Speech - Fairness: a new contract with the public

Speech by Patrick Diamond, Group Director of Strategy, at a key event for the Civil Service on the forthcoming Equality Bill, 10 December 2008


It's great to have this opportunity to speak about the role of the Equality and Human Rights Commission both now and in a post-Equality Bill world.

I'm not going to spend a lot of time telling you the basics about the Commission. I hope you are all familiar with much of the story. Instead, what I want to emphasise today by way of introduction is how the Commission operates.

At the Commission we don't operate in a set of silos marked 'gender', 'race', 'disability', and so on. Instead, we look at key issues - such as how Britain's workplaces operate, how public services deliver fairly and appropriately, and so on - across the whole population.

Not only do we approach our work in a way that doesn't focus only on individual demographic characteristics. We also look at inequality more widely - for example, the impact of income and social class on people's everyday experience.

And in all we do, we are conscious of the human rights framework within which we - and you in the public sector - exist. Human rights guarantee basic standards of behaviour by those in authority. So while equal treatment can mean equally bad treatment, a human rights approach requires that everyone is treated with dignity and respect.

This means, for instance, that care homes can't make it their standard practice that residents should eat meals sitting on a commode, just as much as that people suspected even of very serious crimes should know the charges against them if they're to be held and questioned for long periods.

Celebrating diversity

At the heart of the Commission's work is the recognition that our society benefits from being made up of people with a range of demographic characteristics. But we'll only realise that benefit to the full if we all have a fair chance to realise our potential unhindered by stereotypes and pointless barriers.

Today I want to spend most of the time I have talking about how you in the public sector can help people in our society achieve their potential, and what tools the Commission has to help you, as well as to drive change further and faster when we think it's necessary. I'll also touch on the difference we believe the Equality Bill will make and how you can get ready for it. And I'm aiming to leave enough time at the end for questions and discussion.

New challenges need new laws

It's very clear to us at the Commission why we need an Equality Bill. The UK's equality law is currently contained in at least 116 different Acts of Parliament, regulations, codes of practice and guidance documents. The law has grown up incrementally and inconsistently. So we need to declutter and ensure we have laws which sit well together.

But just as important is the fact that the inequalities people experience often have very different causes from those they experienced in the 1960s and 70s. When the model for our ground-breaking anti-discrimination law was first developed, a sign saying 'no Irish, no blacks, no dogs' in the window of a B&B, job ads saying 'women need not apply', and descriptions of disability we now find universally offensive were commonplace.

Now, although individual prejudice and hate crime do still blight lives, attitudes in society as a whole have changed for the better. The world where that sign would have been unremarkable has, thankfully, largely disappeared. It is tackling systemic and cultural discrimination that remain the challenge for the Equality Bill and for the way we all do business.

The issue is much more about the way our society is structured so that people face unnecessary barriers as a result of particular characteristics. For example, the way we organise work and childcare in this country, which means that many women are working part-time in jobs well below their ability while fathers are overworked and frustrated at missing out on their children. Or, another current example, how long it will take to have a British Barack Obama, given how under-represented people from ethnic minorities are in Parliament and in other aspects of public life.

But the barriers that produce these inequalities are made up of the complex interplay of many different factors. I'm not saying the task of bringing about a more equal society, in the sense of one in which everyone has a fair chance to thrive, is a simple one. In trying to understand and reflect that complexity, the Commission aims to take an approach that is practical but not simplistic.

Individuality and the role of demographics

I'm also going to add another factor into the mix, one that can be especially challenging for public services - the balance between treating everyone as an individual while acknowledging the impact that our demographic identity has on our life experience.

Every one of us has our own unique story. We are individuals. On the other hand, we are all influenced by characteristics, both those which carry legal protection from discrimination, such as our sexual orientation and ethnicity, and others which don't. The dilemma for the public sector is how to reflect an individual's uniqueness and at the same time to organise services that take account of those needs that are influenced by gender, disability, ethnicity, age, and so on.

At their best, this is what the public sector duties to promote equality and good relations between different groups and to eliminate unlawful discrimination help the public sector to achieve. I'm not going to describe the public sector duties at any length or even how crucial it is that they're applied to procurement as I know you've already heard about this. But I do want to sum up their importance by saying that the duties are a way of identifying the needs of particular groups and then designing and delivering services in a way that takes proper account of those needs. To the person on the receiving end, that feels like a personalised service which acknowledges they are male or female, from a particular ethnic background, or have a disability, not each of those things separately, but all three together where that's relevant.

But the problem is that the current public sector duties all operate separately, on different timescales and with different requirements. They can easily become focused on the process of producing an equality scheme, rather than on the outcome we're all trying to achieve of removing unnecessary unfairness.

The Commission is working with the Government Equalities Office and others to help design a public sector duty in the Equality Bill that - while taking in the additional characteristics of sexual orientation, religious and non-religious belief, transgender status, and age - is clearly focused on outcomes not processes. This is one place where we are confident the Bill can help us move from complexity to clarity, so that - for example - in working towards your PSAs [public service agreements] the interplay between these and the requirements of the public sector equality duty will be much clearer. The Commission will support you by producing practical guidance about how the new single duty can have a real impact on the service you provide to the public.

Why a 'new contract' with the public?

We always need to hang on to the fact that the public - people - is what this is all about, and what the Bill should be all about. That's why the Commission called our response to the Government's Equality Bill White Paper 'Fairness: a new contract with the public'.

At the Equality and Human Rights Commission, we try never to lose our focus on the fact that we exist for the public - all 60 million people in Great Britain.

And we think that the Bill should be designed to help everyone understand that equality isn't a minority sport - it's not just for a few groups who somehow have better rights than everyone else. Instead, this is about a fairer society for everyone. But not as a platitude. It's about the active promotion of equality, where we have expectations both of the state and of our fellow citizens.

In the past, our laws have been - because when they were first enacted they needed to be - about anti-discrimination. Now we want them to be pro-fairness as well. They have been focused on what employers, service providers and individuals aren't allowed to do, on prohibition. Now we want them to give people permission about what they can do, not just tell them what they can't.

And alongside that, we want the Bill to give greater power to the citizen to hold public bodies to account and demand information about how they're meeting the duties, which sits well with other similar Government approaches, such as in Hazel Blears' recent Communities in Control White Paper. This is why the reporting and transparency measures in the Bill will be so important.

But this isn't just about more rights for citizens, there will be more responsibilities - the fairness contract goes both ways. Some of these individual responsibilities can't be expressed in legislation, but they are an important part of the package, because they are about how we all treat each other in our relationships. So one of the Commission's roles in the context of the Bill will be to promote a better understanding of what you might call the 'rules of the road', the values we share and how that translates into the way we all live together.

Because fairness is about cohesive and stable communities as well as fulfilled individuals. These two public sector priorities - fairness and cohesion - go hand in hand. Without fairness, it's difficult to achieve cohesion. Unless people feel fairly treated, they are unlikely to feel a part of their community.

So an unfair lack of educational and employment opportunities for one group or another can lead to significant alienation, whether we're talking about some ethnic minority communities as the Scarman, Cantle and Ouseley reports have over the years, or about predominantly white estates experiencing worklessness today.

A new kind of regulator

I've mentioned support and guidance from the Commission. We also have a regulatory role - but we're not a regulator in the traditional sense - we want to discharge our regulatory functions in a modern and effective way. What that means is that we use all the tools we have - such as formal and informal guidance and persuasion and the promotion of good practice - to prevent unfairness and discrimination happening in the first place, but if it's happening, we won't hesitate to act to stop it and to obtain redress for those experiencing it. If necessary, we'll take legal action, either bringing a case ourselves, or intervening in a case brought by someone else to provide guidance to the court.

The Equality Bill is by no means all about the public sector. 80 per cent of people work in the private sector and the place where people are most aware of discrimination is in the workplace. And there's evidence that 80 per cent of employers don't expect to be held to account for discrimination.

Many companies do 'get' the business benefits of taking equality and diversity seriously and their positive impact on staff and customers. Other companies find the current law a bit baffling. They'd like to be better at complying with the spirit as well as the letter of the law, and even to promote equality, but aren't sure what's allowed, and who may think that in tough economic times, equality is a luxury they can't afford - whereas we believe it's a way that everyone can do their core business more effectively, identifying and retaining talent, and connecting with customers. That's where active, practical, real-world guidance comes in, including on our new business micro-site. As an aside, we envisage something similar for the public sector duty.

The final group of businesses are those who don't care whether they break the law or not: sacking women for being pregnant, for example, never knowingly employing a disabled or gay person, ignoring evidence of harassment so bad that employees just leave, paying differently for jobs of equal value. Against them, we want to be able to take decisive action - if necessary through representative actions, where one case is used to decide many others so as to tackle the systemic causes of unjustified discrimination - that's a new power we need from the Equality Bill.

The tough question, though, is knowing the difference between the willing but uncertain, and the bad. So that's why improved transparency and access to data are crucial, and are other areas we hope the Bill will strengthen.

Delivering a more equal society

I'm going to finish by saying a little about what else the Equality and Human Rights Commission wants from the Equality Bill, which we see as a means to an end - something that will enable us and others to deliver a more equal society using the tools within the Bill.

I've mentioned the single, more responsive public sector duty and new powers for the Commission. Just as importantly, we want the Bill to alter the context for the way the public sector operates. We would like to see an underpinning statement - a constitutional guarantee of equality - in the Bill, something which would make other legislation subordinate to the principle of furthering equality.

This would mean that you would interpret your role as civil servants in a way that promoted equality and eliminated discrimination - and resolve conflicts with an eye on that principle. Judges too would have to consider the spirit of the law, rather than - as the Employment Law Bulletin so aptly puts it - 'putting a spanner in the works' as the Law Lords did recently when they interpreted the Disability Discrimination Act in a way that makes it much harder for disabled people to prove discrimination.

Within this framework, the Bill needs to be flexible enough not to become quickly out-dated if the challenges change - so, for example, how we take account of the growing knowledge about genetic predisposition to certain diseases.

It also needs to give us the tools to deal sensitively with legitimate differences of view - for example, around religious and non-religious belief - and to decide when to adjust the way we do things and when not to. A key point for me is that we can legitimately protect the interests of those who hold beliefs while not in any way promoting one belief system over another.

And, as I've already said, an important part of what the Bill does will be the clarified legislative framework it gives us. This will benefit both public and private sectors, for example, making it clear when it is proper to take urgent action to compensate for historic inequality by allowing an organisation to take positive action where this for a legitimate aim and to the benefit of the society as a whole, and can be done without lowering standards. Examples that immediately come to mind are recruiting more men as primary school teachers and helping the police meet their targets for ethnic minority recruitment.

If we can get it right - to make it a model of clarity and practicality - we believe the Equality Bill is a once in a generation opportunity to make fairness a principle that the whole nation signs up to at a cultural level and a constitutional level.

A national consensus on fairness

Coming back to where I started: both pre- and post- the Equality Bill, the role of the Commission is promote equality and reduce unfairness for all 60 million people in Britain, working in all the ways I've talked about.

That means making a difference to people's lives. We want to reach the point where it's not obvious what no-one is using 'people like you' in a negative way, as someone used it some years ago when Tanni Grey Thompson, our top Paralympic athlete, asked him to coach her. As Tanni tells us on YouTube, she challenged him by asking what he meant by 'people like her' - women, Welsh women, women with dyed hair, or disabled people? I want a society where we all challenge stereotypes as Tanni has done.

So how can you in the public sector help make that a reality? I want to urge you to get ready. Assess your policies, test your service delivery. Make sure you understand how equality issues impact on your area of work and on the diverse public who are on the receiving end of what you do. Regard equality impact assessments not as a chore or an afterthought or a tick box exercise but as a management tool for delivering better services.

And hang on to the thought, so well put by Peter Latchford, visiting professor of enterprise at Birmingham University, writing in the Guardian recently:

'Fairness is not an additional cost on the public sector. Fairness is why we have a public sector.'

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