Using equality legislation as a sword

AuthorJennifer Sigafoos
DOI10.1177/1358229116655646
Published date01 June 2016
Date01 June 2016
Subject MatterArticles
Article
Using equality
legislation as a sword
Jennifer Sigafoos
Abstract
This article argues that there is potential for equality legislation to be used proactively to
contest attempts by public authorities to remove funding from groups who share pro-
tected characteristics. This follows on from the first empirical study of the impact of the
Equality Act 2010 on charities in the United Kingdom, conducted by the Charity Law and
Policy Unit, University of Liverpool (the study). One finding of the study was that cha-
rities in the United Kingdom are using the Act to challenge local government funding
cuts. Strict austerity measures have led to widespread funding cuts for service provision.
As many charities are commissioned by local governments to provide social services, this
has had a direct impact on the charities’ funding. However, some charities and service
users found a useful sword in the Equality Act and predecessor legislation. They used
judicial reviews to challenge whether local governments have properly fulfilled their
Public Sector Equality Duty when making the funding cuts. In some cases successful
challenges prevented or restored funding cuts, while others simply resulted in the same
cuts after a better process. However, cuts to legal aid and judicial review reforms may
well blunt this sword. Charities’ motivations and successes, the impact of judicial review
and the uncertain future for the strategy are discussed.
Keywords
Public sector equality duty, charities, voluntary sector, austerity, judicial review
School of Law and Social Justice, University of Liverpool, Liverpool, UK
Corresponding author:
Jennifer Sigafoos, School of Law and Social Justice, University of Liverpool, Eleanor Rathbone
Building, Bedford Street South, Liverpool, L69 7ZA, UK.
Email: sigafoos@liverpool.ac.uk
International Journalof
Discrimination and theLaw
2016, Vol. 16(2-3) 66–82
ªThe Author(s) 2016
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229116655646
jdi.sagepub.com
Introduction
It is orthodoxy that in the United Kingdom there is little legal accountability over
questions of social justice, with courts exercising limited oversight over the distribution
of resources by public authorities. The mechanisms of legal accountability controls in the
United Kingdom are not designed to effect distributive justice by ensuring a fair distri-
bution of resources to all (O’Cinneide, 2013). Harlow and Rawlings’ ‘green light’
approach is paramount, whereby law is held to be the tool by which political decisions
are enforced, without interjecting its own normative standards of what would be a just
distribution (2009). However, there are ‘tantalising hints’ in the case law that courts are
becoming more willing to scrutinise the substance of resource distribution in some
circumstances (O’Cinneide, 2013: 399). Although judicial deference is shown in the
areas of social policy, resource allocation is justiciable under human rights law (King,
2007). King (2012) and Young (2012) have argued for constitutionalising and constitut-
ing social and economic rights. Although Young argues that UK courts practise only a
deferential review, higher courts do adjudicate ‘macro’ level disputes regarding public
authorities’ allocation of resources, while tribunals take thousands more ‘micro’ level
decisions about social welfare law issues (King, 2012; Sunkin et al., 2007).
Although such cases remain uncommon, one mechanism that has proved a useful
sword for challenging resource allocation decision-making at the macro level is the
Public Sector Equality Duty (PSED) under the Equality Act 2010 (‘the Act’) and pre-
decessor equality legislation. The PSED provides ‘powerful grounds of judicial review’,
and it has resulted in a number of successful challenges to budgetary decisions, even
though these are ‘extremely difficult’ to challenge successfully (Hickman, 2013: 332).
Indeed, statutory duties, such as the PSED, ‘raise, augment or supersede’ the pre-existing
common law requirements for procedural fairness (Grace, 2015).
The rise of the PSED has been driven by the climate of austerity in the United
Kingdom. In 2010, the Conservative – Liberal Democrat Coalition government pre-
sented its Emergency Budget, which was the first of a series that focused on spending
cuts. These cuts have been particularly keenly felt at the local government level, with an
estimated 37%cut in government funding to local government from 2010/2011 to 2015/
2016 (National Audit Office, 2014). The Coalition government promised greater pro-
tection to funding for pensions, schools and the NHS, with the result that unprotected
services such as adult social care, housing and children’s services, which are largely
delivered at the local level, have received cuts of one-third or more (Lupton et al., 2015:
57). Moreover, the Coalition envisaged a major restructuring of the social welfare
system, with a shift from public provision to the voluntar y sector, and permanently
reduced spending (Taylor-Gooby, 2012). As a result, the opportunities to develop the
case law under the PSED have been rife.
This article will discuss one case study from a larger qualitative study exploring the
impact of the Act on charities in Great Britain (Morris et al., 2013). In the early stages of
the project, it became apparent that the PSED was an important part of the picture for
charities. These stakeholders are ‘new actors’ empowered by the reflexive regulation of
the equality duties to challenge inequality (Conley, 2012: 357). Charities have used the
PSED under the Act and predecessor legislation to challenge decisions by local
Sigafoos 67

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