Equalities and Judicial Review

In my post on Surrey yesterday, I forgot to point out what I think the most interesting missed opportunity of the case.

The reason that we have such a wave of decisions relating to the Equality Act is that no one has given clear guidance on what "due regard" is.  When questioned in the Brent case, Helen Mountfield QC accepted that there had to be some form of proportionality, although in the Higher Court Dinah Rose QC denied it.  Dinah Roses's position (rejected by the Court of course) was hat an authority had to consider every imaginable permutation of the eight equality strands _ an impossible task.  She also put forward a modified version of this argument that this should only apply to "important" decisions, which begs the question of what is an important decision. 

Elisabeth Laing QC, who represented Brent in that case and Surrey CC more recently, has argued for a stricter view of the Wednesbury criteria.  This would suggest that a court only make a decision on whether due regard had been paid if the decision maker had been manifestly irrational.  This would be a significant raising of the bar on the current situation, where Courts seem to be picking over each assessment retrospectively at the invitation of a claimant. 

The Surrey case sidestepped this question as the judge ruled on the issue using both the argument that the "due regard" had not been paid and that the Wednesbury principle applied _ that Surrey had been irrational.  Until this gets sorted out, there are likely to be many more judicial reviews.