Smoke, Mirrors and the Public Sector Equality Duty: The government’s response to CEDAW
Last month the government, having signed up to the UN Convention for the Elimination all forms of Discrimination Against Women (CEDAW), had to defend its economic and social policy to a panel of gender equality experts in Geneva. What ensued was a performance that Harry Houdini would have been proud of.
During the examination the CEDAW panel asked all of the right questions but, by deftly using political ‘smoke and mirrors’, the government delegation did its best to wriggle free from a looming dénouement that any of us who have monitored the impact of their policies on women would have thought impossible.
The examination covered a wide range of social and economic policy, but I want to focus on one area that I think is of crucial importance – the fate of the Gender Equality Duty and its successor the Public Sector Equality Duty (PSED).
These pieces of legislation are important for a number of reasons. Firstly they, in large part, resulted from the racist murder of Stephen Lawrence and his parents’ tireless campaign to gain justice and recognition that institutional discrimination is embedded in our central public services.
Secondly, by imposing a duty on public authorities to have due regard to equality in all of their policies and practices, the legislation took a radical step forward by encouraging proactive actions to prevent discrimination rather than simply compensating people after it had been uncovered.
Thirdly, the way the original duties (on race, disability and gender) were structured encouraged the involvement of those who were likely to suffer discrimination or their representatives. Indeed the intention was that such ‘stakeholders’ could and should act as an important enforcement mechanism, holding public authorities to account when they felt they had not given due regard to equality.
These legislative developments took place in the last years of the previous Labour government and progress on equality was meant to continue with the passage of the Equality Act 2010, which combined the three duties into one duty (PSED) that also covered age, religion and belief, sexual orientation, trans-gender and pregnancy and maternity.
Of course ridding public authorities of decades of institutional discrimination is going to cause some of the worst offenders a great deal of work, not to mention some embarrassing acknowledgement of its existence. It was never going to be an easy job but already there is strong evidence that the PSED is beginning to work and for the first time in a long time there appeared to be a new way forward.
But, shortly after the Equality Act brought the new PSED in to being, the world changed. The general election of 2010, barely a month after the passage of the Equality Act, resulted in a coalition government, led by the Conservatives and supported by the Liberal Democrats. Almost immediately we were told that in the midst of a global economic crisis, our own economy had been grossly mismanaged and the only route to salvation was ‘austerity’. In this new world it was made clear that the coalition government felt equality was a luxury we could no longer afford and the PSED, rather than being innovative, was considered to be a potential bureaucratic hindrance to business, economic recovery and, as such, included in the purge that is known as the ‘Red Tape Challenge’.
Another view is that the PSED effectively stood in the way of the government’s austerity plans. The numerous legal challenges to budget cuts, including the Fawcett Society’s brave attempt to use the gender equality duty to challenge the Treasury’s first emergency budget seemed to indicate that it could.
Whatever its motivation, the coalition government set to work unpicking any aspect of the Equality Act that it could, which included drafting only very weak specific duties for the new PSED, making it much more difficult for stakeholders to enforce. Luckily powers to draft the specific duties were devolved under the Equality Act to the Scottish Parliament and the Welsh Assembly, who took quite a different view and strengthened the specific duties for their regions.
Including the review of the PSED in the Red Tape Challenge was odd since the duty had hardly had time to prove itself. In addition the review and consultation process were contained and controlled by the government by putting in place a steering group to oversee the process made up almost entirely of senior public sector executives and civil servants from the Government Equalities Office with no representation from stakeholder groups. Consultation was originally to be by invitation only with the steering group seeking evidence from selected sources.
Not surprisingly the review has caused much concern for the fate of the PSED, notably from Baroness Lawrence – Stephen’s mum, leading voluntary sector organisations and the trade union movement. In the face of strong criticism and the risk that supporters of the PSED would simply ‘gate-crash’ the review process, the consultation has opened wider than it was clearly originally intended to be.
So what, you may ask, has this got to do with last month’s examination of the UK government by CEDAW?
Firstly, as Scarlet Harris incisively noted the day after the examination, the government delegation to CEDAW seemed to have forgotten the numerous studies and evidence it has been presented with to show the adverse impact of budget cuts on women. These, incidentally, include the evidence presented to the government in court by the Fawcett Society using the gender equality duty.
Secondly, somewhat ironically given the review under the Red Tape Challenge, the delegation leaned heavily on the PSED to find examples of where the State had improved the position of women in the UK. So perhaps the ‘Red Tape’ of equality legislation has its uses when the government finds itself in a human rights tight spot. Even more ironically many of the initiatives the delegation referred to are in Scotland and Wales. Could it possibly be that the PSED is more effective in Scotland and Wales because of the far more detailed specific duties that have been implemented by the Scottish Parliament and Welsh Assembly?
Lastly, I must admit to a wry chuckle when I read that the government delegation felt that “Efforts had been made to engage widely” on the review of the PSED. This would not have been the case without the vigilance and tenacity of a voluntary sector and trade unions reeling under the effects of budget cuts.
Nonetheless, the government has been forced to officially acknowledge the value of the PSED, even if only instrumentally to extricate itself from a very tricky encounter with CEDAW. Let’s hope the government remembers this when it eventually makes a decision on whether or not it considers the PSED to be simply Red Tape.