Goodbye to the public sector equality duty?
26 August 2010
The Equalities Office has announced a consultation on the public sector equality duty imposed by the Equality Act 2010. Reading the consultation document, it is clear that the government intends to delegate the equalities duty to the general public, rather than imposing top-down standards from Whitehall:
We do not intend to prescribe how public bodies go about their business, but we will ensure that we put in place the right framework which empowers citizens to scrutinise the data and evidence on how their public services perform.
The equality duty is already causing the new government trouble. The Equalities and Human Rights Commission said yesterday that they consider the general duty imposed by the Equality Act 2010 to pay “due regard” to equalities considerations to extend to the Treasury in relation to the Spending Review. In the Commission’s view, this means the Treasury needs to have carried out a an impact assessment.
In light of the consultation, it would appear that the Big Society is now going to be taking on this work. The Equality Act 2010 was passed in the last days of the New Labour government. Its aim was to consolidate what until now has been a messy jigsaw of 116 pieces of legislation, and further harmonise UK law with the four key EU Equal Treatment Directives. The Act is due to start coming into force in October, but the timetable for implementation is currently under review. It is no secret that the Conservative Party were opposed to some of its provisions (see our previous post), including the provision forcing public authorities to take socio-economic factors into account when allocating their resources.
The proposals mark a significant shift away from those of the last government. On the face of it, the duty imposed by the Act is still wide. Section 1 of the Equality Act imposes a duty on public bodies to reduce socio-economic equalities. The Act provides that public bodies must
when 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
By section 149, public authorities must also, whenever exercising its functions, have “due regard” to the need to eliminate discrimination, advance equality of opportunity and “foster good relations” between different groups. The duty will affect a wide range of bodies, including councils, the police, health authorities and most government departments.
The devil is, however, in the detail. The specific means of implementing the duties are to come by regulations (Section 153). The previous government wanted (see its proposals here) to require authorities to develop and set out their equality objectives and then demonstrate how those objective had been taken into account in policy. This would also include the setting of “national equality priorities”.
The Coalition Government’s “new approach” will take into account “the Government’s clear aim of replacing top-down interventions from the centre with local democratic accountability driven by transparency and decentralisation” leaving public bodies “free from unnecessary red tape”.
What this will actually mean is that rather than having to publish specific equality objectives and adhere to national frameworks, public authorities will instead publish a range of equality data relating both to their workforces and to the services they provide. This will be in line with the principles set out by the new Public Sector Transparency Board, which has been set up to cajole public authorities to open up their data. This coincides with government’s commitment in its Program for Government to introduce a “Right to Data”.
So long, equality duty
So, the new government has effectively scrapped the public sector equality duty in the form intended by the drafters of the Equality Act, and replaced it with a fairly vague commitment to freedom of information. This is not necessarily a bad thing; it may well be that the relatively lithe NGO world is indeed better placed to use readily available equalities data to make the case for change. More data as to how government runs – particularly if it is regular and easy to understand – must ultimately increase accountability.
It is also probably a great relief to public authorities that they will not be saddled with another set of national priorities to consider when designing policy. In any event, the Human Rights Act provides that no public body can act in a way which disproportionately breaches human rights, and this includes a duty to prevent discrimination. So there is a redress available if policies are discriminatory.
Some will argue, however, that this represents a costs-cutting measure pure and simple, and that the equalities duty, as laudable and perhaps successful as it is would have been, was simply going to be too expensive. If equalities data does become more readily available, we should be able to find out whether the detractors are right as it will be possible to measure equalities results over time. But will the data be any use if there is no mechanism available to solve equalities issues when they arise?
Another interesting question is to what extent the public sector equalities duty applies in its general form as set out in the Act, without more specific regulations. If Section 1 does impose a wide-ranging duty, this could amount to the imposition of social and economic rights (see our post) – which were left out of the Human Rights Act – by the back door.
The Equality and Human Rights Commission are of the view that government departments are already under a duty to carry out equalities impact assessments, so it is unclear as to how much the new government can resile from these duties without repealing parts of the Act. These duties may arise from previous equality legislation in any event. The threatened Judicial Review of the Budget by the Fawcett Society, or action from the EHRC, may inspire the courts to provide an answer sooner rather than later.
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