The Tackling Racial Inequality Toolkit

R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058, 11 August 2020

What was the case about:

South Wales Police’s decision to pilot the use of Assisted Facial Recognition (AFR) software. The decision was challenged on a number of grounds, including breach of the PSED.

Brief summary of the decision/issue and outcome:

The claimant was challenging the decision on the basis that there was a risk that the software might indirectly discriminate against individuals on the basis of race and sex, because of the design of the algorithms on which it operated.

South Wales Police argued that there was no breach of the PSED: it had carried out an ‘initial equality impact assessment’, the system was only being piloted and there was no evidence it operated in a discriminatory way. However, the Court of Appeal found that there was a breach of the PSED because the police had not investigated properly whether there might be an unacceptable bias on the basis of race or gender. The Court said the police had not ‘done all that they reasonably could to fulfil the PSED’ and because ‘AFR is a novel and controversial technology, all police forces that intend to use it in the future would wish to satisfy themselves that everything reasonable which could be done had been done in order to make sure that the software used does not have a racial or gender bias.’

Why is it significant? What does it illustrate?

There may be a breach of the PSED because of a failure to properly investigate the risk of discrimination, even if there is no evidence of actual discrimination.

Any other features of interest

As well as the Claimant and Defendant, other parties were involved. The Home Secretary was an interested party (as the case clearly had implications for all police forces, not just the South Wales Police) and there were three ‘intervenors’: the Information Commissioner (who is responsible for regulating data collection), the Surveillance Camera Commissioner and the Police and Crime Commissioner for South Wales.

Howard League and Prison Reform Trust v the Ministry of Justice (no claim issued)

What was the case about:

The Ministry of Justice made announcements on 31 March and 4 April 2020 acknowledging the need to reduce the numbers of people in prison during the pandemic. However, it failed to take effective and prompt steps to release people, so as to reduce the prison population.

Brief summary of the decision/issue and outcome:

The charities started to correspond with the government in early March about the steps that should be taken to protect people in prison during the pandemic.

On 17 April 2020, a Judicial Review Pre-Action Protocol (PAP) letter was sent to the Ministry of Justice challenging the failure to release prisoners quickly enough in order to avoid a public health emergency within the prison estate.

The grounds of challenge included a ‘legitimate expectation’ that the government would take effective steps to do what it had announced it would do and the legal duty on the government to avoid discrimination under the Equality Act 2010 and the ECHR. The relevant protected characteristics were age and disability.

The government lawyers replied on 28 April 2020. In its reply, the government set out other steps it was taking and disclosed documents including their strategy for managing prisons, based on advice from Public Health England. In light of the new information and evidence, no claim was issued. The organisations made public the information provided by the MoJ.

Why is it significant? What does it illustrate?

It is a good example of charities corresponding with the public body prior to instructing solicitors to send a Judicial Review PAP letter and of how sometimes the public body does not disclose all of the relevant information and documents until it receives a legal letter.

Any other features of interest

The PAP letter shows how much information and legal argument may be needed when preparing for a high-profile challenge: it is 23 pages long. It is not always necessary to provide so much detail and legal argument.

Unjust UK and Awate Suleiman v Metropolitan Police

What was the case about:

The Metropolitan Police (the Met) operated a ‘Gangs Violence Matrix’, a database of personal information about individuals which was shared widely with third parties. Black people, particularly young Black men, were disproportionately represented on the database. The challenge was based on the operation of the database being a breach of the PSED and Article 8 rights under the ECHR (right to private and family life) and it being racially discriminatory.

Brief summary of the decision/issue and outcome:

A 2018 review of the database found that 38% of people on it were assessed as posing no risk of violence, children as young as 13 were included and 80% of those on the database were Black.

Awate Suleiman had suffered frequent arrests and detention on bail only for charges to be dropped or to be found not guilty at court. He tried to find out whether he was on the database, but it was only when he issued a legal claim that he was told he was not.

Liberty represented Awate Suleiman and the charity UNJUST CIC in a judicial review of the policy. The claim was defended and listed for a final hearing in November 2022 but the Met settled the claim shortly before the trial. It admitted that the operation of the database was unlawful.

As part of the settlement, the Met agreed that people could apply to be informed as to whether they were on the Matrix (and if refused, this would be reviewed by the Information Commissioner). It also agreed to remove more than 1000 names from the database and to provide information (on request) to those people as to what data had been held.

Why is it significant? What does it illustrate?

Claims are often settled at a very late stage, in this case just weeks before the final hearing.

Any other features of interest

As the Met review and make changes to the database, there may be further challenges that arise. The charities will continue to monitor how the Met carry out their review.

R (on the application of Stopwatch) v Secretary of State for the Home Department

What was the case about:

The Home Secretary’s decision to remove the safeguards in the Best Use of Stop and Search Scheme (BUSSS) for the use of Section 60 (s.60) ‘suspicion-less’ stop and search. The safeguards were first introduced in 2014 to address the high levels of racial disproportionality in the use of s.60.

Brief summary of the decision/issue and outcome:

In a pre-action letter sent by Liberty on behalf of Stopwatch, it was claimed the decision was unlawful on various grounds, including its particularly detrimental effect on young Black men and boys. It also stated that the Home Secretary had not published an Equality Impact Assessment (EIA) or review of any relevant evaluation findings of a pilot where the safeguards were removed, despite stating that the pilot was necessary to properly understand the equality impacts and the efficacy of s.60 stop and search.

Following a pre-action letter sent by Liberty, the government conceded that the EIA did not contain a full analysis of available options and therefore agreed to re-consider the decision with an updated EIA. The updated EIA was subsequently published, although unfortunately the decision by the Home Secretary in relation to relaxing the safeguards did not change.

At the same time, the CJA and Liberty submitted an FoI request that the Home Office release the pilot evaluation, and the EIA related to the original decision. The Home Office refused to publish the evaluation results and EIA, claiming that it is exempt under several grounds, including that disclosing information relevant to current policy-making can be ‘mis-interpreted and unhelpfully stimulate inaccurate and negative discourse which is not in the public interest especially where trust and confidence in policing is important.’ Despite the CJA escalating the case to the Information Commissioners Office (ICO), the ICO has recently ruled that it is a live policy issue and therefore ‘disclosure of the information could impact those policy decisions and undermine the safe space needed for policy formulation and development.’

Why is it significant? What does it illustrate?

It is an example of the government making the same decision again, but with an updated EIA. Even though the decision-making was legally challenged, the outcome remained the same.

Any other features of interest

Requesting evidence to support your claim through the FoI process can be a long process. The CJA submitted an FoI request in July 2021 and the Home Office did not respond until December 2021. The final decision from the ICO on whether the information should be released was made in January 2023.

What was the case about:

The Justice Secretary had decided to make PAVA (an incapacitant spray) available to prison officers in the adult male prison estate. The Ministry of Justice (MoJ) and HM Prison and Probation Service (HMPPS) introduced PAVA to prisons holding men in 2019, beginning with a pilot in four prisons.

The Equality and Human Rights Commission (EHRC) funded a Judicial Review by a disabled person in prison who claimed the government did not uphold their legal duty under the PSED, as they had not adequately considered the potential impact on people who have mental health conditions or learning disabilities which could leave them particularly vulnerable to its use.

Brief summary of the decision/issue and outcome:

The EHRC argued that significant additional safeguards were needed to mitigate the risk of the spray being used in a discriminatory way, and concerns that the pilot exposed very significant risks of unlawful use. Following the launch of the legal action, the MoJ carried out a detailed Equality Impact Assessment (EIA) which revealed disproportionate use of force in prisons against young adults, Black people and Muslim people, which the MoJ was unable to explain. It also uncovered data gaps regarding the use of force on disabled people in prisons and limited understanding of learning disabilities by prison staff.

As a result of the Judicial Review, the MoJ changed the roll out of the spray, including strengthened safeguards and requirements for prisons to record the protected characteristics of people it is used on. It also introduced stronger guidance on its use and will require prisons to demonstrate that they understand the trends in the use of force at their establishment before they will be signed off for PAVA.

In light of these commitments and evidence received during the Judicial Review that indicated that the rate of PAVA use in the pilot prisons was reducing, the claimant discontinued legal action.

Why is it significant? What does it illustrate?

It is an example of how the public body does not disclose all of the relevant information and documents (in this case, the pilot data) until it’s faced with legal action.

What was the case about:

The Ministry of Justice introduced regulations extending custody time limits in September 2020, which extended the length of time people could spend in pre-trial custody on remand, in an attempt to address delays in the criminal justice system which had worsened during the COVID-19 pandemic. In practice, this meant that a child could spend almost eight months in prison before they had a trial. Just for Kids Law and the Howard League for Penal Reform took legal action so children aged under 18 were excluded from these provisions. The MoJ’s own Equality Impact Assessment found that children who are Black or an ethnic minority were disproportionately affected by the extension.

The challenge was based on breach of the PSED and the failure to consult the Children’s Commissioner with a significant change in policy, and was also in breach of Article 5 and Article 14 ECHR.

Brief summary of the decision/issue and outcome:

Just for Kids Law wrote jointly to the MoJ with the Howard League for Penal Reform and Liberty to raise concerns about the disproportionate impact of the decision on children from racially minoritised backgrounds. In the letters, it was stated that the regulations were potentially unlawful and requested that they be withdrawn. In their initial response, the Government refused to withdraw the regulations.

Following this, Just for Kids Law issued a Pre-Action Protocol (PAP) letter to challenge the government’s refusal to withdraw the regulations. The MoJ then agreed to consult the Children’s Commissioner and reconsider their position, which led to their agreement to exempt children from extended custody time limits. New regulations excluding children from were introduced in February 2021 and had a retrospective effect, which meant that children who had been remanded under the previous regulations would have their automatic custody time limits reduced and their trials relisted with the previous, shorter custody time limits.

Why is it significant? What does it illustrate?

It is a good example of charities corresponding with the public body prior to instructing solicitors to send a Judicial Review PAP letter. It is also a good example of using public bodies’ legal duties to consult other bodies (such as the Children’s Commissioner) on significant policy changes.

Any other features of interest

The Equality Impact Statement for the extension of custody time limits was published after the extension had already come into force.

R (SPM and Women for Refugee Women) v Secretary of State for the Home Department [2022] EWHC 2007 (Admin) 28 July 2022

What was the case about:

The government opened a new immigration removal centre (IRC) for women, Derwentside, in the Northeast of England. Legal advice (funded by legal aid) for women was mostly done remotely, rather than in-person. The challenge alleged discrimination and breach of the PSED.

Brief summary of the decision/issue and outcome:

SPM was a detainee and Women for Refugee Women (WRW) a charity who support women refugees. They challenged the provision for legal advice in Derwentside on various grounds, including that the failure to provide in-person legal advice was discriminatory, as in-person advice was available in IRCs holding men, and that the Home Office had breached the PSED when making the decision to detain women at Derwentside without adequate access to in-person legal advice. It was also argued that the claim amounted to discrimination under Article 14 of the European Convention on Human Rights and SPM claimed damages under the Human Rights Act 1998.

The court dismissed the claim, holding that an Equality Impact Assessment conducted in November 2021 was adequate and demonstrated that the Secretary of State had had adequate regard to the PSED. The alleged claims of discrimination were rejected.

It was relevant that the Home Office had proposed that in-person legal advice would be available but that the Legal Aid Agency had not received sufficient tenders by legal aid lawyers to provide the service.

In relation to SPM, she had been recognised as a victim of trafficking and released from detention prior to the hearing. This did not appear to be connected to the claim being brought.

Why is it significant? What does it illustrate?

It is an example of the court finding that the EIA conducted by the public body demonstrated compliance with the PSED. As with many claims, the challenge based on the PSED was in addition to claims of direct and indirect discrimination and claims based on human rights.

Any other features of interest

The claim was brought jointly by an individual and an organisation. To bring a claim under the Human Rights Act it is always necessary to have an individual who is the ‘victim’ of the alleged breach of human rights.

R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058, 11 August 2020

What was the case about:

South Wales Police’s decision to pilot the use of Assisted Facial Recognition (AFR) software. The decision was challenged on a number of grounds, including breach of the PSED.

Brief summary of the decision/issue and outcome:

The claimant was challenging the decision on the basis that there was a risk that the software might indirectly discriminate against individuals on the basis of race and sex, because of the design of the algorithms on which it operated.

South Wales Police argued that there was no breach of the PSED: it had carried out an ‘initial equality impact assessment’, the system was only being piloted and there was no evidence it operated in a discriminatory way. However, the Court of Appeal found that there was a breach of the PSED because the police had not investigated properly whether there might be an unacceptable bias on the basis of race or gender. The Court said the police had not ‘done all that they reasonably could to fulfil the PSED’ and because ‘AFR is a novel and controversial technology, all police forces that intend to use it in the future would wish to satisfy themselves that everything reasonable which could be done had been done in order to make sure that the software used does not have a racial or gender bias.’

Why is it significant? What does it illustrate?

There may be a breach of the PSED because of a failure to properly investigate the risk of discrimination, even if there is no evidence of actual discrimination.

Any other features of interest

As well as the Claimant and Defendant, other parties were involved. The Home Secretary was an interested party (as the case clearly had implications for all police forces, not just the South Wales Police) and there were three ‘intervenors’: the Information Commissioner (who is responsible for regulating data collection), the Surveillance Camera Commissioner and the Police and Crime Commissioner for South Wales.

R (Nur and Abdulahi) v Birmingham CC [2021] EWHC 1138

What was the case about:

A woman who was seeking social housing challenged the local authority’s allocation scheme on the grounds that it operated in a way that discriminated against disabled people.

Brief summary of the decision/issue and outcome:

A family consisting of a mother and her adult children, including a disabled daughter for whom the mother was the carer, were applying for social housing. Because of the size of the family and the need for accommodation that was adapted or capable of adaptation, most of the suitable properties were houses. However, the council’s policy gave priority for houses to families with young children. This meant that the Claimant’s bids were repeatedly ‘skipped’ (even when she was recorded as having the highest priority for a particular property).

The court held that the policy discriminated indirectly against disabled people and this could not be justified.

Why is it significant? What does it illustrate?

It illustrates how the court applies the proportionality test. The court held that the aim of prioritising families with young children was legitimate but that it operated so as to discriminate against disabled applicants, which could not be justified.

It is an example of the court considering whether potential discrimination was justified.

Any other features of interest

The case highlights the need for policies to be monitored to make sure that there are no unintended consequences in their actual operation that could result in discriminatory outcomes. The council had failed to put in place any system to monitor how the policy operated in practice.

R (Burkett) v Hammersmith and Fulham LBC (No 1), [2002] UKHL 23, 23 May 2022

What was the case about:

Delay and when a decision is made so that time starts to run.

Brief summary of the decision/issue and outcome:

The claimant was challenging the council’s decision to grant planning permission for a big development close to her home. One key issue was whether the decision (and therefore when the time limit for bringing Judicial Review started) was when the council passed a resolution to refer the case to the Secretary of State and to grant permission, subject to reaching the necessary agreements with the developer (a sort of ‘in principle’ decision to grant planning permission), or when permission was actually granted.

The initial court and the Court of Appeal held that the grounds for the application first arose when the council made the resolution to grant planning permission, subject to conditions. But the House of Lords decided that this was wrong and that the grounds first arose at the later date when planning permission was actually granted.

Why is it significant? What does it illustrate?

Although this is a type of decision-making that is specific to planning cases, it shows how difficult it can be to decide when the time limit starts: the House of Lords held that both the Court of Appeal and the High Court had been wrong to find that it was the earlier ‘in principle’ decision. This is particularly the case when decisions are made in a staged way, which is often the case when the decisions are significant and affect a lot of people.

R (Unison) v Lord Chancellor [2017] UKSC 51, 26 July 2017

What was the case about:

The government’s decision to introduce fees in the Employment Tribunal.

Brief summary of the decision/issue and outcome:

Unison was challenging the decision to introduce fees for bringing a claim in the Employment Tribunal. The Tribunal had always been free to use and most claims resulted in modest awards. The government’s rationale for introducing the fees was that the civil justice system should be self-funding – those who use the courts or tribunals should pay to do so.

Unison first tried to challenge the decision in 2014, but the court found that the challenge was premature as it did not have the evidence to prove that people were being discouraged from bringing their claims. The government was reluctant to provide information as to the falling numbers of claims. Unison used the Freedom of Information Act 2010 to request the data, which showed a dramatic fall of about 80% in the year of the final hearing. Their second claim succeeded: the Supreme Court quashed the decision on the basis that the effect of imposing the fees was that people were unable to afford to bring their claims. This amounted to a breach of the constitutional right of access to the courts.

The court found that the order was unlawful, because it operated to limit the constitutional right of access to the courts without justification.

Although not part of the decision, Lady Hale also expressed the view that the way the fees order operated was indirectly discriminatory in relation to women. Claims based on sex discrimination (including pregnancy related dismissals) were brought more by women than men and comparing the fee for discrimination claims to the levels of compensation awarded, this put women at a disadvantage compared to men. This discriminatory impact could not be justified.

Why is it significant? What does it illustrate?

It is a significant decision in relation to access to justice and the cost of bringing legal claims. It also illustrates the tricky issue of deciding when to bring a claim for Judicial Review. In this case the first claim was held to be premature but the later claim succeeded, based on evidence of the cost to ordinary families and a 75% fall in the numbers of claims being brought.

Any other features of interest

Unison relied on evidence which modelled the average family income of people earning the minimum wage, their necessary expenditure and the affordability of the fees. This evidence strengthened the case, as it demonstrated that most families would not be able to afford the fees without sacrificing other necessary expenditure, such as on children’s clothes. The case illustrates the importance of evidence of the real-life impact of a public body decision.

It also shows how organisations might ‘intervene’ in a Judicial Review. The Claimant was Unison but two ‘interveners’ were also allowed: the Equality and Human Rights Commission made oral submissions and the Independent Workers Union of Great Britain made written submissions.