Equalities watchdog calls for statutory code for public sector equality duty

The best way to reduce bureaucracy and over-engineering of compliance with the public sector equality duty would be to publish a statutory code, the Equality and Human Rights Commission (EHRC) has reiterated.

Responding to the findings of the Home Office-commissioned Independent Steering Group, EHRC chair Professor Onora O'Neill said: “This would allow public bodies to be clear about what is legally required and to depend on the Code in defending challenges, because the courts place far greater weight on a Code than on guidance.

“Guidance cannot substitute for the certainty which a Code provides for bodies that may otherwise adopt what they intend to be a risk averse approach, which may lead to heavier bureaucratic requirements. This would be a key step in tackling the ‘gold plating’ that the report says has been identified.”

The steering group was set up by the Home Secretary and chaired by Rob Hayward. In its report, published in September, it called on public sector bodies to ensure they adopt a proportionate approach to compliance and not seek to ‘gold plate’ the duty.

The steering group said it was too early to make a final judgement about the PSED’s impact, and that the Government should consider conducting a formal evaluation of the duty in three years’ time.

The group also recommended that:

• The EHRC should make guidance clearer on the minimum requirements placed on public bodies;
• Public bodies should not collect diversity data unless it was necessary for them to do so. The EHRC and the Information Commissioner should provide greater clarity on the role of data and its collection;
• Public bodies should be challenged where their procurement processes create barriers for small businesses and charities;
• Enforcement of the PSED needed to be “proportionate and appropriate”. The Government should consider where there are quicker and more cost-effective ways of reconciling disputes relating to the duty.

The Government has since launched a consultation on reforms to judicial review, which include whether there are suitable alternative mechanisms for resolving disputes involving the PSED.

In the ERHC's response to the steering group's report, Professor O’Neill said the Commission shared the objectives of ensuring the PSED was “implemented effectively and with minimum costs and bureaucracy, and meets required standards on data collection”.

However, commenting on the evidence gathered by the steering group, she said the EHRC felt there had been “more definite conclusions drawn than the fairly light evidence presented justifies”.

“For example, the report foreword says that no public body has made efforts to reduce the costs of compliance with the PSED,” she said. “We do not see evidence for this in the review, and it is not our experience in working with many public bodies that use the PSED constructively and effectively.”

In relation to the steering group’s recommendations on the EHRC’s guidance, Professor O’Neill said the Commission was disappointed that the extensive guidance it had already produced on the PSED was not considered fully during the review.

She insisted that the guidance had been widely used and was clear on what was required by the PSED, on the need for action to be proportionate and on what was required for compliance, as opposed to what might be adopted as best practice.

But she added that the watchdog would continue to review its guidance and to work with the public bodies implementing the PSED to help ensure what was needed was provided.

Professor O’Neill highlighted the Commission’s call, made to the steering group during the review, for the introduction of a statutory code.

On procurement, the EHRC chair said the Commission had already produced guidance, which underlined the importance of a proportionate approach, the need to remove barriers for SMEs and the value of a diverse supplier base.

“We are not clear whether the steering group had the benefit of studying our existing guidance,” she said. “This guidance recognises the importance of removing PQQ barriers for SMEs. However, we are concerned that the current proposals are not clear. Proportional compliance for small contracts does not mean non-compliance. Implementation of these proposals will need very careful clarification and explanation.”

Professor O’Neill said the EHRC would take up the work on the three recommendations the steering group addressed to the Commission, in particular in relation to liaising with the Information Commissioner on clarification of the requirements for data collection and retention.