The Public Sector Equality Duty Review: Conclusion or short-lived reprieve
The final report of the Public Sector Equality Duty Review has arrived, two months late and yet somehow still far too early.
Unsurprisingly, one of the main thrusts of the PSED review report is that it’s not possible to accurately review the public sector equality duties because of the short space of time since their introduction. This concession will be cold comfort to the many people who raised the inappropriate time scale when the review was first proposed; particularly as it hasn’t stopped the Independent Steering Group from deciding that there is much to criticize and almost nothing to commend in the operation of the duties so far. The tone of the report is overwhelmingly negative from the foreword onwards. The first description of the Steering Group’s feelings about the review is a single sentence from Chairperson Rob Hayward OBE, set in a paragraph all of its own (presumably for emphasis), stating “My colleagues and I were disappointed by some of what we found.” Whilst discussion of best practice is noticeably absent, the report often veers towards scaremongering. For example, it alleges that emergency services are less effective thanks to the paperwork associated with PSED (seriously), that citizens should not have to bear the ‘burden’ of filling in equality monitoring forms and that private businesses undertake days and days of unnecessary administration as a result of the duties.
The weight given to the angle that PSED is a burden on the private sector seems highly questionable. The Steering Group apparently found it very difficult to get any input from the business community, perhaps unsurprisingly as the impact from PSED on this sector must be minimal. What little negative suggestion there was around procurement requirements has been blown into a major feature of the report. Meanwhile the stack of responses providing positive evidence from the Voluntary and Community Sector are treated as insubstantial, inconclusive. Organisations like ours could have provided much more evidence too, with appropriate lead-in time and a full public consultation. Instead, the planned cost benefit analysis (which predictably could not be detailed in monetary terms because for once, it’s not about the money), concluded that “While there are clear costs to public bodies associated with the PSED, these have not been monetised; the evidence of benefits is also unclear.” The benefits of PSED were very much the focus of the round table held in Scotland by the Review Team, from both Voluntary and Public Sector participants. And perhaps this is the greatest injustice in the circular logic employed throughout the review. The final report is an exercise in hoisting well-meaning Public Sector respondents by their own petards. Those who reported putting effort into complying with PSED are criticized for wasting time and money with ‘onerous’ activities; those who put in less effort and unsurprisingly found little evidence of benefit are used to bolster the foregone conclusion that the duties don’t work. “Public bodies must ensure they adopt a proportionate approach to compliance and not seek to “gold plate”. Public bodies should seek to benchmark their processes for compliance with the PSED with their peers, with a view to reducing unnecessary paperwork.” How dispiriting for organisations with a commitment to best practice to be told to look to the lowest common denominator. The report disparages all manner of common practices under PSED, including equality monitoring, equality related questions in procurement and equality impact assessment (which it smugly reminds us is NOT a legal requirement in England). “No one seems to ask, Could I do less and have the same beneficial effect?” the Chairperson complains. Where, in this document so concerned with ‘hard evidence’, is the evidence for that? On the contrary, doing less has been a popular strategy for many organisations in the public sector, where they can get away with it. And this report firmly recommends that they should get away with it. Whilst the Steering Group was split as to the wisdom of scrapping the English specific duties altogether, the recommendation to review them again at a more suitable time is accompanied by a personal plea from Hayward “…That Government should consider their removal or modification.” Stepping beyond the boundaries of a Chair’s objective remit surely, but this might be welcomed by the planners of the review who arguably hoped it would be the first step towards repeal. The Ministerial Response to the report certainly suggests the Chair’s view has been taken on board. Somehow, the report suggests that although the much less prescriptive English specific duties were brought in to provide more flexibility and freedom from bureaucracy, in practice people have become risk averse and possibly even more bureaucratic. Could this be because the English duties are too lax? An organisation doing the bare minimum under these duties might reasonably feel that it couldn’t hope to meet its general equality duty, or to really get to the bottom of discrimination and inequality. Perhaps it’s not surprising that some are seeking ways to do this beyond the minimal requirements of their specific duties, creating the appearance of ‘over-compliance’. A future comparison with Scotland and Wales, as suggested in the report, might help to demonstrate this. The positive attitudes of administrations in both nations to PSED and the initial work done by the Equality and Human Rights Commission showing good practice in Wales seem to support it. On close inspection, there are one or two elements of the report which have potential for good. There’s a recommendation for clearer guidance from the Equality and Human Rights Commission (although this arguably wouldn’t have been needed if the EHRC had been allowed to produce statutory guidance in the first place), and a suggestion that a quicker, more cost effective alternative to Judicial Review could be considered. Sadly, in both of these cases, the intention is not to make things work better for the people who should benefit from PSED, but to reduce Public Sector activity towards meeting it. More positively, increasing the role of sector regulators and sector-specific guidance produced in co-production is recommended; one of the few elements of the report which would be recognisable to those present at the round table discussion in Scotland. A comprehensive take-down of the review’s conclusions is unfortunately not possible, because the full range of evidence used (including over 100 responses to the short lived call for evidence) isn’t in the public domain. A dislike for transparency is at the heart of this review, as outlined in our previous blog on the subject. For a group of people so concerned with monetisation, it seems strange that so much time and effort has been expended over the past 10 months for the sake of a few ill-timed and often inconclusive recommendations. The Steering Group recommend a ‘formal evaluation’ in three years’ time, which would seek to compare performance under the English, Scottish and Welsh duties. The general equality duty on which each of these are founded seems to be safe from harm under this review, but it might not stay that way if the evidence of positive impact in the next review remains ‘inconclusive’. Perhaps we should look on the next three years as a short reprieve before the real trial begins.