Indirect Discrimination, Discretionary Exemptions and the Public Sector Equality Duty in Prison Mail Policies

Commentary on Petition of William Frederick Ian Beggs for Judicial Review [2025] CSOH 112

1. Introduction

The decision of Lady Hood in the Petition of William Frederick Ian Beggs for Judicial Review ([2025] CSOH 112, Outer House, Court of Session) addresses an equality and public law challenge to a Scottish Prison Service (“SPS”) policy governing the receipt of parcels and personal property by prisoners in HM Prison Edinburgh.

The case sits at the intersection of three legal frameworks:

the law of indirect discrimination under section 19 of the Equality Act 2010;
the Public Sector Equality Duty (“PSED”) under section 149 of the same Act; and
the Prison and Young Offenders Institutions (Scotland) Rules 2011, in particular rule 6 on elimination of discrimination within prisons.

The petitioner, an Irish national from Northern Ireland imprisoned in Edinburgh, argued that a new mail/property policy indirectly discriminated against him (and others with his nationality) and that it was adopted in breach of the PSED and of the Prison Rules. The policy required parcels of personal property sent by post to be authorised in advance via a pro forma, and — crucially — allowed postal delivery (rather than hand delivery during visits) only if the prisoner had not received a visit in the preceding three months, subject to some exemptions and alternative routes (such as orders from approved suppliers).

The judgment is important because it:

clarifies the evidential burden on prisoners (and other claimants) seeking to establish indirect discrimination in the context of apparently neutral prison policies;
illustrates how discretionary exemptions inside a policy can be used both to undermine claims of group disadvantage and to buttress proportionality and PSED compliance; and
takes a relatively context-sensitive, “light touch” approach to the PSED in the operational prison setting, accepting affidavit evidence in lieu of contemporaneous equality analysis.

2. Summary of the Judgment

2.1 Background and Policy

On 2 December 2024, SPS introduced a new Standard Operating Procedure entitled “Property Handed Out and Received (Post & Gate)” (“the policy”) at HM Prison Edinburgh. In outline:

Prisoners must complete a pro forma to request items of personal property, which is scanned and sent to reception for authorisation. Only one pro forma may be “live” at any one time.
Authorised property can be:
- handed in at the prison gate during a visit; or
- sent by post as a parcel if — and only if — the prisoner has not had a visit in the last three months, with the pro-forma reference number clearly displayed on the parcel.
There is no minimum interval between postal parcels once the three-month no-visit condition is satisfied, subject only to the one live pro forma rule.
Prisoners can also order directly from certain approved suppliers (e.g. booksellers, CD suppliers), one order per month, without the three-month no-visit restriction. Amazon is not an approved supplier.
Parcels arriving in breach of the system are not issued: the prisoner must use the pro-forma route if they wish the property to be sent again.
SPS operated a discretionary exemption from the three-month rule (and, it said, from other aspects of the policy) from an early stage, although this was not on the face of the written policy and was initially ad hoc.

The policy was introduced to tackle serious security concerns: a high volume of parcels and the introduction of illicit items (especially drugs) into the prison. The respondent argued that the policy increased accountability, reduced volumes to a manageable level and aligned practice with other comparable establishments.

The petitioner, whose family live in Northern Ireland, experienced refusal of Amazon parcel deliveries when the new policy came into force and complained that no Equality Impact Assessment (“EIA”) had been carried out and that the policy discriminated against him based on his nationality. A later Equality and Human Rights Impact Assessment (“EHRIA”) was undertaken between 17 January and 27 May 2025.

2.2 Issues Before the Court

Lady Hood identified the following principal questions:

Is the policy indirectly discriminatory on grounds of race/nationality contrary to section 19 of the Equality Act 2010? (paras [24]–[25])
Did the respondent fail to comply with the PSED under section 149 of the Equality Act 2010 when introducing the policy? (paras [26]–[27])
Does the policy contravene rule 6 of the Prison and Young Offenders Institutions (Scotland) Rules 2011, which requires the elimination of discrimination within the prison? (para [28])
Is the policy otherwise unlawful or unreasonable in public law terms? (para [29])
Even if a breach were established, would it be appropriate to grant the declaratory remedies sought, or would they be academic or hypothetical? (paras [30]–[31])

2.3 Outcome

The petition was refused in its entirety:

The policy was not found to be indirectly discriminatory under section 19.
The respondent was held to have complied with the PSED in substance, despite the absence of a contemporaneous EIA.
There was therefore no breach of rule 6 of the Prison Rules.
The policy was neither arbitrary nor unreasonable; its aims and means were rational and justified.
The question whether any declarator would have been academic did not require determination, given the failure of the substantive grounds.

3. Detailed Analysis

3.1 The Mail/Property Policy and its Rationale

The policy’s key innovation was to restrict postal delivery of personal property to prisoners who had not received a visit in three months, with other routes still open:

hand delivery by visitors using the pro-forma process; and
orders from approved suppliers.

The respondent justified the policy as necessary to combat the serious and growing problem of illicit items entering the prison by post. Statistics indicated increased numbers of prisoners managed as “at risk of substances”, and the volume of parcels was described as “posing significant challenges” (para [4]).

From a public law perspective, this security rationale was central: both for the legitimate aim limb of the indirect discrimination justification and for the more general test of reasonableness. The court accepted:

the legitimacy and importance of the security aim;
a rational connection between that aim and the policy mechanism (controlling parcel volumes and introducing accountability); and
the existence of safeguards and flexibility (essential items exempted; the discretionary exemption; alternative supplier route).

These considerations ultimately underpinned the finding that the policy was a proportionate means of achieving a legitimate aim for the purposes of section 19(2)(d) of the Equality Act 2010.

3.2 Indirect Discrimination: Section 19 Equality Act 2010

3.2.1 Legal Framework and Key Authorities

Section 19 of the Equality Act 2010 defines indirect discrimination. A provision, criterion or practice (“PCP”) is indirectly discriminatory if:

the PCP is applied (or would apply) to persons who do not share the claimant’s protected characteristic;
it puts (or would put) persons who share that characteristic at a particular disadvantage compared with others;
it puts (or would put) the claimant personally at that disadvantage; and
the respondent cannot show the PCP to be a proportionate means of achieving a legitimate aim.

Lady Hood cited and applied the following authorities:

Essop and ors v Home Office (UK Border Agency) [2017] UKSC 27
The Supreme Court (Baroness Hale) explained the structure of indirect discrimination and stressed that, unlike direct discrimination, it does not require a causal link between the protected characteristic and the treatment, but rather between the PCP and the disadvantage (para [24] of the judgment; Essop at [25]). The concept aims to identify “hidden barriers” to equality of results, not just equality of treatment.
Williams v Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65
Cited by the petitioner, this case emphasises that some actual or anticipated detriment must be shown; the assessment is not purely objective and must be rooted in the real-world effect of the PCP on the claimant.
Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15
Cited by the respondent and applied by Lady Hood in analysing the proportionality of the PCP (para [24]). Homer remains a leading authority on how courts should balance the importance of the aim, the effectiveness of the measure and the impact on those disadvantaged by it.

3.2.2 Identifying the PCP

Both parties ultimately converged on the same PCP:

the aspect of the policy which stipulates that a prisoner may only receive property by postal parcel if they have not received any visit from family or friends in the preceding three months.

This PCP is plainly neutral on its face and applied to all prisoners regardless of nationality. The petitioner’s case was that, in practice, it disadvantages prisoners whose families live far away, and thus — he argued — prisoners of a different nationality (such as himself, with family in Northern Ireland).

3.2.3 Group Disadvantage and the Role of Evidence

The crucial step for indirect discrimination is section 19(2)(b): showing that the PCP puts people sharing the protected characteristic at a particular disadvantage compared with others.

The petitioner produced no statistical evidence. He invited the court to rely on “its own experience” to infer that non-Scottish prisoners, being more likely to have family living outside convenient travelling distance, were de facto disadvantaged by a rule that disfavour postal parcels where visits occur.

Lady Hood declined to accept this inference (para [25]). Her reasoning has several components:

No safe assumption about family geography: Most prisoners in Edinburgh have been convicted in the Scottish courts and are likely to have some connection with Scotland. It cannot safely be assumed that Scottish prisoners are more likely, or non-Scottish prisoners less likely, to have friends or relatives within convenient travelling distance of HMP Edinburgh.
Estrangement and internal distance: Some Scottish prisoners may be estranged from their families or have family in parts of Scotland that are distant from Edinburgh; equally, non-Scottish prisoners may have built networks in Scotland.
Inverted effect if visits are rarer: If, as the petitioner suggested, non-Scottish prisoners receive fewer visits, they would more often fall into the category of those who have had no visit for three months — precisely the group that is allowed to receive parcels by post. In that scenario, the PCP might favour, rather than disadvantage, them.
Once eligible, no further restriction: Once a prisoner has not had a visit for three months, they can receive parcels by post with no additional temporal restriction beyond the “one live pro-forma” rule (para [25]). The PCP therefore does not monotonically disadvantage any group; its effect is more nuanced.
Discretionary exemptions: Although not explicit in the policy document, a discretionary exemption existed and had been used, including in the petitioner’s case. Lady Hood regarded this as particularly valuable for prisoners facing special difficulties (e.g. consular visits where parcels are not delivered) (paras [3], [25]).

On this basis, the court held that it was not proved that prisoners sharing the petitioner’s race (including nationality) were at a particular disadvantage, nor that the petitioner personally had been so disadvantaged (para [25]). The threshold for section 19(2)(b) and (c) was not met.

This aspect of the decision is significant: it underscores that plausible intuitions about disadvantage will not suffice. Claimants must present at least some concrete evidence — statistical or otherwise — of group disadvantage, especially where countervailing inferences (like the three-month no-visit trigger) exist.

3.2.4 Justification: Proportionate Means of Achieving a Legitimate Aim

Even assuming arguendo that there had been a group disadvantage, Lady Hood went on to consider justification under section 19(2)(d). The parties agreed that maintaining security and good order in the prison, particularly by preventing drugs and other illicit items from entering, was a legitimate aim (paras [13], [18], [24]).

Applying the Homer proportionality framework, the court found:

The aim — good governance of HMP Edinburgh and prisoner welfare — was sufficiently important to justify the measures.
The policy was rationally connected to that aim: it introduced accountability and traceability for parcels, reduced their volume to a level that could be monitored effectively, and addressed a documented increase in prisoners “managed as being at risk of substances” (para [4]).
The measures were no more restrictive than necessary in the relevant sense:
- correspondence was not restricted; only parcels were regulated;
- certain essential items were exempt;
- prisoners could order from approved suppliers on a regular basis;
- a discretionary exemption existed to mitigate harsh effects in individual cases; and
- the policy aligned with practice in other similar institutions (para [24]).

Accordingly, even had there been a prima facie indirect discrimination, the respondent had demonstrated that the PCP was a proportionate means of achieving a legitimate aim. The indirect discrimination claim therefore failed on both disadvantage and justification.

3.3 The Public Sector Equality Duty (PSED): Section 149 Equality Act 2010

3.3.1 Legal Principles and Authorities

Section 149 of the Equality Act 2010 imposes the public sector equality duty on public authorities (and those exercising public functions). They must, in exercising their functions, have due regard to the need to:

eliminate discrimination, harassment, victimisation and other prohibited conduct;
advance equality of opportunity between people who share a relevant protected characteristic and those who do not; and
foster good relations between those groups.

The court drew on a familiar line of authorities:

R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345
Emphasised that the PSED must be exercised “in substance, with rigour and with an open mind” and at a time when it “can have a real influence on the decision” (cited by the petitioner at paras [12]).
McHattie v South Ayrshire Council [2020] CSOH 4; 2020 SLT 399
An Outer House decision reaffirming Bracking, underlining that equality considerations should be recorded where possible and that an EIA, while not mandatory, is good practice and strong evidence of compliance.
R (Elias) v Secretary of State for Defence [2005] EWHC 1435 (Admin) and [2006] EWCA Civ 1293
Elias J (in the Administrative Court) recognised that there will be cases where, after “a cursory consideration”, it is plain that equality duties are not engaged in any meaningful way, and extensive consultation or monitoring is unnecessary (quoted by Lady Hood at para [27]). Nonetheless, he required at least some attempt to assess whether the scheme raised equality issues, the extent of any adverse impact, and possible mitigation (para [20] of the opinion).
R (Luton BC) v Secretary of State for Education [2011] EWHC 217 (Admin)
Emphasised that equality duties must be discharged at the “formative” stage of policy-making, not ex post.
R (Bailey) v London Borough of Brent [2011] EWCA Civ 1586
Davis LJ described “due regard” as “the regard which is appropriate in all the circumstances” (quoted at para [27]). This underpins a flexible, context-sensitive approach to the intensity of analysis required.

3.3.2 Absence of a Contemporaneous EIA

It was accepted that no Equality Impact Assessment was carried out contemporaneously with the introduction of the policy on 2 December 2024 (paras [6], [26]). A later EHRIA, undertaken between January and May 2025 while litigation was already under way, was (rightly) accepted as irrelevant to whether the PSED had been complied with at the time the policy was adopted (para [26]).

The petitioner argued that this absence, coupled with the lack of documentary evidence disclosed following a prompt challenge and FOI request, pointed strongly to non-compliance with the PSED. He characterised the later EHRIA as a “tick-box” exercise carried out in the shadow of litigation and therefore of limited weight.

Lady Hood rejected the notion that the absence of an EIA is, of itself, determinative (para [26]). She reiterated that:

an EIA is a helpful but not mandatory way of evidencing compliance; and
compliance may be shown by other means, including affidavit evidence, provided that the duty has in fact been exercised “in substance, with rigour and with an open mind” (drawing on Bracking and McHattie).

3.3.3 Context and “Due Regard” in Practice

Drawing on Bailey and Elias, Lady Hood emphasised that what constitutes “due regard” is context-dependent:

the meaning of “due regard” is the “regard which is appropriate in all the circumstances” (para [27], quoting Bailey).

In line with Elias, she recognised that in some cases it will be obvious after brief consideration that the duty is not realistically engaged, or is engaged only lightly, and that extensive evidence-gathering is not required.

In this case:

The policy was developed by Mr McCann, the head of operations and the prison’s equality and diversity lead, who had specific training and experience on equality and diversity matters (para [27]).
There was no contemporaneous record of his equality analysis, but he provided an affidavit explaining his thought processes.
The policy itself showed that differential circumstances had been considered, notably:
- it explicitly provided for prisoners without visiting family or friends to receive property by post, giving them a route to access parcels; and
- a discretionary exemption existed to smooth out individual hardship (paras [3], [27]).
On the court’s factual assessment, the policy was not directly or indirectly discriminatory in its effect (para [27]).

In light of these factors, Lady Hood held that the respondent had given the requisite level of consideration to equality impacts:

In the whole circumstances, I am satisfied that the respondent did have the appropriate regard to the matters set out in section 149(1) of the 2010 Act. Accordingly, the respondent did not breach the PSED (para [27]).

This is a relatively lenient application of PSED principles in an operational prison context:

The lack of contemporaneous written analysis was not fatal.
Affidavit evidence from a trained equality lead was accepted as sufficient.
The absence of proven discriminatory effect reduced the intensity of scrutiny.

The judgment thus stands as authority that, at least where the equality impact of a policy is not obvious or not demonstrated in evidence, courts may accept a relatively light form of PSED compliance in the prison operations sphere.

3.4 Prison Rules: Rule 6 (Elimination of Discrimination)

Rule 6 of the 2011 Prison Rules requires the governor to seek to eliminate discrimination, harassment and victimisation within the prison on various listed grounds, including race and “other status” (para [8]).

The petitioner alleged that, because the policy was indirectly discriminatory and contrary to the Equality Act, it also breached rule 6 (para [14]).

Having held:

that the policy was not indirectly discriminatory under section 19; and
that the PSED had been complied with;

Lady Hood concluded that there was no breach of rule 6 (para [28]). The Prison Rules duty adds little more here than a restatement of the Equality Act requirement in the specific prison context; absent a substantive equality violation, the rule was not infringed.

3.5 General Lawfulness and Reasonableness of the Policy

The petitioner also framed a more general challenge that the policy was unlawful and unreasonable in public law terms, and “arbitrary” (para [15], [29]). However, this head of challenge was, in substance, parasitic on the discrimination and PSED allegations.

Lady Hood found (para [29]):

The aim of the policy (prison security and management) was legitimate and uncontested.
The means chosen — a three-month no-visit trigger for postal parcels, pro-forma authorisation, limits on concurrent requests — were clear, rational and predictable.
The policy was sensitive to different prisoners’ circumstances, expressly addressing the needs of those without visitors, and operating alongside a discretionary exemption.
The approach was in line with that adopted in other institutions and with SPS mail audit standards (para [20]).

Accordingly, there was no independent basis on which to find the policy unlawful or unreasonable. The court effectively endorsed it as a rational and proportionate operational response within the broad discretion accorded to prison authorities.

3.6 Remedies and “Academic” Declarations

Although the petition failed on the merits, Lady Hood briefly addressed, in obiter, the issue of academic (or hypothetical) declarators, drawing on the Inner House decision in Wightman v Secretary of State for Exiting the European Union 2019 SC 111 (paras [30]–[31]).

Wightman emphasised that courts should not generally determine purely academic questions, and that a declarator should have a practical purpose and effect. The petitioner here argued that, because the PSED is a procedural duty rather than an outcome duty, a declarator of breach would be meaningful even if the same policy might have been adopted after a proper process.

Lady Hood recognised that there may indeed be “certain difficulties” in any public authority argument that a PSED breach made no difference (para [31]). However, since she found no PSED breach, she concluded that:

it was unnecessary to decide whether the declarator sought would have been academic; and
it would be unhelpful to give a concluded view on that point without fuller argument (para [31]).

The judgment thus leaves open, in Scots law, the extent to which a “process-only” PSED declarator might be denied on academicity grounds even where the policy outcome would have been the same. That issue remains for future cases.

4. Precedents and Their Influence

4.1 Indirect Discrimination: Essop, Williams and Homer

The judgment follows and applies the modern Supreme Court approach to indirect discrimination:

Essop v Home Office – clarifies that:
- the focus is on the link between PCP and disadvantage, not why the link exists;
- group disadvantage must nevertheless be demonstrated, not assumed; and
- indirect discrimination aims to remove “hidden barriers” to equality of results.
Lady Hood explicitly cites Baroness Hale’s explanation to frame her analysis (para [24]). She then demands some evidential basis for the petitioner’s assertion that foreign nationals are disadvantaged by the three-month rule, and finds it lacking.
Williams – supports the requirement for some real disadvantage to the individual, consistent with Lady Hood’s conclusion that the petitioner’s own difficulties stemmed largely from non-compliance with the new process (wrong type of delivery) rather than from the three-month PCP itself (paras [5], [18]).
Homer – provides the proportionality test applied in deciding that the SPS policy, even if disadvantageous in some respects, is justified by the pressing security aim and the structure of the measures adopted (para [24]).

In effect, the Outer House reaffirms that indirect discrimination claims are evidence-driven, and that the existence of a security justification will carry substantial weight in the prison context, particularly where the policy incorporates mitigations and flexibility.

4.2 PSED Case Law: Bracking, McHattie, Elias, Luton and Bailey

The PSED analysis harmonises English and Scottish authorities:

Bracking and McHattie are relied on by the petitioner to stress the need for rigour, substance and contemporaneity in equality analysis. Lady Hood accepts these principles but finds them satisfied on the facts through McCann’s affidavit and the structure of the policy.
Elias is used by Lady Hood (paras [27]–[20]) to emphasise that:
- there can be cases where equality impacts are plainly not in point or only marginally so; and
- in such cases, extensive consultation or formal EIAs are not required.
She nonetheless follows Elias J in requiring that some consideration of equality impacts must have been given, which she finds in the combination of McCann’s training and the policy design itself.
Luton BC and related English cases serve mainly as background—reinforcing the need for PSED consideration at the formative stage. Here, the respondent conceded that the post‑hoc EHRIA could not “cure” any prior breach; the factual finding was simply that there had been no breach at the time.
Bailey is instrumental in articulating that “due regard” is proportional to context. Lady Hood explicitly adopts Davis LJ’s formulation of “regard which is appropriate in all the circumstances” (para [27]), which she then applies to the prison mail policy.

Collectively, these authorities are not departed from; rather, they are interpreted in a way that gives considerable deference to the prison authority’s operational judgment, especially in the absence of clear evidence of discriminatory impact.

4.3 Academic Questions and Wightman

Wightman v Secretary of State for Exiting the European Union (2019 SC 111) is cited to reaffirm the principle that courts should not be drawn into deciding purely academic or hypothetical disputes and that declarators should have a practical utility (paras [30]–[31]).

Lady Hood does not resolve how this applies to a “process-only” PSED breach allegation but acknowledges the potential tension:

On one hand, a PSED breach might appear “academic” if the same outcome would have been reached after a proper process.
On the other hand, given the centrality of the PSED to lawful decision-making, there are conceptual difficulties in saying that such a breach makes “no difference”.

The judgment thus leaves space for future development in Scots law on when declaratory relief for PSED breaches should be refused as academic.

5. Impact and Significance

5.1 For Prison Administration and Security Policy

The judgment:

Endorses the legality of structured parcel controls, including:
- a three-month no-visit trigger for postal parcels;
- limits on the number of concurrent parcel requests; and
- mandatory pre-authorisation mechanisms (pro-formas and reference numbers).
Recognises the seriousness and urgency of security concerns posed by illicit items in prisons and gives them substantial weight in proportionality and reasonableness assessments.
Signals that alignment with practice in other establishments and internal audit standards (such as SPS mail audit criteria) will help support the rationality and proportionality of such policies.

Prison authorities can take some comfort that well-structured, security-driven restrictions on parcels will generally withstand equality-based judicial review, provided they:

are clearly justified by evidence of risk;
retain some flexibility (such as discretionary exemptions) to avoid harsh individual outcomes; and
are implemented with at least a basic level of equality-conscious design.

5.2 For Equality Litigation by Prisoners and Foreign Nationals

For prisoners, especially foreign nationals, the case has several implications:

Courts will require some concrete evidence of group disadvantage under section 19. Intuitively plausible inferences about geography, family location or visit patterns may not suffice.
Where a policy contains a trigger such as “no visits for three months”, it may be difficult to show that any particular nationality group is disadvantaged, especially if that group plausibly receives fewer visits.
Discretionary exemptions, even if initially ad hoc or unwritten, can weigh against findings of disadvantage and help support proportionality.
Individual grievances arising from misapplication of the policy (e.g. refusal of delivery because the parcel did not comply with the new process) do not, without more, demonstrate that the policy itself is discriminatory.

Future litigants seeking to challenge prison policies on indirect discrimination grounds will likely need:

either statistical data; or
robust qualitative evidence (e.g. survey data, consistent patterns) demonstrating that prisoners with a particular protected characteristic are materially disadvantaged by the PCP compared with others.

5.3 For the Development of the PSED in Scots Public Law

The case contributes to a growing Scottish jurisprudence on the PSED by:

reaffirming that the PSED is not a box-ticking requirement for EIAs; compliance can be evidenced via other means, including affidavits (paras [26]–[27]);
underlining that the intensity of the duty is context-dependent: operational policies in a prison, especially where no clear discriminatory effect is shown, may attract a more limited equality analysis;
highlighting the value of having a named equality and diversity lead involved in policy design and able to give evidence of equality considerations; and
leaving open, for future cases, the treatment of PSED-only declarators where the outcome would allegedly have been the same.

That said, the decision may be read as setting a relatively low bar for PSED compliance where:

no contemporaneous documentation exists;
the policy is said to be “non-discriminatory” in effect; and
the court accords weight to the affiant’s training and role.

Public bodies should not assume, however, that this will always suffice. The more potentially serious or complex the equality impact, the stronger the case for carrying out and retaining a formal EIA or EHRIA at the formative stage.

6. Complex Concepts Simplified

The judgment uses a number of technical legal concepts. In simplified terms:

Provision, Criterion or Practice (PCP)
A rule, requirement, procedure or habitual way of doing things which an organisation applies to people. Here, the PCP was the rule that a prisoner can receive parcels by post only if they have not had a visit in the last three months.
Indirect Discrimination (Equality Act 2010, s.19)
This occurs when:
1. everyone is subject to the same rule (PCP);
2. but people with a particular protected characteristic (e.g. race/nationality) find it harder to comply or are worse affected;
3. the claimant personally suffers that disadvantage; and
4. the rule cannot be justified as a proportionate way to achieve a legitimate aim (e.g. safety).
It is about the effects of neutral rules, not their motives.
Public Sector Equality Duty (PSED) (Equality Act 2010, s.149)
A duty on public bodies to think about equality issues properly when they make decisions or policies. They must consider:
- eliminating discrimination;
- advancing equality of opportunity; and
- fostering good relations between different groups.
It is a process duty: if a body fails to think about these matters at the right time, it may breach the PSED even if it can later show that the outcome would have been the same.
Equality Impact Assessment (EIA) / Equality and Human Rights Impact Assessment (EHRIA)
A structured analysis of whether a proposed policy or decision could disadvantage people with protected characteristics, and how those impacts might be mitigated. Not legally mandatory in itself, but often used to demonstrate that the PSED has been complied with.
“Due regard”
This means appropriate, serious consideration to the equality needs in section 149. It does not require a particular outcome, but it does require more than token or after-the-fact justification. What is “due” depends on the context and the likely impact on equality.
Legitimate Aim and Proportionate Means
In indirect discrimination:
- A legitimate aim is a sufficiently important and lawful objective (such as prison security).
- Proportionate means are measures that:
  - are rationally connected to that aim;
  - go no further than necessary; and
  - balance the importance of the aim against the severity of the disadvantage caused.
Academic (or Hypothetical) Question
A legal question is “academic” if answering it will have no practical effect on the parties. Courts generally avoid deciding such questions, unless there is good reason (e.g. important public interest).

7. Conclusion

The Petition of William Frederick Ian Beggs for Judicial Review provides a detailed application of indirect discrimination and PSED principles to a concrete prison operational policy on parcel deliveries. Lady Hood’s decision illustrates that:

Equality challenges to prison policies must be grounded in evidence of group disadvantage, not mere assumptions; and
where security imperatives are strong and a policy is designed with some flexibility and awareness of differing prisoner circumstances, it will often be found to be a proportionate interference with prisoners’ interests.

On the PSED, the judgment confirms that:

the absence of a contemporaneous EIA is not fatal; and
courts may accept affidavit evidence and contextual reasoning as demonstrating sufficient “due regard” in operational contexts, particularly where no actual discrimination is proved.

In the broader legal context, the case reinforces an evidence-based approach to indirect discrimination, a context-sensitive application of the PSED, and substantial deference to prison authorities in the management of security risks, so long as basic equality safeguards and flexible mechanisms (such as discretionary exemptions) are in place.

For practitioners, the decision serves both as a warning — that bare assertions of disadvantage will not suffice — and as a roadmap for designing and defending prison policies that are robust against equality-based judicial review.

Indirect Discrimination, Discretionary Exemptions and the Public Sector Equality Duty in Prison Mail Policies – Commentary on Petition of William Frederick Ian Beggs [2025] CSOH 112