Introduction

The case of Simon McLean v Aberdeen City Council filed as [2024] CSOH 77 before the Scottish Court of Session's Outer House examines the procedural obligations of public authorities under the Equality Act 2010. The petitioner, Simon McLean, sought a judicial review of a resolution passed by Aberdeen City Council on September 11, 2023, concerning the proposed future use of St Fittick's Park in Aberdeen's Torry area. The core issue revolves around whether the Council failed to conduct an Equality Impact Assessment (EIA) as mandated by the Equality Act 2010 and its specific Scottish regulations.

Key parties involved include Aberdeen City Council (the respondent) and Simon McLean (the petitioner), with legal representation from M Dailly (Solicitor Advocate) and Drummond Miller LLP for the petitioner, and N McLean (Solicitor Advocate) and Brodies LLP for the respondent.

Summary of the Judgment

The petitioner challenged resolution 9.6 passed by Aberdeen City Council, contending that the Council did not fulfill its duties under section 149 of the Equality Act 2010 by failing to perform an Equality Impact Assessment prior to making the resolution. The resolution in question authorized the Chief Officer to explore development options for St Fittick's Park, including potential partnerships and community benefits, but did not involve immediate policy changes or final decisions on development.

The Court of Session, presided over by Lord Fairley, examined whether the timing of the EIA was appropriate within the procedural framework of the Council's decision-making process. The Court concluded that the resolution was a preliminary step aimed at gathering necessary information before any impact assessment could be conducted. As such, the Court found no breach of the public sector equality duties and dismissed the petition, affirming the Council's procedural compliance.

Analysis

Precedents Cited

The Judgment extensively referred to several key legal precedents to substantiate the Court's decision:

• R. (on the application of Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345; emphasizing the necessity for rigorous and proactive adherence to public sector equality duties.
• McHattie v South Ayrshire Council 2020 SLT 399; underscoring the importance of integrating equality considerations early in policy formulation.
• Pieretti v Enfield LBC [2010] EWCA Civ 1104; highlighting that equality impact assessments must not be retrospective but integral to policy development.
• R (Shrewsbury and Atcham Borough Council) v Secretary of State for Communities and Local Government [2008] EWCA Civ 148; illustrating the distinction between policy formulations requiring judicial review and preliminary administrative actions.
• For Women Scotland Limited v Lord Advocate 2021 SLT 639; differentiating between new or revised policies and instructions to investigate potential developments.

These precedents collectively informed the Court's interpretation of when and how equality impact assessments should be conducted, particularly in the context of preliminary administrative resolutions that do not yet constitute final policy or decisions with substantive legal consequences.

Legal Reasoning

The Court's reasoning centered on the nature and timing of the Council's resolution. It acknowledged that while Aberdeen City Council is indeed bound by the Equality Act 2010 and its supplementary regulations to consider equality impacts, the resolution in question did not amount to a definitive policy or decision that would necessitate an immediate EIA.

Lord Fairley reasoned that the resolution served primarily as an authorization for the Chief Officer to gather further information and engage with potential developers. Since the Council was in the investigative stage, determining options for the park's development, conducting an EIA at this preliminary phase—before specific proposals were fully developed or decided upon—was not required. The Court emphasized that equality impact assessments are intended to inform policy or concrete decisions, not the exploratory phases of decision-making.

Furthermore, the Court highlighted that mandating an EIA at the preliminary stage could impede the necessary investigative processes essential for informed decision-making. This aligns with the principles established in previous cases, ensuring that equality considerations are integrated appropriately within the procedural timeline.

Impact

This Judgment reinforces the procedural framework within which public authorities must operate concerning their equality duties. It clarifies that:

• Equality Impact Assessments need not be conducted at the earliest stages of policy exploration but should be undertaken once sufficient information is available to assess the equality implications effectively.
• Preliminary resolutions or instructions aimed at information gathering do not constitute policy decisions that trigger immediate equality impact assessments.

Consequently, future cases involving challenges to public authority resolutions will reference this Judgment to understand the appropriate timing and context for conducting equality impact assessments. It underscores the balance between fulfilling legal obligations under the Equality Act 2010 and allowing public bodies the flexibility to conduct necessary preliminary investigations before making substantive policy decisions.

Complex Concepts Simplified

Equality Impact Assessment (EIA)

An Equality Impact Assessment is a process required by the Equality Act 2010 to evaluate how a proposed policy, project, or decision might affect people with protected characteristics (such as age, disability, race, gender, etc.). The goal is to identify and mitigate any negative impacts and to promote equality and diversity.

Public Sector Equality Duty (PSED)

The PSED requires public authorities to consider how their decisions and policies affect people with different protected characteristics. This duty aims to eliminate discrimination, advance equality of opportunity, and foster good relations among people with and without protected characteristics.

Judicial Review

Judicial review is a legal process through which courts examine the lawfulness of decisions or actions made by public bodies. It ensures that such bodies act within their legal powers and adhere to principles of fairness and justice.

Resolution in Public Meetings

A resolution in the context of a public meeting, such as that of the Aberdeen City Council, is a formal decision or statement agreed upon by the council members. These resolutions guide the actions and policies of the council moving forward.

Conclusion

The Judgment in Simon McLean v Aberdeen City Council [2024] CSOH 77 delineates the boundaries and appropriate timing for conducting Equality Impact Assessments within the framework of public authority decision-making. By upholding the Council's procedural actions, the Court reaffirmed that equality duties under the Equality Act 2010 are integrally linked to substantive policy decisions rather than preliminary administrative steps.

This decision holds significant implications for public bodies, ensuring that they can undertake necessary exploratory actions without prematurely invoking equality assessments. Simultaneously, it solidifies the importance of conducting thorough EIAs when making definitive policy or development decisions that could impact individuals with protected characteristics.

Ultimately, this Judgment strikes a balance between legal obligations and practical governance, guiding public authorities on effectively integrating equality considerations into their operational processes without hindering necessary investigative and preparatory actions.