Jewel in the crown, or just red tape?
The public sector equality duty has not been in force for long, but has already been subject to critical review. What can usefully be learned from the exercise?
“Equality is too important to be tied up in red tape”. So concludes Rob Hayward OBE, chair of the independent steering group, in his introduction to the recently published Review of the Public Sector Equality Group (“the Review”). It is hard to disagree with that proposition, yet the majority of the Review paints a negative picture of the way public authorities are implementing the Public Sector Equality Duty (“PSED”).
It also suggests that the jury is still out on the value and benefits of the PSED, pending a further, more comprehensive review in 2016. The Steering Group concluded that it is too early to make a final judgment: “evidence, particularly in relation to associated costs and benefits, is inconclusive”.
Red Tape Challenge
Forming part of the Government’s Red Tape Challenge, the Review was set up to determine whether the PSED was “operating as intended”. In May 2012, only one year after the PSED came into force, the Government announced that it was bringing forward its planned review of the PSED. It is perhaps not surprising, therefore, that the steering group concluded that this review was too early and recommended a further review in three years’ time. One might also question whether two reports into the PSED within such a short timescale is a valuable use of resources.
Some of the conclusions in the Review may well be seen as unduly pessimistic – making it even more of a challenge for those diversity officers and equality champions who may struggle to convince senior colleagues of the merits of carrying out equality impact assessments and the need to make equality mainstream.
What is the PSED?
Briefly, the PSED is a proactive duty on public sector organisations to consider equality in a proportionate manner when they are delivering services or employing staff. The PSED is supplemented by certain specific duties – which are differently crafted in England, Scotland and Wales.
It has been described by one commentator as the “jewel in the crown” of equalities legislation. Instead of trying to tackle inequality through discrimination law, which is largely reactive involving individual litigation, the idea is to build equality considerations into the very core of how an organisation operates.
Few would argue with this laudable aim as a means of delivering public services. The Review, however, suggests that there is currently inadequate focus on the proportionality aspect and that an overly cautious “one size fits all” theme is being adopted by public bodies.
Lack of proportionality?
It states that significant amounts of data are requested in many procurement exercises without a clear rationale for their use. Used correctly, equality data-gathering has an important part to play in understanding the needs of service users. Many of the respondents to the call for evidence which formed part of the Review used the analogy of large retailers collecting customer data through loyalty cards to build up an accurate picture of their customers’ needs. Likewise, equality data collection enables organisations to identify gaps and trends which require action. It is hoped that some of the best practice identified in the Review can be factored into more user-friendly guidance, as well as suggesting instances where excessive data collection may be counter-productive.
Impact on the specific duties
The steering group was asked to consider how the PSED was operating across the UK, taking into account the different specific equality duties which have been implemented north and south of the border. Early in the process it became apparent that it would be impossible to collate meaningful evidence about the operation of Scottish specific duties, due to the later implementation date.
The steering group was divided regarding the effectiveness of the specific duties in England and non-devolved bodies in Scotland. The chair did not consider that the specific duties were driving performance, but rather added “a layer of unnecessary bureaucracy”.
If the same Westminster Government is still in power in 2016, I strongly suspect that the limited English specific duties will be repealed, but I do not think the general duty will share the same fate. That would leave Scotland and Wales with specific duties and England with none.
Failure to monetise the benefits?
The Review repeatedly mentions the burdens attached to the PSED, and the public sector’s collective failure to “monetise either the costs or the benefits of applying the duty as a whole”. Cost may be more readily captured than benefits, although as many lawyers will know, quantifying the savings achieved by avoiding legal risk is itself a very difficult task. And a time consuming one too.
The PSED is two-pronged – it should help reduce the instances of discrimination claims as well as drive equality of opportunity, which may be harder to quantify accurately. The Review seems to suggest that fear of being found to be in breach of the PSED is driving negative and cautious behaviours.
As many respondents pointed out, if the PSED is operating effectively and equality is mainstreamed into an organisation, it is difficult to separate it from business as usual. Trying to allocate a cost where there is no added time spent on equality is very difficult.
Some unanswered questions
Unanswered questions are perhaps inevitable given the interim nature of the Review. The Review appears not to address two of the issues mentioned in its terms of reference. Section (b) of the “scoping” section states that the Review will consider international comparative models. Section (d) explains that the steering group will consider how the duty functions in the context of the UK Government’s Equality Strategy. Why in particular is there no mention of the UK Equality Strategy? Perhaps both will feature in the next Review in three years’ time.
Lack of evidence of improved outcomes
A recurring theme throughout the Review is the steering group’s concern that there is a lack of concrete examples of improved outcomes arising from the PSED. Although it acknowledges that there was some general evidence around benefits, the Review states that there is a lack of examples of improved outcomes. One questions whether sufficient attention was paid to the findings of the NatCen qualitative research commissioned by the Government, and the views of many of the equality groups who responded to the call for evidence.
The NatCen research contains a number of case studies citing benefits. It is not possible to determine how many respondents also included benefits, because the steering group has not published all of the responses to the call for evidence. Helpfully, the Equality and Diversity Forum (“EDF”), an equality and diversity umbrella body, published 20 of their members’ responses. The EDF submissions contained numerous examples of benefits where the PSED had made a difference.
In particular the submission from Citizens Advice described situations where the failure to pay sufficient attention to equality considerations had resulted in a legal challenge. A prominent example of this was the Gorry case. Although the case was not brought using the PSED, it did involve disability discrimination. Mr Gorry and his wife challenged their local authority’s decision to impose the “bedroom tax” on their three bedroomed house, despite the fact that they had two disabled daughters who could not share a room. As Citizens Advice commented, had the DWP given greater consideration to the needs of disabled children at the equality impact stage and the fact that many would be unable to share a room, they might have avoided costly litigation.
Questions also remain regarding the lack of consideration of the equality objectives (or outcomes as they are referred to in Scotland) which English public authorities are required to publish as part of their specific duties. If the steering group was searching for concrete examples of improved outcomes, would this not be an important starting place? In England authorities must publish information showing how they are complying with the PSED, and publish one equality objective every four years. The chapter on compliance with the specific duties focuses exclusively on the first specific duty concerning data collection and equality information, with no mention of the second one.
Guidance to be produced
On a more positive note, the Review recommends improved (and shorter) sector-specific guidance, which will be of assistance to English organisations where the EHRC guidance and the GEO guidance can be contradictory. There is no mention that the Scottish EHRC will amend their guides to the Scottish specific duties. As the Review argues persuasively, this is an area where user-friendly guidance may be very helpful indeed. Public bodies will encouraged to ensure that they do not "gold plate" compliance with the PSED, which should be proportionate and outcomes-focused. In addition, regulators and ombudsmen will play more of a role in working with the EHRC in relation to compliance.
Recommendations regarding judicial review
One issue that public authorities will be closely watching is the recommendation that an individual wishing to challenge an authority’s approach to the PSED should no longer do so by judicial review. This aspect will be dealt with as part of a wider consultation process looking at judicial review more generally. Despite only 27 PSED proceedings being raised out of 500 judicial review cases in England, this figure was deemed “a significant proportion of the overall number of judicial reviews”. By my estimation, that's just 5% of cases.
The Review perhaps prompts more questions than it answers, but given the interim nature of the Steering Group's task and remit, that may have been inevitable.
Valerie Dougan is a professional support lawyer at Dundas & Wilson CS LLP