Will the Public Sector Equality Duty survive the Red Tape Challenge? – Neil Crowther

cut-red-tape-challengeIn May 2012, the Home Secretary announced a review of the Public Sector Equality Duty (PSED), which came into force a year earlier in April 2011, as an outcome of the Red Tape Challenge.  The review is focusing in particular on levels of understanding of the PSED and guidance, the costs and benefits of the duty, how organisations are managing legal risk and ensuring compliance with the duty and what changes, if any, would secure better equality outcomes.  It is being overseen by a steering group, appointed by Government Ministers, largely drawn from public authorities. 

The Review has recently launched a call for evidence, with a closing date of 12th April 2013.  The call is particularly interested in ‘equalities paperwork and policies related to PSED (particularly in relation to public sector procurement processes) and the collection, retention and use of diversity data by public bodies, for example, in relation to goods, facilities and services.’

The Equality and Diversity Forum has produced a helpful briefing on the Review.

The PSED places duties on public authorities to have due regard to the need to eliminate discrimination, advance equality of opportunity and to promote good relations between different people.  Its origins lay in the findings of the Stephen Lawrence Inquiry, which concluded that racial discrimination has become institutionalised in the culture, policy and practices of the Metropolitan Police.  The Inquiry concluded that the then model of individual, post-hoc discrimination claims failed to get to the roots of the problems identified.  The subsequent Race Equality Duty employed a model of enforced self-regulation, which was designed to foster self-reflection and proactive institutional change.

The Race Equality Duty was followed in 2005 by the Disability Equality Duty and in 2006 by the Gender Equality Duty.  In addition to the duties in primary legislation, secondary legislation  placed ‘specific duties’ on specified public authorities, which detailed the manner by which they should meet the various duties, including for example equality impact assessments, involving disabled people, and the setting of objectives.

The Equality Act 2010 replaced the existing duties with a single Public Sector Equality Duty spanning the ‘protected characteristics’ in the Act.  In England, the detailed ‘specific duties’ which characterised the race, gender and disability duty were replaced with much less prescriptive duties to set objectives and to publish information.  A more prescriptive approach has been adopted in Wales and Scotland.

In a speech to the CBI in December 2012, Prime Minister David Cameron ‘called time on equality impact assessments’ which have been a key feature of the way government departments and public bodies have demonstrated compliance with the duty.   Jo Swinson MP, Liberal Democrat Minister for Business, Innovation and Skills latterly claimed that ‘Labour’s tired old way of working was turning equalities into a burden. When people heard the word equality they also heard bureaucracy and red-tape’ but went on to say that ‘equality impact assessments are not under threat from the Coalition Government’.

The approach that government departments and public authorities take to eliminating discrimination and advancing equality of opportunity can without doubt be improved.  Those who share a desire for such improvement to be the outcome of the government’s review would be wise to respond to the call for evidence.

Neil Crowther is an independent consultant and previously held the posts of Director of the Human Rights Programme and Director of Disability Rights at the Equality and Human Rights Commission.

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