Dominic Raab: Perils and injustices in the Equality Act
Two of the major flaws of the last government - excessive political correctness and ill-thought through legislation – found their perfect form in Harriet Harman’s Equality Act. Whilst the aim of bringing together the various disparate strands of anti-discrimination legislation made some sense on grounds of clarity, it was feared that the Bill would become a vehicle for social engineering.
Four hangover provisions of the Act, not brought into force before the 2010 election, left a dilemma for the incoming coalition – the parties have mixed views on them. Ministers acted swiftly to ditch the public sector duty to reduce socio-economic inequality, the notorious "socialism-in-one clause". Then, they reined in plans by the previous government to impose mandatory gender pay audits on business - adopting a voluntary approach, working with businesses to increase transparency rather than generating onerous bureaucratic requirements. So far, so good.
However, in April of this year, the government quietly implemented section 159 of the Equality Act - which for the first time licences positive discrimination in recruitment - where several candidates are "as qualified as each other ". In the Soviet style double-speak of the Equality and Human Rights Commission this is merely "positive action". Yet, when it comes to offering a job, the decisive factor may now ultimately be race, gender, sexuality, age, disability, religion, philosophical belief or other social factors - positive discrimination by any other name. It will be voluntary to begin with, but the Commission clearly expects to coax and cajole its increasing use. Such positive discrimination warps the basic value of equality. It smacks of double standards, and has created bitter divisions wherever it has been tried, mainly in countries grappling with historic injustice or ethnic strife - like Malaysia, South Africa and the United States. Section 159 is a recipe for resentment, stigmatising new recruits and sowing social discord. As Kat Akingbade told the Independent on Sunday when she learnt she had been awarded a new job as a Channel 4 TV presenter on grounds of colour: "Positive discrimination robs an individual of drive and self-motivation; it completely undermines the achievements and abilities of the hard-working and truly gifted".
Putting aside meritocratic objections, from a practical point of view how will a British business know the right social mix to aim for in its workforce? Firms will inevitably need some form of benchmarks or quotas - or else they will have nothing to aim for. New guidance from the Government Equalities Office simply states: "Some information or evidence will be required", to hire on social criteria unrelated to merit, "but it does not need to be sophisticated statistical data or research". Firms can compare the social mix of their workplace to the locality, sector or national data - which could all conflict. Alternatively, a decision ‘may be obtained ... through discussion with workers or their representatives’. So, firms could simply ask their existing staff - or union representatives - which social groups are under-represented. I can just picture David Brent asking the employees at Wernham Hogg which minorities they are excluding. Unfortunately, section 159 was brought into force without proper debate by the new Parliament, so an important opportunity to scrutinise it - on principle and in practice - was lost.
Finally, the government plans to implement a watered down version of Regulations, inherited from Labour, to give effect to the public sector duty to promote equality (under section 149 of the Act). The regulations will require over 25,000 schools, police forces, councils and other public bodies to publish annual reports on the diversity of their workforce, and their efforts to promote and support groups that are disproportionately under-represented. Since "philosophical beliefs" are also now "protected characteristics" under the Equality Act, will schools be expected to hire their fair share of anarchists, and police recruit a reasonable quota of Trotskyites?
In practical terms, the Impact Assessment estimates that the annual cost of compliance will be up to £26million - of which up to almost £18 million will be borne by schools. Perhaps, there are overwhelming countervailing benefits to teaching to be derived from the wave of transparency these diversity audits will deliver. I doubt it. And, ironically, MPs will not even have the opportunity to debate, scrutinise and question the Regulations on the floor of the House before they become law.