Mainstreaming through Impact Assessments

Impact assessment is not only a core requirement of the operalisation of the positive duty on public authorities but is also a mechanism by which equality mainstreaming is effected. It involves an attempt to assess what the effect of a policy is, or would be, on particular groups in society. With regard to disability, a key factor that would have to be taken in to account in assessing the likely effect of any policy or practice will be the disadvantaged position in society of persons with disabilities. ¹⁵⁶ Impact assessment necessitates defining what the impact of policies is at an earlier stage of policy making and bares a particular affinity to the s29 Equality Act 2010 anticipatory reasonable adjustment duty. By requiring public bodies to take action to assess and monitor the impact of policies and practices upon persons with disabilities, as well as consulting with this group of citizens, the impact assessment procedure operates to ensure that policies and practices are carefully scrutinized for any disproportionate impact and necessary and appropriate action taken to eliminate it.

156 R v Birmingham City Council and M, G and H v Birmingham City Council (co-joint appeals) [2011] EWHC 1147 (Admin).

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Furthermore, by being proactive rather than reactive, impact assessments provide a mechanism for alerting policy makers to potential problems of inequality before they happen.

Thus through impact assessment it is more likely that a generally reactive approach to problems of inequality can be replaced by pro-active early-warning approaches.¹⁵⁷ The anticipatory nature of impact assessment on equality was emphasised in Elias v Secretary of State¹⁵⁸ where in holding that the Secretary of State was in breach of his duties under section 71 of the Race Relations Act 1976, the court pointed out that the purpose of the section is to ensure that the body subject to the duty pays due regard at the time the policy is being considered, that is when the relevant function is being exercised and not when it has become the subject of challenge.

Two approaches to impact assessment has been identified; the expert-bureaucratic model and the participatory-democratic model. Under the expert-bureaucratic model, assessing equality impact is regarded as a task to be performed by specialists or bureaucrats with specialized training as well as a sophisticated understanding of equality issues. ¹⁵⁹ Under the alternative participatory-deliberative model a range of individuals and organizations outside the organisation are encouraged to contribute to the impact assessment process. This model promotes participation and access to policy-making by persons with disabilities and emphasizes the accountability of experts and officials. The positive duty appears to combine both models by transforming impact assessment from a technocratic tool to an institutional manifestation of deliberative democracy.

2.2 Participation.

Participation is a central concept in the operalisation of the statutory duty on equality which has the potential to deliver substantive equality to persons with disabilities. ¹⁶⁰ Participation

157 C. McCrudden, ‘Review of Issues Concerning the Operation of the Equality Duty….’ Supra no.150.

158 [2006] EWCA Civ 1293

159 F. Beveridge, S. Nott, K. Stephen, Mainstreaming and the engendering of policy-making: a means to an end?, EPP 7 2000, 3, pp 385-405.

160 The participation of persons with disabilities in the development of the equality schemes was a central requirement under the DDA 1995, see Disability Discrimination (Public Authorities)(Statutory Duties) Regulations 2005 (SI 2966/2005) Regulations 2(2) and 2(3)(a). Under the public authorities will be expected only to engage with persons with disabilities in the development of equality priorities.

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is not only a positive action measure¹⁶¹)but is also a fundamental human right value¹⁶² which does not only have the potential to improve the quality of decisions in an organisation but which also could measurably enhance the principle of self-determination and the anti-discrimination ideal.¹⁶³ Participation rights are particularly important in the context of disability as it increases the democratic dimension to policy making and undermines the culture of protectionism and paternalism which characterises bureaucratic decision-making. It may be the case that much of the institutional discrimination against persons with disabilities, involving the neglect or lack of understanding of their specific needs arises from the fact that decisions intended to promote disability equality ‘are sometimes taken in 'the best interests' of persons with disabilities and yet in complete ignorance of their expressed wishes.’ ¹⁶⁴ The requirement of participation could constitute a powerful legislative tool for galvanising persons with disabilities and their representative organisations to act in concert to put pressure on public authorities to take their concerns seriously.¹⁶⁵

The concept of participation as a positive measure builds on and has a particular resonance to the group disadvantage approach under the anticipatory reasonable adjustment duty. The centrality of individualism to the reactive reasonable adjustment duty is potentially a

161 The committee on the European Social Charter has determined that Article 15(3) of the Charter on Fundamental Rights in Europe requires that persons with disabilities and their representative organisations should be consulted in the design and ongoing review of positive action measures and that an appropriate forum should exist to enable this to happen. See Autism-Europe v France (1994), Collective Complaint 13.in the context of employment, see EU Directive 2002/14/EC establishing a general framework for informing and consulting employees in the European Community.

162 At the level of the United Nations, Preamble (O) of the Convention on the Rights of Persons with Disabilities confirm the right of this group of persons to be actively involved in decision-making processes about policies and programmes, including those directly concerning them.

163 Professor Fredman identifies the participation of disadvantaged groups in the ‘process of norm setting’

as 'one of the key distinguishing features of pro-active models' of equality; see S. Fredman, ‘Changing the Norm: Positive Duties in Equal Treatment Legislation’ 12 (2005) Maastricht Journal of European and Comparative Law p.369. Also, J. Schoonheim and D. Ruebain, ‘Reflections on Inclusion and Accommodation in Childhood Education: From International Standard Setting to National Implementation’ in A. Lawson and C. Gooding (eds), Disability Rights in Europe: From Theory to Practice (Oxford and Portland, Hart Publishing 2005) pp163-185.

164 G. Quinn ‘The European Social Charter and EU Anti-discrimination Law in the Field of Disability: Two Gravitational Fields with One Common Purpose’ supra no.42 pp 279-304.

165 For an exploration of how community organisations have influenced the equality agenda in Northern Ireland, see M. Beirne, ‘Social and Economic Rights as Agents for Change’ in C. Harvey(ed), ‘Human Rights in the Community, Rights as Agents for Change’ (Hart Publishing 2005) pp43-62.

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problem to the attainment of substantive equality for persons with disabilities. The reactive duty to make reasonable adjustment remains quintessentially individualised, with a strong tendency to treat vastly different phenomena as equivalent.Theoritically, an individual’s need for a white cane becomes as meaningful as their educational background. In other words, it is as important to accommodate the individual in need of a white cane as the person who has been educationally disadvantaged. The reactive reasonable adjustment duty therefore has a potential to deflect attention from the societal and historical practices that perpetuates the discrimination against persons with disabilities.

The concept of participation instantiates the basic dichotomy between making adjustments for instrumental, efficiency reasons and making adjustments for intrinsic, justice reasons.