NICEM 15 TH ANNUAL HUMAN RIGHTS AND EQUALITY CONFERENCE

1. NICEM 15TH ANNUAL HUMAN RIGHTS AND EQUALITY CONFERENCE Public Sector Equality Duty in England, Scotland and Wales: The past, the present and the future Barbara Cohen Discrimination Law Association September 2013

2. The past: Race, Disability and Gender Equality Duties • 1999 Stephen Lawrence Inquiry Report: “It is incumbent upon every institution to examine their policies and the outcome of their policies and practices to guard against disadvantaging any section of our communities” • Race Relations (Amendment) Act 2000 - brought all public functions within the scope of the Act and imposed on public authorities a new enforceable Race Equality Duty. • Specific duties required review of all functions for relevance to race equality, race equality scheme with arrangements for consultation, training, monitoring of workforce by ethnicity. • Followed by Disability and Gender Equality Duties – each with different emphases in general and specific duties.

3. The Present: Public Sector Equality Duty, Equality Act 2010 A public authority must, in the exercise of its functions, have due regard to the need to: Eliminate discrimination, harassment and other prohibited conduct Advance equality of opportunity between different groups and Foster good relations between different groups. The duty applies to any person exercising public functions in the exercise of such functions. The duty applies to age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

4. The present: Public Sector Equality Duty, Equality Act 2010 – meaning of the duty • To have due regard to the need to advance equality of opportunity includes having due regard, in particular, to the need to: • Remove or minimise disadvantages • Take steps to meet different needs • Encourage greater participation • To have due regard to the need to foster good relations includes having due regard, in particular, to the need to: • Tackle prejudice; and • Promote understanding

5. The present: Public Sector Equality Duty, Equality Act 2010- Specific Duties • English public authorities, central government departments, national public authorities must: • Publish one or more objectives once every 4 years • Publish annually information showing compliance including information re workforce and users of services • Wales: 15 far more prescriptive duties, including impact assessment, monitoring, engagement, training, strategic equality plans, and procurement • Scotland: 10 duties, including impact assessment and review of policies or practices, gender pay gap information, gather and use employee information, procurement.

6. The present: Public Sector Equality Duty, Equality Act 2010 - legal challenges • Applications for judicial review of decisions by public bodies which individuals or groups believe have been made in breach of the PSED; • A range of austerity decisions have been challenged not all successfully – citing potential adverse impact on particular groups; • Issue now is rarely the absence of equality impact assessment but whether such assessment was adequate to comply with the PSED; • Courts have resisted taking on role of ‘micro-managing’ how public bodies develop and decide on policy proposals.

7. The present: Review of the Public Sector Equality Duty Part of the ‘Red Tape Challenge’ - to reduce undue burden of regulations on business and public bodies. Purpose: “To establish whether the Duty is operating as intended” What was “intended?” When Act approved by Parliament: “the purpose …is to oblige public bodies to consider equality issues in respect of all of their functions” When PSED brought into force in 2011 Government’s aims were: To build on and simplify previous equality duties and to extend to other protected characteristics; To be outcome-focused; To reduce the bureaucracy associated with the previous duties.

8. The present: Review of the Public Sector Equality Duty – lack of evidence The Review announced in May 2012 reported in September 2013. The Steering Group Report acknowledged that in respect of some major issues they did not have sufficient evidence: Lack of evidence re costs and benefits - hence not able to make a ‘final judgment’; Qualitative research based on views of self-selected respondents – unable to provide analysis of how prevalent such views are; Applies only to England; no consideration of how PSED is working in Scotland or Wales with more prescriptive specific duties; Limited engagement by business: no direct engagement with SMEs; Review did not follow up how PSED being used to support SMEs to get public contracts.

9. The future: Main conclusion of the Review of the Public Sector Equality Duty “It is too early to make a final judgment about the impact of the PSED. Government should consider conducting a formal evaluation of the Duty in three years’ time. This would enable the PSED to embed more thoroughly and should consider whether the Duty is an effective means of achieving the goal of sensitising public bodies to equality issues and what alternatives there might be. This work could be informed by the EHRC’s medium-term work on how the PSED and the more prescriptive specific duties operate in Scotland/Wales.”

10. The future: Review of the Public Sector Equality Duty - Recommendations Positive recommendations: • Clearer guidance on minimum requirements is needed, including more sector specific guidance. • Regulators, inspectorates, ombudsmen should integrate PSED in their core functions and collaborate with EHRC re enforcement. Neither positive nor negative recommendations: • Public bodies should adopt proportionate approach to compliance. • Public bodies should only collect diversity data when necessary for compliance with the PSED.

11. The future: Review of the Public Sector Equality Duty Recommendations Potentially negative recommendations: Public bodies must reduce the burdens placed on small employers in procurement and contract conditions. Public bodies should be challenged where their procurement processes create barriers for small businesses and charities. Public bodies should be proportionate in publishing information – Steering Group divided, but Chair recommends that Government should consider removal or modification of specific duties. Enforcement of PSED needs to be proportionate and appropriate – Government should consider quicker, less costly ways than judicial review to reconcile PSED disputes.

12. The future: uncertain Factors that may affect the future of the PSED include: • How public bodies respond to the Review report; • Whether the EHRC and inspectorates collaborate to secure more effective enforcement; • Better evidence of how equality in public procurement works for businesses, especially SMEs, and can produce improved outcomes; • What approach to a statutory public sector equality duty the next Government will take.