Judgment Approved by the court for handing down.
R (Bridges) -v- CC South Wales & ors
(b)
advance equality of opportunity between persons who
share a relevant protected characteristic and persons who do not
share it;
(c)
foster good relations between persons who share a
relevant protected characteristic and persons who do not share
it.”
164.
The two protected characteristics that are relevant in the present case are race and sex.
It is submitted on behalf of the Appellant that SWP are in breach of the PSED because
they have never had due regard to the need to eliminate discrimination on those two
grounds which may arise from the software which is used in the deployment of AFR
Locate. It is said that there is scientific evidence that facial recognition software can
be biased and create a greater risk of false identifications in the case of people from
black, Asian and other minority ethnic (“BAME”) backgrounds, and also in the case of
women.
165.
It is important to be clear that it is not alleged that the software used by SWP does have
that effect. There is no claim brought on the basis of the negative obligations in the
Equality Act, not to discriminate (whether directly or indirectly). Rather the complaint
is based on an alleged breach of the positive duty to have due regard to the need to
eliminate such discrimination.
166.
As we have mentioned above, Ground 5 in this appeal was formulated as follows:
“The Divisional Court was wrong to hold that the Respondent
complied with the Public Sector Equality Duty in section 149 of
the Equality Act 2010 in circumstances in which the
Respondent’s Equality Impact Assessment was obviously
inadequate and based on an error of law (by failing to recognise
the risk of indirect discrimination) and the Respondent’s
subsequent approach to assessing possible indirect
discrimination arising from the use of AFR is flawed.”
167.
In the Appellant’s skeleton argument for this appeal, at para. 47, the submission was
maintained that the Equality Impact Assessment dated 13 April 2017 was erroneous in
law because consideration was given only to the possibility that AFR might be directly
discriminatory and no consideration was given to whether it might operate in an
indirectly discriminatory manner. This argument was not pursued by Mr Squires at the
hearing before us, although he did not formally abandon it. He made clear during the
course of the hearing, when pressed by the Court, that his focus was on the alleged
continuing failure to discharge the PSED, and not upon the Equality Impact Assessment
of April 2017.
168.
The Equality Impact Assessment of April 2017 was headed “Initial Assessment”. The
use of the word “initial” did not mean that the assessment was only provisional or that
there would be a further or fuller assessment in due course. It meant only that the initial
assessment had not led to any concerns which were thought to require further
investigation. In any event, as is common ground, there has been no further Equality