Impact assessments, including the public sector equality duty

¶10.93. One way in which decision-makers may develop a greater understanding of the needs of others – particularly in a non-diverse decision-making body – is from a formal impact assessment. Governments should not need a process of impact assessment in order to consider how their decisions will affect the most disadvantaged in society, or those most at risk or in need of protection. However, a formalised process of assessment helps ensure that the most significant risks are identified, taken into account when making important decisions, and afforded appropriate weight, and that mitigation is better planned.

¶10.94. There are different statutory requirements across the four nations that seek to promote equality of opportunity, and which require decision-makers to consider and have due regard to certain characteristics of people when making decisions.¹⁸⁹¹⁸⁹ See, for example, Equality Act 2010 (https://www.legislation.gov.uk/ukpga/2010/15/contents); the Human Rights Act 1998 (https://www.legislation.gov.uk/ukpga/1998/42/contents); section 75 of the Northern Ireland Act 1998 (https://www.legislation.gov.uk/ ukpga/1998/47/contents); the National Health Service Act 2006 (https://www.legislation.gov.uk/ukpga/2006/41/contents); the Care Act 2014 (https://www.legislation.gov.uk/ukpga/2014/23/contents); the Well-being of Future Generations (Wales) Act 2015 (https://www.legislation.gov.uk/anaw/2015/2/contents).Show full note The UK, Welsh and Scottish governments are subject to the public sector equality duty, which requires them to have due regard to certain equality considerations when exercising their functions.¹⁹⁰¹⁹⁰ The equality considerations are: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, marriage and civil partnership, sex and sexual orientation. In Northern Ireland, section 75 of the Northern Ireland Act 1998 confers a similar statutory duty on public authorities to carry out their work with due regard to the need to promote equality of opportunity in respect of a number of protected characteristics.¹⁹¹¹⁹¹ Section 75 of the Northern Ireland Act 1998 (https://www.legislation.gov.uk/ukpga/1998/47/contents). The relevant categories include religious belief, political opinion, race, age, marital status, sexual orientation, sex, disability and persons with dependants.

¶10.95. An equality analysis was undertaken by the UK government in advance of the Coronavirus Act 2020. However, this analysis was drafted at a high level and did not deal in any detail with the equality implications of, for example, closing schools.¹⁹²¹⁹² INQ000106231 No detailed impact assessments were conducted by the UK government or the devolved administrations in advance of the decisions to close schools or implement a lockdown in March 2020.¹⁹³¹⁹³ Michelle O'Neill 14 May 2024 144/6-7; INQ000389184_0034 para 121; John Swinney 29 January 2024 189/2-3; INQ000215482_0016, 0022-0025 para 60; INQ000083934 Mr Johnson confirmed that he "was not provided with and did not consider any Equality Impact Assessments" when making decisions about imposing, easing or making exceptions to interventions.¹⁹⁴¹⁹⁴ INQ000255836_0191 para 656

¶10.96. In Scotland, John Swinney MSP (Deputy First Minister of Scotland from November 2014 to March 2023, Cabinet Secretary for Covid Recovery from May 2021 to March 2023) told the Inquiry that the Scottish Government "did not have the time or the opportunity to carry out that assessment" (regarding the impact of closing schools).

¶He confirmed that no impact assessments were done considering children's mental health, those with disabilities or those with learning difficulties prior to school closures, although:

" [L]ocal authorities were encouraged to ensure that appropriate provision of education was put in place to support children and young people at that time."¹⁹⁵¹⁹⁵ John Swinney 30 January 2023 189/2-16

¶10.97. In Northern Ireland, the Civil Contingencies Policy Branch of The Executive Office identified in February 2020 an action point to "consider the need for, and … potential content of, a cumulative impact document". However, this was not acted upon.¹⁹⁶¹⁹⁶ INQ000023220 The plans submitted by each Executive department on how they would respond to the pandemic did not refer to ethnicity, disability or duties under section 75 of the Northern Ireland Act 1998.¹⁹⁷¹⁹⁷ Chris Stewart 2 May 2024 66/23-67/5; David Sterling 1 May 2024 152/24-153/6 While recognising the insufficient "consideration given to vulnerable groups in light of existing inequalities", Arlene Foster MLA, Baroness Foster of Aghadrumsee (First Minister of Northern Ireland from January 2016 to January 2017 and from January 2020 to June 2021), commented:

" Specific and detailed modelling (of the type which UK Government was best placed to source during this period) as to the potential short and long-term negative impacts ought to have been carried out in order to inform decision-making on mitigating such consequences."¹⁹⁸¹⁹⁸ INQ000418976_0059 para 192

¶However, this does not explain the lack of planning and consideration afforded to vulnerable groups in Northern Ireland. Devolved administrations are best placed to understand the potential impact of such measures upon their own populations.

¶10.98. Ms O'Neill told the Inquiry that the Northern Ireland Executive's "normal equality impact assessment approach" was effectively suspended during the pandemic because of the need for a speedy response to the pandemic.¹⁹⁹¹⁹⁹ Michelle O'Neill 14 May 2024 144/6-7; INQ000436641_0024 para 84 Robin Swann MLA (Minister of Health for Northern Ireland from January 2020 to October 2022 and from February to May 2024) agreed that some impact assessments were not carried out "due to the speed at which events were occurring".²⁰⁰²⁰⁰ INQ000412903_0082 para 265; see also INQ000417101_0029 para 116 Professor McBride agreed, although he said that the measures "were subject to regular reviews" that would have reflected potential emerging equality issues.²⁰¹²⁰¹ INQ000187306_0051 para 224 Ms O'Neill accepted that the consequence of that suspension was that there was no consideration of any unequal impact upon individuals or groups likely to be disadvantaged by the pandemic.²⁰²²⁰² Michelle O'Neill 14 May 2024 188/6-20 Karen Pearson (Director of Covid-19 Strategy and Recovery, Civil Contingencies and Programme for Government from March 2020) observed that The Executive Office "should have found a way to make time".²⁰³²⁰³ Karen Pearson 3 May 2024 93/14-22

¶10.99. In Wales, no impact assessments were carried out until two months after the first nationwide lockdown had been implemented. This was too late.²⁰⁴²⁰⁴ None were carried out for the first three 21-day reviews of the legislation on 16 April, and 7 and 27 May 2020; INQ000389184_0034 paras 138, 161, 178, 198; INQ000048926_0005 para 1.30 A paper on impact assessments was produced by the Counsel General's Portfolio Board for Continuity and Recovery on 22 May 2020, which stated that it was "essential" and "vital" that impact assessments were undertaken by the Welsh Government and that ministers were advised on the impact of decisions and legislation on the most marginalised and disadvantaged.²⁰⁵²⁰⁵ INQ000349472

¶10.100. The Inquiry understands the need for speed during the early stages of the pandemic, but as soon as time allows, impact assessments should be carried out. They may not change a decision but they may lead to steps to mitigate the effects of the decision, such as guidance or making exceptions to a policy. The use of impact assessments, for example, led to the decision to include visits to residents of care homes and hospices as a 'reasonable excuse' for gathering indoors at a time when this was not permitted in Wales (from 28 August 2020).²⁰⁶²⁰⁶ INQ000087134_0001

Socio-economic disadvantage

¶10.101. One notable difference among the four nations relates to socio-economic disadvantage. Section 1(1) of the Equality Act 2010 provides that:

" [ W]hen making decisions of a strategic nature about how to exercise its functions, have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio‑economic disadvantage."²⁰⁷²⁰⁷ Section 1(1) of the Equality Act 2010 (https://www.legislation.gov.uk/ukpga/2010/15/contents)

¶This section has not yet been brought into force in England, nor is there any analogous provision in Northern Ireland.

¶10.102. This contrasts with the position in Scotland and Wales. Scotland implemented the duty in April 2018 (the 'Fairer Scotland' duty). The Welsh Government gave effect to the duty during the pandemic as part of its programme to deliver "a more equal Wales" and in recognition of the increase in inequalities as a result of Covid-19.²⁰⁸²⁰⁸ INQ000573871_0017 It came into force in Wales on 31 March 2021.²⁰⁹²⁰⁹ Section 45 of the Wales Act 2017 (https://www.legislation.gov.uk/ukpga/2017/4/contents) amends Part 1 of the Equality Act 2010 (https://www.legislation.gov.uk/ukpga/2010/15/contents).

¶10.103. As discussed above, the increased risk of harm was strongly influenced by socioeconomic factors – namely, the "conditions in which people are born, grow, live, work and age".²¹⁰²¹⁰ INQ000280060_0003 para 3 The pre-existing links between socio-economic disadvantage and ill-health were reinforced during the pandemic, with people in low-paid or insecure employment often unable to work from home and unable to afford to miss work due to self-isolating. It was therefore the poorest in society who were most exposed to the risk of becoming infected by Covid-19. Those people from the most-deprived socio-economic backgrounds were more likely to live in poor-quality or overcrowded housing and to have poor health. These effects were further compounded for disabled people and for people from ethnic minority backgrounds, who disproportionately experience socio-economic disadvantages. Implementing the socio-economic duty in England and an equivalent duty in Northern Ireland may assist governments to understand the lives of those who face disadvantage and to address systematically the factors that contribute to direct, and indirect, harm in a pandemic.

Recommendation 6: Implementing a socio-economic duty

¶The UK government should bring into force in England section 1 of the Equality Act 2010, implementing the socio-economic duty. The Northern Ireland Assembly and Northern Ireland Executive should consider an equivalent provision within section 75 of the Northern Ireland Act 1998.

Children

¶10.104. The position concerning children and impact assessments also varies across the four nations. The Welsh Government enacted The Rights of Children and Young Persons (Wales) Measure in 2011, as a result of which it has a duty to have due regard to the United Nations Convention on the Rights of the Child (the UN Convention) when exercising its functions.²¹¹²¹¹ Section 1 of the Rights of Children and Young Persons (Wales) Measure 2011 (https://www.legislation.gov.uk/mwa/2011/2/contents) Undertaking a children's rights impact assessment, when making a decision that affects children systematically, considers the best interests of children – and the potential impact of decisions on them – and enables ministers to comply with that duty. During the pandemic, the Scottish Government sought to enact legislation to incorporate the UN Convention. That legislation was enacted, but, in October 2021, the UK Supreme Court found certain provisions to be outside the legislative competence of the Scottish Parliament. In 2024, a revised bill was enacted.²¹²²¹² Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2024 (https://www.legislation.gov.uk/sdsi/2024/9780111059876/content)

¶10.105. The UK and Northern Ireland governments have not incorporated the UN Convention. In 2010, the UK government made a public commitment to give due consideration to the UN Convention when making new policy or legislation.²¹³²¹³ Hansard, HC, Deb 6 December 2010, vol. 520, cols 6WS, 7WS (https://hansard.parliament.uk/commons/2010-12-06/ debates/1012063000011/ChildrenSCommissionerReview#6ws; INQ000591910_0004)

¶In 2018, the Department for Education developed a child's rights impact assessment template for use within government departments (which has since been updated).²¹⁴²¹⁴ INQ000282335_0001, 0011-0012 paras 3, 36; INQ000548010

¶10.106. Mr Gove explained that, when considering the position of children, he thought "we all had the concerns of children in our mind" but accepted that the UK government "did not pay enough attention to the impact particularly on children, and vulnerable children".²¹⁵²¹⁵ Michael Gove 28 November 2023 49/24-50/2 This underscores the need for a systematic appraisal of the specific risks to which vulnerable groups might be exposed (rather than a generalised concern about them). Had the UK government used a rights impact assessment process in respect of children, this might have led to better outcomes – as was the case with the decision made to exempt children aged under 11 years from social distancing requirements in Wales (from 3 August 2020) and to exempt children aged under 12 years from the 'rule of six' in Scotland on 14 September 2020.²¹⁶²¹⁶ INQ000087139_0001; INQ000534765 By contrast, in England, children were not exempt.²¹⁷²¹⁷ The Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No 3) Regulations (https://www.legislation.gov.uk/uksi/2020/558/contents/made)

¶10.107. Simon Ridley (Director General for Policy and Strategy on the Covid-19 Taskforce from May 2020 to July 2021, Head of the Covid-19 Taskforce from July 2021 to March 2022) explained that the lack of an exemption in England was for "clarity and simplicity" in the rules.²¹⁸²¹⁸ Simon Ridley 7 November 2023 123/12-19 In a WhatsApp message to Mr Hancock on 11 October 2020, Helen Whately MP (Minister for Social Care from February 2020 to September 2021) argued for the rules to be loosened for children, expressing her view that "It would make such a difference for families and there isn't a robust rationale for it."²¹⁹²¹⁹ INQ000176785_0024 Mr Hancock replied: "They [10 Downing Street] don't want to go there on this."²²⁰²²⁰ INQ000176785_0024 Professor Sir Patrick Vallance (later Lord Vallance of Balham), Government Chief Scientific Adviser from April 2018 to March 2023, recorded in his evening notes on 15 October 2020 that SAGE was "pushing" to exempt children from the rule of six.²²¹²²¹ INQ000273901_0658 When asked about this by the Inquiry, Professor Vallance explained that formulation of the rule of six was a policy matter.²²²²²² Patrick Vallance 20 November 2023 184/14-21 Had children's rights impact assessments been conducted, they might have focused greater attention on the impacts of decisions on children's interests and on what could be done to mitigate the potential effects of the rule of six on children. Despite the provision made for children's rights impact assessments in Wales, no assessment as to the impact on children of closing schools was conducted before the decision was made to close them – in spite of the enormity of that decision.

¶10.108. Jeremy Miles MS, Counsel General for Wales from December 2017 to May 2021, reflected:

" If we were ever to face a similar challenge again in future, I would want us to establish an earlier pattern of formal impact assessments (both equality and children's rights impact assessments, as well as socio-economic impact assessments under the new socio-economic duty)."²²³²²³ INQ000389184_0096 para 338

¶The Inquiry understands that, in the early days of the pandemic, faced with a desperate crisis, many decision-makers might have felt there was insufficient time to conduct formal impact assessments. However, decision-makers could and should have commissioned assessments at an earlier stage or at least as soon as circumstances permitted. They would have enabled an assessment of impact and helped in the evaluation of the mitigating actions which had been taken.

Recommendation 7: Placing child rights impact assessments on a statutory footing

¶The UK government should introduce legislation to place child rights impact assessments on a statutory footing in England. The Northern Ireland Executive should consider an equivalent provision.