Fawcett Society v Chancellor of the Exchequer

JurisdictionEngland & Wales
JudgeMR JUSTICE OUSELEY
Judgment Date06 December 2010
Neutral Citation[2010] EWHC 3522 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/8217/2010
Date06 December 2010

[2010] EWHC 3522 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Before: Mr Justice Ouseley

CO/8217/2010

Between
The Queen On The Application Of The Fawcett Society
Claimant
and
Chancellor Of The Exchequer
First Defendant
HER MAJESTY'S TREASURY
Second Defendant
THE COMMISSIONERS FOR HER MAJESTY'S REVENUE & CUSTOMS
Third Defendant

Miss Karon Monaghan QC and Miss Sandhya Drew (instructed by Messrs Russell Jones and Walker) appeared on behalf of the Claimant

Mr James Eadie QC and Mr Ben Jaffey (instructed by The General Counsel and The Solicitor to Her Majesty's Revenue & Customs) appeared on behalf of the Defendants

MR JUSTICE OUSELEY
1

: The Fawcett Society renews its application for permission to apply for judicial review following the refusal on paper by Beatson J on 23rd September 2010. The subject matter of the challenge is the 2010 Budget in its entirety which the claimant originally sought to have quashed and which very recently it now only seeks declarations about.

2

The basis for the challenge is the assertion that the Chancellor of the Exchequer, the Treasury and Her Majesty's Revenue and Customs failed in various duties under the Sex Discrimination Act 1975. In particular it is contended that the defendants failed in the duty under section 76A of the 1975 Act (as amended) to comply with their general duty to have "due regard" to the need to eliminate unlawful discrimination and harassment and to promote equality of opportunity between men and women. It is to the latter part of the general duty that the claimant's submissions have essentially been directed. It is said that the duty was breached because the defendants failed to have due or any regard to the prescribed equality objectives and that they ought to have carried out a Gender Equality Impact Assessment of the Budget when it was proposed and ought, if they had done so, to have published the results of the assessment.

3

The duties in section 76A of the 1975 Act are the subject of more detailed implementation in the Sex Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order 2006 which in under article 2 provides for the preparation and publication of gender equality schemes. The Act is supplemented by a Statutory Code of Guidance to which public authorities, including the defendants, are obliged to have regard and which by virtue of section 28A of the Equality Act 2006 a court must take into account in relation to any question before it to which the Code appears to be relevant. In paragraph 2(22) the Code suggests that, although of course the meaning of "due regard" is a matter for the court, the weight given to the need to promote gender equality is "proportionate to its relevance to a particular function" and it then sets out what that means in terms of prioritising action to address the most significant gender inequalities. It is submitted that the whole Budget falls and the public spending envelope falls because of errors arguably made by the defendants in carrying out their other duties in relation to the Budget.

4

Miss Monaghan QC for the claimant, appearing pro bono with her junior and Russell Jones Walker, has put forward some important and interesting arguments. I emphasise before dealing with them that although underneath the legal arguments there are very strong political differences between the claimant and the defendants over what public expenditure cuts, if any, should take place, what nature of cuts there might be, what nature of tax increases, job cuts and pay freezes there should be, this court is not concerned with those political differences. The political differences and the legal duties were said, however, almost all to involve the operation of the duty in section 76A and Gender Equality Impact Analysis.

5

I take first of all the two most general grounds upon which the attack is made. The first relates to the whole Budget and the second relates to the public spending envelope set out in the Budget which sets the departmental limits within which the current comprehensive spending review is being or is to be carried out.

6

It is submitted that the Budget was arguably unlawful because the defendants did not consider their section 76A duty or produce a Gender Equality Impact Assessment. There is no dispute that no such assessment has been produced. It is not disputed but that the provisions of section 76A are in principle broad enough to apply to government action such as the preparation and presentation of the Budget, including public expenditure limits. Mr Eadie QC for the defendants submits that it is appropriate and legitimate for the defendants to decide that the impact of the provisions of the Budget on gender equality objectives should be dealt with by reference to the impacts of the various specific individual items within the Budget rather than on an overall basis. Miss Monaghan says that that approach is arguably unlawful because it would cause the cumulative impact of the Budget on the equality of opportunity objective to be ignored and would mean that swings and roundabouts would also fall out of the picture.

7

I accept Mr Eadie's description of the nature of the Budget which he sets out in the summary grounds of defence. He describes the Budget as containing a number of varied measures, differing in nature, which may be introduced or flagged, the overall aim of the emergency Budget made an impact exercise of the Budget as a whole inappropriate, as did "the polycentric nature of the decision-making process", the number of assumptions that would need to be made and the questionable validity and thus utility of any results of any such attempt. He points out no other government has produced such an assessment for a previous Budget.

8

It is my judgment that it is clear that if the analysis of gender equality impacts can adequately be undertaken by consideration of the line items in the Budget, the duty is fulfilled or rather not breached by its being dealt with in that way at that stage. For my part, I cannot see any reason why the government is acting unlawfully if that is the way in which it proposes to deal with gender equality issues on the Budget. It is perfectly clear that the varied nature of the Budget content and the implementing measures and the timetable necessary to give effect to it, makes an overview a particularly difficult task. But if the duty under section 76A applies to individual items, they can readily be dealt with separately and when clearly defined. A cumulative impact, if there is one, is perfectly possible to see from the accumulation of separate impacts. The separate adverse consequences, if there are such consequences, can be accumulated as they would have to be from an individual examination of them separately. The swings and roundabouts can still be examined if it is necessary. In my judgment the approach adopted by the government cannot arguably be said to be unlawful because there is some cumulative impact that could be overlooked. I am simply not persuaded that it is arguable that that situation could arise.

9

So far as the public spending envelope is concerned, Miss Monaghan submits that it is not possible to challenge the limits set when the precise distribution of funds within the departmental Budgets comes to be dealt with and if that limitation means that an otherwise remedial gender inequality exists then there is at least an arguably unlawful approach by the government. Again, for my part I cannot see that if the analysis of the individual items on the line by line basis that I have seen is carried out, that there is an answer to it from the fact that there is a limit which has been set by the public spending department. Not merely is there, as Mr Eadie accepted, no door that is irretrievably closed, the reality is that a departmental Budget will have considerable scope for the reallocation of monies within it so that if there is an otherwise irremediable gender inequality that an analysis of the public spending limit at an earlier stage would have avoided, remedies are available to enable that to be dealt with.

10

I also accept Mr Eadie's submission that there are high level economic judgements as to when and how best to deal with the section 76 issues which arise. Whether it is dealt with at the stage of the Budget proposals themselves, fixing the spending envelopes or later during the detailed formulation of policy or its implementation. Section 76 permits judgements of that sort to be made in carrying out the duty and Mr Eadie's submission in that respect is obviously sound. I also accept his submission that the judgements that...

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1 books & journal articles
  • Using equality legislation as a sword
    • United Kingdom
    • International Journal of Discrimination and the Law No. 16-2-3, June 2016
    • 1 June 2016
    ...v Southwark LBC [2015] UKSC 30 (SC).19. Hotak v Southwark LBC [2015] UKSC 30 (SC) [74].20. R (Fawcett Society) v HM Treasury & HMRC [2010] EWHC 3522 (Admin).21. R (Kaur & Shah) v London Borough of Ealing [2008] EWHC 2062 (Admin).22. R (Ben Hoare Solicitors and Others) v the Lord Chancellor ......

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