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Section 75 duties

For Public Authorities

What you need to know

Case Law

Publications

 

Section 75Section 75 duties for Public Authorities


Section 75 of the Northern Ireland Act aims to change the practices of government and public authorities so that equality of opportunity and good relations are central to policy making and service delivery. The Section 75 statutory duties aim to encourage public authorities to address inequalities and demonstrate measurable positive impact on the lives of people experiencing inequalities. Its effective implementation should improve the quality of life for all of the people of Northern Ireland.

 

These duties apply to designated public authorities (pdf) including government departments and agencies, local councils, health trusts, housing associations, colleges and universities, and education and library bodies.

Demonstrating effective leadership

Leadership and commitment provided at the highest levels in a public authority, by the Minister and Permanent Secretary or the Chair and Chief Executive, are critical to the successful implementation and achievement of the intended outcomes of the Section 75 duties. The role of Management Boards and Senior Management Teams are also essential in ensuring that a meaningful and effective approach to implementing the Section 75 duties is adopted across the organisation.

Leaders should ensure that consideration of the Section 75 duties is integrated throughout all the public authority’s functions. In addition to ensuring that its legal requirements are met, this should complement its outcomes based accountability approach, assisting it to focus on improving the outcomes for its service users and employees.

A public authority should be in a position to openly demonstrate its compliance with all of the commitments in its Equality Scheme and that it is paying the appropriate level of regard to the need to promote equality of opportunity and the desirability of promoting good relations. Demonstration of such commitments by a public authority and individual decision-makers may be required in instances where individuals complain that the authority has failed to comply with its Equality Scheme; where the Equality Commission is conducting an investigation; or, indeed, in the circumstances of a Judicial Review.




Downloadable publications:
   
       Related information

S75 logo
Acting on the evidence of public authority practices
The Equality Commission’s report 'Acting on the evidence of public authority practices' (July 2018) identifies a number of issues which it believes are fundamental to the effective implementation of the Section 75 duties by public authorities and presents recommendations which will help them to fulfil their statutory equality and good relations duties.
 

What are public authorities required to do?

Public authorities need to consider equality in all aspects of their organisation. This includes how they plan and deliver a service, to policies on employing people, enforcing the law, buying services, approving budgets and regulating others.
 

Integrating equal opportunity principles and practices from the outset ensures that equality considerations are mainstreamed and built into the policy development process from the beginning, rather than being bolted on at the end. Mainstreaming can help improve methods of working by increasing a public authority’s accountability, responsiveness to need and relations with the public.


Section 75 requires public authorities to have due regard for the need to promote equality of opportunity between:

 

  • persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation
  • men and women generally
  • persons with a disability and persons without
  • persons with dependants and persons without


The promotion of equality of opportunity entails more than the elimination of discrimination. It requires proactive action to promote equality of opportunity and encourages public authorities to take action to address inequality among the groups listed above.
 

Public authorities must also have regard for the desirability of promoting good relations between persons of different religious belief, political opinion or racial group. The Commission emphasises that the good relations duty embraces and extends beyond the religious / political dimension of ‘community relations’. Consideration of the needs and interests of all minority ethnic groups is also important in this context. Public authorities must recognise the inter-dependence of equality and good relations.

It should be noted that both duties have to be discharged in all circumstances.

 

 

What is an Equality Scheme?

To implement their Section 75 statutory duties, public authorities are required to submit an equality scheme to the Equality Commission. This is a statement of commitment to fulfilling their Section 75 duties. It is a plan setting out how they are going to ensure that equality and good relations are promoted in everything they do.

All equality schemes must conform to the Commission’s guidance. See Chapter 6 of our
Guide for Public Authorities (pdf, 214kb)
 

 

Do Equality Schemes need approval?
Yes, the Equality Commission uses an
Equality Scheme Desk Audit Form (word doc) to assess statutory requirements for equality schemes and we use the results to determine whether the schemes should be approved or not.

We have have produced a range of useful guides and templates to assist public authorities with their Section 75 obligations. For further details see the
Section 75 publications.
 

What is Screening?

Screening identifies policies that are likely to have an impact on equality of opportunity and helps to draw considerations of equality of opportunity into the policy making process. It is important that public authorities commit to screening at the start of the policy development process, rather than when the policy has been established. This helps to identify any policies that are likely to have major equality issues, and if so, they must be subject to a full equality impact assessment (EQIA).


When there is ambiguity, the public authority must consult on whether the policy should be subject to equality impact assessment and all such policies must be incorporated into the public authority’s EQIA timetable as appropriate to their priority.
 

 

What is an Equality Impact Assessment (EQIA)?

If screening identifies that a policy has major potential to impact on equality of opportunity and good relations, then it should be subjected to a more detailed analysis - an Equality Impact Assessment (EQIA). This means if a policy shows a possible ‘adverse impact’ on any group, the public authority must consider how this might be reduced. This would include how an alternative policy might lessen this effect and serve to promote equality of opportunity.


Public authorities should allow a 12 week consultation period in order to assess the views of those who will be affected by policy decisions. This will help to raise awareness of issues and problems that policies may pose for various groups which may not otherwise be discovered. The results of all equality impact assessments must be published.
 

 

How should S75 be implemented?

Strong leadership is necessary within public authorities to ensure that the Section 75 statutory duties are integrated into core business activities and put into effective and visible practice. Effective implementation should be assured by ongoing top-level commitment, allocation of necessary resources, establishment of clear lines of responsibility, effective communication and training, and a process for monitoring and ensuring progress.

There are a range of factors that should be considered when implementing the Section 75 statutory duties:

 





Commitment to all of the requirements and recommendations in our Guide for Public Authorities (pdf, 214kb) should have a real and tangible impact on reducing inequalities that exist for people within Northern Ireland.


Investigations
The Equality Commission has powers (under paragraph 10 and 11 of Schedule 9 of the Northern Ireland Act) to investigate complaints that public authorities have failed to comply with their equality schemes from people who are directly affected by such failure, and we can also initiate such investigations. Read more about our
 investigations procedure
 
 
 
Case Law - Section 75, Northern Ireland Act 1998

Legal Cases
The following case law summaries and accompanying notes have been developed to assist and inform public authorities and thereby help with the effective implementation of the Section 75 duties.

 
  1.  R (Baker) -v- Secretary of State for Communities & Local Government and the London Borough of Bromley [2008]
  2.  R (Brown) -v- Secretary of State for Work & Pensions & Secretary of State for Business, Enterprise & Regulatory Reform [2008]
  3.  Re E (on behalf of S (a minor) -v- North Eastern Education & Library Board [2004]
  4.  R (Bracking & others) -v- Secretary of State for Work & Pensions[2013]
  5.  R (Harris) -v- London Borough of Haringey [2010]
  6.  Re Toner -v- Lisburn City Council [2017]

An overview of the due regard duties

The Section 75 duties oblige public authority decision-makers to have “due regard” and “regard” to each of the statutory goals respectively; namely the need to promote equality of opportunity in the one case and the desirability of promoting good relations in the other. This means that public authorities must take those goals into account when carrying out their functions. The operative terms, “due regard” and “regard”, at the heart of the duties have been considered by courts and have been interpreted as follows.

In terms of ‘due regard’, it is established that the consideration must be given in advance of a final decision being made, not afterwards, and it must be done with an open-mind to achieve the goals set out in statute. Hence due regard and regard are not determinants of final policy outcomes but are the processes of providing the appropriate levels of consideration.
 

“The equality of opportunity goal enshrined in section 75(1) must be duly taken into account but the section does not mean that the policy adopted must achieve a particular goal…If there were evidence that the Department had simply failed to have a due regard to the need to promote equality of opportunity or had failed to have due regard to its own equality scheme then it would have failed to have taken into account relevant considerations. Here, the evidence indicates that the considerations were taken into account. The question of weight to be attached to the consideration was for the Department.” - Mr. Justice Girvan, as he then was, in R (E on behalf of S (a minor)) –v- North Eastern Education & Library Board [2004], at paragraph 22.

“Proper compliance with [the duties] requires that appropriate consideration has been given to the need to achieve statutory goals whose achievement will almost inevitably, given the use of the word “promote”, involve the taking of active steps." - Mr. Justice Munby in R (E) -v- Governing Body of the JFS [2008]



The word “regard” is also a common feature of many statutory duties on public authorities, including the Section 75(2) duty, and is often referred to in case law. For example, when performing their functions in relation to children with special educational needs, the Education and Library Boards are obliged “to have regard to the provisions” of the Department of Education’s Code of Practice on the Identification and Assessment of Special Educational Needs. This was dealt with in a 2013 Judicial Review, as follows:
 

“Such a duty is not absolute nor does it compel exact compliance with the provisions of the Code but simply requires that they should be properly and reasonably taken into account by the decision-maker”
- Lord Justice Coghlin in JR62’s Application [2013] NICA 51, at para 28(iv)

 

Complying with the Public Sector Duties

Case law has determined some principles, commonly known as the Brown principles, from a case of that name in Great Britain. These are principles that the courts in Great Britain take account of when assessing compliance with the public sector duties. In Northern Ireland public authorities, in planning for compliance with their duties, may find these helpful:
 
  1.  a decision-maker must be aware that he/she is obliged to comply with the public sector duties
  2.  the duties must be fulfilled before and at the time that a particular decision is being considered, and not afterwards
  3. the duties must be exercised in substance, with rigour and an open mind; and not as a “tick boxing” exercise;
  4. the duties are non-delegable; meaning that it is the actual decision-maker who must comply with the duties, and not some other person
  5. the duties are continuing ones
  6. it is good practice to keep adequate records that will show that the statutory goals have actually been considered and pondered and to promote transparency and discipline in the decision-making process.
 

Relevance and proportionality

Equality Commission guidance appreciates that certain functions may be more relevant than others to the Section 75 statutory duties (pdf). Case law has also determined that a duty to give “due regard” to certain statutory goals means giving appropriate consideration to them i.e. the degree of consideration that is appropriate in the specific circumstances of the decision or policy being made. What is appropriate is likely to vary from case-to-case, and from one public authority to another.

As a general rule-of-thumb, where the level of relevancy is high, then a proportionately high level of consideration is required; and vice versa.

 

“In a case where large numbers of vulnerable people, many of whom fall within one or more of the protected groups, are affected, the due regard necessary is very high.” As noted by Mr. Justice Calvert Smith in R (Hajrula and Hamza) –v- London Councils [2011]

 

Relationship between the Section 75 (1) & (2) duties

The Equality Commission’s guidance1 provides information on the inter relationship between the two duties, noting that the duty to have due regard to the need to promote equality of opportunity was intended to be, and is, stronger than the duty to have regard to the desirability of promoting good relations. In either case an authority is required to take the specified matters into account and give them the required weight when carrying out its functions.

From the outset, the relationship between the equality of opportunity and good relations duties was noted. The then Secretary of State said:

 

“[We] regard equality of opportunity and good relations as complementary. There should be no conflict between the two objectives. Good relations cannot be based on inequality between different religions or ethnic groups. Social cohesion requires equality to be reinforced by good community relations.… I repeat that we see no conflict between these two objectives2


Both duties have to be discharged in all circumstances with the discharge of the good relations duty not being an alternative to or setting aside the equality of opportunity duty. Public authorities must take both factors properly into account in the way they carry out their functions, giving the appropriate consideration (based on relevance and proportionality) to meet both the due regard and regard duties.

--------------------

1 A Guide for Public Authorities: Section 75 of the Northern Ireland Act 1998 (pdf)
2 Dr Marjorie Mowlam (27 July 1998). House of Commons, Official Report col.109
 

Section 75 duties and promoting equality of opportunity

The equality of opportunity and good relations duties under Section 75 should be core business priorities, and not seen as a parallel process.

The promotion of equality of opportunity entails the positive promotion of equality as well as the elimination of discrimination and is covered by anti-discrimination legislation.

The Section 75 (1) duty requires public authorities to have due regard to the need to promote equality of opportunity in relation to the identified equality categories and should not deter a public authority from taking action to address disadvantage among particular sections of society and such action may be an appropriate response to addressing inequalities. There is no conflict between the Section 75 statutory duties and other affirmative or positive action measures which a public authority may undertake under anti-discrimination laws.
 
 

 
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Legal cases 1, 2, 3, 4, 5, 6 >
 

Public Authority statutory duties - template and guidance:
 

 

Section 75 publications:
 

 

Short guides:
 

Good Relations publications

 

Model Equality Scheme documents

 

Audit of inequalities

 

Public Authority statutory duties - review and consultation publications

Review of Action Plans developed by public authorities in relation to their statutory equality and good relations duties:
 

 

 - Full report (pdf, 2016),  Summary report (pdf, 2016),  Technical report (pdf, 2016)
 


Report on consultation timescales

The Commission undertook a consultation exercise to consider its advice on Equality Scheme arrangements for consultation timescales. Download the report of the consultation exercise (pdf, 2016)

During the consultation period the Commission held an event which also considered examples of good practice in consultation generally. Three presentations from that event are also available:
 
 
 

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