Authorities must not 'gold plate' public sector equality duty, says review

Public sector bodies must ensure they adopt a proportionate approach to compliance and not seek to ‘gold plate’ the public sector equality duty, an independent review has recommended.

The Independent Steering Group, which was set up by the Home Secretary in May 2012, concluded that it was too early to make a final judgement about the impact of the PSED.

It said the Government should consider conducting a formal evaluation of the duty in three years’ time. “This would enable the PSED to embed more thoroughly and should consider whether the Duty is an effective means of achieving the goal of sensitising public bodies to equality issues and what alternatives there might be.”

Other recommendations in the report, which can be viewed here, included:

• The Equality and Human Rights Commission (EHRC) should make guidance clearer on the minimum requirements placed on public bodies;
• Public bodies should not collect diversity data unless it is necessary for them to do so. The EHRC and 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 chair of the steering group, Rob Hayward, said it was not recommending any changes to the Equality Act 2010. However, he reported that he and his colleagues had been disappointed by some of what they had found.

Hayward said: “There is undoubtedly support for the principles which underpin the Duty – and some public bodies are doing a good job in mainstreaming equalities considerations in their work. But, in far too many cases, we have uncovered useless bureaucratic practices which do nothing for equality. No-one seems to ask, ‘Could I do less and have the same beneficial effect?’

“Scarce resources are also being diverted from the front-line services where they are needed. In one extreme case I believe emergency services would be better resourced by a reduction in these unnecessary practices – and in another the private sector is unnecessarily burdened by hours if not days of work by 'requests' for information from the public sector.”

The chair of the group pointed out this was not just a burden to public bodies, but also affected the users of public services who might be asked for sensitive personal details, “often with no justification”.

Hayward said: “It creates barriers for small businesses and charities that wish to bid for public contracts but do not have the data which some public bodies insist upon. And, ultimately, it discredits the vitally important aim of creating a fairer, more equal society.”

He concluded: “Equality is too important to be tied up in red tape. Let’s cut it out.”

The steering group failed to reach a consensus on the specific duties which apply in England (and non-devolved bodies in Scotland and Wales), but Hayward recommended that the Government consider the operation and effectiveness of these duties.

In a written ministerial statement, the Minister for Women and Equality Maria Miller MP said the Government agreed with the steering group’s conclusion that a full evaluation should be undertaken in 2016.

She added that the Government would like to see the report’s recommendations (see below) implemented in full by all relevant parties, “in particular to reduce procurement gold-plating by the public sector”.

Miller added that the Government would keep the specific duties under review and work closely with the EHRC as it conducts its more detailed assessment.

Commenting on the review, Baroness Onora O’Neill, chair of the Equality and Human Rights Commission, said: 
“The Commission welcomes this report and will review its findings in detail before publishing a fuller response.

"The PSED is an important way to ensure equality standards set in law are met. We look forward to studying the report’s proposals.”

The Government last week put out for consultation a package of measures for reform to the judicial review process, including whether there were suitable alternative mechanisms for resolving disputes involving the PSED.

LIST OF RECOMMENDATIONS IN FULL

For the EHRC

1. Guidance must be clearer on the minimum requirements placed on public bodies. Building on its technical guidance, the EHRC should produce shorter, more bespoke guidance clearly setting out what is necessary for compliance.

2. Sector regulators have an important role in supporting implementation. Regulators, inspectorates and relevant ombudsmen services should integrate the PSED in their core functions and collaborate closely with the EHRC with respect to compliance action. In some cases there may be a case for co-production of tailored sector-specific guidance where required, although it is recognised that some functions are so broad as to make such guidance virtually impractical.

3. Public bodies should not collect diversity data unless it is necessary for them to do so. The EHRC and Information Commissioner should work together to provide greater clarity on the role of data and its collection, the use to which data is put, and what is necessary for compliance with the PSED. In respect of both data collection and procurement, public bodies should take a genuinely proportionate approach.

For public bodies

4. Public bodies must ensure they adopt a proportionate approach to compliance and not seek to “gold plate”. Public bodies should seek to benchmark their processes for compliance with the PSED with their peers, with a view to reducing unnecessary paperwork.

5. Public bodies must reduce the burdens placed on small employers.

• Public bodies should remove Pre-Qualification Questionnaires (PQQs) for contracts below £100k and utilise the government’s core PQQ, which does not include equality requirements, for contracts over this amount.
• Public bodies should not impose onerous or disproportionate requirements on contractors delivering services (particularly those with fewer than 50 employees) to provide equality data on workforce and service users.

For contractors

6. Public bodies should be challenged where their procurement processes creates barriers for small businesses and charities. Private and voluntary sector employers in England should refer any potentially inappropriate equality requirements that have been applied to a particular procurement exercise to the Cabinet Office Mystery Shopper scheme.

For the Government

7. Public bodies must be proportionate in publishing information. Although consensus was not reached in the Steering Group on the effectiveness of the specific duties, the Chair’s view is that these do not serve their intended purpose and that the Government should consider their removal or modification.

8. Enforcement of the PSED needs to be proportionate and appropriate. In light of the findings around judicial review, the Government should consider whether there are quicker and more cost-effective ways of reconciling disputes relating to the PSED.

9. It is too early to make a final judgement about the impact of the PSED. Government should consider conducting a formal evaluation of the Duty in three years’ time. This would enable the PSED to embed more thoroughly and should consider whether the Duty is an effective means of achieving the goal of sensitising public bodies to equality issues and what alternatives there might be. This work could also be informed by the EHRC’s medium-term work on how the PSED and the more prescriptive specific duties operate in Scotland and Wales.

Source: Review of the Public Sector Equality Duty: Report of the Independent Steering Group