Earlier this week I wrote about the forty year history of equalities legislation in Britain, leading up to the situation we are in today.
As I explained in that essay, there are currently over one hundred Acts of Parliament, Regulations and Judicial precedents. Moreover there are complex differences and inequalities in the protections that different people can rely upon. There are also curious gaps – such as a lack of protection for simply associating with people who attract discrimination, or for being perceived to be one of those people.
In this follow-on piece I intend to look at what the Government did to address this situation, and what that tells us about the things to expect (or not expect) in the forthcoming Single Equality Bill.
A Green Paper
The Government's thinking began to emerge with a green paper in June 2007. This took the form of a formal consultation by the Discrimination Law Review – an expert group set up within Whitehall to examine the existing complex body of law and come up with proposals to simplify it.
"A Framework for Fairness" was a massive consultation – nearly 200 pages.
The format of the Green Paper indicated that, rather than taking a radical new approach, the civil service lawyers working on the project were essentially trying to stitch 100 pieces of existing legislation into one – smoothing out some irregularities in the process, but not doing anything radical.
The consultation resulted in an equally big response – 4226 submissions overall.
Evidence of organised lobbying
Of these, 597 were from organisations and 3629 were from private individuals.
Actually, 2500 of the latter were identified as the result of mass lobby by Evangelical Christian groups opposing specific provisions for lesbian and gay people.
Another 500 responses came from individuals who favoured extending protection against age discrimination beyond employment to cover goods, services and housing.
A third batch of 500 responses concerned the rights of women to breast feed in public.
These figures all come from a subsequent 200 page report, which the Government published in July 2008.
According to that report-back, some bodies like the Equality and Human Rights Commission, the former Equality Commissions, and organisations like the Trade Unions, Age Concern and Stonewall thought that the proposals lacked ambition.
Private sector firms and their representative bodies generally seemed happier with the more conservative "tidying up" approach – eliminating specific anomalies, but not changing the whole fabric of law in a more fundamental way (such as the Canadian model I described last time).
Support for "Positive Action"
The Government say there was a broad consensus about "positive action" – extending the scope of voluntary initiatives to the extent permitted by European Law.
At present "positive action" (the Americans call it "affirmative action") is generally prohibited – being as discriminatory as negative actions. However, it is allowed in certain very restricted circumstances.
For instance, if an employer has two equally matched job candidates and employing one of them would help to address a gap in their workforce diversity, they are allowed to take that into consideration, so long as the appointment is ultimately on merit.
The complexity is apparent though – and many organisations would like to see a lot more clarity.
Welcome for a Single Equality Duty
The idea of having a single public sector equality duty was strongly supported too – along with the idea of using public sector procurement to drive change in the private sector. The CBI, for instance, commented that "procurement can be an effective lever to improve equality".
In other areas opinion is reported to have been more divided – for instance, whether to extend the protection against age discrimination to the provision of goods, facilties and services, the disposal of premises and the exercise of public functions.
At the moment you can refuse services to someone because they're too young or too old.
My own view
Speaking personally, in spite of the rather conservative approach – and the complexity and anomalies it threatens to preserve – I thought that the Government's July response was quite good though.
Above all, the response showed that we appear to be progressing on lines that have been informed by genuine widespread consultation. The response made the reasoning quite transparent.
In some instances the Government indicated that the strength of responses had caused it to go along with the consensus. For instance the 2005 Disability Discrimination Act introduced separate definitions of discrimination in employment and for the supply of goods, facilities and services; public functions; private clubs; and premises.
These separate definitions of discrimination have attracted criticism for making the law complex and difficult to follow – so the DLR consultation sought views on whether this should be addressed.
The Government now says that it has been persuaded to simplify the law. 75% of the responses had been in favour of that kind of simplification – led by the response by the former Disability Rights Commission.
In other instances (and I've not kept score) the Government indicates that it wasn't persuaded to change its' view.
What was more impressive, however, was that each area like this was discussed transparently in the Government's response. They present both sides of the argument and then their conclusion.
Headine points are that the Government confirmed plans:
- to introduce a new streamlined public sector Equality Duty to replace the race, disability and gender equality duties;
- to extend the new Equality Duty to age, sexual orientation and religion or belief and to make more explicit that it covers gender reassignment.
- to frame the new Equality Duty in a way which makes clearer the outcomes it is designed to achieve;
- to retain the existing structure of general and specific duties (leaving open the possibility of application of different duties to different authorities, as now); but
- not to proceed with other elements of the proposed restructuring of the duties (identification of priority objectives);
That was in July.
Confusion and uncertainty
However, by September, more confusion and uncertainty was creeping in.
For instance, there has been talk of abandoning the public sector requirement to carry out Equality Impact Assessments. To me these are an essential discipline if public authorities are to be really aware of the implications which their strategy and policies can have on different groups.
Equality Impact Assessment is not flawless as it stands. If you don't consult and don't have a clue about different needs then it's easy for assessments to become just a tick box exercise.
However, the evidence that some organisations are really that sloppy is valuable in its' own right. For organisations that do assessment well, it's also a really good discipline for embedding an understanding of diverse needs into every planning action they take.
The Equality Bill was introduced by the Queen's Speech in early December. It will hopefully be on the statute book later this year – although specific parts, such as the Single Equality Duty, may not come into force until 2010/11.
The hope is that, although it embodies no new big radical approach, it will at least do what the Government intends. I.e:
- replacing over a hundred statutes with one;
- ironing out inconsistencies that are themselves discriminatory;
- addressing gaps like multiple discrimination, and
- giving us a more intuitive idea of what the law intends for everybody.
Let's not get carried away on the euphoria though. The devil is in the detail. The Bill that's introduced to Parliament will be eagerly read and dissected by us all. There are bound to be battles. And even when it is passed and in force let's not forget the lesson I pointed out right at the beginning.
No magic wand
In 1970 Parliament passed an Equal Pay Act. In 1975 a Sex Discrimination Act.
Since then practically every group in society has been protected to varying degrees by one or more laws.
Yet discrimination is still rife. Women are still not paid the same as men for the same work. Employment tribunals deal with tens of thousands of claims every year. The Canadian law's list of who is protected emphasises the number of ways in which every one of us can be discriminated.
It's not the law that changes people's behaviours. People have to do that. And if that were simple then we'd have done it by now.
Society does change, but change comes slowly. Women obtained the right to vote on equal terms in 1928 – yet we are far from equally represented in Parliament. That's estimated to take another 200 years at the present rate of progress.
But most people would agree that slavery is reprehensible. We at least know that sex discrimination is wrong, even if we can't prevent it sometimes. We're mostly shocked by race discrimination. Disability discrimination is becoming better understood ... and so on.
Society changes slowly – but we can change ourselves in an instant if we choose.