19 September 2013

The panel reviewing the Public Sector Equality Duty (PSED) has described the legislation – which aims to ensure that public bodies and their contractors uphold their responsibility to ensure their services promote equality among people – as a "burden".

In May 2012, less than a year after it came into effect, it was announced the Duty would be reviewed. The decision came after the PSED was featured on the government's Red Tape Challenge website, calling on employers to offer up suggestions on further deregulation. The website was soon full of comments from those who believed equality law should not be termed as “red tape” and called for the PSED to remain unchanged, or to be strengthened.

However, the review went ahead and the government implemented an "Independent Steering Group" that many criticised for consisting of friends of the government who were bound to make recommendations the Coalition could have written itself.

Emma Game of Thompsons Solicitors said: "It's an old trick but a cynical one: create a furore, have people you can rely on to review the issue ... and then go along with the outcome."

Indeed, the government has said it has accepted all of the recommendations of the Steering Group, which state that "public bodies should not collect diversity data unless it is necessary for them to do so". According to the Group, it becomes unnecessary for diversity data to be collected if the contractor in question employs fewer than 50 people and if the contract is worth less than £100k. Even when higher-value contracts are tendered, the government’s core Pre-Qualification Questionnaire (PQQ) "which does not include equality requirements" should be used instead of the PQQ used under the PSED.

As Thompsons Solicitors comment, it is not surprising that the review leans so much in favour of business when its Chair, Roy Hayward, believes "the private sector is unnecessarily burdened by hours if not days of work by 'requests' for information from the public sector".

So does Mr Hayward believe in the importance of equality between diverse groups of people? Well, he says he does in the first sentence of his foreword:

"We all want a public sector which respects who we are – which does not discriminate against us, which delivers services which are sensitive to our needs, and which is proactive in helping the most vulnerable and disadvantaged."

But immediately discredits his apparent concern by explaining that caring costs money, and we simply can’t afford it:

"Equally ... we want our public bodies to be efficient, professional, and to make very careful use of the funding and other resources available to them."

"These two aims are not mutually exclusive."

As well as reducing accountability for equality in the private sector, the Group also wants the state to minimise compliance with the PSED as much as they legally can.

"Public bodies should seek to benchmark their processes for compliance with the PSED with their peers, with a view to reducing unnecessary paperwork," the Group recommends. Essentially, if another public body is getting away with doing less, other bodies should follow suit.

Should a council decide to ignore this advice and continue to rigorously assess potential contractors before awarding them with money from the public purse, the companies involved will soon be able to complain about it. The Group suggests all "potentially inappropriate equality requirements" should be referred by firms to the Cabinet Office Mystery Shopper scheme, where it is likely to be repeated that councils should match each other in doing as little as they possibly can.

Enforcement and transparency also take a hit, with the Group suggesting the withdrawal of the right to take councils to judicial review over decisions that impact on equality; and implying that the publication of information relating to the PSED should be reduced.

However, the Group did see sense in one critical factor – one that was highlighted by trade unions, campaigners and the Institute of Employment Rights – that it is far too early to review the PSED when it was only implemented in 2011. The Group suggested the government conduct another review in three years' time.

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