Information-Gathering Resolutions and the Public Service Equality Duty

Introduction

Simon McLean, a resident of Torry in Aberdeen, uses St Fittick’s Park (“the Park”) for recreation and well-being. When Aberdeen City Council designated part of the Park within its 2023 Local Development Plan as an “Energy Transition Zone,” private company ETZ Ltd submitted a masterplan for renewables-related development. In September 2023 the Council resolved to explore—through reports, bore-hole drilling and partnership talks—how the Park might be used, without yet committing to lease or sell. McLean sought judicial review, arguing that this exploratory resolution triggered the Council’s public service equality duty under section 149 of the Equality Act 2010 and required an equality impact assessment under the 2012 Scottish Regulations. The Lord Ordinary refused relief, and on reclaiming, the Inner House upheld that decision.

Summary of the Judgment

The Court of Session (Extra Division, Inner House) held that:

• The September 2023 resolution was an information-gathering step within a policy framework already set by the Local Development Plan.
• It did not itself create substantive legal rights or obligations—unlike a lease approval or planning permission decision—and therefore did not engage the public service equality duty (section 149 Equality Act 2010).
• No equality impact assessment was required at that stage, since there was no “proposed new or revised policy or practice” under Regulation 5 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012.
• The reclaiming motion was refused, and the Lord Ordinary’s interlocutor of 7 August 2024 was affirmed.

Analysis

Precedents Cited

• Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345: Established that section 149 imposes a “due regard” duty but does not prescribe timing; public bodies must integrate equality considerations into decision-making, but not at every administrative juncture.
• Sheakh v Lambeth LBC [2022] EWCA Civ 457: Confirmed there is no fixed point in a process at which an equality impact assessment must be produced—assessment should occur when substantive proposals take shape.
• Shrewsbury and Atcham BC v Secretary of State for Communities and Local Government [2008] EWCA Civ 148: Emphasised that judicial review protects against decisions with substantive legal or practical effects; purely preparatory or investigatory steps are not normally reviewable under equality duty grounds.

Legal Reasoning

The court framed the core question: Was the Council’s resolution of 11 September 2023 a “policy decision” approving industrial development of the Park, thereby activating the public service equality duty? Or was it a preliminary, information-gathering measure that would only later yield proposals with real legal consequences?

The Inner House agreed with the Lord Ordinary that:

1. The Park’s development potential had already been affirmed by the Local Development Plan—unchallenged by Mr McLean.
2. Section 149 duty and Regulation 5 assessments are triggered by concrete policy or practice proposals, not by steps to collate technical, financial or partnership details.
3. The resolution did not bind the Council to lease or develop; it simply authorised further dialogue and data-gathering (e.g., bore-hole drilling under delegated powers) before any firm decision.
4. Absent a defined proposal, requiring an equality impact assessment at that stage would be premature and unreasonable.

Impact

This judgment clarifies that:

• Public bodies in Scotland need not conduct equality impact assessments at every planning or policy discussion stage—only once substantive proposals crystallise.
• Preparatory steps, “information-gathering resolutions” and delegated-powers investigations generally fall outside section 149’s mandatory assessment window.
• Future claimants must identify a clear, tangible decision or policy change before invoking the public service equality duty.

Practitioners should ensure that equality duties are considered at the point of firm decision-making (e.g., lease approvals, planning consents), rather than at initial policy or strategy-formulation stages.

Complex Concepts Simplified

• Public Service Equality Duty (Section 149, Equality Act 2010): A legal obligation requiring public authorities to have “due regard” to eliminating discrimination, advancing equality of opportunity and fostering good relations between protected groups when making decisions that have real impact on people.
• Equality Impact Assessment: A formal review process ensuring that new or revised policies/practices do not unfairly disadvantage people with protected characteristics (such as age, disability, race). Under the 2012 Scottish Regulations, it is required when applying a proposed new or revised policy.
• Policy Decision vs. Preparatory Step: A policy decision creates or changes legal or practical rights; preparatory steps (information-gathering, studies, reports) set the stage but do not in themselves determine outcomes.

Conclusion

McLean v Aberdeen City Council ([2025] CSIH 13) establishes that early-stage, exploratory resolutions by local authorities—designed to gather information and explore options—do not by themselves engage the public service equality duty or require an equality impact assessment. The duty arises only when a concrete policy, plan or decision with substantive legal effect is poised for adoption. This ruling streamlines public administration by distinguishing preparatory exercises from final decisions, while preserving equality protections at the critical decision-making juncture.