Public Sector Equality Duty

& Specific Duties

Stuart Brittenden

Public Sector Equality Duty: Labour’s rationale

• ‘provide significant rationalisation of benefits, promote the development of more personalised public services which better meet people’s diverse needs, and place the achievement of equality outcomes at the heart of our public services’

• ? whether this will be achieved under Coalition

•EqA now widens duty to cover age, sexual orientation, religion or belief, gender reassignment, & covers maternity/pregnancy (previously race, disability, gender)

•Section 149 sets out the scope of duty

•Sch 19 lists public authorities covered

•Section 151 confers power to add to list

EDs - Coverage

• Section 149(2) catches bodies who exercise public functions NB ED limited to public functions

• Exemptions – Sch 18

• Aug 2010 consultation on general ED and specific EDs (closes Nov 2010)

• General duty will come into force in April 2011

Section 149(1): the 3-pronged approach• Section 149 (1) requires public bodies to have regard to 3

specified matters in the exercise of their functions:

 • (1) eliminating conduct that is prohibited by the Act, including

breaches of non-discrimination and equality rules in occupational pension schemes and equality clauses or rules in terms of work;

• (2) advancing equality of opportunity; and

• (3) fostering good relations between people who share a protected characteristic and people who do not share it

Section 149(3) Advancing Equality • removing or minimising disadvantages suffered by

persons who share a relevant protected characteristic that are connected to that characteristic;

• taking steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; and

• encouraging persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low

Section 149(5) Fostering Good Relations

•Involves having due regard to the need to tackle prejudice

•Promoting ‘understanding’

Some Examples•a gov’t department provides its staff with education and guidance to foster good relations between its transsexual staff and its non-transsexual staff

•a local authority reviews its use of internet-only access to council services; or targets its “Introduction to Information Technology” adult learning courses on older people, with the aim of advancing equality of opportunity, in particular meeting different needs, for older people

•a school reviews its anti-bullying strategy to ensure that it addresses the issue of homophobic bullying, with the aim of fostering good relations, and in particular tackling prejudice against gay and lesbian people

• a local authority could introduce measures to facilitate understanding and conciliation between Sunni and Shi’a Muslims living in a particular area, with the aim of fostering good relations between people of different religious beliefs

• Having identified that white male pupils are underperforming at maths, a school could run supplementary maths classes exclusively for them

• An NHS PCT identifies that lesbians are less likely to be aware that they are at risk of cervical cancer and less likely to access services eg screening programmes. It is also aware that those who do not have children do not know that they are at an increased risk of breast cancer. It could run local awareness campaigns for lesbians on the importance of cancer screening

• Breach does not confer private law cause of action/claim for breach of statutory duty

• Judicial review only

• ? Effectiveness/accessibility

• ? Contrast eg with H&S legislation

Enforcement?

Specific Duties

•Section 153 confers power to impose specific duties

•Rationale – to assist with furthering general EDs

•EqA silent as to substance of specific duties

•NB consultation suggests radical departure from Labour’s aspirations

Section 155 – Public Procurement

•Section 155 empowers a Minister to impose specific duties ‘in connection with public procurement options’

•Rationale - £220bn annual public spend on procurement (15% UK GDP)

•Labour justification was that it is

‘well established that public procurement can and should be used to support social policy objectives, including equality… whilst there are pockets of good practice in using public procurement to promote equality, we believe public procurement should be used more consistently to help achieve equality objectives’

•Equality Act 2010: The public sector Equality Duty Promoting Equality through transparency: A Consultation (August 2010)

‘Our new approach also takes into account the Government’s clear aim of replacing top-down interventions from the centre with local democratic accountability driven by transparency and decentralisation…’ (para 3.5)

Just add water? Dilution by the Coalition

‘The Government believes that public bodies will perform best if they are free from unnecessary red tape and allowed to concentrate on their core functions. We must remove time-wasting bureaucracy and strip out unnecessary prescription, processes and monitoring regimes to free up resources for front-line services’ (para 4.4)

Core principles• Transparency – ‘empower citizens … to hold public bodies to account by requiring them to put their data relating to equality in the public domain…’

•Choice – more data will enable people to compare public bodies & choose between providers

•Devolved power – encouragement of public bodies to identify priorities, innovate, and limit Whitehall interference/prescription

• Public bodies with +150 employees to publish equality data annually eg gender pay gap; BME staff, disabled employees

• NB exclusion of sexual orientation, religion – cultural issue, staff not ‘ready’ to provide this information

• Public bodies to publish equality objectives pursued

• Objectives must be ‘specific, relevant, and above all measurable’

• Objectives to be reviewed every 4 years

• Outcomes must be published

• BEFORE: Labour proposed for SofS to set equality priorities at a national level which public bodies were required to have regard to

• NOW:

‘public bodies should be free from the central diktats that so often skew priorities, divert resources and hinder the ability to react more rationally to local needs. Putting trust in public bodies by reducing Whitehall interference will give them flexibility to respond effectively to local needs, supported by local data…’

Spot the difference…

• BEFORE: the procurement duties – section 155

• NOW: the Coalition does

‘… not believe it is necessary to impose burdensome additional processes on public bodies telling them how to conduct their procurement activity: they will be judged on the outcomes that they deliver’ (para 5.21)

• Section 155 neutered?

• ? Budgetary considerations (cost) will trump promotion of equality

• BEFORE: Action Planning – public bodies to set out steps that would be taken to meet equality objectives

• NOW: dispensed with. Citizens will be able to see how a public body is performing and whether it is meeting its objectives (para 5.22)

• BEFORE: SofS would report every 3 years on progress towards equality for disabled people across their policy areas

• NOW: dispensed with. Instead transparency/accountability will enable disabled people to scrutinise progress

Any difference?

• Gov’t focus is upon the compilation/assimilation of data & devolving scrutiny to individuals/groups = misguided?

• The provision of raw data will be accompanied by text to massage, explain, justify or even skew the data

• ? Whether people judge public bodies/services in diversity terms (vs quality of service etc…)

• The missed potential for public procurement to set the benchmark for society

• Enforcement – will judicial review make a big impact?

Section 1 EqA: The (theoretical) Socio-economic Duty

•requires specified public bodies when making strategic decisions to 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’

•Explanatory Notes egs

•? (meaningful) implementation – unlikely

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