SandraFredmanBreaking The Mold Article

SANDRA FREDMAN*
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Breaking the Mold: Equality as a Proactive D u t y t
Despite increasingly sophisticated antidiscrimination laws, dis-

crimination and inequality have proved remarkably resilient. This
prompts questions about the limits of law's ability to achieve social
change. One way forward is to fashion new legal tools, which impose
duties to promote or achieve equality, rather than focusing on individ-
ual rights against specific perpetrators. In the past decade in Britain,
such fourth generation equality laws have been developed in a distinc-
tive format, requiring the decision-maker to "have due regard" to
equality, rather than taking action to achieve such objectives. This
standard has triggered a spate of judicial review cases, particularly in
response to austerity measures imposing deep budgetary cuts on dis-
advantaged groups. This Paper's aims are two-fold. The first is to
examine the judicial approach to the due regard standard in the light
of recent regulatory theory. Do courts consider the due regard stan-
dard as a signal for deference, or can it be understood as an example
of "reflexive law," facilitating deliberative decision-making rather
than imposing external standards likely to meet with resistance from
the regulated body? The Paper concludes that courts have struggled to
deal with the regulatory challenges presented by the "due regard"
standard, wavering between appropriate and inappropriate interven-
tion. The second aim is an analysis of whether a deliberative standard
is appropriate in the equality context. The record of judicial review
cases demonstrates that such a standard risks legitimating or simply
reconfiguring existing inequalities.
INTRODUCTION
Discrimination and equality law have become increasingly so-

phisticated in recent decades. Yet while initial successes fueled early
optimism, deeper structures of discrimination have proved remarka-
bly resilient. This raises doubts about the role of law in effecting
social change. Is law inevitably limited? Or can we refashion legal
* Sandra Fredman FBA, Rhodes Professor of the Laws of the Commonwealth

and the USA, Oxford University, Honorary Professor, University of Cape Town, Pro-
fessorial Fellow, Pembroke College, Oxford. I am grateful to the editor for his valuable
comments, and to Laura Hilly and Chris McConnachie for their research assistance
on the final draft of this Paper.
t DOI http://dx.doi.org/10.5131/AJCL.2011.0021
265
266 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 6 0
tools in such a way as to play a major part in achieving substantive

equality? There is now increasing acceptance that the causes of ine-
quality and discrimination extend well beyond the acts of individual
perpetrators directed at individual victims. Instead, inequality is em-
bedded in the structures and institutions of society. As a result,

individual rights to protection against discrimination by specific per-
petrators are inevitably limited in their ability to address such
structural inequalities. Attention has therefore shifted to innovative
methods to address structural discrimination. In particular, the po-
tential of proactive duties is being explored in several jurisdictions. 1
Rather than deriving from an individual right of a victim or group of
victims against specified perpetrators, proactive models place respon-
sibility on bodies which are in a position to bring about change,
whether or not they have actually caused the problem.
Britain introduced proactive duties over a decade ago. Such du-
ties, however, have always deferred to the decision-maker to make
the ultimate choices. Thus public bodies must "have due regard" to
the need to advance equality of opportunity, eliminate unlawful dis-
crimination and promote good relations. They are not required to
achieve these goals or even to take steps to do so. In the recent Equal-
ity Act 2010 (EA 2010), this duty was consolidated and extended to a
wider range of grounds. But the core commitment to the "due regard"
standard remained unchanged.
The aim of this Paper is to assess ten years of experience with
judicial review of the "due regard" standard in Britain. Have courts
regarded the standard as simply signaling deference to decision-mak-
ers' prerogative to determine the priority to be given to equality? Or
have they seen it as an example of "reflexive law," facilitating deliber-
ative decision-making, rather than imposing external standards
which are likely to encounter resistance and hostility from the regu-
lated body? The analysis of the case-law reveals that courts have had
difficulty responding to the regulatory challenge. In attempting to
prevent bodies from simply going through the motions of paying due
regard to equality objectives, courts have intervened in specific deci-
sions in ways which are unpredictable and inconsistent. Thus,
instead of facilitating deliberation, judicial review has become the
first rather than the last resort.
Moreover, even if deliberation has taken place, the due regard
standard is simultaneously too deferent and too narrowly cast to fur-
ther equality standards effectively. Its deference has meant that on
occasion it has legitimized the continued exclusion of disfavored mi-
norities, such as Gypsies and Travellers. Moreover, since the duty is
to have due regard to the interests of identity groups, rather than
1. For examples from EU Member States, Canada and other jurisdictions, see
SANDRA FREDMAN, DISCRIMINATION LAW ch. 6 (2d ed. 2011).
2012] EQUALITY AS A PROACTIVE DUTY 267
socio-economic disadvantage per se, the result is to skew priorities in

favor of identity groups. This has meant that in times of budget cuts,
the "due regard" standard has led to a fruitless competition between
disadvantaged groups over diminishing funding, without increasing
the availability of funding overall. Although the EA 2010 contains the

potential to re-balance this effect through a duty to pay due regard to
socio-economic disadvantage, 2 the current government has refused to
bring this provision into effect.3
Part I of this Paper gives an outline of the development of the
due regard standard in British law. Part II locates the due regard
standard in the context of current regulatory theories relating to re-
flexive law. Part III consists of a detailed analysis of the judicial
review cases in order to arrive at a better understanding of the role of
judicial review in relation to deliberative democracy and modern reg-
ulatory theory. Part IV considers whether the due regard standard is
appropriate in furthering substantive equality. The final part argues
for a clearer articulation of the aims of the duty.
I. PROACTIVE DUTIES IN BRITISH LAW
It was in recognition of the difficulty of addressing structural dis-

crimination through individual discrimination law that the positive
duty to have "due regard" was first introduced in Britain. The Mac-
Pherson Inquiry, investigating the death of a black teenager in
London in 1999, found that the Metropolitan Police Service was rid-
dled with "institutional racism," which the Inquiry defined as
the collective failure of an organisation to provide an appro-
priate and professional service to people because of their
colour, culture, or ethnic origin. It can be seen or detected in
processes, attitudes and behaviour which amount to discrim-
ination through unwitting prejudice, ignorance, thoughtless-
ness and racist stereotyping which disadvantage minority
ethnic people. 4
The Race Relations (Amendment) Act 2000 therefore introduced
the first race equality duty. From the start, however, it was merely a
duty to "have due regard" to equality issues, i.e., to mainstream
equality issues in all decision-making processes, rather than an obli-
gation to eliminate discrimination. Setting the framework for later
duties, it provided that defined public bodies ". . . shall, in carrying
out [their] functions have due regard to the need: (a) to eliminate un-
2. Equality Act 2010 (UK) s.l.

3. MINISTER FOR WOMEN AND EQUALITIES THE H O N THERESE MAY, Equality
Strategy Speech (2010).
4. Sir William Macpherson The Stephen Lawrence Inquiry Cm 4262-1, para. 6.34
(Government Stationery Office 1999).
lawful racial discrimination; and (b) to promote equality of

opportunity and good relations between persons of different racial
groups." 5 Separate duties were introduced in respect of disability in
2005 6 and gender a year later. 7 Both of these followed the blueprint
of the race duty. While the gender duty was in almost identical terms

to that of the race duty, 8 the disability duty additionally required the
public body to have due regard to the need to "take steps to take ac-
count of disabled persons' disabilities, even where that involves
treating disabled persons more favourably than other persons"; to
"promote positive attitudes towards disabled persons"; and to "en-
courage participation by disabled persons in public life."9
The due regard standard remains the centerpiece of the consoli-
dated duty in the EA 2010, although it now applies to all the
"protected characteristics" of age, disability, gender reassignment,
pregnancy and maternity, race, religion or belief, sex and sexual ori-
entation. Thus the public sector equality duty, now found in Section
149 of the Act, reads as follows:
A public authority must, in the exercise of its functions,
have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and
any other conduct that is prohibited by or under this Act; (b)
advance equality of opportunity between persons who share
a relevant protected characteristic and persons who do not
share it; (c) foster good relations between persons who share
a relevant protected characteristic and persons who do not
share it.
One way of making the duties more concrete was to complement
the general duty with more specific duties imposed upon particular
public bodies. In the race duty, for instance, a listed public body was
required to publish a race equality scheme showing how it intended
to fulfil its general duty including its arrangements for assessing the
likely impact of its work to promote race equality, monitoring its poli-
cies, publishing the results, and training staff in connection with
these duties. Even here, however, the duty was largely procedural.
The requirement was to make arrangements, not to carry them out. 10
The disability legislation went somewhat further, requiring public
bodies to demonstrate that they had taken the actions they commit-
5. Race Relations Act 1976, s.71, as amended by Race Relations (Amendment)

2000. See SANDRA FREDMAN, Equality Laws: A New Generation, 30 INDUSTRIAL LAW
JOURNAL 145 (2001).
6. Disability Discrimination Act 1995 (DDA 1995), ss. 49A-D.
7. Sex Discrimination Act 1975 (SDA 1975), ss. 76A-C.
8. 7d.,s.76A(l).
9. Supra note 6, S.49A.
10. Race Relations Act 1976 (Statutory Duties) Order 2001 (SI 2001/3458); Race
Relations Act 1976 (Statutory Duties) Order 2004 (SI 2004/3125), art. 3.
ted themselves to and achieved the appropriate outcomes. They were

also required to involve disabled people in the development and im-
plementation of the plan. A recent survey of the specific duties found
many organizations reporting that they had seen improvements in
the way their organizations made decisions or allocated resources. At

the same time, there was still a tendency to substitute bureaucratic
"form-filling" for taking action, especially in relation to impact
assessment. 11
The Labour government fell almost immediately after the pass-
ing of the Act, leaving it to a determinedly deregulatory coalition
government to put in place relevant scaffolding regulations. In their
view, the specific duties were overly prescriptive. Instead, the new
government has focused on publicity and transparency requirements.
This is combined with a belief that it should be left to the local electo-
rate or civil society to call public authorities to account. According to
the consultation document issued in 2010:
We do not intend to prescribe how public bodies go about
their business, but we will ensure that we put in place the
right framework which empowers citizens to scrutinise the
data and evidence on how their public services perform. We
will do this by bringing data into the daylight—letting peo-
ple see for themselves the information public bodies are
using to make decisions and the data on their performance.
Citizens will then be able to judge, challenge, applaud and
hold to account the public bodies they ultimately pay for.12
Thus the regulations on the specific duties drastically reduce the
obligations of public bodies: 13 to "publish information to demonstrate
its compliance with the duty;" 14 and to "prepare and publish one or
more objectives it thinks it should achieve to do any of the things
mentioned in [the Statute]. " 15 There is no requirement to produce a
plan of action, nor to demonstrate that action has been taken or that
outcomes have been achieved. This change of approach contrasts
strikingly with that of the Welsh Assembly government, which has
chosen to retain the requirement that a public body produce an
11. GOVERNMENT EQUALITY OFFICE & SCHNEIDER-ROSS LTD., EQUALITY DUTIES:

ASSESSING THE COST & COST EFFECTIVENESS OF THE SPECIFIC RACE, DISABILITY & GEN-
DER EQUALITY DUTIES 13 (2009); BOB HEPPLE, MARY COUSSEY AND TUFYAL
CHOUDHURY, EQUALITY: A NEW FRAMEWORK REPORT OF THE INDEPENDENT REVIEW OF
THE ENFORCEMENT OF UK ANTI-DISCRIMINATION LEGISLATION (2000).
12. GOVERNMENT EQUALITIES OFFICE, Equality Act 2010 - THE PUBLIC SECTOR
EQUALITY DUTY: PROMOTING EQUALITY THROUGH TRANSPARENCY - A CONSULTATION
(Aug. 2010).
13. Draft Equality Act 2010 (Specific Duties) Regulations 2011.
14. Id. Reg 2.
15. Id. Reg 3.
equality plan, conduct impact assessments, and identify measurable

targets. 1 6
Compliance mechanisms in the United Kingdom represent a hy-
brid of regulatory approaches. There is no cause of action at private
law. 17 Instead, enforcement is either by judicial review through the

ordinary courts, or by a compliance procedure initiated by the statu-
tory Equality and Human Rights Commission (EHRC). The EHRC
has wide powers to assess compliance with the duty, as well as its
own sanction: it may issue a compliance notice requiring the author-
ity to comply with the duty and provide information to the EHRC of
steps taken to do so. Judicial proceedings are a last resort: if the com-
pliance notice has not been complied with within three months, the
EHRC can apply to a county court for an order requiring the author-
ity to do so. 18 Indeed, it was envisaged that the Commission would be
the focus of enforcement action. One of the EHRC's predecessors, the
Commission for Racial Equality, was particularly active in this re-
spect. According to one study, it intervened in more than 200
organizations prior to its absorption into the EHRC in 2006, 19 al-
though even such activity is relatively insignificant against the
backdrop of the 43,000 bodies covered by the duty. 20 These powers,
however, have been cut back significantly by the removal of specific
duties to conduct impact assessments and put an equality plan into
place. Moreover, severe cuts to the funding of the EHRC make it un-
likely that it will be able to sustain a high level of activity in this
field. The result is that the main enforcement activity has fallen to
judicial review proceedings.
II. PROACTIVE MODELS AND REFLEXIVE LAW
As Abram Chayes demonstrates, legislation which explicitly

modifies and regulates basic social and economic realities challenges
the traditional adversarial model of adjudication. 21 The bipolar struc-
ture is particularly inappropriate for public and private interactions
which are not bilateral transactions between individuals, but have
wide social implications. This in turn requires a transformation of the
adjudicative structure from what Owen Fiss calls a "dispute resolu-
tion" model to a model of "structural reform."22 Whereas in the
16. The Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011, (2011 No.
1064 (W.155)).
17. EA 2010, supra note 2, s. 156.
18. Equality Act 2006 (UK), ss. 31-32.
19. Kate Godwin, Race Equality: An Ongoing Obligation, 154 EQUAL OPP. REV.
13, 20 (2006). See also Mark Bell, Judicial Enforcement of the Duties on Public Au-
thorities to Promote Equality, PUB. LAW 672 (2010).
20. Id. at 678.
21. Abram Chayes, The Role of the Judge in Public Law Litigation 89 HARV. L.
REV. 1281, 1288 (1976).
22. Owen Fiss, The Forms of Justice, 93 HARV. L. REV. 1, 16-28 (1979).
dispute-resolution model, the defendant is both the wrongdoer and

the provider of a remedy, in the model of structural reform, the
wrongdoer disappears, and instead the focus is on the body able to
achieve reform. In the dispute-resolution model, the victim, spokes-
person, and beneficiary are automatically combined in one plaintiff.

In the newer model, the individual no longer bears the burden of en-
forcing her own equality rights.
This is a helpful depiction of proactive equality laws. Proactive
models, however, do more than alter the means of enforcing antidis-
crimination law. The imposition of positive duties changes the whole
landscape of discrimination law. The focus is no longer on the perpe-
trator of a discriminatory act. Instead, the spotlight is on the body in
the best position to promote equality. Individual fault becomes irrele-
vant. One consequence of this is that the respondent is not
identifiable simply from the definition of discrimination. Legislation
must explicitly define and justify the choice of bodies upon whom to
place the obligation. Similarly, the nature of the duty changes. Under
the traditional model, individuals are required to refrain from dis-
criminating. If they breach this duty, they are required to pay
compensation to the victim. By contrast, the trigger for the duty to
promote equality is not self-defining. Legislation must specify both
when the duty arises, and its content. Most importantly, positive du-
ties are proactive rather than reactive. They aim to identify and
redress unlawful discrimination even if there has been no complaint
by an individual victim. But they go further: proactive measures are
also preventative. Duty-holders should consider the impact on equal-
ity of any new or established policies or legislation and adjust them
accordingly. Equally importantly, proactive measures aim to promote
equality, for example by introducing measures to facilitate the entry
of under-represented groups or through family-friendly measures.
This in turn requires a clearer idea of what "equality" entails. Broad
definitions of "equality of opportunity" or "equality of results" might
be uncertain guides to behavior. Moreover, without a clear under-
standing of goals, it might be difficult to determine violations.
Ideally, a proactive model would require the responsible body to
remove discrimination or at least take active steps to do so. Under
the International Covenant for the Protection of Economic, Social and
Cultural Rights (ICESCR), a State must take steps to achieve its
goal, by all appropriate means. In Britain, in an even more interven-
tionist stance, the outgoing Labour government introduced a
measure requiring the elimination of child poverty by 2020. 23 As we
have seen, however, in the equality field, the approach has been
much more cautious. British "fourth generation" equality laws, while
pioneering, are also highly deferential. Responsible bodies have a
23. Child Poverty Act 2010 (UK).

duty to "have due regard" to the need to eliminate unlawful discrimi-

nation, to advance equality of opportunities and promote good
relations, not necessarily to take steps towards it. Instead of prescrib-
ing particular outcomes, they defer to local decision-makers.
Does this represent a fundamental ambivalence as to the real im-

portance of equality? Or could it be characterized as an ambitious
attempt to incorporate a reflexive, deliberative approach to achieving
equality? In his path-breaking work, Gunther Teubner has high-
lighted the limits of a "command and control model" in bringing about
organizational change. On this view, society is structured non-hierar-
chically into multiple sub-systems, each with its own language or
mode of function which is not capable of being understood or trans-
lated by other sub-systems. 24 Instead, each system translates
external stimuli into its own language and reacts reflexively accord-
ing to its own internal logic. Law must present an external stimulus
which taps into this inner energy. A reflexive approach would there-
fore aim to harness the energy and problem-solving expertise of those
who are in the best position to bring about change, rather than im-
posing prescribed solutions which are likely to encounter resistance
or token compliance.
Innovative approaches of this kind can also aim to address struc-
tural inequality by enhancing deliberative democracy. Groups subject
to discrimination inevitably have unequal bargaining power and are
unlikely to achieve gains in a pure interest-based decision-making
progress. A deliberative response does not aim to resolve the issue
according to the balance of political or other power. Instead, decisions
must be justified by reference to reasons which all are able to accept
as reasonable, even if they do not agree. This approach could apply
both to the process of defining the goals of equality and the means of
achieving it. Ultimately, therefore, external incentives and deter-
rents should be combined with deliberative problem-solving and peer
review at the local level to achieve effective change.
The "due regard" standard is intentionally formulated so as to
leave the ultimate decision at the discretion of the decision-maker,
while at the same time "mainstreaming" equality issues into the deci-
sion-making process. Since it is a duty to "have due regard," not to
achieve results, this approach has the potential to address some of
the regulatory resistance generated by "command and control" mod-
els of adjudication, deferring to the expertise and local knowledge of
the decision-maker rather than imposing prescribed solutions. In ad-
24. Gunther Teubner, Substantive and Reflexive Elements in Modern Law, 17

LAW & SOC'Y REV. 239 (1983); Colin Scott, Regulation in the Age of Governance: The
Rise of the Post-Regulatory State, in THE POLITICS OF REGULATION (Jacint Jordana &
David Levi-Faur eds., 2004); Julia Black, Constitutionalising Self Regulation, 59
MOD. L. REV. 24 (1996). Julia Black, Proceduralising Regulation, Part II, 21 OXFORD
J. L. STUD. 33 (2001).
dition, there is the clear potential to achieve deliberative problem-

solving. Decision-makers are required to give due consideration to
the interests of groups which, because of their disadvantaged socio-
economic or political position, would not otherwise feature in the de-
cision-making process. Although decision-makers need not determine

the issue in favor of the disadvantaged, they should be obliged to jus-
tify their decision in a "deliberative" manner. At the same time, the
"due regard" standard could be seen as too deferential, downgrading
the importance of equality issues as compared with other priorities.
In a parallel development in the United States, new compliance
mechanisms, based on local problem-solving, have been designed as a
constructive alternative to the unrewarding struggle for educational
desegregation and equality which was fought through the courts for
many years. 25 Indeed, James Liebman and Charles Sabel argue that
"the new reform can be seen as a legitimate legatee of the movement
for desegregation of the schools." 26 Susan Sturm has similarly ex-
plored the potential for a "decentred, holistic and dynamic approach"
to complex patterns of discrimination which can no longer be traced
to deliberate racism or sexism. 27 "This regulatory approach shifts the
emphasis away from primary reliance on after-the-fact enforcement
of centrally defined, specific commands. Instead, normative elabora-
tion occurs through a fluid, interactive relationship between problem
solving and problem definition." 28 Such an approach fosters dynamic
interactions across boundaries and encourages experimentation with
respect to gathering information, measuring effectiveness, creating
incentives and institutionalising accountability. 29
A similar ambivalence might be said to underlie U.S. develop-
ments as in the United Kingdom. As described by Liebman and
Sabel:
The core architectural principle of the emergent system
is the grant by higher-level authorities . . . to lower level
ones of autonomy to pursue the broad goal of improving edu-
cation. In return, the local entities - schools, districts, and
states - provide the higher ones with detailed information
about their goals, how they intend to pursue them, and how
their performance measures against their expectations . . . .
25. James Liebman & Charles Sabel, Changing Schools: A Public Laboratory
Dewey Barely Imagined: The Emerging Model of School Governance and Legal Re-
form, 28 N.Y.U. REV. L. & Soc. CHANGE 183 (2003); Joshua Cohen & Charles Sable,
Directly-Deliberative Polyarchy, 3 EUR. L. J. 313 (2007).
26. Liebman & Sabel, supra note 25, at 300.
27. Susan Sturm, Second Generation Employment Discrimination: A Structural
Approach, 101 COLUM. L. REV. 458 (2001). See further Susan Sturm, Reframing the
Equality Agenda (Apr. 30, 2011) (unpublished conference paper) (on file with author).
28. Id. 463.
29. Id.
[This opens] the way to new forms of citizen participation in

the orientation and operation of key public institutions. 30
In particular, the courts are "creating a public forum" to deliber-
ate over educational reform. 31 The reforms are especially focused on

the provision of an adequate education to racial and other minorities
"whom the public schools have traditionally short-changed." 32 At the
same time, there are those who express scepticism about the ability
of this approach to achieve change. 33
This raises the question of the extent to which statutory stan-
dards such as the "due regard standard" in British law, and the "New
Accountability Approach" in the United States, 3 4 are indeed capable
of facilitating deliberative responses and addressing regulatory resis-
tance. This question can be addressed along two dimensions. First, it
may be that the limitations in achieving these ideals are due to flaws
in the statutory schemes themselves. Second, it may be that the
model itself is too non-prescriptive to achieve the demanding require-
ments of substantive equality. Each of these dimensions is considered
here. This Paper focuses on the "due regard" standard in British law.
There is much fertile ground for comparison with U.S. developments,
but this is not undertaken within the confines of this Paper. Nor does
the Paper deal with empirical work on the extent to which the due
regard standard might have influenced organizational behavior. In-
stead, it asks what role judicial review can play in making the
equality duty meaningful within the bounds of the due regard stan-
dard. Can judicial review provide the appropriate external stimulus
to internal change? Can it trigger a deliberative response, or at least
function as a deliberative forum, giving a voice to groups which would
otherwise be ignored and insisting on deliberative justifications from
decision-makers? These questions are explored by considering the ju-
risprudence on the proactive duties which has thus far emerged. The
case-law is concerned with the race, disability and gender duties,
which, as has been mentioned, have now been superseded by the EA
2010. Some of the principles which emerge might need to be modified
in the light of the greater specificity given to the aims of the due re-
gard standard in the EA 2010. 35 In light of the continuities between
30. Liebman & Sabel, supra note 25, at 184.

31. Id. at 207.
32. Id. at 184.
33. Melissa Clark, Response to A Public Laboratory Dewey Barely Imagined: The
Emerging Model Of School Governance And Legal Reform, N.Y.U. REV. L & Soc.
CHANGE 311 (2003); Linda Darling-Hammond, Race, Inequality and Educational Ac-
countability: The Irony of'No Child Left Behind,' 10 RACE ETHNICITY & EDUC. 245
(2007).
34. Julia Ann Simon-Kerr & Robyn K. Sturm, Justiciability and the Role of
Courts in Adequacy Litigation: Preserving the Constitutional Right to Education, 6
STAN. J. C.R. & C.L. 83-123, 83 (2010).
35. EA 2010, supra note 2, s.l49(3).
the EA 2010 and the previous duties, however, it is likely that many
of these principles will be carried forward.
III. THE DUE REGARD STANDARD AND JUDICIAL REVIEW

To work effectively within a reflexive model, the role of the legis-
lation should be to set general goals and to facilitate deliberation; the
role of the administrative bodies to provide the infrastructure for the
exchange of information; and the role of the courts to require deci-
sion-making to proceed in a deliberative way. 36 This section
examines whether the courts have indeed been able to require deci-
sion-making to proceed in a deliberative way. An essential aspect of
this question is whether the "regulatory trilemma" identified by Gun-
ther Teubner has been surmounted. This trilemma arises, according
to Teubner, when law attempts to change the behavior of regulated
systems or organizations by "command and control" regulation. First,
intervention may be ignored by the target. Second, regulation might
damage the ability of the target to reproduce itself. For example,
juridification of collective bargaining could undermine the dynamic of
voluntary interest bargaining and therefore its ability to reach stable
solutions. Third, regulation might damage law itself, in that the per-
ceived ineffectiveness of law results in a crisis of legitimacy. 37
The courts have emphasized that the due regard standard re-
lates to the decision-making process rather than the results of the
decision. As Dyson LJ stressed in Baker,38, the race equality duty "is
not a duty to achieve a result, namely to eliminate unlawful racial
discrimination or to promote equality of opportunity and good rela-
tions between persons of different racial groups. It is a duty to have
due regard to the need to achieve these goals." 39 Similarly, in Brown,
the court emphasized that "no duty is imposed to take steps them-
selves, or to achieve results." 40 As we have seen, this contrasts with
other proactive duties, such as that under the ICESCR, which im-
poses a duty on the State to "take steps, . . . to the maximum of its
available resources, with a view to achieving progressively the full
realization of the rights." 41 The due regard standard is therefore a
challenging standard for courts to apply. Can the judicial review pro-
cess trigger genuinely deliberative decision-making, which
36. Cohen & Sable, supra note 25, 334-35.

37. Gunther Teubner, After Privatization: The Many Autonomies of Private Law,
51 CURRENT L. PROBS. 393, 406-14 (1998).
38. R (Baker) v. Secretary of State and Local Government, London Borough of
Bromley [2008] EWCA Civ. 141.
39. Id. at para. 31.
40. R (Brown) v. Secretary of State for Work and Pension [2008] EWHC 3158
(Admin.), at para. 84.
41. International Covenant on Economic, Social and Cultural Rights, art. 2 (em-
phasis added).
mainstreams equality concerns and gives appropriate voice to minori-

ties? Can it achieve substantive and not simply bureaucratic change?
The capacity of the regulated body to resist change while appear-
ing to fulfil its obligations generally manifests itself as what the

courts have called a "box ticking" approach: i.e., the body goes
through the motions of following the law without genuinely changing
organizational behavior. The potential for box ticking has been par-
ticularly evident in relation to "impact assessments," which have
proved to be one of the primary vehicles for discharging the duty. Im-
pact assessment is in principle a mainstreaming device, requiring
decision-makers to take into account the impact of any decision on
protected groups. Where a negative potential effect is discerned, con-
sideration should be given to mitigating the effect. The relevant
statutory codes of conduct have set out five stages of impact assess-
ment which should be undertaken. 4 2 These steps, however, are not
mandatory but simply good practice guidance. It is here that the
courts have been thrust into the very horns of the regulatory
trilemma. Impact assessment is highly susceptible to regulatory re-
sistance: indeed a survey found that that impact assessment was the
issue most susceptible to substituting bureaucratic "form-filling" for
taking action. 43 Here the challenge for courts is to see through such a
bureaucratic approach and to facilitate genuine deliberation and co-
operation without risking the second horn of the trilemma, that is, to
damage the ability of the body to take decisions for itself without hav-
ing to resort to courts to determine whether the decision is truly
deliberative. The third horn of the trilemma, damaging the court's
credibility, is clearly a concomitant risk.
Courts have been acutely aware of the need to penetrate at-
tempts to resist change through procedural means or "box-ticking." It
has been consistently stressed that "the test of whether a decision
maker has had due regard is a test of the substance of the matter, not
of mere form or box-ticking, and that the duty must be performed
with vigour and with an open mind." 44 In their zeal to address the
substance rather than the form, however, courts have immediately
stumbled into the paradox inherent in using judicial review in this
context. On the one hand, the role of courts is to supply a stable set of
principles capable of guiding decision-making without resort to litiga-
tion. On the other hand, the more settled the principles, the more
42. See, for example, DISABILITY RIGHTS COMMISSION, THE DUTY TO PROMOTE DIS-
ABILITY EQUALITY: STATUTORY CODE OF PRACTICE ENGLAND AND WALES (2005). Http://
www.equalityhumanrights.com/uploaded_files/the_duty_to_promote_disability_equal
ity_statutory_code_of_practice_england_and_wales.pdf (acceded July 27, 2011).
43. GOVERNMENT EQUALITY OFFICE & SCHNEIDER-ROSS LTD., EQUALITY DUTIES:
ASSESSING THE COST & COST EFFECTIVENESS OF THE SPECIFIC RACE, DISABILITY & GEN-
DER EQUALITY DUTIES (2009).
44. R (Domb) v. London Borough of Hammersmith [2009] EWCA Civ. 941, at
para. 52.
scope there is for mere procedural compliance and the less space is
left for flexible decision-making. The result has been that although
judges consistently refer to a settled group of principles, 45 their appli-
cation to the facts yields far from consistent outcomes. An
increasingly detailed scrutiny by courts of the process of decision-

making, without predictable outcomes, has meant that courts are in
danger of becoming the first rather than the last resort for the delib-
erative process.
An initially problematic question is whether an impact assess-
ment should be undertaken at all. It has consistently been stressed
that there is no statutory duty to do so. 46 In several cases brought by
Gypsy Travellers challenging the refusal of planning permission to
site caravans on their own land, the court held that the planning of-
ficer had paid "due regard" even though no impact assessment had
been carried out. Thus in O'Brien, the Court of Appeal held that in
practice "no aspect was overlooked which a more formalised race im-
pact assessment would have brought to light." 47 Similarly, in AC v
Berkshire,48 Bean J held that "an equality impact assessment . . .
would have been a box-ticking exercise rather than a matter of sub-
stance." 49 It is thus surprising to find that, in the Southall Black
Sisters case, the Council was held to have acted unlawfully in making
its decision before a full racial equality impact assessment had been
undertaken. 5 0
A similar tension between deference and intervention can be
seen in relation to the courts' approach in evaluating an authority's
impact assessment. In the Foreign National Prisoners case, Wyn Wil-
liams J stated:
It seems to me that there can be no basis for this court to
grant a declaration to the effect that the equality impact as-
sessment is "flawed." The Defendant was never under a legal
obligation to undertake such an assessment; why therefore,
45. Id. at para. 52, referring to R (Elias) v. Secretary of State for Defence [2005]
EWHC 1435 (Admin.); R (Elias) v. Secretary of State for Defence [2006] EWCA Civ.
1293, [2006] 1 WLR 3213; R (Chavda) v. London Borough of Harrow [2007] EWHC
3064 (Admin.); Baker [2008] EWCA Civ. 141; Brown [2008] EWHC 3158 (Admin.);
and R (Meany, Glynn and Sanders) v. Harlow District Council [2009] EWHC 559 (Ad-
min.) . For a somewhat different version of the "settled principles," see R (The
Equality & Human Rights Commission) v. the Secretary of State for Justice [2010]
EWHC 147 (Admin.) (Foreign National Prisoners).
46. See Domb [2009] EWCA Civ. 941.
47. O'Brien v. South Cambridgeshire District Council [2008] EWCA Civ. 1159, at
para. 37.
48. AC v. Berkshire West Primary Care Trust [2010] EWHC 1162 (Admin.).
50. R (Kaur & Anor) v. London Borough of Ealing [2008] EWHC 2062 (Admin.)
(Southall Black Sisters), at para. 43.
should the court inquire into the alleged inadequacies of the

document? 51
In more recent cases, however, courts have closely scrutinized
the impact assessment, holding that the authority had not paid due

regard because the assessment was deficient. The Southall Black Sis-
ters case was brought by an NGO which provided specialist services
to Asian and Afro-Caribbean women, particularly in relation to do-
mestic violence. Ealing Borough Council, which had funded Southall
Black Sisters for thirty years, decided to switch its funding to a ser-
vice which catered for all domestic violence, including that suffered
by white women. Moses LJ struck down the decision, partly on the
ground that the impact assessment had failed to address the statis-
tics properly when determining the level of domestic violence
experienced by black and minority ethnic women when compared to
white women. 52 Similarly, in Hajrula,53 the defendant was a body
created by the London Boroughs and the City of London for the mak-
ing of grants to voluntary organizations. In order to deal with cuts to
its budget, the defendant drew up a list of priorities for funding. The
claimant, the Roma Support Group, was in the lowest category. The
defendant's assessment had determined impact according to service
heads rather than protected characteristics, thus potentially obscur-
ing the specific impact on groups such as the claimant, which focused
on a particular ethnic minority. The court struck down the decision
on the grounds that the impact assessment had failed to categorize
impact on the basis of protected characteristics. 54 In the most recent
case, Birmingham City Council had compiled a detail manual on how
to conduct an "Equality Needs Impact Assessments" which followed
the EHRC guidelines and adapted them to its own purposes. 55 It had
conducted such an assessment in making its decision to achieve sub-
stantial budgetary savings by restricting the use of Council funded
care to "critical" personal care. The court held that the impact assess-
ment was not sufficiently focused on the practical impact on those
who would no longer receive care. 56
Neither the deferential nor the intrusive approach can truly be
held to facilitate deliberative decision-making. The first allows regu-
latory resistance, while the second risks damaging the internal
dynamic of the regulated body by making it dependent on judicial
review to check the basis of its decision. In neither case does the court
reach the point of evaluating whether the process has been participa-
51. Foreign National Prisoners [2010] EWHC 147 (Admin.), at para. 56.
52. Id. at 45-46.
53. R (Hajrula) v. London Councils [2011] EWHC 448 (Admin.).
54. Id. at 68.
55. R (W) v. Birmingham City Council [2011] EWHC 1147 (Admin.), at paras. 42-
48.
56. Id. at paras. 176-79.
tive, whether different perspectives have been taken into account, or

whether the solution is one which in practice furthers equality.
Also problematic is the question whether an authority can dis-
charge its duty by simply taking the view that equality issues are not

relevant. Elias J, in one of the first decisions on the equality duties
stated that:
No doubt in some cases it will be plain even after a cursory
consideration that section 71 [the race equality duty] is not
engaged, or at least is not relevant. There is no need to enter
into time consuming and potentially expensive consultation
exercises or monitoring when discrimination issues are
plainly not in point. 57
Indeed, as the court has noted, "there are some cases in which 'due
regard' is the same as 'no regard' given the factual circumstances . . . .
Furthermore, a claimant would be very unlikely to secure any relief if
the Court concluded that the alleged failure could have made no dif-
ference to the outcome." 58
It is true that time consuming impact assessments should not be
undertaken in all circumstances. Nevertheless, there is a danger that
discrimination does not appear to be in point for the very reason that
it has never been perceived as such, thus simply reinforcing the most
deep-seated of discriminatory patterns. This is clearly evident in the
Corcoron59 case, which concerned a decision to terminate the license
of a site-holder on a local authority managed site for Gypsies and
Travellers after cocaine was found in a small caravan on her site. It
was accepted that although her son was arrested in relation to the
find, she was not aware that cocaine was being stored there. Jacobs
LJ regarded it as "entirely far-fetched to suppose that a local author-
ity should think that racial discrimination considerations could come
into play." 60 On his view, the race equality duty, while requiring the
authority to have due regard to the need to eliminate unlawful racial
discrimination, did not mean that "whenever a relevant statutory
body . . . takes any decision whatever it must give advance considera-
tion to issues of race discrimination. There are decisions which
clearly have nothing to do with race, still less racial discrimination.
In such circumstances the s.71 duty does not arise." 61
57. R (Elias) v. Secretary of State for Defence [2005] EWHC 1435 (Admin.), at
para. 96. The case went on appeal but on different points: see Secretary of State for
Defence v. Elias [2006] EWCA Civ. 1293.
58. Hereward & Foster LLP, Debbie Adler v. Legal Services Commission [2010]
EWCH 3370 (Admin.), at para. 50.
59. London Borough of Brent v. Corcoran [2010] EWCA Civ. 774.
Conflicting signals have also been given concerning the timing of

the impact assessment. A line of cases has made it clear that the pub-
lic body must "give advance consideration to issues of race
discrimination before making any policy decision that may be af-
fected by them." 62 Impact assessments should not be used as a

"rearguard action" justifying a decision ex post facto,63 but as "an in-
tegral part of the formation of a proposed policy, not justification for
its adoption." 64 It appears, however, that even if a public body has
failed to have due regard to the impact on equality issues initially, it
might prevent itself from being in continuing breach by subsequently
undertaking such an assessment. In the Foreign National Prisoners
case, 65 the court held that the Ministry of Justice had failed to have
due regard to the impact on race and disability of a new policy of
transferring foreign national prisoners to specific prisons pending de-
portation. By carrying out a subsequent impact assessment, however,
the Minister was no longer in breach. The judge rejected a suggestion
that the impact assessment was carried out retrospectively and with-
out an open mind in order to validate an already implemented policy:
"[w]hile, of course, it is true that it post dates the implementation of
the policy there is nothing about its substance which leads me to the
view that it was written with a closed mind." 66
Courts have similarly wavered between avoiding bureaucratic
approaches by accepting at face value the assertion that a body has
paid due regard to equality issues, on the one hand, and insisting on
formal documentation on the other. In Baker, Dyson LJ stated: "I do
not accept that the failure of an inspector to make explicit reference
to section 71(1) is determinative of the question whether he has per-
formed his duty under the statute. So to hold would be to sacrifice
substance to form."67 Moses LJ in Southall Black Sisters attempted,
somewhat unconvincingly, to straddle both approaches.
The process of assessments should be recorded. Records con-
tribute to transparency. They serve to demonstrate that a
genuine assessment has been carried out at a formative
stage. They further tend to have the beneficial effect of disci-
plining the policy maker to undertake the conscientious
assessment of the future impact of his proposed policy,
which Section 71 requires. But a record will not aid those
authorities guilty of treating advance assessment as a mere
exercise in the formulaic machinery. The process of assess-
62. Elias [2006] EWCA Civ. 1293, at para. 274.

63. R (BAPI and Anor) v. Secretary of State for the Home Department and the
Secretary of State for Health [2007] EWCA Civ 1139, at para. 203.
64. Southall Black Sisters [2008] EWHC 2062 (Admin.), at para. 24.
65. Foreign National Prisoners [2010] EWHC 147 (Admin.).
67. Baker [2008] EWCA Civ. 141, para. 36.
ment is not satisfied by ticking boxes. The impact

assessment must be undertaken as a matter of substance
and with rigor. 68
The above survey of recent case-law shows courts grappling with

the regulatory challenge presented by the due regard standard. The
concept of "due regard" certainly has the potential to facilitate delib-
erative decision-making, if courts were to insist that decision-makers
provide a deliberative account of their activity, demonstrating that
such decisions have not been made on the balance of power between
bodies, but reasonably on the basis of a proper consideration of the
impact on protected groups. It is far from clear though, that this has
been achieved. There has been a valiant attempt to insist on compli-
ance in substance rather than in form. But, perhaps inevitably, this
insistence on substance has meant that judicial pronouncements on
the decision-making process have not yielded any consistent set of
principles. In some cases, paradoxically, courts have emphasized sub-
stance in a way which dispenses entirely with external evidence that
the authorities have given due consideration to protected groups. In
others, courts have closely scrutinized the procedures undertaken
and found them wanting in specific, detailed respects. The result is
that litigants are reliant on judges' consideration of detailed fact situ-
ations before they can be sure to be in compliance. Courts have
escaped the first horn of the trilemma: regulatory resistance cannot
be disguised behind formal compliance. Yet courts have fallen onto
the second horn. Instead of dynamic decision-making, public bodies
must refer to courts to determine whether there has been compliance.
It is difficult to tell without more empirical work what effect this has
had on internal decision-making and the extent to which the due re-
gard standard has indeed functioned as a form of reflexive law. On
the whole, it is unlikely that judicial review on its own is capable of
achieving the internal culture change required if equality is truly to
be mainstreamed.
IV. USING A DELIBERATIVE MODEL TO ACHIEVE EQUALITY
Behind the question of whether the due regard standard can

function as a reflexive standard lies the deeper question of whether it
can make progress towards substantive equality, or whether it is so
deferential to public bodies' processes of decision-making as to legiti-
mize or simply reconfigure existing continued inequalities. This has
been tested in the current climate of austerity measures, in which
litigants have increasingly resorted to judicial review of the equality
duties to contest a range of budget cuts, including the closure of local
68. Southall Black Sisters [2008] EWHC 2062 (Admin.), at para. 25 endorsed in R
(Harris) v. London Borough of Haringey [2010] EWCA Civ. 703, at para. 40.
post offices, the withdrawal of funding from local NGOs and advice
centers, cuts to school building and legal aid programs, and the
budget itself. The equality duties are, however, a fragile platform
from which to launch these attacks. First, success is unpredictable,
and when it comes, potentially unfulfilling. The due regard standard

does not necessarily require a change in policy. Provided the public
body has given due consideration to the protected group, the duty is
fulfilled. This might have the perverse effect of legitimizing cuts. Sec-
ond, many of the cases have capitalized on the significant overlap
between socio-economic disadvantage and gender, race or disability.
This match, however, is not perfect. The risk is that the duty gives
priority to groups who can congregate under a "status" label to the
detriment of those living in poverty more generally. Ultimately, the
due regard standard cannot produce more funding: at most it can
prompt a reconsideration of priorities among those competing for re-
duced resources. This means that the duty could well give rise to
conflicts between status groups and other poor and disadvantaged
groups, redistributing poverty without redistributing wealth.
The cases can be broadly divided into three categories. In the
first, courts have tended to endorse the outcome of the decision-mak-
ing process in a way which legitimizes the continued exclusion of
already marginalized groups. 69 The due regard standard should at
the very least give a voice to the most disadvantaged, so that the pro-
cess of decision-making ensures that those with the least political
power are nevertheless given full consideration. It is disturbing to
find that the cases in which courts have taken a relatively deferential
approach to the due regard standard are consistently those concerned
with Gypsies and Travellers. 70 It is possible to justify this cluster by
focusing on the fact that these are highly discretionary decisions, ei-
ther in relation to individual planning applications or possession
orders following alleged breaches of a license. 71 Yet these seem to be
exactly the situations in which the courts should require the highest
level of sensitivity. A far better approach, and indeed the notable ex-
ception to this trend, is found in the judgement in Hqjrula,12 which
concerned a decision to put the Roma Support Group in the lowest
priority category for funding. In this case, the judge stressed that the
right to due regard should be particularly strong where a large num-
ber of vulnerable people are involved.
69. O'Brien [2008] EWCA Civ. 1159; Corcoran [2010] EWCA Civ.; Baker [2008]
EWCA Civ. 141; R (Isaacs) v. Secretary of State for Communities and Local Govern-
ment, South Somerset District Council [2009] EWHC 557 (Admin.); R (Smith) v.
South Norfolk Council [2006] EWHC 2772 (Admin.).
70. Isaacs [2009] EWHC 557 (Admin.); Smith [2006] EWHC 2772 (Admin.).
71. BELL, supra note 19, 683.
72. R (Hajrula) v. London Councils [2011] EWHC 448 (Admin.).
In the second category of cases, a disfavored group has indeed

benefited from judicial intervention, but this has come at a cost to a
different disfavored group. This is because the equality duty focuses
on status or recognition inequality, such as gender, disability or race,
rather than socio-economic disadvantage per se. It thus skews the pri-

orities of public bodies in favor of those who can cluster under the
banner of a particular status. Given that the due regard standard has
not been applied to the prior decision regarding the budget available,
the underlying problem, namely budget cuts, is not addressed. Thus
in Hajrula,73 the Roma Support Group successfully claimed that the
duty had been breached when it was given a lower position on the list
of funding priorities than groups defined by their disadvantage
rather than their identity. In the Southall Black Sisters case, 74 the
Southall Black Sisters (SBS) challenged the borough's decision to pri-
oritize groups which provided services to all women experiencing
violence, rather than just black and ethnic minority women, the con-
stituency of SBS. The Court upheld their challenge. In Harris, black
and ethnic minority traders contested a decision to regenerate a run-
down area of London. In each of these cases, the complainant success-
fully argued that the authority had not paid "due regard." Still,
paying due regard in all these cases would not increase the pot of
funds available: even if the authority changed its mind (which it was
not obliged to), this would entail rearranging funding priorities to fo-
cus on status groups rather than general socio-economic
disadvantage. As Rix LJ commented when upholding the challenge in
Harris:
I reach that conclusion with some regret because of the gen-
eral desire in the Borough for regeneration of this area,
because of the amount of public and private resources ex-
pended on this proposal and, because the council, subject to
section 71 considerations, followed a thorough and fair pro-
cedure which led, albeit by a bare majority, to a democratic
decision. Though I hope it does not, the quashing of the per-
mission may lead to a long delay in the regenerative process
in the Borough. 75
Conversely, where a policy has a deleterious effect on all users,
there is no need to seek a less detrimental alternative. Thus in Domb,
the Court of Appeal was asked to consider a decision by a local au-
thority to introduce charges for home care services. The impact
assessment conducted prior to the decision found that "the poten-
tially adverse impacts would not be related to . . . gender . . . ethnic
73. Id.
74. Southall Black Sisters [2008] EWHC 2062 (Admin.), at para. 43.
origin . . . [T]here would be no group for whom a home charging policy

as proposed would have a disproportionately adverse impact." 76 Thus
there was no need to pay due regard to those ultimately disadvan-
taged by the scheme.
In the third group of cases, which gives most reason for opti-

mism, there has been sufficient overlap between recognition and
redistributive ills for a successful challenge to have real traction in
addressing inequality. Thus cuts in welfare services advice, success-
fully challenged in Meany,77 affected all disadvantaged people, but
particularly women, people with disabilities and members of ethnic
minorities. In Brown,78 post office closures were successfully chal-
lenged on the grounds that the council had not paid due regard to its
effects on disabled people. This decision was also of benefit to other
disadvantaged persons, who relied on local post offices to access their
welfare payments. Perhaps most dramatic is the decision in Luton,
which challenged the abrupt termination of funding for the Building
Schools for the Future programme. 79 In one aspect of the case, the
court found that "no regard was had to the relevant duties at all, let
alone rigorous regard."
This does not, of course, mean that the result of requiring an au-
thority to reconsider its decision will be to allocate resources to the
disadvantaged groups. This raises the question of whether the court
will look behind the decision at hand at the budget-setting process, on
the grounds that by setting a particular budget, certain options,
which might have been less detrimental for protected groups, are
foreclosed? This argument was raised in Domb, in which the Council
had previously decided to cut local taxes, thereby making it inevita-
ble that it would need to cut certain of its services. Although he
regarded this as a "big question," Rix LJ found it impossible to ad-
dress it within the confines of the proceedings before him. 80 He did,
however, leave open the possibility that an authority might need to
demonstrate "that it had considered, in substance and with the neces-
sary vigour, whether it could by any means avoid a decision which
was plainly going to have a negative impact on the users of existing
services." 81
This possibility was further developed in the 2011 W case, where
the court rejected the council's assumption that there was no more
room for maneuver in the budget. Although financial constraints are
a legitimate factor in decision-making, the duty required the council
to consider providing further resources to this issue, even if they had

77. Id.
78. Brown [2008] EWHC 3158 (Admin.).
79. R (Luton BC) v. Secretary of State for Education [2011] EWHC 217 (Admin.).
to come from other budgets or from reserves. 82 Similarly in Rahman

the judge stated:
Even where the context of the decision-making was a local
authority's limited financial resources, that did not excuse

compliance with the public sector equality duties and indeed
there was much to be said for the proposition that in
straightened times the need for clear, well-informed deci-
sion-making when assessing the impacts on less-advantaged
members of society was as great, if not greater. 83
V. SPECIFYING THE AIMS
The above discussion suggests that a purely deliberative model is

too open-ended to give sufficient direction to the quest for equality.
Earlier generations of antidiscrimination law, based on rights rather
than duties, have had to specify carefully what would amount to a
breach. Since their inception, the British duties have been linked to
three broad statutory aims: a public authority must have due regard
to the need to eliminate unlawful discrimination, advance equality of
opportunity, and foster good relations. 84 The open-textured nature of
these aims, however, makes it difficult to formulate clear objec-
tives. 85 While the elimination of unlawful discrimination can be
referred back to the statutory prohibitions, the statutory aims of
"equality of opportunity" and "good relations" are notoriously open-
ended. Equality of opportunity clearly goes beyond formal equality,
which requires only that similarly situated people be treated equally.
Equal opportunity, however, does not necessarily entail equality of
results. This makes it very difficult to assess whether it has been
complied with. The temptation is to focus on measurable objectives,
such as drawing up a plan or monitoring, which are merely procedu-
ral gains, rather than the provision of genuine opportunities.
It was thus argued by the Discrimination Law Review, the body
charged with the long consultation process preceding the EA 2010,
that the legislation should provide a clearer articulation of the aims
of the duty:
If public authorities do not understand what promoting
equality of opportunity actually means in practice, this
reduces the effectiveness of the equality duties in achieving
82. Id. at paras.180-82.

83. R (Rotao Rahman) v. Birmingham City Council [2011] EWHC 944 (Admin.),
at para. 46.
84. EA 2010, supra note 2, s. 149(1).
85. Sandra Fredman & Sarah Spencer, Equality: Towards an Outcome-Focused
Duty, 156 EQUAL OPPOHTUNITIES REV. (2006); Sandra Fredman & Sarah Spencer, Be-
yond Discrimination: It's Time for Enforceable Duties on Public Bodies to Promote
Equality Outcomes, EQUALITY & HUM. RTS. L.REP. (2006).
286 THE AMERICAN JOURNAL OP COMPARATIVE LAW [Vol. 6 0
meaningful outcomes for disadvantaged groups. We there-

fore want a clearer articulation of the purpose of a single
public sector equality duty . . . In developing our proposals,
we have had particular regard to the work by Sarah Spencer
and Sandra Fredman on this subject and the general duty of

the Commission for Equality and Human Rights.
• We have adapted the four "dimensions of equality" as
identified by Spencer and Fredman . . .
• Addressing disadvantage—taking steps to counter the ef-
fects of disadvantage experienced by groups protected by
discrimination law, so as to place people on an equal foot-
ing with others.
• Promoting respect for the equal worth of different groups,
and fostering good relations within and between groups—
taking steps to treat people with dignity and respect and
to promote understanding of diversity and mutual respect
between groups, which is a pre-requisite for strong, cohe-
sive communities.
• Meeting different needs while promoting shared values—
taking steps to meet the particular needs of different
groups, while at the same time delivering functions in
ways which emphasise shared values rather than differ-
ence and which provide opportunities for sustained
interactions within and between groups.
• Promoting equal participation—taking steps to involve ex-
cluded or under-represented groups in employment and
decision-making structures and processes and to promote
equal citizenship. 86
When finally enacted, the EA 2010 contained a distilled version of the
four dimensions. Thus section 149(3) of the EA 2010 provides as
follows:
Having due regard to the need to advance equality of oppor-
tunity . . . involves having due regard, in particular, to the
need to—
(a) remove or minimise disadvantages suffered by persons
who share a relevant protected characteristic that are
connected to that characteristic;
(b) take steps to meet the needs of persons who share a rele-
vant protected characteristic that are different from the
needs of persons who do not share it;
86. Department for Communities and Local Government, Discrimination Law Re-
view: A Framework for Fairness: Proposals for a Single Equality Bill for Great
Britain, paras, s. 5.28-5.29 (2007).
(c) encourage persons who share a relevant protected char-

acteristic to participate in public life or in any other
activity in which participation by such persons is dispro-
portionately low. 87

The extra dimension, that of promoting equal respect for all, is
less explicit, but is nevertheless implicit in the duty to foster good
relations. 88 It remains to be seen whether these substantive aims
might yield more substantive outcomes.
CONCLUSION
It is clear from our discussion that the "due regard" standard

falls well short of the deliberative ideal outlined above. It is also un-
clear whether, if at all, it has advanced equality for the most
marginalized groups. But the continued reliance on the due regard
standard, without any of the other elements required for reflexive
law to function well, make this unlikely. 89 At the same time, the vigor
with which NGOs and other interest groups have been pursuing pub-
lic bodies to comply with the duty is itself a hopeful sign, albeit that
much of this activity has happened in the courts.
87. EA 2010, supra note 2, s. 149(3).

88. Id. s. 149(5).
89. See further Chris McCrudden, Equality Legislation and Reflexive Regulation:
A Response to the Discrimination Law Review's Consultative Paper, 36 IND. L. J. 255
(2007).
[Vol. 6 0
THE AMERICAN JOURNAL OF COMPARATIVE LAW
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SANDRA FREDMAN*

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Despite increasingly sophisticated antidiscrimination laws, dis-

Discrimination and equality law have become increasingly so-

* Sandra Fredman FBA, Rhodes Professor of the Laws of the Commonwealth

tools in such a way as to play a major part in achieving substantive

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socio-economic disadvantage per se, the result is to skew priorities in

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I. PROACTIVE DUTIES IN BRITISH LAW

It was in recognition of the difficulty of addressing structural dis-

2. Equality Act 2010 (UK) s.l.

lawful racial discrimination; and (b) to promote equality of

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5. Race Relations Act 1976, s.71, as amended by Race Relations (Amendment)

ted themselves to and achieved the appropriate outcomes. They were

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11. GOVERNMENT EQUALITY OFFICE & SCHNEIDER-ROSS LTD., EQUALITY DUTIES:

equality plan, conduct impact assessments, and identify measurable

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II. PROACTIVE MODELS AND REFLEXIVE LAW

As Abram Chayes demonstrates, legislation which explicitly

dispute-resolution model, the defendant is both the wrongdoer and

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23. Child Poverty Act 2010 (UK).

duty to "have due regard" to the need to eliminate unlawful discrimi-

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24. Gunther Teubner, Substantive and Reflexive Elements in Modern Law, 17

dition, there is the clear potential to achieve deliberative problem-

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[This opens] the way to new forms of citizen participation in

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30. Liebman & Sabel, supra note 25, at 184.

III. THE DUE REGARD STANDARD AND JUDICIAL REVIEW

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36. Cohen & Sable, supra note 25, 334-35.

mainstreams equality concerns and gives appropriate voice to minori-

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should the court inquire into the alleged inadequacies of the

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tive, whether different perspectives have been taken into account, or

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Conflicting signals have also been given concerning the timing of

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62. Elias [2006] EWCA Civ. 1293, at para. 274.

ment is not satisfied by ticking boxes. The impact

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IV. USING A DELIBERATIVE MODEL TO ACHIEVE EQUALITY

Behind the question of whether the due regard standard can

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In the second category of cases, a disfavored group has indeed

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origin . . . [T]here would be no group for whom a home charging policy

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76. Id. at para. 67.

to come from other budgets or from reserves. 82 Similarly in Rahman