Due Regard Principles
The Six Principles for paying ‘due regard’ have been set out in the case of R. (Brown) v. Secretary of State for Work and Pensions (2008).
- Decision makers must be made aware of the duty of “due regard” so that it is fulfilled before and at the time decisions are being made
- It involves a conscious approach and state of mind
- The duty cannot satisfied by justifying a decision after it has been taken
- The duty must be exercised with rigour and an open mind in such a way that it influences the final decision. It is not a question of ‘ticking boxes’
- The duty cannot be delegated
- It is a continuing duty; it must be revisited and borne in mind.
(Equality & Human Rights Commission 2013)
Why do we need Evidence of ‘Due Regard’?
The courts have made clear the need to collate relevant information in order to support evidence-based decision making. A public body subject to the PSED will need to be able to show that it has adequate evidence to enable it to give due regard to those with protected characteristics.
This is on the basis that adequate and accurate equality evidence, properly understood and analysed (using ‘Equality Analysis’), is at the root of effective compliance with the general duty. Without it, a body subject to the duty would be unlikely to be able to have due regard to its aims
It is not acceptable for a relevant body to say that it cannot meet the duty because it does not have evidence about a relevant issue. If a body subject to the duty does not have sufficient evidence to give due regard then it will need to obtain it.