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A false Impression?

Tue, 06 Feb 2024 10:58:02 GMT

Robots interfering with an election? Where does it leave the UK?

The recent New Hampshire primary was remarkable for unfortunately the wrong reasons. A sophisticated robocalling operation teamed with an AI generated message from President Biden was used to falsely try and tell voters to “save their votes for November”. This was something election officials, candidates, parties and the media were quickly debunking and claiming to be false, but was the damage already done, and what can we learn from it?

In elections as in life the thoughts of the late Sir Terry Pratchett in his Discworld book “the Truth” are as ever true:

“I’m saying, sir, that a lie can run round the world before the truth has got its boots on.”

Although the narrative was quickly changed in New Hampshire with everyone “official” calling this out and saying it was false; authorities are still investigating who was behind the operation (as at 6/2/24). The company whose AI models were used to create the message was identified within a week, and apparently the user account which created the text has been blocked by the company. By this point the poll was over and the public had moved on.

In the UK we have a mixed legislative environment when it comes to this type of operation. Given this relates to elections then offences under the Representation of the People Act 1983come to mind. If directed at a candidate and their character the provisions of s106, or the process as a whole then s115. These are investigated by the police.

For a robocalling operations then additional questions come to the fore, potentially the Information Commissioner and Ofcom have roles. The former in relation to the databases and use of information and the latter in relation to misuse of the telephone system.

As with any enforcement, the key issues will come down to evidence and the ability to bring relevant perpetrators to justice. With the real risk of foreign entities using the power of the internet to spread misinformation

In the event of becoming aware of issues all involved should remember to gather real-time evidence to support investigations later, although this does not solve the problem.

As in New Hampshire it is unlikely that enforcement can be taken in real time – all of those working in and around elections need to be ready to rapidly counter misinformation through trusted channels of communication. We need to help the truth get its boots on!

Managing Elections in the age of AI

Thu, 11 Jan 2024 15:57:43 GMT

What impact does AI have on how we manage elections?

2024 is shaping up to be one of the most interesting years for elections worldwide that we have seen. Globally this will be the biggest exercise in democracy ever undertaken with just under half of the world's population being asked to choose their national leaders.

Whilst in this country we cannot guarantee a general election this year, everyone's assumption is that it will happen. Irrespective in large parts of the country there will be significant local and mayoral elections.

These elections will be the first major test of democracy since we have seen widespread and large-scale access to meaningful AI. The launch of large language models such as Chat GPT, Bard and their relatives as well as the introduction of picture generators such as DALL-E, Midjourney and Stable Diffusion has completely changed the landscape of accessibility. At a higher level the creation of computer-generated fake video and audio has also become far more believable and inexpensive.

Now anyone with an internet connection is able to create sophisticated and detailed images and text which can mimic reality in ways which are believable. Clearly this can assist and be a positive, or alternatively spread confusion and mislead people leading to harm.

For those of us involved in the management and running of elections the only outcome which truly we care about is that the process is seen to be clear impartial and effective. The electorate and candidates not only demand this of us but have the added desire to see their personal preference expressed as the final result!

Fortunately, as returning officers and their teams we do not directly have to monitor or police the conduct of candidates and campaigns. Where specific offences may have occurred, this is a matter for the police. However, some material may challenge the validity of the electoral process or the activities of the organisations we run.

So where does AI fit within this? In and of itself AI is just a new tool to be used in old ways. It has always been possible to doctor photographs or spread rumours which create disinformation; the change is the ease of creating believable and realistic content.

This year new provisions in the Representation of the People Act 1983 come into force regarding undue influence. The provisions of section 114A significantly increase the scope of corrupt practises. Significant attention is focused on acts which directly impact influencing the way somebody chooses to vote (or not as the case may be) but also activity which is designed to deceive a person in relation to the administration of an election.

Many of us will remember that during the afternoon of polling day on the European referendum voters started appearing wanting to mark their ballot paper with a Biro rather than the traditional pencil mark. This was because of a social media campaign suggesting the pencil ballots would be changed to ensure the “correct” result. This was clearly a conspiracy and anyone who has actually attended a count would realise how impossible that would be. However the belief for some was real and in places persists.

Spreading this sort of misinformation could now be caught under section 114A(4)(g). But prosecution always comes after the fact and not within a reasonable time scale for managing an election. Returning Officers and their teams will need to be alive to this continued risk and be prepared to respond appropriately.

Despite the hype, AI in and of itself doesn't change elections. What it does is facilitate those who may have always tried to influence an outcome. They have additional flexibility and tools in their arsenal, and those tools are cheaper, faster and more flexible than ever before. As administrators all we can do is to ensure that we continue to provide an excellent impartial and fair process for all and make sure that we communicate what we are doing effectively and clearly.

What do we have to do?

Thu, 26 Oct 2023 14:53:50 GMT

The thorny issue of essential functions and statutory powers in straitened times.

What do we have to do? An oft repeated question over many years by Members and officers alike when faced with the challenges of austerity, and for several authorities recently this has been thrown into starker relief when looking at the implications of a s114 report.

Often the question is phrased as "what are our statutory functions?" As creatures of statute, Local Authorities must find a legal power to underpin everything they do, therefore anything is arguably a “statutory function”. But that is not really the intention of the question. Not all functions are created equal; the distinction between duties and powers is drummed into any lawyer looking at governance or indeed how we use our powers.

In 2011 the coalition government decided to undertake a comprehensive review of the statutory duties imposed on local government; hopeful that they could slash red tape. Their “comprehensive list” had missed over 200 existing duties, and most responses called for their retention. They ended up with some 1300 duties, and still acknowledged it was not comprehensive. Since then, legislation has marched on with new duties added, but there is no central body keeping score.

In looking at duties the distinction is usually drawn between “may” and “must” or their equivalents, and our questioners are usually looking to the “musts”.

Permissive powers

The permissive and open powers are usually the easiest to reach for when a new project is on the cards. Things like the power of general competence from the Localism Act are the most widely drawn and flexible, but discretionary enabling powers are nothing new.

Earlier examples abound, but to give just two s120A of the Local Government Act 1972 provides that authorities "may" acquire land by agreement for any of their functions. Equally (and a relic of changing times) the power to provide provision for the sale of alcohol or tobacco in leisure centres in s 63 Local Government (Miscellaneous Provisions) Act 1976. Neither of these any obligation just a power.

We could exclude any of these permissions from our assessment of what we must do and focus only on the essential, must dos. But this is not without its own set of challenges in defining what we must do.

Duties

A simple “must”; and one close to lawyers’ hearts, is the duty in s5 of the Local Government and Housing Act 1989 to appoint one of the Councils Officers to be the Monitoring Officer. Of course, that comes with several additional questions relating to which one, is there additional remuneration etc but the basic decision is clear and unambiguous as to what the authority needs to do.

After the limited “simple” examples, it gets much more subtle.

When it comes to s7 of the Public Libraries and Museums Act 1964 it provides:

“7 General duty of library authorities.

It shall be the duty of every library authority to provide a comprehensive and efficient library service for all persons desiring to make use thereof…”

We have the useful word “shall” appearing nice and early to confirm that this is an unambiguous duty which the relevant authorities must perform so we can rest easily after that… but the real issue is what is a comprehensive and efficient service.

As a bibliophile, I heartily agree with the idea that I should have a well-stocked reference library if not at the end of my road, then certainly no more than a 5-minute walk from my house. I also expect that in “town” and certainly no more than a 5-minute walk from the local bus station I should have a library of roughly the scope and reach of the British library and that this service standard should be afforded to every town in this fair isle. But when I think about how often I use a library these days to research anything, I reflect that the internet is now so ubiquitous and effective that I have not needed to visit a library for over a decade so in reality I can’t make too strong an argument.

Another universal service under s45 of the Environmental Protection Act 1990, provides:

“ 45 Collection of controlled waste.

(1) It shall be the duty of each waste collection authority—

(a) to arrange for the collection of household waste in its area…”

Clearly it is essential that the relevant authority needs to come and collect my household wase. We are therefore done and dusted. But this comes with a range of decisions, and options as to how it can be done. As a user of the service, I have at times in my life barely needed to put the bin out once a month, when I lived alone and mostly ate from packets. Through to when a new baby was in the house and there was nearly a bin full of near hazardous waste every week.

If these examples seem to give rise to clear political policy objectives a more officer centric example comes in the Children Act 1989:

“47 Local authority’s duty to investigate.

(1) Where a local authority— …

(b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,

the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.”

In this case the duty is to make the enquiries and the assessment. Other sections impose a duty to act where there is need. The duty is clear, but this only takes us so far in determining the “how” of delivering a service. Once again there is discretion and subtlety where other factors come into play. Most children fortunately never need this service, but for those who do ensuring it is well resourced tenacious and caring seems to be the least that society can achieve.

Summary

I have deliberately focused on the statutory underpinning of some duties; layered on top of that is a wide range of statutory and non-statutory guidance which aims to define or clarify how the duties need to be performed.

The challenge for councils is to define what service standard they want to achieve and whether they have the resources to achieve it.

It is not to say that there isn’t merit in the process of looking to statutory duties in straightened times, but however comprehensive a list that is presented. Not every authority needs to worry equally about every duty – after all not every authority needs to actively consider the needs of costal access given their geography.

A key role for Members is determining the framework of how an authority is going to look at discharging its functions, what are the resources and priorities it wants to have and where resource needs to go. Key within this is understanding the needs of the community and the challenges that face them. Budgets play a role as well in balancing the ability to fulfil every wish with the range of activities which are needed.

When faced with the question again, we can say with certainty. We have many duties and powers, there are even lists (admittedly incomplete), but whenever reality hits there is always a level of discretion as to how that duty is discharged. So, what approach to service do we want to achieve.

This article was first published in Local Government Lawyer on the 26th October 2023

Client Earth v Shell: A wake-up call to Local Government?

Fri, 06 Oct 2023 14:46:13 GMT

Lessons to be learned by local government from recent strategic climate litigation.

There is very little difference between Local Government and Shell. Councils are run by a board (Councillors) who represent and work to the benefit of shareholders (voters). The only difference is the type of operation we run and the salary packages for those working in the business.

The recent case of Client Earth v Shell PLC and Ors [2023] EWHC 1897 (Ch) has much to tell Local Government both good and bad when it comes to strategic climate litigation.

There are many like Client Earth who have evolved the tactic of strategic climate litigation, to promote the essential need to act on climate change. The growth of this approach has secured significant media and political attention; shaping conversations and pressuring governments to act, particularly in relation to the UK Net Zero Strategy.

Local Government has like Shell a requirement to consider the impacts of its business on the environment – particularly carbon emissions. Many Councils passed resolutions in 2019 declaring Climate Emergencies, and as part of the national net zero plans must take action in a range of areas.

Client Earth took an interesting approach in its challenge to Shell. Having purchased 27 shares; “a committed investor” it tried to bring a derivative claim through the Companies Act 2006. The substance of its demand was that the Directors should give more weight to the risks of climate change to the companies’ business model, and the need to hit Net Zero.

Derivative claims are akin to the Judicial review of the corporate world. They allow shareholders who consider that the company Directors are acting in a negligent or deleterious way to be brought to book and made to put the interests of the company (shareholders) first. As shareholders Client Earth essentially argued that climate change is so significant that its impact on Shell (substantively an oil producer) represents an existential threat that must come before other factors in decision making.

At the permission stage of the case Mr Justice Trower dismissed the claim; based on the lack of evidence of specific failures by Directors, and that Client Earth had a collateral motive over and above just what was best for shareholders.

In assessing the arguments Trower reiterated at [28] that it was generally “for directors themselves to determine (acting in good faith) how best to promote the success of a company for the benefit of its members as a whole.” He referred back to the views of Lewison J in Iesini v Westrip Holdings Limited [2010] BCC 420 at [85] “The weighing of all these considerations [as set out in s.172] is essentially a commercial decision, which the court is ill-equipped to take, except in a clear case.”

Trower said [5]:

“… one of the most basic principles of company law: it is a matter for a company, acting through its proper constitutional organs, not any one or more of its shareholders, to determine whether or not to pursue a cause of action that may be available to it.”

So where does that leave Local Government; judicial review has a similarly reticent approach to looking at the substance of decision making. Provided decisions take climate factors into account and the commitment to Net Zero then there is a strong likelihood that they can be defended. It will be for councils to promote and define their course on Net Zero through their internal frameworks; voters will generally have to rate that approach at the ballot box, after all that is our constitutional setup.

But a final word of warning; most of the successful Judicial Reviews are where an issue has not been addressed. Failure to consider the impact of climate emergency statements and the specific carbon contributions of proposals will increasingly become a ground for challenge. Especially as the 2030 target in many declarations steadily approaches. Lawyers would be wise to ensure that reports consider this issue and be clear what impact it has on the decision-making process.

This article was first published on Local Government Lawyer on the 6th October 2023

Handling the Storm

Mon, 19 Jun 2023 20:28:53 GMT

Many words have been written about the report by the House of Commons Committee of Privileges into the conduct of Rt Hon Boris Johnson. The overall outcome will I am sure be contested by those who support him or lauded by his detractors. He is after all one of those characters who people have a certain view about.

This missive is focused on a different element – namely what to do when things go wrong. It is an inevitable part of life that things happen, and sometimes things go wrong. It may be small or large, within risk tolerance or not but in any event the reaction of the people involved makes the difference.

At the heart of this story was a series of events happening within number 10 during lockdown. Remembering that number 10 is a workplace and for many there was a need to be in the office to do their roles. Indeed, as the fulcrum of the effort to manage the pandemic it is not surprising that some office presence was needed. The challenge came when more “normal gatherings” (or at least non covid normal) and events occurred including parties.

The contrast in response can be seen starkly between the Department for Education and the Cabinet Office; one of contrition and one of fight.

Admittedly the Department of Education had only one event which was investigated, but it was a social event (within the work context) and designed as such. Once it became public, there was a quick public admission and apology. I cannot say they got away with it, but it has been largely forgotten.

Part of the reason it has been forgotten was the approach of Boris; he has dug in and raised the profile of the story repeatedly. His argument is that there were no unlawful gatherings, and the guidance was followed; the committee found:

“117. We think it highly unlikely on the balance of probabilities that Mr Johnson, in the light of his cumulative direct personal experience of these events, and his familiarity with the Rules and Guidance as their most prominent public promoter, could have genuinely believed at the time of his statements to the House that the Rules or Guidance were being complied with. We think it just as unlikely he could have continued to believe this at the time of his evidence to our committee. We conclude that when he told the House and this Committee that the Rules and Guidance were being complied with, his own knowledge was such that he deliberately misled the House and this Committee.”

The committee was going to recommend that there was a suspension long enough to trigger a recall petition (over 10 days) but having had the draft report Boris Johnson criticised it and the committee with (amongst other statements) “Their purpose from the beginning has been to find me guilty, regardless of the facts. This is the very definition of a kangaroo court.” (Statement of 9 ^th June 2023)

As a result of this the committee would have recommended a substantially increased punishment of 90 days suspension.

What can we learn from this; well as we say when in a hole stop digging! Honesty is the best policy and make sure that when you are responding to situations think how it is going to be looked at. A prompt apology and a clear acceptance of reality will go further than entrenched argument and trying to prove the indefensible.

The Importance of Emotional Intelligence for Councillors:

Mon, 17 Apr 2023 20:08:31 GMT

How to Lead with Empathy

Councillors play a vital role in shaping the lives of the people in your community. Be this in determining planning applications, adjudicating on licensing applications or supporting a resident with housing issues. To be effective in this role, it's important to have emotional intelligence, or the ability to recognise and understand emotions in yourself and others; whilst important it’s something we neglect and hopefully this post can give some thoughts.

Why Emotional Intelligence Matters for Councillors

Firstly, it helps councillors to build strong relationships with their constituents by demonstrating empathy and understanding. This can lead to increased trust and more open effective discussions. From this you get to really understand what’s important not just what is being shouted about.

Second, emotional intelligence allows councillors to manage conflicts and difficult conversations more effectively. Councillors regularly represent constituents on both sides of a debate. Be it the neighbour who wants to build a massive extension; or the new development spoiling the countryside by providing affordable homes for peoples children. By recognising your own emotions and the emotions of others, councillors can defuse tense situations and hope to find solutions that work for everyone – or at least show what you understand the problem clearly.

Finally, emotional intelligence can help councillors make better decisions by taking into account the emotional impact of those decisions on individuals; and with that provide relevant context and explanation to help them accept what's happening.

Developing Emotional Intelligence as a Councillor

So, how can you develop emotional intelligence and lead with empathy? Here are a few ideas:

Practice active listening: Active listening involves paying close attention to what someone is saying and demonstrating that you understand and care about their perspective. By practising active listening, councillors can build stronger relationships with their constituents and better understand their needs.

Develop self-awareness: Self-awareness involves recognising and understanding your own emotions. By developing self-awareness, you can better manage your own own emotions and avoid allowing them to interfere with your decision-making.

Practice empathy: Empathy involves putting yourself in someone else's shoes and understanding their perspective. By practising empathy, and understanding different viewpoints you can make decisions which balance competing interests.

Manage emotions effectively: Managing emotions effectively involves recognising your own emotions and finding ways to manage them in a healthy way. Doing this can help in building resilience as well as avoiding outbursts you may regret another day.

Seek feedback: Seeking feedback from constituents and peers (even those across the political divide) can help councillors to better understand how they are perceived and where they can improve their emotional intelligence.

Conclusion

Much of what you do as a Councillor is about people, understanding your impact on them, and indeed theirs on you is a key step in being effective and leading your community. After all nobody becomes a Councillor without an understanding that the constituents are a key part of the role – even if at times it seems there is no way to square the circle of conflicting public opinion.

Change - Revolution or iteration?

Mon, 17 Apr 2023 19:41:55 GMT

Change is Constant; but is it revolution or evolution?

Across England many Councils are gearing up for change – the local elections guarantee a flurry of political campaigning calls for change and ideas for the future. This moment gives all of us a moment to reflect and consider change, be it personal or corporate. But what should change look like?

All too often in the workplace we look for the big strategic change which will “solve” all our problems. The classic; revolution over evolution. These big change projects are often beset with difficulties, the need to secure funding, engage with substantive HR processes, procurements and the need to convince large groups to change what they are doing. It’s not that this can’t work and indeed there are times when it is both desirable and arguably essential.

The alternative is the idea of taking what we have and making it better. This is often the best option when it comes to sustainable personal change; and arguably organisational development would be wise to consider it.

The concept of incremental organisational change is not new. The concept of Kaizen was developed within the Japanese mindset and corporate culture. The term means incremental change - or a more detailed analysis is Kai which refers to change, and the concept of Zen being good, otherwise Good Change, something we can all appreciate.

The concept of taking what we already do and looking for those small changes which would make life better; processes smoother faster or more efficient. Too often we sit with the existing process because it is familiar, but by taking the effort to review and refine we could make big strides in the course of a year.

In its purest form this is expressed in the Deming Cycle.

Plan - Look for an opportunity and plan a change (it need not be large).

Do - Put the plan in action and be intentional about noticing the change.

Check - Evaluate the change, identify what you have learnt from the change.

Act - Follow up on what you have learnt, if it was a success incorporate the change; if not try again with a new plan.

There is no limit on the number of times you can go through they cycle, indeed several small improvements could rapidly result in significant improvement.

Incorporating this across teams produces the greatest impact across the whole organisation. Innovate rapidly and be ready to fail learn from things that have not worked as well as we would have hoped.

In our lives the power of small incremental change applied consistently over time can make a big difference; and is probably more sustainable. After all who hasn’t had a New Year’s resolution to lose weight crushed under the reality of January; when a decision to eat one less biscuit is probably a fair challenge but one which is just about sustainable. Over time cutting out a biscuit is likely to have the desired result or at least head in the right direction.

Whatever your changes I hope this gives you something to reflect on, as we rush to the future big changes will always be hard; sometimes small can be beautiful.

Move Fast and Break Things...

Mon, 17 Apr 2023 18:33:57 GMT

Embrace or reject risk?

The famous (infamous) motto of Facebook founder Mark Zuckerberg has been the approach of a wide number of tech startups and businesses. The principle that to take a risk, try something and see what works is the best solution to ensure development and innovation, but how does that work in the public sector?

There are stark differences between the high tech startup innovators and the public sector, and I don’t just mean the office decorators (I’m yet to see a Council Chamber with beanbags and basketball hoops). The biggest difference is one of approach to risk.

The public sector abhors risks, we manage any project with the express aim of identifying and then mitigating risks wherever possible. We look to construct procurement contracts with the aim of minimising risk (often transferring it) and ensuring that we live in a “safe predictable world”. When things go wrong, we audit, report and investigate. It has to be recognised that we live in a political environment - success is lauded (and highlighted on election leaflets with pride) failure of any form is often equally used to try and ensure the demise of the incumbents political future.

Is this the right approach? Like the goldfish we don’t think about the water we swim in, it is just the reality. But that said there are good reasons for the public sector being more risk adverse. We deal with serious issues; when making decisions which impact on life or death, or which will impact whole communities for decades to come we have every reason to look at the risks and be mindful of them. But should we be paralysed?

Every decision we make has consequences - but the flip side of that is every decision we don’t take also has consequences. We just need to balance the risk of either taking the opportunity or letting it go past but we cannot exist in a world where consequences don’t exist.

So should we look to the tech innovators to learn lessons - I think we should, but not without remembering who we are.

The idea of moving fast and breaking things was not to cause trouble, but rather to see development as a process, and one where not everything will go right first time. After all it is a case of perspective rather than an absolute.

When Sir James Dyson was inventing his now ubiquitous vacuum cleaner he tested 5,126 prototypes before settling on something he was happy with. Thomas Edison is said to have remarked “I have not failed I have just found 10,000 ways that don’t work”. Had either of these been so risk adverse to have avoided failure the world would have been a very different place.

So for the public sector I suggest that we need to take a balanced perspective - risk is there to be managed, and we need to embrace the fear and take risks.

We are stewards of the publics resources and trust, this is a bond we cannot ignore. But if we take that responsibility seriously we have to innovate to ensure that we can deliver in the future in ways that make the best use of resources.

So how can we do that? Firstly we have to be clear in what we are doing, clear on where a proposal is a risk and what the opportunities we are seeking actually are. We can learn a lot from the medical space where through informed risk taking and with clear responsible oversight significant risks are taken in early trials. Volunteers (often those with the most to gain and least alternatives) take part in research efforts, things are tried in a way which whilst a significant risk to the individual are of limited risk to the population. When things work they are tried again and again until it is shown that they are safe sensible and effective when they don’t lessons are learnt and the process of innovating and iterating continues.

The public sector has to take this approach without it we are doomed to either remain stagnant or at least miss the opportunity to provide the best approach to issues and the public we serve. That said I can’t say that introducing beanbags to Council chambers is likely to be a positive innovation.

Equalities - why is it forgotten?

183:920812762 (Ian Hunt) — Wed, 16 Nov 2022 13:31:07 GMT

When we forget to think we fail to decide.

The Equalities Act was introduced In April 2010 and with it the Public Sector Equality Duty (PSED) came into force one year later in April 2011. In over 10 years you would have expected that it was fully ingrained in decision making, there are many good examples where this is the case however it is not universal.

The recent case of The Queen v Secretary of State for Business Energy and Strategy on the application of Friends of the Earth Limited, Client Earth, Good Law Project and Joanna Wheatley [2022] EWHC 1841 (Admin) has several tales to tell. The main interest in the case has been the headline issues around the validity of the UK's approach to its commitment to Net Zero. The Secretary of State (SOS) had already lost before they even arrived at court on a challenge under the Equalities Act, not the main issues.

The SOS admitted and accepted in advance of the hearings that they had never undertaken an equality impact assessment on the Heat and Building Strategy and had failed to meet their equalities duties in respect of the Net Zero Strategy. This was not a challenge on the merits or details of a consideration but purely an absence of consideration - a complete own goal.

Why bother? We have to if we want to be able to take forward policies and strategies to support residents business and the community - or we risk a challenge such as the SOS had. The real power of appropriate assessment and consideration comes from the benefit in ensuring a diverse range of thoughts and needs are considered to improving and refining policies. We can catch and correct unintended consequences and ensure better overall outcomes. Ultimately those of us working in the public sector are driven by a desire to get things right; and this is a powerful tool to support that.

Section149 of the Equalities Act 2011 provides in summary that public authorities muse when exercising their functions have due regard to the need to eliminate discrimination, harassment victimisation or other prohibited conduct, advance the equality of opportunity between those who share protected characteristics and those who do not, and finally to foster good relations between those with a characteristic and those who do not.

There are eight protected characteristics:

age;
disability;
gender reassignment;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation

The PSED applies to most public authorities including Councils, the duty falls to the decision maker at any given time, so it is critical that this duty is not forgotten or ignored.

The PSED does not define how the duty is discharged, and fortunately or potentially unfortunately depending on your view there is no single process or form which can solve the duty for you. Many authorities have developed frameworks and template forms to guide officers through the potential impacts and characteristics, these are helpful but not essential.

We need to look at what makes for a good analysis, simply the decision maker needs to have in mind the potential impacts both positive and negative of a proposed course of action and then clearly weigh these in the balance when making the final decision. To properly ensure the information is considered and weighed appropriately reports and decisions need to set out the factors which are relevant (or potentially clearly state those which are irrelevant if they have been raised) and the impact they will have on those with protected characteristics, both positive and negative. Once this is done a decision can be made which will be considerably safer, there may be challenge on the merits of the assessment but that is considerably harder to bring than one which says it has not been done. The Courts have proved relatively resistant to engaging in detailed analysis of the "correctness" of a given decision.

It is worth pointing out that the assessment must be done by the decision maker, often with significant decisions including policies and strategies the final decision is made by Members based on a report prepared by officers. If the assessment of the PSED is not addressed in the report essentially it does not exist, no matter how much work has gone into the background and development of the proposal. If the final decision maker is unaware, and the information is not made available to them they cannot incorporate it into the decision. Most Councils have a specific section in their report template to address equality issues, but if there is anything material it is ideally addressed in the overall discussion of the pros and cons of the argument not just left to a form filling tick box, that would leave you open to challenge.

I could be concerned that Equalities is the forgotten part of decision making, and it generally is not. Most cases are successfully defended based on an assessment which may not be perfect but shows there is genuine care and attention to people’s needs. But we all need to remember when we look at reports, where is the PSED addressed?