Equality Act 2010 (Specific Duties) Regulations 2011

Lord Low of Dalston Excerpts

Tuesday 6th September 2011 Lords Chamber

[Lord Waddington]

I was making the very point that my noble friend touched upon. If at a time of war you can make exceptions for people who have deeply felt religious convictions, why the Dickens can you not do it in peacetime? It is absolutely absurd to say that because you have equality law there must be no exceptions in any case whatever, although by granting such exceptions you will cause no hardship to anyone. That is the whole point about the Catholic adoption societies. How completely cruel it was to say that those societies could not continue in existence when everyone knows perfectly well that if gay couples want to adopt there are 101 other places to which they can go. That is the answer to my noble friend.

I must conclude. I can give my noble friend no comfort. The relevant sections of the Equality Act permit the making of regulations. I must remind noble friends that they do not require regulations to be made telling local authorities how to observe the law. These particular regulations are fit for the dustbin. It would be beneficial for the House today to make the Government sit up and think and to expresses its view with the simple message along the lines that I have suggested; the dustbin is the place for these particular regulations. I beg to move.

[Lord Low of Dalston]

My Lords, I, too, ask the Government to undertake a rethink but from a slightly different perspective from the one that has just been laid out by the noble Lord, Lord Waddington. The notion of equality duties goes back to the Race Relations Act, the Sex Discrimination Act and the Disability Discrimination Acts, all of which have been widely recognised in your Lordships’ House to have conferred real benefits on the groups with whom they deal and on the community in general. They were supported by specific equality duties that required the production and implementation of equality schemes, including the publication of equality information and plans to improve performance in relation to equality. They also contained requirements concerning equality impact assessments and, depending on the Act, to set equality objectives and involve or consult affected groups in the development of schemes or in relation to impact assessments.

The Equality Act 2010 introduced a single public sector equality duty whereby public bodies are under a general duty to have due regard to—to paraphrase—the need to eliminate discrimination, advance equality of opportunity and foster good relations between people who share a protected characteristic and those who do not. In January, after much consultation, draft regulations were published that rationalised the system of specific duties. It was proposed that public bodies should be under a duty to publish details of engagement undertaken with affected groups when determining policies and equality objectives, equality analyses undertaken in reaching policy decisions and information considered when undertaking such analysis. While there was some disappointment at the disappearance of the requirement to produce equality schemes, these proposals addressed concerns identified by both groups working to further equality and public authorities, and were generally welcomed as representing a reasonable balance between regulating to reinforce the general equality duty and placing undue burdens on public authorities.

Now, however, in the regulations we have before us today, all but two of these requirements have gone. It is proposed only that the general duty is supported by specific duties to publish at least one specific and measurable equality objective every four years, and publish information annually to demonstrate compliance with the general equality duty. In other words, the duties to publish details of engagement undertaken when determining policies, engagement undertaken when determining equality objectives, equality analyses undertaken in reaching policy decisions, and information considered when undertaking such analyses, are removed completely. It is hard to understand the reason for the Government’s change of heart, unless it is deregulation for deregulation’s sake regardless of the merits of the regulations in question, for not only the advocates of equality legislation but a significant number of public authorities have expressed their support for strong specific duties as providing a useful framework for helping public authorities comply with their duties under the Equality Act.

This change of direction also comes at a very late stage, after guidance has already been issued by the Equality and Human Rights Commission, reflecting what were assumed to be the Government’s final thoughts on the specific duties regulations. There is now an inevitable gap between the coming into force of the general duty on 5 April and the implementation of the specific duties after an extended period of consultation on them. Public bodies will still be subject to the general duty, and the absence of the specific duties can only create uncertainty as to how they should go about meeting their obligations. According to these regulations, the great majority of public bodies must publish information to demonstrate their compliance with their general duty by 31 January next. That does not give a lot of time. Will the Minister tell us how the Government propose to get over that difficulty? “Make the best of a bad job” is what I suspect she will say. “Admit it’s a shambles” if she is honest. What sort of Government is this? No better than the last lot, if you ask me.

I have a lot of sympathy with what the noble Lord, Lord Waddington, has had to say. I am no more in favour than anyone else of making public authorities jump through the hoops of political correctness that he has excoriated so comprehensively, but these regulations are really not fit for purpose—indeed, for the Government’s own purpose. The specific duties spell out the implications of the general duty and help authorities to understand what is required of them. This helps to protect them against legal challenge. As these regulations stand, the specific duties do not reflect the extent of the obligations imposed by the general duty, and will therefore fail in their main purpose of achieving better performance of the general duty. The Government’s principal motivation seems to be the minimising of duties, and not the maximising of benefits—of improved equality of opportunity. This is a vital prerequisite for realising, for instance, the Government’s ambition to get more disabled people into work, and is surely not something to be reining back on at a time when a sense of alienation and social exclusion are disfiguring our society and erupting in social unrest.

This is not just special pleading. There is a wealth of research to show that the specific duties as traditionally conceived have been widely welcomed as having a beneficial impact. There is too much to summarise adequately here, but to give a flavour: in some Disability Rights Commission research, interviewees indicated that disability equality had assumed greater priority in their departments, and reported improvements in the involvement of disabled people, evidence of disability equality, and of meeting wider organisational objectives. Some research in 2007 found that equality issues were accorded higher priority and were increasingly mainstreamed. Practitioners were said to be particularly enthusiastic about the impact of the public sector duty in encouraging consultation and the ongoing involvement of disabled people.

The Government’s own Equalities Office commissioned research to identify which aspects of the specific duties were believed to be effective. It concluded that the specific equality duties were widely accepted, with the majority of authorities across all sectors viewing the requirements of data collection, planning, involvement and impact assessment as effective. Of 174 respondents, more than half rated the specific duties very effective or effective, leading to positive outcomes.

The Equality and Human Rights Commission has also commissioned research to identify the elements of the specific duties that were most effective in achieving change. Equality schemes and equality impact assessments were said to provide a framework and focus for action. While some participants felt that in some cases implementing the specific duties might be perceived as overly bureaucratic, nevertheless the research states that the vast majority were clear that implementing the specific duties has been fundamental in improving services.

In some other research commissioned by the EHRC, 77 per cent of schools said that their work to meet the disability equality duty had a positive, measurable impact on disabled pupils. This is the only research to have investigated the impact of the Secretary of State’s specific duty to report on disability across each sector. It was found to have created a significant shift in central government’s understanding of and response to disability equality.

“Not only has it raised the awareness of key issues across departments”,

the report says,

“but it has also helped to clarify the importance of integrating and mainstreaming the agenda in all central government activities”.

Perhaps I may say a word about what is still in and what is left out. The policy review leading up to these regulations suggests that all but two requirements—to publish information and to set equality objectives—can be eliminated on the ground that compliance with the general duty presumes the other requirements. It is clear that the general duty cannot be met without assessing the impact of policies on equality or involving those affected at an early stage in policy-making, and this is certainly the way in which the courts have interpreted it. However, this overlooks the role that the specific duties play in providing public bodies with a framework which, if they work within it, provides vital guidance on how to comply with the general duty.

That is particularly true of the requirement to involve or engage with those affected by action on equality. In the case of disability, public bodies have benefited greatly from such involvement, which has helped them to ensure that the policies they put in place and the services they provide reflect the real needs and experiences of disabled people. In their analysis of responses to the consultation—more than 60 per cent of them from public authorities—the Government acknowledge that, despite the fact that no questions on engagement were raised in the consultation, around a third of respondents raised a concern about the lack of any requirement for public authorities to engage with or involve relevant groups. Nor is it possible to rely on guidance within the codes of practice. As the EHRC has said:

“Where the regulations fail to impose specific obligations, the Codes of Practice cannot do so. The Codes must elaborate on the requirements of the legislation, not add to those requirements”.

The requirement to publish at least one equality objective every four years is particularly risible. This runs the risk that authorities will think that setting just one equality objective every four years discharges their duty with regard to equality. It is extremely unlikely that a public body could satisfy all the three elements of the general duty while taking such a minimalist approach. The regulations should make it clear that the objectives that a public body selects must be across the full scope of the duty. Stripped-down regulations will encourage only minimum compliance, not best practice, especially at a time of economic stringency.

There is some consolation in the fact that the Government have undertaken to carry out a review of these regulations after two years. However, I would welcome the Minister’s assurance that the review will be broad in scope, assessing the extent to which the specific duties have supported better performance of the equality duty in general and not just those aspects covered by the narrow specific duties that we have in these regulations. Will the Government use the review to assess whether there has been progress from the situation that obtained under the old regime of specific duties or whether things have slipped back, and whether they will strengthen the regulations if it is found that things have slipped back? Also, will the review assess how far public bodies have been engaging with those affected by their decisions in the absence of a specific requirement to do so?

Finally, I would welcome a clarification from the Minister of the process that will be adopted for the conduct of the review. Will it be informed by the experience of those most affected as to how effective the duties have proved to be as a means of holding public bodies to account? This would seem to be essential, given that the Government’s stated intention in designing the regulations in the way that they have is to achieve greater accountability on the part of public authorities.

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Moved by

[Lord Low of Dalston]

As an amendment to the Motion in the name of the noble Baroness, Lady Verma, to insert at the end “but that this House regrets that the Government have seriously weakened the Regulations, making it more difficult to hold public bodies to account; and calls on the Government to withdraw the Regulations and re-lay the earlier version published in January which required public bodies to publish information on equality analyses they have undertaken, to set objectives designed to facilitate compliance with the General Equality Duty and publish information about the engagement they have had with affected groups when developing these objectives, and to report annually on progress towards meeting these objectives, all of which is critical to ensuring that the General Equality Duty produces tangible and positive outcomes.”

[Lord Low of Dalston]

My Lords, what we have witnessed this afternoon is nothing more nor less than a backlash against equality legislation—certainly in the debate if not in the vote. It was a slightly hysterical, indeed apocalyptic, backlash from people who, as the noble Lord, Lord Lester, said, are basically against equality legislation. As I made clear when moving my Motion, I hold no brief for the excesses of zealots or the ignorant; my Motion seeks merely to underline those elements of equality legislation which have been found to have value in helping public authorities better to understand the needs of historically disenfranchised sections of the community and which the Government embraced scarcely more than six months ago.

The noble Lord, Lord Lester, has dubbed my Motion as leading to overregulation, although I hope that he might on reflection withdraw the charge of it being the “worst kind” of overregulation. We must all have the greatest possible respect for the noble Lord, Lord Lester, who basically invented equality legislation—so it is all his fault, really. We can debate the detail of regulation, and I say with respect that it may be more appropriate to some strands of equality legislation than others. I drew attention to the value of equality analysis and engagement with affected groups—the noble Lord, Lord Lester, might disagree about that; there is room to differ over those—but surely no one could suppose that a duty which is capable of being interpreted as a requirement to set only one equality objective every four years is appropriate guidance to give on how to go about implementing the general equality duty across the piece. I do not see how anybody could suppose that that was unduly burdensome regulation.

Although it has at times been a slightly ill-tempered debate and precious few noble Lords have spoken on my side of the argument, I am grateful to all those who have contributed. However, I persist in believing that my Motion gives expression to the point of view of those who espouse a more moderate and practical approach to advancing equality. I propose to test the opinion of the House in the confident expectation of discovering that the strength of liberal opinion in it remains greater than has appeared in the debate.