Proposed changes on disability equality duty

This page outlines proposed changes relating to the disability equality duty. There is a separate page on the related area of transparency.

Equality Bill

Under the Equality Bill (from clause 143) the existing separate equality duties on public authorities covering race, disability and gender will be replaced by a single equality duty, which will also extend to gender reassignment, age, sexual orientation and religion or belief.

The Bill contains the 'general duty', to have regard to the need to advance equal opportunities etc.

There are also to be 'specific' duties set out in regulations. In January 2010 the Government issued a policy document on this: Equality Bill: Making it work Policy proposals for specific duties Policy Statement (link to pdf of equalities.gov.uk). That is the Government's response to a consultation (link to equalities.gov.uk) which started the previous June. The Government envisages publishing draft regulations, on which it hopes to be able to consult well before summer 2010. Under current law, the 'specific duties' require many authorities to produce equality schemes.

The changes follow a 2007 Green Paper (below), and the Government's response to the consultation on that. The Government said in its response that the new single duty will help public authorities focus their efforts on outcomes, rather than on producing plans and documents. It wants to build on good practice that already exists, and to have a design which can be used flexibly and effectively to make a positive difference to people's lives without being too bureaucratic.

The Government said it recognised the concern of some stakeholders that the new equality duty should not be weaker than the existing requirements and that it had decided to retain the overall structure of the existing duties, that is to say a general duty underpinned by specific duties designed to support performance of the general duty. Under the previous Green Paper proposals the 'general' duty, and thus the duty of public bodies to 'mainstream' equality, might have been abolished.

Some further points:

Clause 150 of the Equality Bill says that a failure in respect of a performance of the public equality duty does not confer a cause of action at private law. However, the Government has confirmed (e.g. in the explanatory notes with the Bill) that the option of judicial review proceedings will remain open to anyone who wishes to challenge a public body's implementation of the general duty. This is important given the tough line the courts have been taking on the general duty.
No private sector duty is proposed, but the Government aims to use public procurement to encourage greater transparency (see Transparency)
It was noted in the Government's response to the consultation that there was general support in the consultation for the setting of strategic priorities by national Governments. The Government had already started this process through developing the first Equality Public Service Agreement (PSA) target.
The Government believes that the public service inspectorates have an important role to play in looking at how bodies within their remit are performing. It wants to encourage the EHRC to continue to work closely with inspectorates, but enforcing the Equality Duty will remain the statutory responsibility of the EHRC (para 5.8 of 'Equality Bill: Making it work', linked above).
The new duties would not be implemented until Spring 2011 at the earliest.

Links on current Government proposals:
January 2010 response to consultation on specific duties: Equality Bill: Making it work Policy proposals for specific duties Policy Statement (link to pdf of equalities.gov.uk).
Original consultation on specific duties, June 2009: Equality Bill: Making it work'. Also EHRC document responding to consultation.
Equality Bill page.
Framework for a Fairer Future - The Equality Bill (link to equalities.gov.uk), June 2008
Government response to the Discrimination Law Review (pdf file, link to equalities.gov.uk), July 2008

House of Lords Committee - January 2010

The Government accepted an amendment to provide that, in having due regard to the need to advance equality of opportunity, a public body must give consideration to the fact that meeting the needs of disabled people may, in particular, involve taking steps to take account of their disabilities. The Government recognised that the needs of disabled people are different from the needs of persons who share one or more other protected characteristics, and had sympathy with the argument that the lack of explicit reference to disability may, in practice, lead to public bodies thinking that they need to do less than they are required to do under the existing disability equality duty. See from col 1490 HL Hansard 27/1/10 (link to UK Parliament website).

Ministerial comments on coverage of employment by private contractors

There was substantial debate in the House of Commons Equality Bill Committee about the new public equality duty provisions. I will just pick out one comment by the Minister on an issue under current law, namely whether private contractors are bound by the public equality duty in relations with their employees as well as their customers:

"I will now address the point that employment might be singled out as a function that should not be subject to the duty. It seems to us that employment is part and parcel of the way in which public functions are delivered, because it is difficult to deliver that if one cannot consider the technical abilities of the people one employs to do it. How could a private contractor be required to make arrangements for advancing equality in all the aspects of running a prison but not in relation to the people it employs or how it employs them? Employment functions have not been excluded from the current duties." (col 550, HC Public Bill Cttee, 30th June 2009 (link to UK Parliament website)).

Employment by private contractors was also considered in the House of Lords Committee: col 1500 HL Hansard 27 Jan 2010 (link to UK Parliament website). For example:

"In simple terms, employment will be caught where integral to the performance of a public function. For example, where a contractor runs a prison it will need to comply with the duty in relation to its employees working in the prison but not those involved in other work such as collecting cash from a bank."

Previous history

Original Green Paper proposals

The Government proposed changes to the disability equality duty in Chapter 5 of its 2007 Green paper on a Single Equality Bill. The proposals were subject to a consultation, the Government's response to which is summarised above. The Green Paper is available at www.communities.gov.uk/index.asp?id=1511245. Examples of the proposals are:

replacing the race, disability and gender equality duties with a single duty on public authorities to promote race, disability and gender equality, and perhaps extending the duty to other grounds of discrimination (this is to happen - see above);
providing a 'clear' statement of the purpose of a single public sector duty, which public authorities should use as a foundation for taking action;
requiring public authorities to focus on a limited number of priority race, disability and gender equality objectives;
considering whether it would be helpful for strategic equality outcomes to be set by the appropriate national Government;
rather than the current specific duties prescribing exactly what processes authorities should adopt, authorities might be given greater flexibility in how they should respond to the duty. They could adopt processes to deliver their priority objectives best in their particular circumstances, rather than concentrating on producing detailed information and documentation as prescribed by law. The four key principles would be
- consultation and involvement;
- use of evidence;
- transparency; and
- capability;
considering whether the proposed single public sector equality duty should apply to virtually all public authorities (as the disability equality duty currently does) or, if not, how it should be targeted;
considering what issues should be included in practical guidance on how public sector procurement can be used to achieve equality outcomes in the private sector.

Views on public sector duty proposals in Green Paper

Equality and Human Rights Commission

The EHRC fully agreed that a single equality duty must focus on outcomes, but it will also need processes which make it possible to achieve the desired outcomes.

It did not agree with the proposal to leave it to public authorities to adopt their own 'equality principles' and to decide for themselves how to meet the equality duty in respect of their various functions. This has the potential to shunt the concept of equality from the core business of public authorities to the margins. Based on current performance, some authorities will prioritise only the most obvious functions and will fail to explore how equality on one or more of the protected grounds may be relevant to the full range of its functions. Additionally, there is a real risk that less popular issues may never be a priority for authorities which could make a real difference to people's lives.

The EHRC recommended further discussion about whether any specific duties are necessary to make sure that the general equality duty is effective, and if so what such specific duties should require. It considereed that it will not be possible for public authorities to make real progress towards equality for employees or for their services or other functions without reliable, objective data on their current performance. The EHRC noted that the main recommendation from a recent review of section 75 of the Northern Ireland Act 1998, under which the equality duty on public authorities is rigidly process-led, was for the Equality Commission for Northern Ireland and public authorities to have a greater focus on measurable outcomes in relation to promoting equality of opportunity and good relations, under an unchanged section 75.

The EHRC further recommended that a new equality act should include a separate statutory requirement for public service inspectorates to audit or inspect public authorities' compliance with their equality duties.

The new equality act should also require public authorities to incorporate equality considerations into all aspects of their procurement processes. This requirement would be complementary to the single equality duty, but could not be avoided by authorities that would prefer other priorities. There is now wide agreement that public procurement can be an extremely effective lever for change within the private sector.

For more, see pages 8-9 and 12-20 of the EHRC's Discrimination Law Review response (link to Word doc on EHRC website).

Former Disability Rights Commission

The DRC's views are in pages 43-63 of A Framework for Fairness Response (on DRC website).

The DRC agreed that there should be a single streamlined duty, which should also extend to the newer grounds of discrimination.

Unlike the Green Paper proposals, however, the DRC believed that the present general and specific duties should be retained, and modified to strengthen them and make them more clear. The DRC was particularly concerned that under the proposals authorities might not have to 'mainstream' equality, ie to consider it in all their activities. The DRC supported a requirement to set equality objectives as proposed in the Green Paper, but not at the expense of requiring authorities to mainstream. Dangers to be guarded against included neglecting the pressing problems of 'unpopular' groups', and the authority limiting its actions to those which relate to the objectives.

The DRC also proposed changes in the wording of the general duty to strengthen it, eg to clarify that the requirement to give due regard to equality requires action to be taken.

The DRC considered that the arrangements which would take the place of publishing equality schemes are "a recipe for greater confusion and weaker activity". They would be far harder to enforce and far harder for disabled people to use to hold authorities to account. The DRC pointed out that the present Disability Equality Duty is already designed to allow considerable scope for flexibility.

The Government was proposing that only the EHRC would be able to take enforcement action. The DRC considered that interested parties should not be deprived of the right to challenge a public authority decision on the basis of the public sector duty.

There should be a clear legislative statement spelling out what is required of inspectorates. When they assess the quality of an authority's services they should, as an integral part of that assessment, consider whether those services give 'due regard to' equality – in other words whether they comply with the general duty.

As regards procurement, public authorities are not currently meeting their equality obligations, despite the three Commissions publishing detailed guidance. Clear direction must be provided through either primary legislation or in supporting regulations on how public bodies should embed equality into their procurement practice.

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