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BRIEFING NOTE FOR THE STRATEGIC GROUP ON WOMEN

By Esther Breitenbach
March 2003

STATUTORY DUTIES TO PROMOTE EQUAL OPPORTUNITIES AND EVIDENCE OF THEIR IMPACT

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This paper gives a brief summary of emerging findings about the operation of statutory duties on equal opportunities (a brief outline of the current position regarding statutory duties to promote equal opportunities in a UK context is provided in Appendix A). This does not represent a comprehensive review of relevant literature. Evidence was sought in particular on the operation of the Northern Irish and Welsh duties. A description of the race duty is included in the Appendix, but in the time available it has not been possible to search for any reports on evidence of impact.

Context and future developments

Within the UK there is now a statutory duty on public bodies to promote race equality, a statutory duty on public authorities to promote equality covering nine categories in Northern Ireland, a general statutory duty on the Welsh Assembly to promote equality of opportunity for all people in Wales, and a statutory duty on the Greater London Authority to promote equality of opportunity. There may also be a private member's bill to introduce a duty to promote equality of opportunity for disabled people.

The UK government has announced that it intends to extend the duty to promote equality to both gender and disability. Given that there will also be new anti-discrimination legislation on sexual orientation, religion, and age in relation to employment and training to comply with EU directives, there is likely to be further debate on whether there should be duties relating to specific groups or whether there should be a generic duty. The timing of the enactment of any further duty on equal opportunities will depend on the availability of parliamentary time to legislate, but it might be expected that if the UK government decides to proceed with the creation of a single equality body, any further duties to promote equality will be included as part of this legislation.

Evidence of impact

All of the duties and other legislative provisions outlined in Appendix A have been enacted only relatively recently, and bodies required to comply with these duties have only recently completed the relevant plans and schemes. This means that it is too early for there to be evidence of the impact of such plans and schemes in reducing inequalities. There is some evidence about how people have experienced the process of producing plans, and of the kind of initiatives that have been developed to comply with these duties.

Northern Ireland

The NIEC's annual report for 2001-2002 records considerable progress with the approval of public authorities' Equality Schemes, with the majority now approved and public authorities making progress with the screening exercises and equality impact assessments. It also noted that a substantial proportion of Equality Impact Assessments being carried out by Northern Irish Departments had reached the stage of decision-making about policies. However, the report also acknowledges that Equality Impact Assessment is a challenging process, and gives a commitment to review the guidance in the coming year.

The NIEC is required to produce an annual report on the operation of the equality duty, and is in the process of producing a report which will include an evaluation of the Statutory Duties, which will be published towards the end of April 2003.

The move to a statutory duty appears to have been motivated by dissatisfaction with the adequacy and implementation of the Policy Appraisal and Fair Treatment (PAFT) arrangements, which had been in existence to deal with religious discrimination.

It has been noted that the implementation of the statutory duty has created a large workload for the NIEC in approving schemes, but that the NIEC has found that statutory duty 'an extremely effective tool in bringing about change in the public sector' (O'Cinneide, 2002).

Escott and Whitfield (2002) state that the Northern Ireland experience has shown substantial benefits from making equality impact assessments mandatory so that they are comprehensively applied across the public sector. They indicate that the introduction of the statutory duty has helped to identify gaps in social data, and to raise the profile of gender and other equality issues.

National Assembly for Wales

Paul Chaney and Ralph Fevre (2002) carried out an assessment of the impact of the statutory duty on equality, covering the period from July 1999 to March 2002. This, however, does not provide any evidence of impact of policies in addressing inequalities. Rather it consists of an outline of measures adopted by the Welsh Assembly to advance equality. They acknowledge that because devolution is new, and because many of the equality reforms are in the planning stage or still in the process of being implemented, this is all that can be done at present.

The report goes on to outline key features of the new approach to equality matters in Wales, including:

• Welsh Executive promotion of equal pay audits, and promotion of equal pay in the public sector;
• Promotion of equality in the civil service, including open public recruitment for all posts, and mandatory equality awareness training for all Assembly civil servants;
• Support for consultative networks;
• Creation of Equality Policy Unit, and adoption of the approach of mainstreaming, and impact assessments;
• The participation of equality commissions in the work of the Assembly;
• Financial support to the public sector conditional on the adoption of equal opportunities policies;
• Working with the NHS, local government, and education authorities for more effective promotion of equal opportunities;
• Using Objective One implementation to promote equal opportunities;
• Promotion of diversity in public appointments;
• Using contract compliance to promote equal opportunities;
• Creation of a Children's Commissioner;
• Specific policies to address specific needs e.g. a Black and Minority Ethnic Housing Strategy in Wales;
• A cross-party standing committee on Equality of Opportunity.

Chaney and Fevre argue that what gives the Welsh statutory duty its distinctive character is that it is an absolute duty, which has no exceptions to it, and that this can be interpreted as giving Welsh citizens a 'positive right'. In theory the Welsh Assembly could be subject to judicial review for failing to comply with the duty, or people could make complaints to the Welsh Administration Ombudsman. This has yet to be tested in practice.

The Welsh duty is a non-prescriptive, all embracing approach, which requires the Welsh Government to be proactive. The Government therefore has to develop specific policies across policy areas, in the manner of the schemes outlined above. Chaney and Fevre claim that these schemes all flow directly from the statutory duty, and are therefore evidence of its impact. This claim is based partly on the frequent reference to the statutory duty in policy documents. They acknowledge however that absence of the statutory duty would not necessarily have prevented reforms taking place, though they suggest that some would not have done so, or that they would have taken longer. They also acknowledge that the development of equality policies in Wales have to be seen in the context of factors other than the statutory duty, such as the commitment of key Assembly Members, and the general climate of opinion currently surrounding equality and human rights issues. Teresa Rees, in her foreword to Chaney and Fevre's report, endorses their claim of the significance of the statutory duty, agreeing that 'it is the most significant factor driving the equality agenda in Wales'.

As noted above research in Wales has not yet identified impacts of policies resulting from the statutory duty, as it is too soon for these to be assessed. It would appear to be the case that the statutory duty is a useful tool in enabling Welsh Assembly members and others committed to equality of opportunity to effect changes in policy making and to develop new schemes. However, there are a range of factors contributing to the development of equal opportunities policy making in Wales, and many of these developments may have taken place without there being a statutory duty. Indeed, a number of the developments that Chaney and Fevre list as resulting from the statutory duty are similar to new arrangements and policies that have been adopted in Scotland.

Other recent research on equal opportunities policies relevant to statutory duty

In addition to the research noted above which has commented specifically on developments in Northern Ireland and in Wales, there is some further recent research which has investigated the development of equal opportunities policies within local government and other public bodies.

Escott and Whitfield (2002) set out specifically to look for evidence to support a public sector duty on gender equality. In order to do this they selected a number of case studies of institutions and public bodies which either had a formal statutory duty or power to promote equality of opportunity, or who had an extensive track record of work on equal opportunities. They note that there is a patchwork of equality duties across Britain, and argue that a statutory duty would help overcome this fragmentation. However, they also conclude that a statutory duty alone might be insufficient, suggesting that progressive strategies and key projects to further gender equality are also essential.

They comment that it is too early to judge the effectiveness of the Race Relations Amendment Act, but note the findings of the National Audit Commission on the slow progress of councils in England and Wales towards meeting the CRE's local government race equality standard (see below for further discussion of the findings of this report). Where they found references to gender and/or equality impact assessment in their case studies they found very little hard evidence of it being carried out in a comprehensive and systematic way. In their conclusion Escott and Whitfield note that their case studies demonstrate the patchiness of equal opportunities strategies, their lack of coherence, problems with sources of data, the reliance on a small number of committed people to take them forward, and the lack of expertise. They regard a public sector duty as providing at least a partial solution to these problems, and note that most of the respondents interviewed in the case study organisations favoured a general statutory duty on equality.

The National Audit Commission's report on 'Equality and Diversity' examined the promotion of equality opportunities in councils in England and Wales. It is not an assessment of a public duty as such, but it is indicative of the difficulties that many councils encounter in policy development in this area. Overall the researchers found that 'Although the majority of councils have some kind of equality and diversity policy, it is rarely translated into action plans with specific outcomes and challenging targets. Inspectors observed that this made it more difficult for staff to understand how they should be taking equalities forward. A few councils had wide-ranging policies, covering ethnicity, disability and sexuality, and which were supported by action plans and monitoring. However, most councils had no consistent corporate requirement for all departments to consider equalities in all their activities.' Many councils struggled with data and monitoring, and it was often difficult to make comparisons between councils because of differences in the way data had been gathered: 'few councils have adequate data measurement systems in place, and fewer still interpret and act upon any data that they do gather. Many councils are missing the opportunity to collect data at the point at which users interface with services'.

The Audit Commission inspectors identified a number of critical factors which contributed to councils' success in equality and diversity strategies and policies. These were: commitment; involving users; mainstreaming equality and diversity; monitoring performance data; and sustainability. These factors correspond to some of factors identified as essential to the success of mainstreaming equality strategies at various levels of government in international comparative studies (see Mackay and Bilton).

Colm O'Cinneide investigated comparative examples of single equality bodies in other countries as a contribution the ongoing debate about whether there should be a single equality body in Britain. He concludes that 'comparative experience….demonstrates the real possibilities for effecting cultural change through audits and positive duties'. He further remarks that they are 'regarded by stakeholders as major motors of cultural change', and argues for the usefulness of a single equality body in enhancing the effectiveness and the reach of these.

Researchers reviewing progress in equal opportunities policy development consistently note variability and patchiness across organisations, and consistently note similar factors as contributing to success. Some commentators favour the statutory duty approach, and note support for this from interviewees and case study organisations (Escott and Whitfield, O'Cinneide). Claims put forward for statutory duties as a significant force for cultural change are not backed up with any detailed evidence, and it is acknowledged that statutory duties are not the only factor producing change, and may be insufficient in themselves. As yet there is little evidence to separate out what might be the specific impact of a statutory duty as distinct from a series of other factors contributing to equal opportunities policy development.

Conclusion

A complex picture of statutory provisions surrounding the promotion of equality of opportunity is emerging in the UK, with different approaches in evidence at UK and devolved administration levels. Some of this legislation is enabling, some of it imposes a statutory duty on public authorities. Statutory duties range in character from the very prescriptive as in Northern Ireland, to the non-prescriptive as in Wales. There are also differences in the way in which schemes developed by public authorities are scrutinised, and differences in enforcement procedures. Given the newness of these developments all these enforcement procedures are yet to be tested in practice.

It is too soon yet for there to be any evidence that policies resulting from the imposition of a statutory duty have had any impact in reducing inequalities. Reporting so far has indicated progress in the development of new schemes, and the numbers of those that have been completed. There is some limited evidence, mostly of an anecdotal nature, that the process of drawing up schemes to meet statutory requirements has helped to raise awareness about a range of equalities issues. However, there is also limited evidence, similarly anecdotal, that the process has been found to be very bureaucratic and time-consuming.

Statutory duties have resulted in the production of around 40,000 race equality schemes throughout the UK; and 175 equality schemes in Northern Ireland. In Wales a series of measures have been attributed to the statutory duty, but it is very likely that many, if not most, of these might have been advanced in the absence of a statutory duty. There will be regular reporting and monitoring of various schemes by the CRE, Home Office, Northern Ireland Equality Commission, Welsh Assembly, and Greater London Authority. The National Audit Office will also continue to report on progress on equality and diversity in councils in England and Wales. Similarly the Scottish Executive will report annually on progress with its Equality Strategy, and monitoring of councils' performance will also occur. Over time therefore much more evidence of the impact of statutory duties, and of other approaches to the promotion of equality of opportunity, will emerge.

The duties that have been introduced in various parts of the UK are all different, and each has been introduced within specific contexts that differ in various ways from each other and from the Scottish context. Within the Scottish context at present a range of actions are possible without a statutory duty to promote gender equality or without a generic equality duty. In the immediate future, there are perhaps two key questions to be addressed:

• Whether any of the initiatives and policies developed elsewhere might be taken up in a Scottish context within the current legislative framework; and
• Given that the UK government has given a commitment to introduce a statutory duty on gender and on disability, how best to prepare for the eventuality of these further statutory duties on the promotion of equality of opportunity.

References

Audit Commission (2002) Equality and Diversity, London: The Audit Commission

Chaney, Paul and Fevre, Ralph (2002 ) An Absolute Duty: Equal Opportunities and the National Assembly for Wales, Cardiff: Institute of Welsh Affairs

Equality Commission for Northern Ireland (2002) Annual Report 2001-2002, Belfast: NIEC.

Equality Commission for Northern Ireland (2002) Guide to the Statutory Duties, Belfast: NIEC

Escott, Karen and Whitfield, Dexter (2002 ) Promoting Gender Equality in the Public Sector, Manchester: EOC

Mackay, F. and Bilton, K. (2000) Learning From Experience: Lessons in Mainstreaming Equal Opportunities, Governance of Scotland Forum, University of Edinburgh.

O'Cinneide, Colm (2002) A Single Equality Body: Lessons from Abroad, Manchester: EOC

Esther Breitenbach
March 2003

Appendix A

Race duty

The Race Relations Amendment Act contains both general and specific duties on listed public bodies (about 40,000 in total). The general duty requires these bodies to have due regard to the need to: eliminate unlawful racial discrimination; promote equality of opportunity; and promote good relations between people of different racial groups. This general duty is supplemented by specific duties requiring most public bodies to prepare and publish a Race Equality Scheme, covering a range of actions. In England and Wales such schemes had to be produced by 31 May 2002; in Scotland the date for publication of schemes was somewhat later as a consequence of the fact that responsibility for some of the relevant public bodies is devolved to the Scottish Parliament.

The CRE has set up a project for monitoring a percentage of the schemes, since they do not have the resources to monitor all 40,000 schemes. A report on the selected schemes was due to be published in January 2003.

The CRE can investigate any complaints that a public body has not met these requirements, can call for a judicial review, can serve organisations with a compliance notice, and can apply to the courts for an order to obey the notice.

As well as the CRE monitoring, the Home Office is evaluating how the RRAA is working in practice.

Northern Ireland duty

Section 75 of the Northern Ireland Act 1998 requires public authorities to have due regard to the need to promote equality of opportunity:

• Between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation;
• Between men and women generally;
• Between persons with a disability and persons without, and
• Between persons with dependants and persons without.

In addition public authorities shall have regard to the desirability of promoting good relations between persons of different religious belief, political opinion, or racial group.

Designated public authorities (175 are listed in the Guidance to the Statutory Duties) are required to produce an equality scheme, setting out how they propose to fulfil these duties, and to submit them for approval to the Northern Ireland Equality Commission (NIEC). They must also consult widely on all policies, and 'screen' all policies, functions and duties as they relate to Northern Ireland. This process of 'screening' means specifying which policies will be subject to a full equality impact assessment and how these will be prioritised. They must conduct a review of their equality scheme within 5 yeas and inform the NIEC of the outcome.

The date for submission of equality schemes was 30 June 2000.

Individuals can raise complaints either to specific bodies or to the NIEC, which they are obliged to investigate. The NIEC can also intervene directly of they consider the requirements are not being met, or a judicial review can be sought.

The statutory guidance on the duty is detailed and prescriptive.

Welsh Assembly duty

Section 120 of the Government of Wales Act, 1988, says that:

'The Assembly shall make appropriate arrangements with a view to securing that its functions are exercised with due regard to the principle that there should be equality of opportunity for all people.'

This duty is non-prescriptive and calls for equality of opportunity for all, rather than specifying particular groups. The Assembly's equality duty applies to all devolved functions of government in Wales. The Assembly's Equal Opportunities Committee includes members from all political parties and the duty is generally put into effect by the executive arm of the National Assembly.

The Assembly is required to publish an annual report covering its arrangements for promoting equality of opportunity during the previous financial year, and an assessment of how effective those arrangements were.

If groups or individuals feel that the Assembly has failed to comply with the terms of the duty, the Assembly can be subject to judicial review in the courts, and potentially, investigation by the Welsh Administration Ombudsman.

Greater London Authority duty

Section 33 of the Greater London Authority Act 1999 lays down that the Greater London Authority (GLA) shall make appropriate arrangements so that in the exercise of its power, in the formulation of policies and proposals and in the implementation of strategies, 'there is due regard to the principle that there should be equality of opportunity for all people'.

Section 404 of the Act also places a duty on the GLA, Metropolitan Police Authority and the London Fire and Emergency Planning Authority 'in exercising their function, to comply with the requirement …… to have regard to the need -

• to promote equality of opportunity for all persons irrespective of their race, sex, disability, age, sexual orientation or religion;
• to eliminate unlawful discrimination; and
• to promote good relations between persons of different racial groups, religious beliefs and sexual orientation'.

The GLA has a legal duty to undertake formal equalities impact assessment during the development of strategies, policies and initiatives, but before public consultation.

The GLA has to report annually on the arrangements made to put the requirements of the Greater London Authority Act into practice and assess how effective they were in promoting equality of opportunity.

The Scottish Executive

The Scotland Act 1998 does not contain a statutory duty as such. However, under Schedule 5 of the Act, the following matters may be undertaken by the Scottish Executive:

• The encouragement (other than by prohibition or regulation) of equal opportunities;
• The imposition of duties on any office holder in the Scottish administration, or any public authority, to make arrangements with a view to ensuring that their functions are carried out with due regard to the need to meet the equal opportunities requirements.

Equal opportunities is one of the four key principles underpinning the workings of the Scottish Parliament; there is a standing Equal Opportunities Committee of the Parliament; a number of Acts passed by the Parliament have contained clauses imposing duties relating to equal opportunities on public bodies; the Scottish Executive has committed itself to a strategy of mainstreaming equality and to report annually to the Parliament on progress.