There were a few blinks of lucidity in last week’s governmental fever dream. The minister for Equality and Levelling Up, Kemi Badenoch provided some shelter from the maelstrom with a robust and well timed letter to colleagues on, of all things, The Public Sector Equality Duty (PSED).
I realise this won’t set the Westminster Village alight, but as that precinct is already a raging skip fire of intrigue and recrimination it feels like light relief to say something positive about Ms Badenoch’s calm but relentless war on the excesses of our equality industry.
I know something about the PSED, as the duty is known. It came into force when I was a newly appointed Chief Operating Officer for the Equality and Human Rights Commission when it was enacted in 2011 with the Commission as its legal guardian. Put simply, the PSED creates a duty for all publicly funded authorities to pay due regard to the need to eliminate unlawful discrimination, advance equality or opportunity and advance good relations for people who have protected characteristics such as race, sex, sexual orientation, gender reassignment, age, religion and belief.
We’re going to have to part company if you think that, in principle at least, this duty isn’t a good idea. Public bodies, from local authorities to national institutions have huge amounts of money to spend on commissioning and delivering services for citizens. A requirement for them to ensure fairness to all people is baked into these policies – supervised by the EHRC, who have legal powers to intervene – seems an obvious way to regulate the way we treat groups of people who are potentially marginalised and vulnerable.
But the way the PSED has grown in scale and influence and how it is used has departed quite a long way from these first principles. Badenoch’s typically robust letter to her colleagues who are responsible for signing off on the PSED for the Government’s policy developments contains many clues as to the extent of this divergence and a typically steely encouragement for them to resist the tentacles of bureaucracy pulling down the Government’s priority to level up Britain.
Where is the problem?
Reading between the lines of her letter it is clear that Badenoch sees several. The tail is wagging the dog. Officials have sunk into a default that The Duty requires a published, very often exhaustive and time-consuming equality impact assessment, regardless of the nature of the decision being made or even its relevance. That leads to what Badenoch describes as a ‘chilling effect’, where ministers are briefed only on negative impacts on people holding protected characteristics, whether the issue stems from those characteristics or not.
Many policies that have very little connection with equality are given the same exhaustive and wasteful analysis. Although The Duty has no requirement for a standard template for this equality analysis, not only have these grown in size and complexity, they have also spurred an industry of equality consultancy of often dubious provenance and competence soaking up even more public funds to provide risk averse authorities with spurious reassurance. Bluntly, not seeing a problem isn’t as billable as the alternative.
The PSED is not at fault here per se. The latest guidance published by the EHRC uses the word ‘proportionality’ 17 times. But it’s fatuous to think that senior departmental officials aren’t using processes such as the PSED to frustrate and influence the rollout of policies they are politically opposed to. If you think that’s far-fetched, I have a bridge to sell you.
Moreover, Badenoch’s letter emphasises that those completing The Duty for ministers should also highlight potentially positive as well as negative outcomes of policies that come before them or that they initiate – two very different animals. This line in particular is telling;
‘Government policies should seek to unite communities across class, colour and creed, rather than atomising society based on protected characteristics..’
Ms Badenoch has proved one of the more convincing and resilient ministers in the Government’s faltering offensive against divisive identity politics. The brutal personal assaults on her are testimony. If levelling up is about anything, it is surely about policies and laws that emphasise and cherish the ties that bind, rather than legislating to ghettoise society still further. It’s also about recognising, as Badenoch puts it towards the end of her letter, that ‘difference in treatment or outcome is not necessarily discrimination’.
We cannot have public policy stymied and neutered by unelected mandarins and processes that have been designed to facilitate them. Ministers must decide based on impartial advice and proportionate enquiry. The PSED is a good thing but I was always sceptical of its revered status during my time at the EHRC, when the overriding priority was for us to restore confidence with Government as the regulator of the Equality Acts and guardian of our human rights laws.
What ought to have been a useful tool to make policy better was too often used as a cloak for anti-Government activism. The new commission, with a welcome injection of viewpoint diversity and leadership talent, can work with Government to restore the proportionality envisaged by the original public sector equality duty guidance.
We must not, however, be distracted by abstract processes that have actually contributed remarkably little towards making Britain fairer. At street level, unlawful discrimination is still a fact of life for many people without power. If we can still imagine a society beyond the turmoil of political gaffe and pandemic panic, we need a focus away from Whitehall shadow boxing and into the postcodes where the real foe, inequality of opportunity, still reigns supreme.
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