The Public Sector Equality Duty (PSED) in the Equality Act requires that public bodies have due regard to the need to eliminate discrimination, advance equality of opportunity, and foster good relations between different people when carrying out all of their activities. It applies to race and religion or belief as well as six other protected characteristics. One notable partial exception to the PSED is immigration, which means that the Home Office, when taking immigration-related decisions, is not required to have due regard to the need to advance equality of opportunity but must still have due regard to the need to eliminate discrimination and to the need to foster good relations between different racial groups.
The PSED has the potential to be effective in tackling institutional racism, but soon after coming into force, it was targeted as unduly burdensome under the Government’s Red Tape Challenge14. As a consequence the specific duties adopted for all national public authorities in England are very limited, suggesting a lower priority for compliance. Interestingly, Ministers in Wales and in Scotland have adopted far more rigorous specific duties for their public authorities.
The UK Government has also introduced other measures making it more difficult to comply with the PSED, such as the DCLG Best Value Statutory Guidance, removing the obligation on local authorities to monitor service users by ethnicity, gender, religion, etc.15 According to the Discrimination Law Association (DLA), the PSED can lead to positive outcomes both with and without litigation.16
The contribution of the PSED is significant because people can use it to stop a discriminatory policy without individuals having to bring claims after the event; it makes public authorities think about what the impact will be on people of different ethnicities in advance and in some instances, change their minds about a policy or service.
The duty gives the public an opportunity to raise concerns about equality with public bodies. It gives public bodies an opportunity to reflect on how their policies and decisions impact on people of different ethnicities.
It puts the onus on society to organise itself differently to eliminate barriers for ethnic minorities.
The impact is much greater than the case law would suggest as many people succeed without ever needing to issue proceedings, since the vast majority of equality duty cases are settled through negotiating with public bodies.
The duty “to advance equality of opportunity between people who share a protected characteristic and those who do not” is particularly useful. This duty should ensure that decision makers focus on – and seek to eliminate – the many barriers that BME people face that others don’t. It also empowers BME groups to voice concerns about equality, as it addresses the needs of specific groups and doesn’t only focus on solutions for a particular individual.
From their experience, DLA members suggest that there is a difference between central and local government attitudes to the PSED. Local authorities often take this duty more seriously – or are more frightened of litigation, or are dealing with the duty more sensitively on a local scale. Central government has been and remains more dogmatic and far less willing to review or reconsider a policy proposal they have already put forward, regardless of the policy’s effects. Further, the courts have generally been more reluctant to uphold a PSED challenge to central government policy.
Organisations that are not “public authorities” are subject to the PSED when they are exercising public functions (s.149(2)), but to date few if any private or voluntary sector organisations have been challenged for their failure to comply with the duty. With increasing privatisation of public functions, the importance of the PSED will shrink even further if contractors carrying out public functions do so without due regard to the elements of the duty.
One of the possible reasons for the PSED not being as effective as it could or should be is the failure by the Equality & Human Rights Commission (EHRC) to issue a statutory code of practice on the PSED. We understand a draft had been prepared and submitted to the Government Equalities Office for approval. A statutory code could assist public authorities and BME communities to have a fuller understanding of what compliance entails. This could achieve the real aims of the Equality Act without the stress and expense of litigation. Courts must take EHRC statutory codes into account and there are equality duty cases under the previous equality legislation in which the Commission for Racial Equality (CRE) statutory Code of Practice was referred to by the High Court. The EHRC has issued technical guidance on the PSED, which is very useful, but both qualitatively different and lacking the influence of a statutory code.
In Scotland, the Equality Act provides for Scottish specific Equality Duties.17 The specific equality duties for Scotland came into force in May 2012, and require public authorities to report on mainstreaming the equality duty, publish equality outcomes and report progress, assess and review policies and practices, gather and use employee information, and publish equal pay statements. In practice, these duties are not sufficiently well enforced and while public authorities may publish information, it is often not sufficiently detailed. Furthermore, action is not taken to use the information to combat inequality.18 Application of the equality duty is sporadic across public authorities, and current means of enforcement of the duties remain ineffective.