“No to weakening the protections in the Equalities Act”

ECHR and CleggNo to weakening the protections in the Equalities Act

That’s what Nick Clegg said in his conference speech last week.

This is not the same as saying no to weakening the effectiveness of the Equalities Act 2006. Back in April we nearly lost Section 3, which gives the Equality and Human Rights Commission (EHRC) its purpose. Without Section 3 a future government would have less difficulty further dismantling the EHRC. Lib Dems in government raised no objections at the time. But for a strong showing in the Lords, some back-bone on the back benches and an emergency motion at the Welsh Spring Conference, we would have sold the pass on that one.

Is there a danger of us selling it again? A far more powerful section of the Equality Act is the Public Sector Equality Duty (PSED). On 6 September the Government published the report of the Independent Steering Group on the PSED, chaired by former Conservative MP Rob Hayward. The report concluded:

It is too early to make a final judgement about the impact of the PSED.

The PSED was only introduced in April 2011 so one has to ask why the Government found it necessary to appoint (and pay for) a panel to review its progress after such a short time. The key point of the review, introduced under the red tape challenge, was to examine whether the PSED is operating as intended. The devil here lies in the detail.

The PSED basically operates on two levels. There is a General Duty to eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010; and to advance equality of opportunity and foster good relations between people from different groups. This is complemented by a Specific Duty to set and publish equality objectives; and publish information to show compliance with the PSED.

It is the Specific Duty that makes the General Duty effective; it requires public bodies to be pro-active on equality. It enjoys plenty of support amongst those affected by it and those who work with them. It attracts no interest from businesses in whose interest the Red Tape Challenge is supposed to operate:

Despite the best efforts of the Chair and review team, there has been very limited engagement by the business community as a whole to the review.

Divisions in the panel (paragraph 21) indicate that the effectiveness to date of the specific duties is still under question:

The Chair’s view is that these duties do not apparently serve their intended purpose to ‘drive better performance of the equality duty without burdening public authorities’ and, where used, add instead a layer of unnecessary bureaucracy.

This opinion is one Rob Hayward has voiced more strongly in the press. It demonstrates that for our partners in government the issue has not been laid to rest.

Some observers have suggested that the PSED is safe for now. Others are less sanguine. They regard the recommendations as an attempt to seriously undermine the specific duty, especially the proposals to remove the option of judicial review to enforce the PSED. The Steering Group have proposed that the duty be reviewed again, in 2016, after an election following which of course we hope to be in government again.

Given the Tory’s hidden agenda on equalities, Nick Clegg will have further opportunities to protect equalities legislation.

Please Nick, be a bit more pro-active in future than you were on Section 3.

* Robin is a member in Cardiff and Vale of Glamorgan

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  • James Sandbach 27th Sep '13 - 2:16pm

    Excellent article. The Equality Act remains under threat and other important bits of the legislation have already been repealed such as the the concept of multiple discrimination, third party harrassment protection, and the important questionaire procedure that enables tribunal cases to settle through early disclosure of facts. As I understand the key Clause 1 – the duty to tackle socio-economic disadvantage will also be repealed, although last year’s Autumn Conference passed a motion specifically supporting the duty (one of the first policy statements on equalities from the Government was they would niot implement this duty despite previous all party support).

  • Really great article but I’d be very concerned about attempts to amend key bits of equality law buried way within other bits of law.

  • Excellent points made. Shows the importance of having a good set of officers drawn from the civil service and from our MPs and Lords [for now] and giving the Lib Dem leadership more support in government. We are too open to Tory “non- policy” “make it up as you go along” swings and attacks, and would be even more so if ever in coalition with Labour.

  • Martin Frost 28th Sep '13 - 12:50pm

    In 2011, Nick Clegg promised “that the protections enshrined in the Equality Act should not be watered down under the guise of dealing with unnecessary or intrusive regulation”. Great big picture stuff, but in the case of the Public Sector Equality Duty (PSED), the devil was in the detail.

    At the time a High Court judgement had just been handed down that found the Secretary of State for Education in breach of the old equality duties. It was a case in which the Minister had been challenged by several local authorities about his decision to refuse or discontinue various projects under the previous Government’s Building Schools for the Future programme.

    In July 2011, significant changes to the PSED’s specific duties were announced stressing the need to remove “prescriptive processes” in order to focus on “outcomes”. The real purpose was to reduce the risk of further successful legal challenges under the PSED. The Government also removed the requirement to undertake Equality Impact Assessments. A process that had been particularly successful in involving and consulting “hard to reach” groups.

    The subsequent PSED Review ordered by Theresa May reflected the Conservative Party’s deep unease with the whole concept of equality and universal human rights. Sorry that is not our problem. Liberal Democrats in Government should refuse to entertain any further concessions to right wing dogma and instead work towards establishing a more robust and enforceable regulatory framework for the PSED.

    So what can be done? I believe that we need to prioritise two main areas:

    (i) Internal Whitehall compliance with the PSED. It is noteworthy that the civil service record of implementing the current and previous equality duties has often fallen well short of expectations. The Disability Rights Commission (DRC) and Commission for Racial Equality (CRE) before they closed their doors in 2007 uncovered widespread non-compliance with those duties across the civil service. Where is the evidence that the situation has improved? If Government can not implement the PSED properly who else will?

    (ii) Improving on the delivery of equality objectives in Schools. This should be prioritised as part of any follow-up PSED strategy undertaken by the Equality and Human Rights Commission. The Liberal Democrats have made a head start with their Race Equality Task force report which was launched and endorsed unanimously at this year’s Glasgow Conference.


    Why the focus on schools? Because that is where most individuals future life chances get determined. Will the Conservatives and in particular Michael Gove countenance such a policy initiative? Over to you Nick.

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