Single minded

There is an increasing awareness around the public sector equality duties, partly because of the recent spate of high-profile challenges to decisions which were purportedly in breach of the duties.

The Fawcett Society's challenge of the coalition government's emergency budget failed, but, more recently, there have been two successful judicial reviews of government decisions on spending cuts this February. Michael Gove's scrapping of the Building Schools for the Future programme was ruled unlawful because of a failure to conduct an equalities assessment. Similarly, the decision by London Councils to axe £10m of funding for 400 projects aimed at the most needy also had to be cancelled because it breached equality duties.

There has also been a rising interest in the duties because of the impending change in the law which will introduce a 'single equality duty' in April 2011 under the Equality Act 2010. This all sounds like equalities duties are moving forward and better protections for individuals are being enshrined in the legislation. But is this really the case? A closer look at the detail of the new duties suggests we could in fact be taking a backward step in some areas.

Following the racially motivated murder of black teenager Stephen Lawrence in 1993, Sir Macpherson led an inquiry into the way in which the police and Crown Prosecution Services investigations were handled. The Macpherson report made a finding of 'institutional racism' and the race equality duty was borne from that finding.

The equality duties were later extended to disability and gender issues. The general equality duties are currently set out in section 71 of the Race Relations Act 1976 (RRA), section 49A of the Disability Discrimination Act 1995 (DDA) and section 76A(1) of the Sex Discrimination Act 1975 (SDA).

The current duties require public authorities to take action to redress inequalities encountered by people of different racial groups, disabled people and men and women. When making any policy decision, public authorities should have 'due regard' as to whether the policy decision will eliminate inequality and positively promote equality.

The duties were introduced to ensure that public authorities could be challenged by way of judicial review for failing to tackle entrenched inequalities in all areas including education, criminal justice and health.

With regard to disabled persons, the duty is more pronounced in that the public body should also, as part of its policy-making decision, be mindful of the need to treat disabled people more favourably than non-disabled persons as well as the need to promote positive attitudes towards disabled people, and encourage them to participate in public life.

Diluted duties

Legislation governing the public sector equality duties imposes general and specific duties on public authorities. The general duties tend to apply to the majority of public authorities, whereas the specific duties apply to the key public bodies.

As part of the general duty, a public body is required to consider the relevance of race/ gender/disability inequality as part of its decision making, and consider how that inequality might be eliminated. If the specific duty also applies, the public body might be required to publish an equality scheme identifying all policies relevant to equality issues and monitor policies for adverse impact. The specific duties would, therefore, seek to further the objectives identified in the general duty.

As of April 2011, the government is proposing to widen the equality duties to ensure that 'due regard' is given to eliminate discrimination and advance equality of opportunity across all 'protected characteristics', namely age, disability, pregnancy and maternity, race, religion or belief, sex and sexual orientation. This will provide new challenges to local authorities whose decision making will need to be mindful of all areas of equality.

The general single equality duty is set out in section 149 of the Equality Act 2010 and once in force will replace the race, gender and disability duties. There is concern that the specific duties under the Equality Act 2010 will be a dilution of the existing specific duties and will only require the provision of information regarding equality matters.

The new specific duties are under consultation, and there has been opinion voiced that the new specific duties might be regressive as compared to the current duties in place. For example, at present the RRA specific duties require public authority employers to publish detailed monitoring results relating to racial grouping. The current proposal is that workforce equality monitoring results would need only to be published if the authority employs more than 150 people.

Further, the arrangements to gather information under the proposed specific duties would arguably not enable authorities to monitor equality issues effectively; it would not be sufficient for a public authority simply to gather and publish information about the number of disabled people employed without a further analysis of that information.

It has been stated by concerned groups that some of the proposals are vague and would undermine the effectiveness of the duties, whereas the current duties were considered by a majority of respondents in government-funded research to be 'effective' or 'very effective'. Also, there is a suggested move away from the use of impact assessments under the specific duties. This could seriously undermine the equality needs identified in the Stephen Lawrence inquiry as the assessments are considered to be crucial to effecting culture change by mainstreaming equality issues.

The first case tested in the courts was only brought in 2005. There still remains, therefore, significant uncertainty as to the scope and application of the equality duties, and, once the single equality duty comes into force, it is likely that we will need further judicial clarification as to the scope of the duties.

The Fawcett Society's review of the government's emergency budget was the first review brought under the gender equality duty under the SDA. A gender audit of the June 2010 budget showed that women would bear a disproportionate burden of the cuts in that 72 per cent of the cuts would adversely affect women.

Fawcett argued that the government had failed to undertake an appropriate assessment of the impact upon women and had, therefore, not had the required 'due regard' to gender equality issues in its budget. While the court agreed that budgetary decisions by the Treasury are subject to the equality laws, the case was unsuccessful partly because of delay issues.

Increasing challenges

Equality duty challenges will continue to grow following the budgetary cuts being made, and the speed with which those cuts are being administered often leaves little room for 'due regard' to be had as to equality issues. This is highlighted in the decision of the High Court in February, in which the Department for Education cut funding for a national schools programme. The court found, among other things, that in the haste of the cuts the secretary of state for education did not consider the disability, race and gender equality issues when making the decision and had, therefore, failed to comply with the relevant equality duties.

We anticipate that there will be a number of similar challenges arising in the coming months. The current proposals regarding the specific duties, however, seek to move away from process and place emphasis on how public bodies have taken evidence of impact on equality into account in policy decisions. It is feared that this would allow for retrospective analysis of equality issues rather than taking such issues into consideration before or at the time a decision is being made.