‘Let’s Cut Out Equality’ The independent steering group’s report of the public sector equality duty (PSED) review, September 2013

Robin Richardson 

Image © Evan-amos

On Friday 6 September a new report crept out from the government equalities office (GEO). It emerged without the company of an official press release and the only media coverage on that day was in the Telegraph and the Mail. Both these papers had apparently been influenced by a private, off-the-record briefing about how the authors of the report (or, anyway, some of them) wished equalities legislation to be trivialised, ridiculed and dismissed. ‘How many lesbians have you disciplined?’ asked the headline about the report in the Mail. The headline was followed by a summary of the report which it purported to be describing: ‘Pointless red tape condemned in new report into how public bodies have become obsessed by equality’.

The Telegraph headline was marginally less sensationalist: ’Red tape “overkill” leaves public bodies counting number of lesbians disciplined’. The heading continued: ‘Equalities rules have sent public bodies into a pointless “red-tape overkill”, a landmark report commissioned by David Cameron will warn today [6 September]’.  Incidentally, there is no reference in the report itself to lesbians, nor does the word overkill appear, nor is there any claim in the report that it was commissioned by the prime minister. It seems clear that the coverage in the Telegraph and Mail was based essentially on an unofficial briefing, not on a reading of the actual report.

To the casual observer the steering group’s document may appear rather weighty, for it contains around 70 pages as a typescript.  But less than half the pages are devoted to the report itself. The rest are made up of prelims, a foreword, an executive summary and various annexes. The report is much more lightweight, slight and superficial than it may seem at first glance.

‘Equality,’ says the chair of the steering group in the foreword, ‘is too important to be tied up in red tape.  Let’s cut it out.’ From a grammatical point of view, he speaks more frankly than he intends, for the word ‘it’ in ‘let’s cut it out’ refers grammatically to equality not to red tape. This is only one of many examples in the report of careless phrasing, checking and proof-reading. The cumulative effect is to imply the group which produced the report does not understand what equality is, and does not care. They do know, though, that they don’t like it, and don’t want it. What they want is to cut it out.

The report is an extremely amateurish, ignorant and inadequate piece of work. These first thoughts about it, written a couple of days after it was published, mention seven of the more obviously unsatisfactory features. These and other features will no doubt be examined by a range of specialist organisations in the coming weeks and months. It will also be appropriate to acknowledge, more than does this article, that the report contains points that are sound and sensible, and recommendations that should be acted on.

Seven unsatisfactory features

1)  The steering group was asked to report to ministers on three topics. One of these was ‘how effectively the Duty supports delivery of the UK Government’s Equality Strategy’. At no stage, however, does their report even refer to the Equality Strategy let alone explain what it is, and let alone discuss how the PSED supports, or could support, delivery of it.

2) When citing the general duty of due regard in section 149 of the Equality Act, the report says that ‘the nature of such a duty is that it is open to interpretation’. Well up to a point, Lord Copper. The openness to interpretation in relation to Section 149 of the Equality Act is not nearly as wide as the steering group implies. The Act itself defines and explains the three basic concepts in the duty (eliminating discrimination, advancing equality of opportunity, fostering good relations); there is an increasingly substantial body of case law which further clarifies them; and the specific duties and related ministerial statements are a clear indication of what minimally they entail. It is alas significant that the report shows no sign that its authors have even read, let alone understood, the Act’s definitions of key concepts…

The report refers only very skimpily to case law, though does helpfully acknowledge that one recent case led to a succinct formulation of key principles (the so-called Brown principles), and that many public bodies have welcomed these.  Most seriously of all, in its claim that the general duty is open to interpretation, the report shows no awareness of why the specific duties were introduced and how they were decided on. For example, in this respect, it shows no awareness of the substantial processes of consultation and deliberation which preceded their approval by parliament, or of the ministerial statements in the Commons and the Lords by which they were introduced.

In so far as it is indeed the case that the duty of due regard has been interpreted differently by different bodies this is not due to lack of clarity in the law itself but to lack of explanation and guidance from the government and government agencies. The report acknowledges that better guidance is needed, but does not adequately emphasise this point.

3)  The report correctly mentions that the general duty of due regard is underpinned and focused by two specific duties – to publish information and to publish objectives – and that the terms of reference for the PSED review required consideration of how these two specific duties are working. But then, quite extraordinarily, it discusses only one aspect of one of them (the publishing of data, which in no more than a subset of publishing information) and totally ignores the other. The superficial consideration of specific duties is particularly egregious in view of the fact that the duty that is totally ignored, namely the publication of specific, measurable and outcome-focused objectives, is clearly intended to make practical and real differences and improvements in the lives of many millions of people.  The report’s preoccupation with what it calls data (a word which does not appear on the face of the Equality Act or in the Act’s supplementary regulations, but more than 100 times in the steering group’s document) shows that its authors have failed to understand the close relationship between the two specific duties, and what observation of each of them actually requires.

4)  The report misrepresents – and does so almost to the point of dishonesty – the evidence which the steering group received through independent research commissioned by the GEO from NatCen. It would be difficult to guess from the steering group’s report, and wholly impossible to guess from the reporting in the Mail and Telegraph, that the findings and conclusions from the research included the following:

  • The general view from participants in the research was that the PSED was  working well or had the potential to do so, and that it would be a  backwards step to change it significantly.
  • There was a strong concern about the upheaval and costs associated with any major change.
  • The general principles of the equality duty were felt to be simpler and easier  to grasp than previous equality requirements, particularly the application of the same duty to the nine protected groups.
  • The legal leverage offered by the duty was felt to be a necessary condition to ensure that equalities work gets done, and the concepts of due regard and proportionality helped in managing implementation and compliance.
  • To address potential under-compliance and issues of accountability, some participants  called for improved enforcement of the duty, greater clarity of the penalties for non-compliance and the creation of outcome-based measurement frameworks.
  • On the whole, the PSED was seen as less of a burden than preceding legal duties, because of the consistent treatment across all groups and a reduction in  prescribed processes.

5) The report not only fails to reflect the NatCen research which the GEO commissioned for it but also shows disregard for the documents which it received in response to its call for written evidence. It indicates in one of its annexes that 119 different organisations submitted evidence, as did six individuals. But not a single one of these 125 submissions is cited, let alone directly quoted. It would have been courteous and a mark of respect to show that the submissions had been read and attended to, and would have helped to generate confidence in the steering group’s expertise, understanding and good will.

6) It is instructive to compare the steering group’s report with that of NatCen. The latter is consistently professional, measured, objective and nuanced in its style and tone.  The report of the steering group, however, contains many ugly infelicities of style and also a certain amount of political point-scoring. The making of party-political points is entirely appropriate in propaganda and campaigning, of course, but is out-of-place in a document which claims to be independent, and which draws on the services and professional advice of public servants.

7) It is unfortunate that the report’s recommendations, most though not all of which are entirely sensible, are introduced and accompanied by discussions that are frequently partial, ignorant and unsatisfactory. The consequence of juxtaposing sensible recommendations with faulty arguments is that the recommendations may not be adequately noticed and attended to. In particular the steering group’s references to the need for much clearer and more helpful guidance is in danger of being ignored. Guidance needs to be issued, the group points out, about the meaning of due regard and about the nature and purpose of the specific duties. Further, it needs to be sector-specific not generic, and to be practitioner-friendly as distinct from lawyer-friendly. These valuable points appear both in the steering group’s report and in the NatCen report. ‘The right guidance,’ the steering group says, regretfully but sternly, ‘has not been available at the right time to enable public bodies to implement the PSED effectively.’  This is the conclusion which ought to have featured prominently in a briefing for the media. It would have led to headlines that were sober and constructive, unlike the headlines that were in fact generated.

Concluding note

The minister for women and equalities, Maria Miller, has issued a statement saying she welcomes the steering group’s report. She affirms that ‘public authorities must be transparent about their objectives and performance on equality’, and that ‘it is vital that the specific duties support this aim’. She adds: ‘We will therefore keep these duties under review and work closely with the EHRC as it conducts its more detailed assessment of the specific duties.’ And she says: ‘I will work closely with all of my Ministerial colleagues … to ensure that their Departments, and the sectors for which they are responsible, respond urgently and positively to the review’s findings and recommendations.’  Maria Miller’s colleagues have not hitherto acted urgently and positively on equality, but perhaps – perhaps – they will now. Large numbers of people will be watching and waiting, and will themselves be robust in their commitment to the Equality Act 2010, its general and specific duties.

Robin Richardson’s work on equality and diversity is reflected at www.insted.co.uk. Grateful acknowledgement to Bill Bolloten and Sameena Chowdry for support, suggestions and advice in relation to this article.

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