PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation that economic and other policies do not result in discriminatory denial or limitation of economic, social or cultural rights,820 an obligation that clearly entails some element of assessment. Indeed, the Committee on Economic, Social and Cultural Rights’ discussion of non-discrimination obligations illustrates both the utility and the necessity of equality impact assessment. The Committee has noted that there is a “strong presumption” against the adoption of “retrogressive measures” 821 in the Covenant and stated that in situations in which such measures are envisioned, “the State party has the burden of proving their necessity”.822 Retrogressive measures must not “disproportionately affect disadvantaged and marginalized individuals and groups” or be “applied in an otherwise discriminatory manner”.823 United Nations human rights treaty bodies and special procedure mandate holders have provided guidance to ensure the proper application and effective implementation of equality impact assessment. First, impact assessment should seek to assess (and eliminate) any discriminatory impacts of a policy on members of a protected group.824 In situations in which discriminatory impacts are identified, policies should be adapted to meet the needs of such groups and should not exacerbate inequalities. Second, to ensure their effectiveness, such assessment should be made mandatory, rather than optional.825 Third, in line with the recognition that the right to non-discrimination gives rise to “an immediate and cross-cutting obligation” on States,826 the duty to carry out an equality impact assessment is an ex ante duty, meaning that assessment must be conducted before a policy is adopted.827 It remains important, however, that equality impact assessment is also integrated into policy implementation and monitoring to avoid unforeseen or emergent discriminatory impacts and to ensure that any proactive measures are working as intended. Third, the assessment should be conducted in consultation with members of those groups to which the policy may apply.828 The results should be made publicly available and “result in meaningful changes to policy proposals”.829 LEGISLATION IN PRACTICE: THE PUBLIC SECTOR EQUALITY DUTY AND EQUALITY IMPACT ASSESSMENT IN THE UNITED KINGDOM The public sector equality duty was introduced in the Equality Act, 2010, which brought together, harmonized and expanded protection afforded under a number of earlier, specific, equality instruments. The duty requires thinking around equality to be mainstreamed across public decision-making by requiring public authorities to have “due regard” to the need to eliminate discrimination, advance equality of opportunity and foster good relations between discriminated groups and others in society. Specifically, section 149 (1) of the Act provides: (1) A public authority must, in the exercise of its functions, have due regard to the need to: (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; 118 820 See, for example, Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 38. 821 Committee on Economic, Social and Cultural Rights, general comment No. 25 (2020), para. 24. 822 Committee on Economic, Social and Cultural Rights, general comment No. 22 (2016), para. 38. 823 Ibid. 824 See, for instance, A/HRC/41/54/Add.2, para. 15. 825 Ibid., paras. 15 and 74 (c). See also A/HRC/44/57, para. 56. 826 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 7; and Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 12. See also A/HRC/26/29, para. 19. 827 See, for instance, A/75/258, para. 89 (c). See also the Committee on the Rights of the Child; which has distinguished child-rights impact assessments from child-rights impact evaluations. Both are required under the Convention, however, the former is an ex ante duty (i.e. it is required before any policies are adopted), while the latter is an ex post duty (i.e. it applies after the policy has been adopted, to evaluate its impact). See Committee on the Rights of the Child, general comment No. 5 (2003), para. 45; and general comment No. 14 (2013), para. 99. 828 A/HRC/44/57, para. 56; and A/75/258, para. 89. 829 A/HRC/41/54/Add.2, para. 34.