On 12 June 2020, the High Court handed down judgment in R (Prichard) v Secretary of State for Work and Pensions [2020] EWHC 1495 (Admin) (judgment available here).
The case concerned the lawfulness of a Government decision to bring into force a provision of the Welfare Reform Act 2012 in respect of ‘mixed-age couples’ (or ‘MACs’) – couples in which one partner is above, and the other below, state pension age. The effect of the provision in question was that MACs should be required to claim Universal Credit rather than State Pension Credit, as they had done previously. The rationale was that State Pension Credit, a more generous benefit with no attached requirement to work, disincentivised the younger member of a MAC to work.
Though the new rule was embodied in primary legislation, it had lain dormant on the statute book for several years, and the thrust of the challenge was to the commencement decision. The challenge was brought on the grounds that that decision was discriminatory contrary to Article 14 of the European Convention on Human Rights (“ECHR”), and breached the public-sector equality duty (“PSED”) in section 149 of the Equality Act 2010 (“EqA”). After a rolled up hearing, Laing J granted permission to apply for judicial review but denied the substantive application.
From a legal perspective, the case is of particular note for Laing J’s ruling in respect of the PSED. Her analysis in that regard may be found at paragraphs [86] – [90] and [118] – [127], and is noteworthy in three respects.
First, Laing J doubted certain elements of the well established PSED guidance in Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345. In particular, she took issue with the principle set out at paragraph 26(4) of that judgment, to the effect that:
“A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a “rearguard action”, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) at [23 – 24].”
Laing J noted that the judgment in Kaur had been made after a concession by the defendant in that case and, therefore, likely without full argument. Further, the judgment was given in the context of a very particular statutory scheme, no longer in force. Paragraph 26 of Bracking should not be read as though it were a statute, especially as there had also been no argument in Bracking itself on the principles set out in that paragraph.
Second, Laing J considered the application of the PSED to a decision to commence a provision of primary legislation, i.e. the interaction between the PSED and the ongoing duty on the Secretary of State to consider bringing primary legislation into force (as explored by the House of Lords in R v Secretary of State for the Home Department ex p Fire Brigades Union [1995] 2 AC 513). While the Human Rights Act 1998 contains certain carve-outs that, in effect, treat commencement orders as though they were provisions of primary legislation, the EqA makes no such carve-out from the PSED. Laing J held that the PSED does apply to a decision to commence primary legislation, but that the fact that the impugned act was the making of a commencement order would bear on what regard was ‘due’.
Third, though the implications of this point are not made express in the judgment, it is noteworthy that the Claimant withdrew a suggestion made in argument that he could rely on section 149(1)(a) of the EqA (see judgment at [107], noting the withdrawal). Section 149(1)(a) obliges a public authority to have due regard to the need to “eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act”. It was argued for the Defendant that section 149(1)(a) would not be breached unless the Claimant could point to an instance of discrimination as defined in the EqA (or other conduct contrary to the EqA) which the Defendant was required to have regard to the need to eliminate.
In other words, as the Claimant was asserting discrimination under the ECHR but not under the EqA, there was no basis for alleging a breach of section 149(1)(a). That conclusion is supported by the words “any other conduct that is prohibited by or under this Act” in section 149(1)(a), which implies that the section is drafted by reference to the EqA rather than any broader notion of discrimination and related conduct. This seems to be the reason why the Claimant withdrew his reliance on section 149(1)(a). The broader point is that, while the PSED is sometimes seen as a compendious duty to consider equality implications in general, it in fact comprises three discrete and carefully drawn duties, whose precise wording must be considered in detail in any PSED case.
Julian Milford KC and Michael White acted for the Secretary of State.
