Positive Action & Community Cohesion in the UK, Institute of Education seminar 8 July 2010

1. Positive Action & Community Cohesion in the UK, Institute of Education seminar 8 July 2010 Dr. Theo Gavrielides IARS Director, Visiting Senior Research Fellow Open University (UK), Visiting Scholar Mount Royal University (Canada) Empowering Young People to Influence Policy & Practice

2. Synopsis: • Up-to-date definitions & (mis)understandings • Equality Act 2010 & Positive Action • (Not) learning from the past: new wine in old wineskins • Regulatory theory behind the Act • Available levers for community cohesion Empowering Young People to Influence Policy & Practice

3. Up-to-date definitions • Positive discrimination means: • giving preferential treatment to a previously disadvantaged group to compensate for past discrimination; • it is generally unlawful under age, gender, religion or belief and sexual orientation legislation to positively discriminate; • currently, only disability laws do not preclude positive discrimination. • Positive action is lawful & means acting to address evidence of under-representation or specific needs. Empowering Young People to Influence Policy & Practice

4. Up-to-date definitions • Positive action measures are set out in anti-discrimination legislation. Lawful positive action measures currently may include: • providing training to people from under-represented groups; • designating a post as one subject to a genuine occupational requirement; • advertising/identifying that specific groups are under-represented to encourage more people to apply for employment; • developing strategies to meet the needs of specific communities or sections of the community. Empowering Young People to Influence Policy & Practice

5. Up-to-date definitions ‘People with shared protected characteristics may be socially or economically disadvantaged, or may be affected by the consequence of past or present discrimination or disadvantage. The Act contains provisions which enable employers to take action to achieve fuller and more effective equality in practice for those that are socially or economically disadvantaged or otherwise face the consequences of past or present discrimination or disadvantage. These are known as "positive action" provisions. Draft Employment Statutory Code of Practice [EHRC: January 2010] Empowering Young People to Influence Policy & Practice

6. Up-to-date definitions ‘Positive action is not the same as positive discrimination or affirmative action, which are both unlawful. Positive discrimination and affirmative action involve preferential treatment to benefit members of a disadvantaged or underrepresented group which does not meet the conditions, the limitations or the proportionality requirement for positive action under the Act.’ Draft Employment Statutory Code of Practice [EHRC: January 2010] Empowering Young People to Influence Policy & Practice

7. Up-to-date definitions • Community cohesionexists where: • There is a common vision and a sense of belonging for all communities; the diversity of people’s backgrounds and circumstances are appreciated and positively valued; those from different backgrounds have similar life opportunities, and strong and positive relationships are being developed between people from different backgrounds in the workplace, in schools and within neighbourhoods (CIC 2007: 32). Empowering Young People to Influence Policy & Practice

8. (Mis) understandings • Positive Action, Positive Discrimination, Affirmative Action • Community cohesion: “I am concerned with how the term community cohesion is being used in policy. Currently, it seems to affect only two equality strands, race and faith, but it should be about all strands and human rights”. • “The government is leading on a discussion about community cohesion that is focused on the Muslim community, asylum seekers, refugees and newer communities and is detached from the equality agenda” (Gavrielides 2010) Empowering Young People to Influence Policy & Practice

9. Equality Act 2010 • The Equality Bill was published on 27 April 2009 and became an Act of Parliament on 8 April 2010. • Brings together nine separate pieces of legislation into one single Act simplifying the law and strengthening it in important ways to help tackle discrimination and inequality. • Implementation of majority of the Equality Act will begin on 1 October 2010 with the Public Sector Equality Duty becoming active from April 2011 Empowering Young People to Influence Policy & Practice

10. Protected characteristics, the Equality Act The Act covers discrimination because of: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Empowering Young People to Influence Policy & Practice

11. Positive Action in EU law • Equality Framework Directive (2000/78/EC) • European Race Directive (2000/43/EC) • The Directives allow positive action to be undertaken, and do not regard it as infringing the principle of equal treatment. They cover access to employment, training or promotion, and relevant to public, private and voluntary organisations. Empowering Young People to Influence Policy & Practice

12. Positive Action in the Equality Act, Part 11, Chapter 2 • The Act will not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs; • The Act will allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. • Measures must be a proportionate way of achieving he relevant aim. • The extent to which it is proportionate to take positive action measures which may result in others being treated less favourably will depend, among other things, on the seriousness of the relevant disadvantage Empowering Young People to Influence Policy & Practice

13. “Tie breaker clause” This clause permits an employer to take a protected characteristic into consideration when deciding who to recruit or promote, where people having the protected characteristic are at a disadvantage or are under-represented. This can be done only where the candidates are as qualified as each other. The clause does not allow employers to have a policy or practice of automatically treating people who share a protected characteristic more favourably than those who do not have it in these circumstances; Each case must be considered on its merits Empowering Young People to Influence Policy & Practice

14. Update on the Equality Act • It was stated during the passage of the Equality Bill through Parliament that three clauses may not be made active: • Socioeconomic duty • ‘Tie breaker’ clause of positive action • Need for publishing of gender pay gap. • Prior to the election, a consultation was planned on the specific duties that will result from the Act. This was due to take place over the summer 2010 and as far as the GEO has stated there has been no change in that plan. Empowering Young People to Influence Policy & Practice

15. What type of equality are we pursuing through the Act? • One of individual freedom of choice and fairness? • Should the aim of government interventions be instead to secure human dignity rather than choice or to bring about social cohesion or to engage in re-distribution? • Is there a theory of regulation behind the Equality Act or is it an ad hoc policy response driven by pragmatic politics? • De-regulation, non-regulation • Collective regulation • Reflexive regulation – encourages each organisation to engage in its own assessment of the equality problem Empowering Young People to Influence Policy & Practice

16. (Not) Learning from the past • “Reflexive regulation” – based on the assumption of consensus and partnership, government procurement to buy social justice, equality standard, greater legal space to engage in positive action and to use the genuine occupational qualification exception. • Human Rights Act 1998 • Ideologically superior model of regulation but less effective • Have the pre-conditions for successful reflexive regulation been identified? • Non-regulation or re-regulation – hypocrisy? • Civil society engagement – pre-condition Empowering Young People to Influence Policy & Practice

17. Available levers for community cohesion • Human rights legislation (Human Rights Act) • Human rights case law (Ghaidan v Godin-Mendoza “To not uphold the rights of all people “damages social cohesion, creating not only an under-class, but an under-class with a rational grievance” • Human rights education • From “community cohesion” to “social cohesion” • Positive obligation doctrine • Gavrielides (2010) “The new politics of community cohesion: making use of human rights policy and legislation” Policy and Politics Journal Empowering Young People to Influence Policy & Practice

18. Dr. Theo Gavrielides T.Gavrielides@iars.org.uk Independent Academic Research Studies (IARS) Waterloo Business Centre 117 Waterloo Road, London SE1 8UL  Office line 20 7960 0219, Fax: 020 7921 0036 www.iars.org.uk Empowering Young People to Influence Policy & Practice