Delivering Equality: Drafting an Outcome-Focused Positive Duty Sandra Fredman and Sarah Spencer Oxford University

Recasting the Positive Duty Limited impact of race duty: procedure not outcome Need for parity on all grounds: a generic positive duty DTI Discrimination Law Review; Phillips Review Opportunity to recast

Structuring the Duty Due regard to the need to eliminate unlawful discrimination and promote equality of opportunity Specify goals: beyond equality of opportunity Specify duty: beyond due regard Goal oriented; action based; ongoing duty

The Goal: ‘Equality’ Equal Treatment Equality of Opportunity Equality of Results Fails to recognise different needs Removal of demand side barriers OR facilitation, empowerment? Difficult to quantify - becomes ‘results’ Can mask inequality within groups Inappropriate for individuals Ignores qualitative change

Sen’s Capabilities Approach ‘ Capability’ as capacity to achieve chosen functioning Social, economic and physical constraints operate unevenly Some individuals require more or different resources to others to achieve valued functioning Frame policy to take these differences into account

Dimensions of Equality 1.Equal Representation: Break cycle of disadvantage and poverty: Empowerment; facilitation of genuine choice; access to resources, equal pay; removing barriers; restructuring institutions, e.g. division of labour within family

Equality Dimensions Recognition 2.Promote respect for equal dignity and worth Against stigma, harassment, humiliation and violence 3.Accommodation and affirmation of identity. Beyond Identical Treatment 4.Facilitate full participation in society

Two Models Reliance on individual litigation –Unlawful discrimination unremedied Shifts responsibility to organisation to identify and address unlawful discrimination 2.Discrimination: Individual fault, victim and remedy 3.Retrospective Address institutional and group inequality Proactive adjustment Complaints-led Positive Duty

Two Models (cont ) 4.Conflictual; defensive Catalyst for broad range of incentives 5.Narrow issue of discrimination Broader causes: e.g. transport, childcare 6.Qualitative dimension missing Respect for dignity and equal worth Complaints-led Positive Duty

Objectives of Positive Duty: Limits of Due Regard Address unlawful discrimination and unequal pay even where no complaint: ‘Due Regard’: Having taken account of need, can decide not to act – insufficient.

Objectives of Positive Duty: Limits of Due Regard Address institutional patterns of discrimination even if no individual is responsible Anticipate detriment through new policies and promote equality ‘Due Regard’: No action required and no end result specified; Only unreasonable (disproportionate?) action barred

The General Duty Recast A public body shall, in carrying out its functions, take such steps as are necessary and proportionate to eliminate discrimination and to achieve progressive realisation of equality (as defined) Action based, goal oriented general duty

Benefits Balances structure and autonomy General duty: Sets out aims –Redress disadvantage, equal dignity, accommodation of diverse identities and participation Requires proportionate steps to be taken Enforceable Requirement

Duty on Whom? Private Sector?? Public Sector: Listed bodies or ‘public functions’? Each authority subject to same duty

A Specific Duty Baseline evidence and diagnosis of causes of inequality identified Consult and involve affected parties Plan – proposed steps and timescale (reflected in business plan) Assess potential impact of new policies Monitor progress publicly

Monitoring Performance Core Business Audit and inspection bodies Parent statute

Compliance Judicial review and formal investigations expensive Compliance notices inflexible ‘Due regard’ lacks a standard Specific duties focus on making arrangements not action

Compliance Proposed Duty to take necessary steps: a clear, enforceable duty New CEHR powers to assess compliance: Prompted by inspectorate or public data Require information from body Enter into binding agreement

Requirements of Proposal Duty must unequivocally require action Preserve autonomy, reduce proceduralism Extend across all strands Clarify roles of public bodies, local stakeholders and audit bodies Facilitate compliance through goal-oriented, action based duty

Proposal General duty to take such steps as are necessary for progressive realisation of equality Equality defined as redressing disadvantage, equal dignity and worth, accommodation and affirmation of identities and equal participation Specific duty in five phases: diagnosis, consultation, action plan within business plan, monitoring and public disclosure.

Questions remaining ‘Equality’: Capture goals for all sections Is the formulation of general duty right? Proportionate action for all strands? Competition? Do we have necessary minimum specific duties? Equal pay? Secretary of State? Private Sector? Enforcement?