The good, the bad and the ugly of the Equality Duty review
With barely a whimper, the report of the review into the Public Sector Equality Duty (PSED) was finally released late last week. The good news is that the government has decided not to scrap the PSED, instead parking that issue in some very long grass. Long may it grow.
This is a minor victory for equality campaigners and a big relief, because the review had all the signs of a stitch-up. The then Home Secretary Theresa May labelled the Duty a burden when launching it, and gave the task to an “independent” steering group chaired by Rob Hayward, a former Tory MP, and advisor to Eric Pickles, the Local Government Secretary and anti-champion of equality.
But the political momentum to scrap the duty seems to have dissipated, leaving a report that has some good and some bad in it. But mostly it’s just ugly: a swirling mix of contradictions and policy amnesia, as common sense tries to emerge from a failed political hatchet job.
The Equality Duty requires public bodies to have “due regard” to eliminating discrimination, promoting equal opportunity and fostering good relations in how they carry out their work. For unions, it’s a vital catalyst to make employers take equalities seriously. For the coalition it was yet another burden on business to be reviewed and potentially scrapped.
The problem for the government was that businesses didn’t really care, having “very limited engagement” with the review according to the report. We put it less politely stating that they: “are far too concerned with real issues like access to finance to humour a futile political exercise”.
The Lib Dems, the ostensible policy leads on the PSED, were also probably in no mood to attract more bruises from their activists for scrapping yet more equality law. The Scottish and Welsh administrations gave the review team the inter-governmental equivalent of the big finger. Add to that the lobbying and campaigning from equality campaigners, including unions and the government seems to have put this in the too hard basket.
So what did the report find? The steering group “found little evidence” on the benefits of the PSED. They can’t have been looking very hard. Hundreds of examples were provided by unions, community groups and equality practitioners. Our own submission had over a dozen examples, many summarised here.
Yet when it came to proving the burdens of the PSED, anythings goes. The Chair had no trouble finding “far too many cases”, of “useless bureaucratic procedures which do nothing for equality”, but did have trouble backing up that claim. Such one-sidedness runs throughout the report, greatly undermining it.
A sober interpretation of the PSED’s effectiveness would be that some public bodies are getting it right, some could do better, but most are doing nothing at all. That’s the union experience and the experience of public sector employers we work with. The Equality and Human Rights Commission’s own analysis of compliance with the duty shows that a staggering 50% of UK and English public bodies are not meeting the specific duty to publish equality information.
The real problem with the Duty is not “red tape overkill”, as the Chair told the Telegraph but a lack of awareness, resources, staffing, leadership and enforcement capacity to make the duty work properly. In short, this government has “enfeebled” the Duty, as Unison’s Heather Wakefield points out in today’s Guardian.
Some of the recommendations do address this. The report calls for clear, more tailor guidance on how to comply with the PSED, and the better use of other regulators to promote compliance.
This is welcome, but it is inadequate and bitter sweet in the face of a government that:
“… refused to enact the EHRC’s draft statutory code of practice on implementing the duty. And it’s buried the best practice guidance on the duty from the cabinet office.
The FBU and education unions have also pointed out that national equality standards and guidance in their sectors have been badly eroded under this government. Equalities staff are also facing the axe: in one local authority a community engagement team with responsible for equalities has been slashed from 12 to just three staff.”
This just encourages backsliding. Take education, where only one in three schools are even aware that they must meet the equality duty, according to a recent study by the Office of the Children’s Commissioner. This matters, especially with recent reports of dozens of schools up and down the country resurrecting infamous “section 28” policies banning the “promotion” of homosexuality.
This should be a clarion call for more resources and leadership to promote the Duty, but the report instead calls for its further weakening. It effectively calls for small businesses to be exempt from any equality requirements in procurement, and makes a big fuss of data protection concerns on collecting equality information. It also calls for “proportionate” implementation of the Duty, which it says means “minimal”. In each case the evidence cited for reform is painfully thin.
Finally, it calls for alternatives to costly judicial review. If the government’s efforts in other areas are anything to go by, this usually means coming up with red tape to restrict access to justice.
But things could have been worse. The Chair wanted to get rid of the “Specific Duties”, but couldn’t convince any of the government’s hand-picked panel members to back him. The “Specific Duties” accompany the general Equality Duty and require public bodies to publish “information” on the equality characteristics of their employees and service users annually, and set and publish at least one equality objective every four years.
These are hardly onerous requirements, and are arguably too vague. After all, how many public bodies are trying to narrow the gender pay gap? Or trying to get more BME people up the career ladder? Who knows? Certainly not the review steering group , which doesn’t seem to have considered any of the objectives set by public bodies. This contrasts starkly with Scotland, where it’s more focussed specific duties mean that e.g. 96% of its public bodies are publishing equal pay policies – a comparison the report ignores.
The chorus criticising this review for being premature has been defeanening from the beginning. The PSED had been in place only a year before the review was announced. To be fair, this is a conclusion that even the report itself reaches, but after thousands of hours of government and civil society time. So I’m struck by this remark by the Chair in his foreword to the report: “in far too many cases we have uncovered useless bureaucratic practices”. Well, add this one to your list: your Equality Duty review.