S v. the Scottish Ministers: The judicial review permission test and the Public Sector Equality Duty
Cameron-Wong McDermott, a solicitor with the Equality and Human Rights Commission, looks at a recent case where the Commission used its legal powers to intervene in an appeal against a refusal to grant permission for a judicial review. The case raised important points about how the Courts apply the test for permission in judicial reviews concerning the Public Sector Equality Duty (‘PSED’) and human rights.
On 16 October 2020, the Inner House of the Court of Session delivered its opinion in an appeal brought by a prisoner (‘S’) against a decision of a Lord Ordinary to refuse him permission to proceed with his judicial review. Using our legal powers, the Commission intervened in the appeal to raise important points about the role and importance of the public sector equality duty (‘PSED’, explained further below) in policy formulation by public authorities, as well as the proper approach to the Article 8 ECHR rights of prisoners.
This article will briefly set out the facts of the case and the Inner House’s opinion. It will explore the underlying reasons driving our decision to intervene in this case.
Facts
S is a prisoner serving a life sentence at HMP Shotts. Until about 2017, S used video conferencing to facilitate contact with his elderly grandmother, who is cared for in a nursing home. S’ grandmother suffers from dementia and is frail; it was accepted that she is disabled within the meaning of the Equality Act 2010 (’the 2010 Act’) and could not travel to visit S in prison.
S challenged decisions of the prison authorities to refuse him Exceptional Escorted Day Absence (‘EEDA’) to facilitate contact with his grandmother outside of the prison. Applications for EEDA are governed by the Prison Rules, and in considering an application the prison governor must have regard to supplementary guidance issued by the prison authorities.
S challenged the refusals on several grounds, but for the present purposes it is only necessary to mention two of them. In relation to the supplementary guidance for EEDA applications, S argued that the prison authorities failed to comply with the PSED under section 149 of the 2010 Act, and also with the specific equality duties under The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (‘the 2012 Regulations’).
Under s149, public authorities must give due regard to the need to (i) eliminate discrimination and any other conduct that is prohibited by or under the 2010 Act, and (ii) advance equality of opportunity between persons who share a relevant characteristic and persons who do not share it; and (iii) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.¹ The specific duties, which assist public authorities to meet their general duty, require public authorities listed under the Regulations to assess the impact of new or revised policies against the requirements of the PSED. This is known as an equality impact assessment (‘EIA’). In developing any policy they must consider evidence relating to persons who share relevant protected characteristics.²
S also argued that his rights under Article 8 of the ECHR have been breached (and in that regard he also relied on Article 14).
On 24 March 2020, the Lord Ordinary refused permission for the petition to proceed. On the question of the PSED, the Lord Ordinary said that the guidance published by the prison authorities on the operation of the EEDA scheme had been the subject of an EIA. He went on to say that, “[t]he petition is not an appropriate vehicle for raising what are essentially theoretical questions under [the 2010 Act]. These have no practical relevance in the circumstances of the present case”. Finally, the Lord Ordinary did not consider that the refusal decisions were sufficiently serious to engage S’ Convention rights.
Why did the Commission intervene?
We were granted permission to intervene in S’ appeal against the Lord Ordinary’s decision to refuse permission for the judicial review to proceed.
Ultimately we decided to intervene at the stage of the appeal because we were concerned by several aspects of the Lord Ordinary’s decision. These concerns, which are set out in the following paragraphs, formed the basis of our written intervention.
In our view, the Lord Ordinary failed to give proper or adequate consideration to S’ argument under the PSED.
Having regard to the importance of the role of the equality duties in formulation of the supplementary guidance underpinning the scheme for EEDA, we considered that it was not appropriate for the Lord Ordinary simply to dismiss the petition for judicial review because it concerned “spent and historic decisions that are no longer of any practical relevance.” There were potentially wider circumstances in which that guidance might continue to apply in future situations, for example if S (or indeed other prisoners) made applications for EEDA to visit disabled relatives.
In addition, we noted that the document relied upon by the prison authorities to demonstrate that they had carried out an EIA of the supplementary guidance failed to comply with the requirements for an EIA set out in the 2012 Regulations. It appeared that the Lord Ordinary had taken the Scottish Ministers’ submission that the document was a complete EIA at face value. In the course of the appeal hearing, the Scottish Ministers produced what was purported to be a complete EIA, though it was noted by the Court that the document did not make reference to disability.
In stark contrast to the situation in England and Wales, the Scottish courts have been asked to consider the requirements of the PSED in relatively few cases. The Commission is therefore concerned that the jurisprudence in relation to the PSED is less well developed in Scotland than it is in England and Wales, and that, as a result, practitioners are less familiar with it and may feel reluctant to develop — or to respond to — arguments based on the PSED.
Our intervention also reflects our concern about the approach taken to S’ human rights arguments. In this respect, we argued that the Lord Ordinary was wrong to say that the refusals of EEDA were not themselves serious enough to engage S’ rights under Article 8 ECHR. Relying on case-law from the European Court of Human Rights,³ we argued the weight of authority favoured the proposition that a refusal of leave to visit an ailing relative does constitute an interference with a prisoner’s right to respect for family life.
Finally, the Lord Ordinary’s decision reflects a concern held by some practitioners that the test for granting permission for judicial review introduced by court reforms in 2014⁴ is being applied too rigidly by courts. In Wightman v. Advocate General for Scotland,⁵ the Lord President clarified that the test is “certainly intended to sift out unmeritorious cases, but it is not to be interpreted as creating an insurmountable barrier which would prevent what might appear to be a weak case from being fully argued in due course.” If the test for permission is too rigidly applied then it is likely to pose a significant access to justice issue, since it will mean that fewer human rights/equality law based judicial reviews will be explored at a substantive hearing.
The Inner House’s opinion
On 16 October 2020, the Inner House allowed S’ appeal and granted him permission to proceed with his judicial review. Our written intervention is set out and summarised at paragraphs 12 to 15 of the opinion.
In reaching their conclusion that the petition has a real prospect of success, the Court found that in spite of the difficulties which S would have to overcome if his case is to succeed, it would be “going too far too fast to hold at this stage that those difficulties are insurmountable’.
The Court also found that it would be too hasty to say that the petition had no practical consequences for S (or for other prisoners who may be affected by similar circumstances), since the supplementary guidance is likely to apply in respect of any future applications for EEDA.
The Inner House’s analysis of the merits of the appeal is short. Notwithstanding, we are pleased that the Court has affirmed the Lord President’s statement in Wightman, and applied it to S’ petition for judicial review.
We are grateful that the Court allowed us the opportunity to intervene in this case. Many aspects of S’ petition for judicial review turned on their facts, and it ought to be stressed that we were neutral on the merits of S’ applications for EEDA. We however believed that the appeal had wider strategic importance, having regard to the Lord Ordinary’s interpretation of the test for permission, as well as the Prison Service’s application of the PSED to the scheme for EEDA. Taking into account our strategic litigation policy (which is available here), we believed it was important for us to exercise our statutory powers to raise awareness of these issues. As the case moves on to a substantive hearing, we believe we have achieved our objective, and accordingly our involvement in the case is now at an end.
[1] 2010 Act, section 149(1)
[2] 2012 Regulations, article 5
[3] Lind v. Russia (2010) 50 EHRR 5
[4] Courts Reform (Scotland) Act 2014, section 89
[5] [2018] CSIH 18
