Tory Hate and Red Tape-equality impact assessment and analysis
November 20, 2012
On Monday 19 November the prime minister made a speech to the Confederation of British Industry (CBI). In it he made a claim which was at best disingenuous and at worst deceitful. Either way the claim was unlikely to rally his own core supporters, for they will quickly recognise that it was empty and misleading rhetoric. Further, it is extremely unlikely to give a valuable moral direction to society as a whole.
Mr Cameron claimed his government is going to abolish equality impact assessments (EQUIAs). This was naïve and misleading, or downright deceitful, because the decision to abolish equality impact assessments was formally taken on 8 April 2010, namely several weeks before Mr Cameron entered Downing Street two and a half years ago. That was the day the Equality Act 2010 received royal assent. EQUIAs ceased to be required from 6 April 2011, which was the day when the new public sector equality duty (PSED) established by the Equality Act came into effect.
However much he hates what he calls red tape, Mr Cameron cannot abolish a requirement that does not exist. So why did he mislead or lie to the CBI? Were he and his speechwriters simply mistaken? Or did they gamble on nobody in their audience, and nobody in the media, knowing or caring about the truth? And on the inability of people who do know the truth to make their voices effectively heard? Whatever his motivations and levels of knowledge and ignorance, what is the likely effect of his false claim?
Such questions are in the background of this brief article. Mainly, there is an explanation here of what equality impact analysis involves. Incidentally, the explanation given by news organisations such as the BBC, presumably based on a background briefing note provided by Mr Cameron’s staff, was extremely inaccurate and inadequate.
EQUIAs have never been part of primary legislation, and have never directly affected the private sector, namely the sector in which the CBI plays such a dominant part. They were introduced by one of the specific duties entailed by the Race Relations (Amendment) Act 2000, and subsequently extended by the courts, not parliament, to issues of disability and gender. There was never a set way of conducting them. On the contrary, the landmark legal judgement which extended them to disability and gender stated entirely explicitly that they do not merely require the ticking of boxes.
The Equality Act 2010 involved the abolition of the specific duties associated with legislation pertaining to disability, ethnicity and gender, and extended the essential and central concept of due regard (section 149 of the Act, previously clause 148 of the Bill, and before that in previous legislation) to six further categories. The government ceased its previous discourse about equality assessments, since this was perceived to have become a way of referring to mechanistic form-filling, and chose instead to talk about equality analysis. In the House of Lords a spokesperson for the coalition explained that ‘public bodies must ensure that they have the right information to hand about equality issues to make informed choices and decisions and to ensure that this is rigorously considered before and at the time decisions are taken’. In a workbook for civil servants the Department for Education (DfE) explained the concepts of due regard and impact analysis in these terms:
Having due regard means that we need to think in advance about the potential implications of our decisions, seeking not just to eliminate negative outcomes but also thinking about potentially positive ones. We also need to be able to demonstrate – ideally proactively, or otherwise if challenged – that we actually have paid due regard to the duties.
One important way in which public bodies, and especially government departments, demonstrate that they have taken due regard is through equality analysis – analysing what we do and how we do it so that we are clear about the impact on equalities, and so that we take action as a result of our analysis in order to promote equality.
In essence, the DfE states that conducting an equality analysis of a proposed new policy involves asking two questions, each accompanied by a follow-up question. These are:
Could this policy, or does this policy, have a negative impact on one or more of the dimensions of equality – could it increase inequalities that already exist?
If so, how can we change or modify it, or minimise its impact, or justify it?
Could this policy, or does this policy, have a positive impact on equality, by reducing and removing inequalities and barriers that already exist?
If so, how can we maximise this potential?
Analysis with such questions in mind is required by Section 149 of the Equality Act. Theoretically Mr Cameron could scrap Section 149, providing his Lib Dem partners have no objection – however, they contributed much intellectual backbone for the legislation when it was passing through parliament, particularly in the Lords. Also, there would need to be no effective resistance from the millions of people who are directly protected by the Act – they constitute well over three quarters of the population, and potentially everyone without a single exception. First reactions to Mr Cameron’s speech from the Trades Union Congress, the Fawcett Society and disability charities show that resistance would be substantial.
It is inconceivable that Mr Cameron will attempt any sort of repeal before the next election. The CBI knows this, and so do the prime minister’s own backbenchers. By uttering empty threats he diminishes his authority with his own supporters, and invites derision from his opponents.
The Equality Act received all-party support throughout the passage of the preceding Bill through parliament in 2009 and early 2010. Section 149 is one of the Act’s most precious components. Analysis of the possible impacts of a proposed policy with regard to equality, as commanded by the Act and interpreted by the courts, enables and empowers civil servants and the courts to say, on occasions, ‘No minister!’ Or even, indeed, ‘No, prime minister!’ Section 149 of the Act must never be repealed.
Robin Richardson’s work on equality and diversity issues is reflected at www.insted.co.uk.