Red tape or a red rag?: the Equality Act in the UK

When the Coalition government in Britain announces that it will review an existing law in the interest of cutting back red tape, we can be sure that it will involve dismantling any protections that the vulnerable and powerless may have acquired in favour of reducing the ‘burden on business’. This was the justification for the review of the Public Sector Equality duty (PSED) which places a duty on the state and government bodies to proactively tackle women’s inequality in the UK. It ‘requires public bodies to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different people when carrying out their activities.’  This duty is a significant aspect of the Equality Act 2010, which brings together 116 different pieces of legislation like the Sex Discrimination and Race Relations Acts, which protect women and other groups, on the grounds of race, disability, age, to name but a few, against various forms of discrimination. To review legislation less than two years after it was introduced indicates that it is more of a red rag than red tape to Theresa May, the Home Secretary, and her government.

In July, the Fawcett Society produced a briefing, Red Tape, Red Line, in order to influence the government’s forthcoming review of the PSED, also known as the Equality Duty,  quite rightly alarmed that the review could amount to a filleting of its most effective elements, like  removing the obligation to carry out an Equality Impact Assessment, without which the public sector would not know whether it was fulfilling it Equality Duty.  When David Cameron  declares that he is calling time on consultations and impact assessments, it is difficult to have faith in the government’s avowed intentions to consider ‘what changes, if any, would ensure better equality outcomes' (legislative, administrative and/or enforcement changes, for example). 

One of the most radical aspects of the Equality Act was its recognition of class i.e. ‘socio-economic disadvantage’, apart from other protected and universally accepted characteristics such as race, gender, sexuality, disability etc as being the main drivers of inequality of outcomes. This, unsurprisingly, was the first to go in 2010, within months of the Coalition Government coming into power. Although it was particularly weakly worded, and had not been enacted, it was a very important advance -  an implicit recognition that under a capitalist system, class was a substantial and intransigent obstacle to equality. Under this clause, health authorities would have been expected to redirect their budgets to areas with the worst health outcomes, and education authorities would have had a duty to make successful schools accessible to poor children and so on. If it had been given teeth, we would have been able to hold public authorities accountable under the Equality duty. Of course, a law that undermines the very logic of capitalism would probably never have made it through the door.

There are similar and fairly insurmountable contradictions at work with regard to the other characteristics protected from discrimination too. The cutbacks in public sector employment and privatisation of government services, the attack on benefits and the expansion in low-paid part-time work have had the most devastating and unequal impact on women in the UK ,  on the black and minority ethnic communities  and disabled people;  a law protecting people from discrimination will achieve little more than putting the UK’s statute book on the moral high ground.  These austerity measures have not been subjected to an equality impact assessment, despite the Fawcett Society’s original and bold attempt in 2010 to have the first Coalition budget judicially reviewed for its impact on women in what was the first legal challenge to the national Budget ever. The budget had sought to make £8bn worth of savings, of which, it was estimated that more than 70% would come out of women’s pockets. Despite the disproportionate burden of the Budget and the government’s failure to carry out a gender equality impact assessment, the judge ruled that, ‘the application was "unarguable", and there was "no prospect" of a court declaring the budget unlawful’.

This imaginative initiative followed on from the judicial review launched in 2008 by Southall Black Sisters (SBS) of Ealing Council’s decision to stop the funding of specialist services, and to use the same pot of money ( £100,000 pa) that it used to give to SBS to provide a generic borough-wide service to all women facing domestic violence, on the basis that it had identified gaps in provision, most notably for white women – a laudable aim, if properly funded. Ealing embarked on this course of action without carrying out a race equality impact assessment (EIA) to find out how the withdrawal of funding would impact on black and minority women escaping domestic violence.  Ealing lost the case: the judge ruled that the council should have carried out an EIA before policy was changed, and not after the event to buttress its case. The council's actions amounted to policy-based evidence gathering rather than evidence-based policy development. The judgment also clarified the fact that specialist services for a racial minority from a specialist source  i.e. SBS, is anti‑discriminatory and furthers the objectives of equality and cohesion. SBS said, ‘We have understood the value of using the equality duty in creating structures of good governance and in ensuring that the state at the central and local level relates to us not as subjects but as citizens.’ After the victory, SBS were invited by groups up and down the country to advise them on how to hold their local authorities to account and avoid cuts to specialist services and also by local authorities to advise them on transparent decision making. Judicial Reviews (JRs) are an important way of holding a government to account but accountability is the last thing this government wants, especially when making cuts to services.

In 2011, there were 11,359 applications for permission to apply for JRs, a 70 % increase since 2007. However, it was mainly immigration and asylum cases that were driving this increase.  Without acknowledging that fact, David Cameron used this spike in figures to pledge that he would cut back on JRs and  impact assessments because ‘this is not how we became one of the most powerful, prosperous nations on earth.’ Indeed, as all British ex-colonies are well aware!

A commitment to equality does not come cheap.  Although the Fawcett Society makes a valiant effort to demonstrate the economic benefits of strengthening the Equalities legislation (for example, by reducing the number of legal challenges and inefficiencies of  poorly targeted services), its real value lies in the kind of statement that we make about ourselves as a society and nation committed to certain principles. To make a plea to a government which abolished the Women’s National Commission almost immediately after taking office, and which has drastically cut the budget  and remit of the Equality and Human rights Commission and the Government Equalities Office, to ‘lead by example’  is an example of hope triumphing reason.

There has not been enough of a fight-back on these issues although the outcome of the government’s review, which is due in the Autumn, would affect us all. This is partly because the workings of the Equality act operate at a secondary tier of service delivery,  set back from public view. While the focus, understandably, has been on cutbacks in legal aid which will drastically reduce access to justice, any watering down of the equalities legislation will also have a far-reaching impact. It will destroy the few protections we have against the huge inequalities that have been generated by the selective austerity of a failing neo-liberal economic model.