“156. Thus, SWP may now, in light of the investigation undertaken to date by Mr. Edgell, wish to consider whether further investigation should be done into whether the NeoFace Watch software may produce discriminatory impacts. When deciding whether or not this is necessary it will be appropriate for SWP to take account that whenever AFR Locate is used there is an important failsafe: no step is taken against any member of the public unless an officer (the systems operator) has reviewed the potential match generated by the software and reached his own opinion that there is a match between the member of the public and the watchlist face.
Yet this possibility of future action does not make good the argument that to date, SWP has failed to comply with the duty under section 149(1) of the Equality Act 2010 . Our conclusion is that SWP did have the due regard required when in April 2017 it commenced the trial of AFR Locate. At that time, there was no specific reason why it ought to have been assumed it was possible that the NeoFace Watch software produced more or less reliable results depending on whether the face was male or female, or white or minority ethnic. As we have explained, even now there is no particular reason to make any such assumption. We note that although Dr Jain states that ‘bias has been found to be a feature of common AFR systems’ he does not provide an opinion on whether, or the extent to which, such bias can be addressed by the fail-safe, such as ensuring that a human operator checks whether there is in fact a match.
In our view, the April 2017 Equality Impact
Assessment document demonstrates that due regard was had by SWP to the section 149(1) criteria. The Claimant's contention that SWP did not go far enough in that it did not seek to equip itself with information on possible or potential disparate impacts, based on the information reasonably available at that time, is mere speculation. In any event, as matters had developed in the course of the trial since April 2017, it is apparent from Mr. Edgell's evidence that SWP continues to review events against the section 149(1) criteria. This is the approach required by the public-sector equality duty in the context of a trial process. For these reasons, the claim made by reference to section 149(1) of the Equality Act 2010 fails.”
With respect to the Divisional Court, we do not consider that there is “an air of unreality” about the Appellant’s contention that there has been a breach of the PSED. On the contrary, it seems to us to raise a serious issue of public concern, which ought to be considered properly by SWP.
The Divisional Court did not refer to any authority on the PSED, perhaps because the relevant legal principles were not in dispute. In any event, those principles were set
out by McCombe LJ in R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 , [2014] Eq LR 60, at [26]. It is unnecessary to set out that passage in full here. It is well known and has frequently been cited with approval since, including in Hotak v Southwark LBC [2015] UKSC 30 , [2016] AC 811, at [73] (Lord Neuberger PSC).
In that summary McCombe LJ referred to earlier important decisions, including those of the Divisional Court in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin); [2009] PTSR 1506, in which the judgment was given by Aikens LJ; and R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin); [2012] HRLR 13, in which the judgment was given by Elias LJ. For present purposes we would emphasise the following principles, which were set out in McCombe LJ’s summary in Bracking and are supported by the earlier authorities:
The PSED must be fulfilled before and at the time when a particular policy is being considered.
The duty must be exercised in substance, with rigour, and with an open mind. It is not a question of ticking boxes.
The duty is non-delegable.
The duty is a continuing one.
If the relevant material is not available, there will be a duty to acquire it and this will frequently mean that some further consultation with appropriate groups is required.
Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then it is for the decision-maker to decide how much weight should be given to the various factors informing the decision.
We accept (as is common ground) that the PSED is a duty of process and not outcome. That does not, however, diminish its importance. Public law is often concerned with the process by which a decision is taken and not with the substance of that decision. This is for at least two reasons. First, good processes are more likely to lead to better informed, and therefore better, decisions. Secondly, whatever the outcome, good processes help to make public authorities accountable to the public. We would add, in the particular context of the PSED, that the duty helps to reassure members of the public, whatever their race or sex, that their interests have been properly taken into account before policies are formulated or brought into effect.
This is reinforced by the background to the enactment of the PSED. That background is to be found in the Stephen Lawrence Inquiry Report in 1999, which led to the Race Relations (Amendment) Act 2000 . That Act introduced a new section 71 into the
Race Relations Act 1976 , to replace an earlier version which had applied only to local authorities. The provision has since been expanded to embrace other protected characteristics and now finds its place in section 149 of the Equality Act 2010 .
The background is explained by Karon Monaghan QC in Equality Law (2 nd ed., 2013), at para. 16.06:
“The first of the modern equality duties was found again in section 71 of the RRA, but following amendments made to it by the Race Relations (Amendment) Act 2000 (enacting the General Race Equality Duty). The General Race Equality Duty in the amended section 71 of the RRA required that listed public authorities had ‘due regard’ to the need ‘to eliminate unlawful racial discrimination’ and ‘to promote equality of opportunity and good relations between persons of different racial groups’. The Race Relations (Amendment) Act 2000 and the General Race Equality Duty within it were enacted to give effect to the recommendations in the Stephen Lawrence Inquiry Report and the Inquiry’s findings of ‘institutional racism’. The purpose of the General Race Equality Duty was to create a strong, effective, and enforceable legal obligation which placed race equality at the heart of the public authority’s decision making. The new duty was intended to mark a major change in the law. It represented a move from a fault-based scheme where legal liability rested only with those who could be shown to have committed one or other of the unlawful acts. Instead, the duty-bearer, the public authority, was to be required to proactively consider altering its practices and structures to meet this statutory duty. This was considered important in light of the findings of the Stephen Lawrence Inquiry.” (Emphasis added)