Equality Act 2010: the public sector equality duty consultation
Response from Thompsons Solicitors – November 2010
Thompsons is the UK’s largest and most experienced firm of trade union, employment rights and personal injury lawyers. We have a network of offices operating in England, Northern Ireland, Wales and Scotland.
On employment and industrial relations issues Thompsons acts only for trade unions and their members. The firm represents the majority of UK trade unions and advises on the full range of employment rights issues through its specialist Employment Rights team.
The firm regularly responds to Government and other public consultation papers on employment rights issues and other key areas of the law.
Q1: Do you have any comments on our proposals for data reporting? Does the drafting of regulation 2 accurately reflect the aims of the policy described in paragraphs 5.2 to 5.9?
Regulation 2 may reflect the aims of the policy, but the policy is flawed. It has become a policy of monitoring but not tackling equality.
As drafted, Regulation 2 (3) allows public sector organisations to take no account of what the Secretary of State is asking them to do. There is no obligation on them to do so. The Regulations are entirely silent on enforcement and meaningful remedies.
There is little point in telling public bodies that they should be open about the information on which they base their decisions, what they are seeking to achieve and about their results, if there is no guidance on what the data should include and how it should be compiled and if there is no effective enforcement strategy. How can the public hold an organisation to account without these fundamental requirements?
The Regulation will not improve the application of the equality duty unless specific equality objectives are set. Part of the equality duty should be to produce an action plan detailing how those objectives will be achieved. Without this obligation there can be no transparency and we fear that the duty will be largely ineffective.
Q2: Do you have any comments on our proposals for employment reporting? Does the drafting of regulation 2 accurately reflect the aims of the policy described in paragraphs 5.10 to 5.11?
The aims of the policy are simply too vague to be effective. As said above, requiring public bodies to publish data on equality in their workforces is likely to have little impact unless the type of data is specified and the requirement can be enforced.
We do not agree that only public bodies with 150 or more employees should be required to publish the data. If equality is an aim for public authorities then it should be for all public bodies, regardless of size. An organisation should not be entitled to be less equal just because it employs fewer than 150 people.
Q3: Do you have any comments on our proposals for transparency in public service provision? Does the drafting of regulation 2 accurately reflect the aims of the policy described in paragraphs 5.12 to 5.14?
We have no comments, other than a requirement to publish only at least annually may not be of value and that the whole policy is deeply flawed.
Q4: Do you have any comments on our proposals for setting equality objectives to achieve transparency about impact on equality? Does the drafting of regulation 3 accurately reflect the aims of the policy described in paragraphs 5.15 and 5.16?
It is not transparent for an organisation to set equality objectives without it being obliged to show how and why it arrived at those objectives and how it will achieve them.
As drafted, the regulations allow an organisation to set just one easy objective. This is unlikely to have an impact on equality.
Q5: Do you have any comments on the changes proposed in Chapter 5 under the section ‘Reducing the burdens on public organisations’?
We disagree with the aim to “reduce the burdens on public organisations”. It is wrong to consider the public sector duty to be a burden – greater equality cannot be achieved unless organisations are required to be proactive and accountable.
The Secretary of State should determine the objectives and organisations should be required to produce an action plan on how they will achieve those objectives. “Reducing burdens” to such an extent as to make the duty ineffective is dishonest.
Paragraph 5.21 specifically removes any requirement on public bodies to use their procurement powers to improve equalities.
This directly contradicts comments made by the Lynne Featherstone that “the world will have to change” and that “legislation must will the means, not just the ends, and we have to ensure that what we put down in law is matched by the will and resources to ensure its delivery. That will come into play when procurement is considered.” See: www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090511/debtext/90511-0009.htm#0905118000749
For there to be effective competition there has to be a level playing field. Removing the obligation on organisations to use their procurement powers to improve equalities creates an unlevel playing field.
We do not agree with Paragraph 5.22 that there is now no need for an action plan. Without an action plan, how can an organisation decide how it will achieve its objectives and how will the public know how the body intends to do so? How will individuals be able to take action against an organisation if there is no action plan?
Without an action plan there is no transparency.
Q6: Do you have any comments on our proposals for transition from the existing duties relating to race, disability and gender to the new public sector Equality Duty, as described in paragraphs 6.1 and 6.2 above?
There has been an equality duty in place since the Stephen Lawrence enquiry. It has made little difference to equalities in the public sector.
Q7: We would welcome your views on the proposed list of public bodies for Part 1 and Part 4 of Schedule 19, as described in paragraphs 7.7 to 7.12 above.
The duty should apply to all providers of public services and any organisation that receives public funds, not just public bodies.
Q8: We would welcome your views on those bodies that we do and do not think should be subject to the specific duties, as described in paragraphs 7.13 and 7.14 above.
See our response to Q7.
Q9: Do you have any other comments on the drafting of the Statutory Instrument? If yes, please explain.
We have no further comments.