) duty unless he demonstrates by the language in which he expresses his decision that he is conscious that he is discharging the duty. Applying that approach to the facts of the present case, [he] submits that the Inspector’s decision letter should have included something along these lines:
“I recognise that, in addition to the considerations flowing from ordinary gypsy policy, there is a situation in Bromley in which there is not equality of opportunity for Irish Travellers. I am under a duty to have due regard to the need to promote such opportunity. I must, therefore, give proportionate weight to that need”.
36. I do not accept that the failure of an Inspector to make explicit reference to section 71(1) is determinative of the question whether he has performed his duty under the statute. So to hold would be to sacrifice substance to form. I agree with what Ouseley J said in [a case called R (Lisa Smith) v South Norfolk Council  EWHC 2772 (Admin)]:
“I do not accept the submission made by Mr. Bird that s71 was concerned with outcomes; ultimately of course it is aimed at affecting the way in which bodies act. But it does so through the requirement that a process of consideration, a thought process, be undertaken at the time when decisions which could have an impact on racial grounds or on race relations, to put it broadly, are being taken. That process should cover the three aspects identified in the section. However, that process can be carried out without the section being referred to provided that the aspects to which it is addressed are considered, and due regard is paid to them...”