Background of the Public Sector Equality Duty
For over twenty years, a key element of Britain's equality legislation has mandated that public institutions consider the effects of their decisions on various societal groups. This requirement, known as the public sector equality duty, was introduced following the Stephen Lawrence inquiry. It obliges public bodies—including local councils, police forces, and hospitals—to proactively address equality law considerations. Once largely uncontroversial, this duty has become a focal point in Britain's ongoing culture debates.
Kemi Badenoch's Proposal to Abolish the Duty
In a speech delivered on Tuesday, Conservative leader Kemi Badenoch announced her intention to abolish the public sector equality duty. She argued that it has led public bodies to prioritize what she described as "dangerous and divisive agendas" instead of common sense and effective decision-making. Badenoch attributed nonsensical diversity policies and training programs to this duty.
One example Badenoch cited was the Bank of England's decision to replace historical figures, including Winston Churchill, on future banknotes with images of British wildlife.
Expert Opinions on the Duty's Purpose and Impact
Legal experts specializing in equality law contend that many criticisms of the duty stem from misunderstandings about its purpose and practical application. Some have expressed stronger opposition to Badenoch's proposal. Paul Nowak, general secretary of the Trades Union Congress (TUC), accused Badenoch of seeking to legalize discrimination, stating:
"This proposal would give a future Tory government a free hand to harm your life chances if you’re a woman, gay, black, disabled or working class."
The Equality Act aims to protect individuals from discrimination in employment and society based on protected characteristics such as race, sex, disability, religion, age, and sexual orientation. It also covers rights related to equal pay, pregnancy, and maternity. The 2010 legislation consolidated most equality laws into a single act and introduced the public sector equality duty.
Clarifications from Legal Experts
Karon Monaghan KC, a British barrister specializing in equality and human rights law, emphasized that the duty does not compel public organizations to provide specific services or adopt particular policies. Instead, it requires them to have "due regard," meaning they must consider objectives such as eliminating discrimination, advancing equality of opportunity, and fostering good relations.
Monaghan illustrated this with an example of a local authority contemplating cutting a library service in an area with many disabled residents to open a service for disadvantaged young people instead. The authority must balance these needs within a limited budget and consider the impact on disabled people and other groups.
She explained that the council must assess the likely effects of any decision on these groups and ask questions such as: How many children will be disadvantaged by the absence of youth facilities? What measures can mitigate the impact on disabled individuals?
When questioned about whether public sector workers should consider factors like disability when interacting with people, Badenoch responded that she advocates for a return to common sense, stating:
"You don’t need a duty to tell you to take account of differences. Quite often differences are obvious."
Potential Consequences of Removing the Duty
Experts warn that abolishing the public sector equality duty could lead to an increase in discrimination claims and greater legal uncertainty. Colm O’Cinneide, professor of constitutional and human rights law at University College London, explained:
"What the duty does is to impose a positive obligation upon public bodies to engage with these issues and to do more than just to maintain basic legal compliance; but to actually take proactive steps to eliminate problems that may exist, even if they’re not triggering a specific litigation risk."
Regarding criticisms of the duty, O’Cinneide noted:
"A lot of the criticism is effectively cherrypicking individual issues and saying that because these controversies are in some way tangentially related to the duty, the entire mechanism is flawed."
He further stated that many decisions cited by critics, such as those by the Bank of England, are unrelated to the duty.
The Bank of England clarified that its decision to replace public figures with images of nature on banknotes was based on a public consultation asking people what they would like to see on new notes.
Views from Rights Advocates
Estelle du Boulay, director of Rights of Women, highlighted the duty's role in advancing understanding and addressing discrimination. She remarked:
"For women, it has been a vital tool in improving accountability and ensuring that public services properly consider the needs of survivors of domestic abuse and violence against women and girls."
Du Boulay warned that removing the duty could weaken "one of the few practical mechanisms that allows individuals and organisations to secure fairer outcomes for everyone."
Broader Context and Future Implications
Badenoch's proposal targets only the public sector equality duty but emerges amid wider debates within the political right regarding the future of Britain's equality laws. Reform UK has advocated for more extensive changes, including the repeal of the Equality Act itself.
Monaghan cautioned about the potential consequences of dismantling the Equality Act, stating:
"Without the Equality Act, employers could refuse jobs on the basis of race, fail to make reasonable adjustments for disabled workers, or discriminate against women because they are pregnant or may become pregnant."
She posed a rhetorical question:
"Do we want a society where women can be paid unequally, where black people can be told they can’t have a job, where disabled people can’t get into work?"
The next general election, expected in three years, may provide a definitive answer to these questions.
