Equalities out, “fairness” in?

So Theresa May has announced, outside of Parliament, that the Government will not be implementing the socio-economic duty for public bodies which was originally part of Labour’s Equalities Act 2010. The tone of the announcement was rather different from the signals the Government were giving back in July when it looked like they were going to continue with the equalities agenda set by the previous government. Back then the only part of the Equalities Act that was apparently under scrutiny was the proposed requirement upon employers to publish pay data, which had the potential to expose the existence of a gender pay gap. While that part of the legislation is still looking vulnerable, the focus of Ms May’s current displeasure is the socio-economic duty which she has dismissed as ‘politically motivated’.

It appears that Lib Dem Lynne Featherstone followed up her Minister’s statement by describing the socio-economic duty as “new and unnecessary” and continued: “I said at the time that this was a weak measures, that it was gesture politics and that it would not have achieved anything concrete”. On the one hand, it is disturbing that a Lib Dem is being taken as supporting the Tory line on an equalities issue. But, on the other hand, Featherstone’s point appears rather different. It is not that the socio-economic duty was unnecessarily interventionist – “socialism in one clause” – in the way the Tories are claiming but that it was an inadequate mechanism for addressing entrenched inequality: too weak rather than too strong,

So what’s the fuss all about?

Clause 1 of the Equality Act 2010 states that: “An authority to which this section applies must, when making decisions of a strategic nature about how to exercise its functions, have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.”

This has been criticised as focusing on equality of outcome. But such a clause would never deliver such an result. To think it would is to misunderstand the deep roots of inequality and the limits of the scope for public action at local level to address it. In part it is also because the clause is rather weak. To those in the know the legalese of “have due regard to the desirability” would probably suggest that this was always going to be pretty ineffectual. My understanding is that, to simplify wildly, it is just about the weakest way of acknowledging an issue without actually avoiding entirely a commitment to any kind of action. How does one prove that someone has or hasn’t had due regard to the desirability of something in the process of taking a decision? Documenting that would be a job of work. And debating it could no doubt keep public lawyers happily occupied for hours.

So in that sense the line from Lynne Featherstone looks more plausible to me.

The Tories are, not surprisingly, more keen on equality of opportunity than equality of outcome. From a liberal perspective that is no doubt entirely commendable. But it isn’t entirely clear that Theresa May has much of a grasp of what delivering genuine equality of opportunity actually entails. So the real problem is that she is turning away from clause 1 but doesn’t seem to be making any very concrete suggestions as to alternative mechanisms for delivering the desired outcome (assuming, for a minute,  such a desire is genuine). Clause 1 may have been a bit tokenistic but at least it flagged that this was an area of legitimate government concern and about which it is appropriate to have aspirations for change. The suggestion from the government appears to be that switching to the terminology of ‘fairness’ will somehow assist in furthering the cause of equality of opportunity. Yet fairness, as many have pointed out, is a totally vacuous term without further specification. No one is against fairness, but everyone means something different by it. It can be used to justify all sorts of inequalities if one has a strong enough sense of entitlement and property rights.

While Labour’s legalistic approach was very far from perfect, its abandonment without any plausible alternative is a disturbing development.

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