At the beginning of July last year we wrote about Sheakh v London Borough of Lambeth, a challenge to Lambeth’s implementation of new low traffic neighbourhoods by way of both consultation and the public sector equality duty. In the original case, Mr Justice Kerr found for the Council on all grounds, but his decision was subject to an appeal, the judgment of which has just been released.

The appeal was against the decision on the PSED, so to rehearse the salient facts: the Council had issued multiple Equalities Impact Assessments, of both the overarching transport plan, and the individual LTN proposals. A comprehensive report had been published in October, covering all major considerations of the decision, including equalities and highlighting the need for ongoing monitoring over the course of the experimental order’s run time. The decision to implement the measures had been delegated to a council officer, who was found in the original judgment to have been “not aware of the detailed findings recorded by officers in the draft [EIA]”, though Kerr J said that it was clear that he had the duty in mind, and had decided that the equalities impacts should be dealt with in the manner suggested in the draft EIA- namely by ongoing monitoring and review.

The question at appeal was again whether the Council had lawfully discharged the public sector equality duty. In the original case, the claimant had argued that promising to review equalities impacts on a rolling basis after the ETO had come into force was not adequate. The judge, somewhat cautiously, disagreed. He highlighted that the report issued in October had given due consideration to the issues and included an acknowledgment that they would be reviewed in more detail at later stages of the process. He identified that there was nothing in the Equalities Act to prevent rolling review. His caution arose in emphasising that whilst here there was no unlawfulness generated by the rolling review basis, this was a highly context specific decision, rendered lawful by a combination of unusual factors, primarily the urgency of the situation caused by covid. Without those factors he suggested, it may well not have constituted due regard.

This decision constituted the first of the appellants PSED arguments in the appeal court. The judge had been wrong to conclude that this was lawful, as it essentially constituted an intention to perform the duty in the future, rather than at the time of the decision. This contention was again rejected by the court. They identified several key reasons why Kerr J’s reasoning was sound.

1. The orders were only ‘experimental’, not permanent, or merely temporary. The whole point of them was to act as a trial run, to see how changes would work in practice. The original judgment had rejected an argument that they were an attempt to avoid the statutory requirements of permanent orders, and this point had not been appealed.
2. The circumstances around the pandemic had expedited the need to test measures, and the Council had always intended to consider whether the orders should be retained after the emergency, which would require further procedures. The need for speedy action had led to experimental orders being identified as the most appropriate mechanism to introduce the LTNs.
3. The overarching transport strategy plan had envisaged the LTNs as practical information collection strategies, which would be followed by full public consultation on design after installation. This latter point meant that the whole experiment was predicated on future engagement and consultation, particularly on permanence.
4. Although equality impact assessments for specific ETOs had not (at the time of the decision) been finalised beyond the draft stage, the requirements of the Equality Act had clearly been taken into account in multiple places and by all appropriate individuals.

The appeal court lauded Kerr J for his cautious approach, agreeing that this was a highly circumstance-specific decision, and emphasised that even in the case of other experimental orders, a rolling review basis of equalities assessment will not automatically be appropriate. Nor, they said, will action needing to be ‘urgent’, even in pandemic circumstances, render a rolling review automatically lawful.

The Court also rejected the claimant’s secondary argument that the responsible council officer had not applied his own mind to the equalities issued but had instead relied on assertions from his colleagues that equalities issues had been considered. The judges determined that although he had taken advice from his fellow officers, he was demonstrably aware of the issues and recognised the existence of a continuing duty, which plans had been made to discharge. He had therefore lawfully discharged his personal obligations as decision maker.

The assertion that a rolling review basis of equality impact assessment could be lawful in the original Sheakh case (repeated later in the HHRC v Hackney case) always seemed to us a very risky one for councils to rely on. This judgment only reinforces that feeling. We would certainly not be advising any authority to rely on it solely as an example of discharging the PSED, that would likely be a path straight to the door of an adverse finding. It is difficult to think of any circumstances where doing so, except as a wider and more thorough process (such as was undertaken in this case) could be advisable.

The case does also provide us with a soft reminder that consultation and engagement should be a core part of your equality assessment process, and makes it far easier to demonstrate proper due regard. Though it wasn’t a specific issue in this case, the acknowledgment of the need for further consultation and engagement was cited by judges as a factor which contributed to their findings.

The final point is a reminder about the nature of these sorts of orders. Experimental traffic orders are just that, an experiment to find out how proposals might work in practice. There will naturally be information that is not known and will emerge as part of the implementation process, and this information should be thoroughly considered. The experimental nature of the order however does not excuse poor process and must still be implemented properly- including if it is planned to be made permanent.