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Extra-territoriality and the Public Sector Equality Duty; the geographical effect of UK equality legislation

13/08/2019
The Administrative Court (sitting as a Divisional Court) has recently commented on the geographical limits of the obligation of the Public Sector Equality Duty ("PSED") for public authorities in Hoareau & Bancoult v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin). This blog explains the Court's decision and highlights the potential implications for public authorities.

The Administrative Court (sitting as a Divisional Court) has recently commented on the geographical limits of the obligation of the Public Sector Equality Duty ("PSED") for public authorities in Hoareau & Bancoult v Secretary of State for Foreign and Commonwealth Affairs [2019] EWHC 221 (Admin). This blog explains the Court's decision and highlights the potential implications for public authorities.

The case is part of long-running litigation between the UK government and the former inhabitants of the Chagos Islands – a remote archipelago located in the British Indian Ocean Territory.  In the 1960s and 70s the UK government exiled the islands' population to establish a US military base. Further to a review of its policy on the Chagos Islands, on 16 November 2016 the UK government decided to refuse resettlement of the Chagossians. This was despite a feasibility report that found that the Chagos Islands could be successfully resettled.  Two Chagos Islanders brought a claim for judicial review of this decision. The JR challenged the Secretary of State's decision regarding resettlement on a number of bases. One of the grounds of claim was that the Secretary of State had failed to comply with PSED.  The claimants relied upon the relevant protected characteristic of race.

The issue to be settled was whether the UK government must have regard to the PSED when making decisions that have an impact outside the UK, and whether the Secretary of State had failed to comply with the Public Sector Equality Duty ("PSED") in section 149 of the Equality Act 2010.

PSED requires public authorities, in exercise of their functions, to have regard to the need to:

  1. eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
  2. advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
  3. foster good relations between persons who share a relative protected characteristic and persons who do not share it.

The parties agreed that section 149(1)(a) did not apply in this case because that part of the Equality Act is confined to Great Britain. The issue was whether section 149(1)(b) and (c) applied outside of Great Britain.

Singh LJ and Carr J noted that section 217 of the Act deals with the extent of the Act. Section 217 states that the Act "forms part of the law of England and Wales".  However, they found that section 217 does not govern the geographical scope of the Act or the public functions referred to in section 149.  The Court was clear that a provision as to the extent of an Act is different to the geographical scope of an Act.

The Court relied upon the Divisional Court's decision in Hottak where it was held that:

"In the formulation of policy it does not matter, in my view, that the policy may have an impact wholly or partly outside Great Britain. The territorial limitations implicit in section 149(1)(a) follow the application of the substantive parts of the Act but otherwise there are no territorial limitations."

As a result, the Court found that section 149 did apply to the facts of the case.  This means that public authorities must have regard to PSED when making decisions that may have an impact outside the UK.

However, in considering the evidence as a whole, the court found that the Secretary of State did – in this case – have due regard to PSED considerations, and the claim was dismissed.   The Claimants appealed to the Court of Appeal and judgment was handed down on 16 July 2019 refusing permission to appeal.  The Court's approach has subsequently been upheld by the Administrative Court in Turani v Secretary of State for the Home Department.

Hoareau has long-reaching implications for public authority decision makers. In particular, when conducting equality impact assessments, public authorities will need to have due regard to the impact of their policy decisions on people outside of the UK. The fact that a decision affects individuals outside of the UK does not mean that PSED considerations are irrelevant. Decision-makers should carefully consider the impacts of their decisions outside the UK, and should consider completing full and thorough equality impact assessments in such cases, in order to strengthen their decisions against potential challenge.

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