On Wednesday 11 February 2004, the Equality and Diversity Forum (EDF) held a seminar at the Mothers’ Union in Westminster to launch ‘taking equal opportunities seriously: the extension of positive duties to promote equality’, a report by Colm O’Cinneide of University College London, commissioned by EDF with the support of the Equal Opportunities Commission and the Nuffield Foundation (click here for report).
The objective of the seminar was to consider the possibilities offered by a ‘positive duty’ approach. In contrast to the retrospective, complaints-driven approach of the existing anti-discrimination legislation, the proactive, problem-solving approach fostered by a responsibility to promote equality has obvious appeal. But what in practice does it require from employers and service providers, and what can it really deliver?
The seminar was very well attended, with more than 100 individuals attending from a range of organisations – government departments and inspectorates, local authorities, employer organisations and service providers – to take part in the discussion on these and related questions.
Vera Baird, MP, welcomed participants and introduced the subject. This was followed by presentations from Colm O’Cinneide, Seamus Taylor (Head of Equality and Diversity, Crown Prosecution Service) and Loraine Martin (Head of Diversity, the Audit Commission).
The presentations were followed by a discussion session, chaired by Sarah Spencer, the Chair of the Equality and Diversity Forum, in which participants made the following points:
Experience in Northern Ireland is a useful model for the United Kingdom: the Northern Ireland positive duty developed within the context of partnership and creating coalitions across the strands; experience has been that this improves delivery of the positive duty. Evelyn Collins of the Equality Commission for Northern Ireland pointed out that there are already 36 public bodies in the UK with responsibilities under the Northern Ireland Section 75 duty, so positive duty is already here.
Experience also shows that good leadership and effective monitoring are important. Sustainability of progress was a concern for many, and several participants identified the need for strong leadership to drive forward the equality agenda and keep up momentum. Seamus Taylor suggested that one way of addressing such difficulties is to focus on outcomes. Similarly, the Audit Commission has published a report on ‘A Journey to Race Equality’, and is implementing the analysis in the report throughout the audit inspection regime – not only as regards race, but in relation to all the equality strands, even where there is, as yet, no public duty.
One common concern is over setting targets and the burden of increased regulation. However, organisations that have demonstrated the benefits of a proactive approach for the effectiveness of their operations found that this has not been a problem.
Concerns about monitoring of a positive duty need to be addressed. In practice and perhaps contrary to expectation, the majority of people proved happy to state their religion in the last census.
In relation to new equality policies, there needs to be clarity and realism about what is meant by success. There are different stages in implementation to be identified: change in institutional practices is the bottom line; next might be a change in policies; a change in the allocation of resources is the next big challenge; and a change in people’s experiences would be the final measure of success.
Concern was expressed that ‘mainstreaming’ initiatives have, in some cases, resulted in a failure to address areas of inequality; simply pushing them into a corner.
There was discussion of whether there is a case for a positive duty to promote human rights – or is there in fact an implied duty which the CEHR will need to clarify, rather than a need for new legislation?
There is a need to work with the private sector; making the case that equal opportunities make good business sense. The most proactive elements of the business sector have already made this connection and are implementing policies which might be described as positive dutes already. They do not see positive duties as a threat. The Greater London Authority’s (GLA) experience confirms that the private sector is becoming more interested in equality issues: the Mayor recently gave a presentation to a private company that has realised the need to address diversity.
In relation to goods and services and procurement, the GLA no longer has to accept the lowest tender; it can take into account staff working conditions and pay. It was pointed out that the time when tenders are due for renewal is often a good time to exert pressure for change on suppliers and service providers.
The experience from the Employers’ Forum on Age is that the debate needs to address the employers’ perspectives better, explaining to them how to manage new information and what, practically, they need to do to meet their responsibilities under new legislation and regulations.
The Equal Opportunities Commission wants to see a positive duty on gender (as has been promised by the Government for some time now) but also wants reform across the piece. The next step must be a model to improve service delivery.
The Fawcett Society, which is conducting an inquiry into Women and the Criminal Justice System, asked how a positive duty on gender would impact on women in the criminal justice system, specifically women offenders and women victims of rape and domestic violence. Seamus Taylor responded that if there had been a positive duty at the time of the new Criminal Justice Bill, it would have had to take gender into account in its provisions, and also in terms of the implementation of legislation. For example, there would have to be monitoring of bail decisions to see whether they impacted differently on women and men.
It should be emphasised that the positive duty is not about increased bureaucracy and regulation; it has grown out of real struggles against homophobia, bigotry and sexism, which require strong enforcement measures to combat them.
Colm O’Cinneide summed up the potential of a positive duty approach: in 10 years time, with such an approach, we could expect to see progress towards a more inclusive, diverse society on a scale that is hard to imagine now.