22/10/2025
Written By: Nick Armstrong KC
Background
The public sector equality duty (“PSED”) was a quietly revolutionary idea. It came out of the Stephen Lawrence inquiry in respect of racial discrimination, was extended first to disability discrimination in 2005 and then to gender discrimination in 2007, before s.149 of the Equality Act 2010 made it a single duty applying in respect of all protected characteristics.
The PSED mandates no outcomes. But process matters. Perhaps the key word is that used by Elias LJ in Bracking at [74] (emphasis added):
“The PSED does not curb government’s powers to take… decisions, but it does require government to confront the anticipated consequences in a conscientious and deliberate way in so far as they impact upon the equality objectives…”
Decision-makers can therefore take the action they wish to take. But they have to think about and “confront” the consequences of those actions before they take them. There may have to be investigation and data collection. Compliance with the PSED is an essential pre-condition to lawful action. Absent that thought, the action will be unlawful and is liable to be quashed.
Simple and apparently straightforward ideas often have the greatest impact. The PSED is often overlooked, and so is often invoked by claimants, often to very good effect. Yet once again, all it asks of decision-makers is (focused) thought. To only slightly misquote that guide, philosopher and friend, Edmund Blackadder: “Think, Baldrick, think. Thinking’s so important…”
Decision
There were many cases before Bracking, but Bracking brought them together, summarised the principles and underlined their importance. Paragraph [26] must now be one of the most referenced paragraphs in public law. Its eight sub-paragraphs (with a few sub-sub-paragraphs) confirm the importance of the duty, the evidential elements, that the duty is on the decision-maker personally, and key points such as: (1) the PSED cannot be a rearguard action; (2) the duty must be “exercised in substance, with rigour, and with an open mind. It is not a question of ticking boxes”; and (3) general regard to issues of equality is not the same as having specific regard, by way of “conscious approach to the statutory criteria”.
The judgment contains other powerful language. McCombe LJ refers to the importance of the decision-maker “personally hav[ing] a full appreciation” of the risks being taken: [52]. At [60], he pointed to the intention of Parliament “that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation by all public authorities”. “Sketchy references to the impact” are insufficient; “focused regard” was required: [62].
See too Kitchin LJ on decision-makers requiring adequate information properly to assess impact as an “essential foundation” to lawful action: [70]. Elias LJ completes the judgment with the requirement to “confront” impacts: [74], and to avoid “Panglossian views” which might have been “drafted with at least half an eye to sending an up-beat message about the merits of the policy:” [75].
Bracking itself was concerned with the enormously impactful abolition of the Independent Living Fund, which then made provision for community care services beyond that which local authorities were able to provide. The abolition decision was stopped, if only for a while (for the onwards tale see R (Aspinall) v SSWP [2014] EWHC 4134 (Admin)). In other cases, proposed action may be halted altogether, because it becomes clear on fuller analysis that a relevant impact is too great.
Matrix members
David Wolfe KC appeared for the claimants/appellants
Helen Mountfield KC appeared for the Equality and Human Rights Commission as intervener
Sir Nicholas Blake heard the case as the High Court judge at first instance