Public sector equality duty: what’s it all about, then?

Recently we’ve blogged about the Fawcett Society’s attempt to get a judicial review of the UK Government’s July emergency budget, and also the Treasury’s equality impact assessment of the comprehensive spending review. In both cases, the underlying question has been: Did the decision-maker pay due regard to the need to eliminate discrimination and promote equality?

But you might wonder: why should they?  I mean, yes, it would be nice, but are they really required to?  So I thought it might be worth saying something about the legislative framework behind all this, because it deserves to be better known.

Impact assessments are centrally about looking for possible unintended consequences before you take a decision, so the decision can be fully informed.  Environmental impact assessments date back to the 1960s, and in 1995 the Beijing World Conference on Women called on governments to

mainstream a gender perspective into all policies and programmes so that, before decisions are taken an analysis is made of the effects on women and men respectively.

In Britain, though, the idea of requiring public sector organisations actively to eliminate discrimination and promote equality is usually traced back to the 1999 enquiry into the Metropolitan Police’s investigation of the murder of Stephen Lawrence.  Stephen Lawrence was killed by a gang in 1993 in a vicious racially motivated attack, but the police response and subsequent investigation were incompetent in the extreme.  The enquiry led by Sir William Macpherson found that the police were institutionally racist:

6.34 “Institutional Racism” consists of the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness, and racist stereotyping which disadvantage minority ethnic people.

They also said that

[46.27] …our conclusions as to Police Services should not lead to complacency in other institutions and organisations. Collective failure is apparent in many of them, including the Criminal Justice system. It is incumbent upon every institution to examine their policies and the outcome of their policies and practices to guard against disadvantaging any section of our communities.

The Race Relations (Amendment) Act 2000 therefore introduced a positive duty on public bodies to have due regard to the need to eliminate discrimination, and to promote equality of opportunity and good relations between people of different ‘racial’ groups (the general duty).

In addition, public bodies have had a specific duty to collect evidence and assess the impact of their activities on people from different ‘racial’ groups, in order to identify policies and criteria which – even if not intentionally – put certain groups of people at a disadvantage. Public bodies then have to take steps to eliminate or reduce that disadvantage, unless they can set out an objective justification for continuing to apply the policies or criteria.  They have to set out the steps they plan to take in a Race Equality Scheme (here, for instance, is Oxford University’s).  And, crucially, they have to publish these ‘equality impact assessments’, so that their decisions – and the evidence on which they based them – are transparent.

The Disability Discrimination Act 2005 extended the same sort of positive equality duty to disabled people, and the Equality Act 2006 extended the duty to equality between men and women.  From April 2011, the Equality Act 2010 brings these together into a single Public Sector Equality Duty which will also cover religion and belief, pregnancy and maternity, sexual orientation, gender reassignment and age.

Since 2007 the Equality and Human Rights Commission (EHRC) has had powers to investigate and enforce the specific duty to carry out equality impact assessments, while persons with an interest in a decision of a public sector body have been able to enforce the general duty to have due regard by seeking judicial review. One of the best-known cases enforced this way was taken by Southall Black Sisters after Ealing Council decided to withdraw funding for their project supporting black women experiencing violence and abuse; the court found that Ealing’s decision was unlawful because they had failed to have due regard to the need to promote equality (they only conducted an equality impact assessment after the decision had been taken).

And the Fawcett Society?  Well, they lost at the hearing on Monday, but not because the court found that the Government had fulfilled its obligations.  According to Fawcett,

The purpose of the hearing was for a judge to decide whether to grant us a ‘review’ of the budget. While the judge did not grant us a review, we can count some major gains:
* The government admitted it had not carried out an adequate gender impact assessment of the budget – and expressed “regret” that this had not happened.
* The government committed to individual departments carrying out assessments of many of the measures in the budget as policies are developed further.
* The judge was clear that government budget decisions are subject to equality law, and so must recognise the need to promote equality between women and men and eliminate harassment. The Treasury’s lawyers agreed that this was the case.
* Finally, the court found that with budget policies set to have such a dramatically different impact on women and men, they do merit further scrutiny.

In fact, on 25 November the EHRC launched a formal assessment of the Treasury’s compliance with its equality obligations in the Comprehensive Spending Review.  They’re developing the terms of reference for that assessment at this moment.

So now it’s up to the EHRC…

How not to do an equality impact assessment…

We’ve blogged before about the obligation on public authorities in the UK to conduct Equality Impact Assessments on their decisions, which the Fawcett Society is testing in its judicial review case on the Government’s emergency budget.  Well, now we’ve had the Comprehensive Spending Review, and – ooh!  Surprise!  They’ve done an equality impact assessment.

But it’s not good. For now, I’m going to leave it to my good friend ‘In Wales’ over at eurotrib to comment, but here’s my favourite of the quotations she pulled out:

In order to understand the impact of changes in benefits and tax credits on men and women it is necessary to know how families share their income between themselves and their children (if any). It is not enough to simply know the gender of the claimant. It is therefore difficult to assess the impact on gender equality of changes to Child Benefit, which is paid to an individual claimant on behalf of the child, and not for the personal benefit of the claimant; as well as changes to tax credits which are paid on a household basis.

Oh right!  Child benefit is paid for the benefit of the *child*, so the fact that we know women often do much of the work of caring – including the financial work of budgeting for the children’s needs – is kind of irrelevant.

As In Wales comments,

They’ve done an EIA, it just isn’t a robust or good one, and it is shifting the responsibility over to the authorities who will have to implement the cuts.

Bravo.  Fairness and equality, only if you can afford it.

 

Legal challenge to UK budget: failure to assess impact on gender equality

The Fawcett Society is seeking a judicial review of the recent UK budget: it says the budget was unlawful because there was no assessment of the impact on gender equality, and MPs should have been provided with such an impact assessment before they voted on the budget. There’s more on the Fawcett Society web page and in an article in the Observer.

This will be interesting… (Thanks, TLC!)

Don’t ask, don’t tell – in fact, stay firmly in the closet…

…if you’re seeking asylum in Britain after facing homophobic violence in Cameroon, that is.

Last year the UK Court of Appeal decided it was fine to deny asylum to a gay man on the grounds that, if sent back to Cameroon, he could live somewhere else in the country (where he hasn’t been outed) and ‘exercise a certain amount of discretion’.  Apparently, it is reasonable to expect him to tolerate having to ‘be discreet’ in order to stay safe.

What’s that you say?  What does it mean to be discreet?  Well, there might be  a clue in what led to the violence against him in the first place – he and his partner were apparently kissing in the garden and were seen by a neighbour.  The immigration tribunal felt this couldn’t be described as discreet.

Judgement is now awaited from the UK Supreme Court….

(Thanks to HP!)

**UPDATE** From my limited knowledge, I think that if the UKSC overturns the Court of Appeal ruling, it could mean the decision in Kiana Firouz’s case will have to be reconsidered.  Because the UKSC is looking at two appeals together – one the case I described, about someone from Cameroon, the other about someone from Iran.

**UPDATE 2** Stonewall (the UK’s principal LGBT campaigning organisation) has published a research report into homophobia in the UK asylum system.

Fascist, hedonistic, unstable – and bisexual. Obviously(!)

I am irritated by this characterisation from the BBC:

John Amery was the Harrow educated son of Churchill’s Secretary of State for India, Leo Amery. His brother Julian was later to become a prominent Conservative MP. A troubled man, who had been expelled from Public School and bankrupted as a young entrepreneur, John became a passionate fascist. He broadcast pro-Nazi propaganda during World War 2 and ran a programme recruiting British POWs to fight for Germany on the Eastern Front. Unlike his brother Julian, John was a wild boy – bisexual, hedonistic and unstable. Why? [emphasis added]

Apparently, bisexuality is of a piece with hedonism and instability – and, it is implied, equally in need of explanation.  Is there just the slightest, BBC-est hint of the attitude Jan Moir stated so explicitly in her column after Stephen Gately’s death?

We’re all equal before the law!

It’s not often you hear senior members of the judiciary criticising the law for being on the side of dominant groups in society.   And in Britain you don’t get much more senior than Lord Bingham of Cornhill, formerly Master of the Rolls, then Lord Chief Justice, then Senior Law Lord – or, to be precise, the Senior Lord of Appeal in Ordinary – aka Tom Bingham.

So I was for a moment heartened to hear the following exchange with the poet Simon Armitage, who said,

…as a probation officer in a magistrates’ court in the north of England – the high street supermarket of the legal system – I got to the point where I felt I was enforcing… not some gold standard of justice every day, but actually a series of moral values.  And there would be… students of history who would say that many laws are designed to keep the wealth and power with a certain proportion of the population and stop the others from getting it.

Nice point!  What do you say to that, Tom Bingham?

There have undoubtedly been periods in history when the law reflected the interests of the dominant class.  They were represented in Parliament and they made laws that were convenient for them.

Cool, I thought.  What a promising recognition.  He continued,

But I think that we would now claim, and certainly aim, at a situation in which there is true equality before the law: you don’t get a lesser punishment – indeed, rather the opposite – if you’re well-to-do…

Oh well.  Silly me for thinking that the problems were things like low rape conviction rates, or imprisoning drug addicts for petty theft when white collar fraudsters do deals to avoid prosecution, or the provocation defence which tends to recognise men’s ‘crimes of passion’ but not the years of abuse suffered by battered women.

Nope, turns out it’s all okay now, because – after conviction – rich people get the same punishment as poor people for the same crime.  Thank goodness we’re all equal before the law!

What are the minimum qualifications for serving on a jury?

Well, in North Carolina, not being deaf.  I lived in North Carolina for seven years, and there are some ways in which it’s perhaps surprising, for a Southern state: for instance, I don’t think it’s passed a “defence of marriage” act yet. But I had no idea that deaf people are excluded from serving on juries.  I feel betrayed by my temporarily-adopted home state.

Representative Rick Glazier has proposed a bill to change the law, permitting deaf people to serve on juries and ensuring provision of qualified interpreters. Last Thursday it was debated in the state House, and the prejudice, failure of imagination and total lack of awareness of how communication works just made me want to weep.

Here’s Rep. Ronnie Sutton in the debate:

Ladies and gentlemen, this is a well-intended, good-sounding bill, but let’s put it in real-world terms. A deaf person sitting on a jury is going to miss a vast majority of what takes place in a jury trial. The interpreter cannot interpret quick enough to describe the inflection of a witness’s voice and things of that nature. You know it just seems to me that this is really an example of taking political correctness too far. . . . If this is the case, why not blind people serving on juries? Why not quadriplegics serving on juries from their bed. You know, it’s just, that just shows you, in my opinion, the absurdity of having a deaf person on a jury. You know we don’t have quadriplegics running track. Nor do we need to have deaf persons serving on juries. . . .

A reductio which fails to reach absurdity, I think.  And Rep. Bill Faison:

…if we were to pass this bill, and I am sitting in a courtroom and a person who is hearing challenged goes into that box, I cannot, in the effective representation of my client, allow that person to continue to sit for the deliberation because they cannot physically, fully participate in the process, with or without an interpreter. Sometimes in the cases I do there are some medical terms. I’ve got to make sure people understand those. I will never know if that translator got it right or not. . . .

Seems to me he’s radically overestimating his ability to know whether his communication has succeeded in every other case.

The bill is due to be debated again today, Weds 22 July 2009, but I don’t know if I can bear to find out what happens.

(Many thanks to Linda Nelson on the National Association of the Deaf blog!)

Keep UK libel laws out of science!

You may have noticed our shiny new widget over to the right: we’re supporting the campaign launched by the charity ‘Sense about Science’ to keep UK libel laws out of science. 

What’s this about?

Well, last year the British Chiropractic Association decided to sue the science writer Simon Singh for libel after he criticised them for promoting the use of chiropractic to treat children with conditions such as asthma and colic – treatments which he described as “bogus”.  Whatever you believe about the efficacy of “alternative medicine”, if you care about freedom of speech you should support the open discussion of evidence rather than the silencing which results from libel cases.  (And this isn’t the first relevant case – Ben Goldacre, author of the Bad Science blog and column, was sued by Matthias Rath for expressing concerns about Rath’s promotion of vitamin pills to treat AIDS in South Africa. Rath withdrew his case, but for more than a year Goldacre was unable to discuss the issue and had to omit an entire chapter from his book ‘Bad Science’.) 

There’s been lots of discussion about this case: the legal blogger Jack of Kent has set out the legal issues; you can read Simon Singh’s own account of the last year; journalist Nick Cohen provides some background and puts it in the context of ‘libel tourism’, where the UK’s libel laws are used by (for instance) Saudi businessmen against US publications simply because content is available online.  Things have got so bad the states of New York and Illinois are drafting legislation to protect people from the decisions of UK courts on libel.  

All this matters because people need access to information about science and health, open discussion improves the quality of evidence, and blogs like this one need freedom of speech to be protected.  We should all be worried about the chilling effect of UK libel law.