The importance of equality of opportunity in UK public policy has grown steadily over the last decade and a half to the point where the concept has become, in the words of Court of Appeal judge James Munby, a “fundamental of our society.”
A public sector equality duty, initially introduced for the National Assembly for Wales and all public authorities in Northern Ireland in 1998, now applies across the UK. Public authorities in Great Britain (England, Scotland and Wales) are required to have “due regard to the need to advance equality of opportunity” among specified groups; in Northern Ireland, the duty is to have “due regard to the need to promote equality of opportunity.”
The groups covered by the legislation are those of differing religious belief, political opinion, gender, race, disability, age, marital status, dependants and sexual orientation, with political opinion also a protected category in Northern Ireland, a region with a history of discrimination against sections of the community perceived to have an Irish nationalist political outlook.
Despite the steady increase in emphasis on equality of opportunity in the political discourse of the New Labour years (1997 to 2010), inequality of outcome, in terms of incomes, continued to grow, albeit at a slower rate than under the previous Conservative governments (as highlighted by Danny Dorling of the University of Sheffield). Given the questionable commitment of the current Conservative-led coalition government to equality, it is appropriate to ask whether the equality of opportunity legislation is strong enough to prevent vulnerable social groups being left behind.
Promoting real opportunity
Indications to date are less than promising. Most scholars and the British courts agree that equality of opportunity is about more than the mere elimination of discrimination, but requires proactive measures to ensure that every individual can avail of the same set of opportunities in life. In particular, this may entail specific measures to assist particularly or historically disadvantaged social groups.
Yet when public bodies have come before the courts to answer a claim that the equality duty has been neglected, judgements have made clear that that having “due regard” to the need to promote equality of opportunity can fall a long way short of taking actual measures to achieve it.
In the leading Court of Appeal judgement on the public sector equality duty in Great Britain, Lord Justice John Dyson – since elevated to the Supreme Court – held that there is no duty to take any step towards the achievement, advancement or promotion of equality of opportunity, only to have “the regard that is appropriate in all the circumstances” to this objective, “all the circumstances” including whether a competing policy objective exists.
In Northern Ireland, the courts have proven timid even to engage with the public sector equality duty. The High Court judgement in the leading case here concludes that the ‘duty’ is a political, rather than a legal matter, with authorities in breach to be exposed by the region’s Equality Commission and subject to the criticism of central government rather than forced to mend their ways by the courts. Although the Court of Appeal retreated somewhat from this position, the number of cases to come before the courts remains very small and it is clear that the chances of a public authority being ordered to revise a policy are slim.
Compliance with the equality duty therefore becomes a largely procedural matter. The question for a public authority is not whether its policy promotes or advances equality of opportunity, but whether it fully considered the likely impact on equality of opportunity during the policy development process and in consultation with organisations representative of the groups specified in the equality legislation.
In the context of austerity
All this legal wordplay matters greatly in the current context of deep cuts in public spending. Many of the changes to public services and social security being introduced by the coalition government have clear potential to impact negatively upon groups that theoretically benefit from the protection of the equal opportunities legislation, particularly women, people with disabilities and people with larger numbers of dependents.
Lynn Carvill, of the Belfast-based Women’s Research and Development Agency, has described welfare reform measures already introduced for Great Britain and currently being considered by the Northern Ireland Assembly as “the biggest ever attack on women’s economic autonomy,” echoing criticisms of a series of Coalition policies since it took office in 2010.
There therefore appears to be little prospect that the public sector equality duty will be capable of preventing further attacks on equality in the UK, much less reducing current levels of inequality.
Areas of particular concern include radical reform of the social security system, which the government has acknowledged creates a greater incentive for (usually female) second earners to withdraw from the labour market, reduced support for childcare through the tax credits system and the payment of benefits to the (usually male) main earner.
These reforms erode women’s opportunity to have an independent income, access contributory benefits, which depend on the payment of national insurance contributions during specified periods of paid employment, or build a good pension – all areas in which women already fare worse than men.
A new cap on a household’s total income from social security benefits will disproportionately affect those with greater numbers of dependents, while local government budget cuts are eroding services for disabled people in many areas of England. Worse may be to come: Conservative Member of Parliament Philip Davies has even suggested it should be permissible to pay employees with disabilities less than the minimum wage.
The deficiencies inherent within the equality legislation are laid bare in the judicial response to challenges to public service cuts. Courts have repeatedly held that as long as the public authority has considered the likely impact on a protected group of a proposed policy, it is for the authority to decide how much weight to afford this impact in the decision-making process in comparison to other considerations, as long as its conclusion is not wholly irrational.
Often, it has been cuts to services aimed at people with disabilities or minority ethnic communities that have prompted proceedings. Judgements have made clear that as long as the impact on equality of opportunity has been assessed and the feasibility of mitigating measures considered, affording greater weight to the desirability of reducing public expenditure than to the promotion of equality of opportunity will not be considered irrational.
There therefore appears to be little prospect that the public sector equality duty will be capable of preventing further attacks on equality in the UK, much less reducing current levels of inequality. The EU’s equal treatment legislation is no more promising, being focused on the elimination of discrimination against people on certain grounds of race in specified circumstances, not on the promotion of proactive measures to address the disadvantage experienced by certain groups.
What can be done?
The Equality Act 2010, which introduced Great Britain’s public sector equality duty in its current form, also included a requirement that public authorities have “due regard to the desirability of exercising [strategic functions] a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.” The potential impact of the provision is limited, again, by an emphasis on having “due regard” to an objective rather than actually achieving it; in any case, it has not been implemented by the coalition government and is now set to be repealed.
Even if the socio-economic provisions of the Equality Act were implemented and a Bill of Rights for Northern Ireland created, effective enjoyment of these rights would face a formidable barrier in the form of resistance on the part of judges and politicians alike to a view of socio-economic matters as judicially enforceable, redistribution of resources being regarded as a political rather than judicial matter.
For Northern Ireland, an alternative means of promoting equality may be through a Bill of Rights. The Agreement reached in 1998’s multi-party talks aimed at ending 30 years of political violence in the region – which is also the genesis of the public sector equality duty – places on the agenda the possible creation of a Bill of Rights for the province, to build on the European Convention rights in light of the “particular circumstances of Northern Ireland.” 83% of the population of the region would like to see a Bill of Rights and 90% think socio-economic rights should be included .
The Courts as promoters of equality
Arguably, however, the true solution lies with the judiciary. Even if the socio-economic provisions of the Equality Act were implemented and a Bill of Rights for Northern Ireland created, effective enjoyment of these rights would face a formidable barrier in the form of resistance on the part of judges and politicians alike to a view of socio-economic matters as judicially enforceable, redistribution of resources being regarded as a political rather than judicial matter.
Persuasive counter-arguments can be made. Grainne McKeever (University of Ulster) and Fionnuala Ní Aoláin (University of Edinburgh) argue that judgements in civil cases routinely redistribute large sums between litigants, or between the state and a litigant, and that refusal to countenance the same in cases involving a discourse of socio-economic rights simply reflects an ideological aversion to extending the principle to other specified areas. Precedent exists in other states, notably South Africa, of courts actively engaging with the upholding of socio-economic rights.
Even if the courts’ view that socio-economic rights are a political matter is accepted, it does not follow that the judiciary has no place in their enforcement. While other European states take a different approach, under the UK constitution every matter is a political matter in the sense that Parliament has the right to make or unmake any law it wishes. Once Parliament has made a decision, it is for the courts to enforce it.
Arguably, if Parliament felt sufficiently strongly about equality of opportunity that it passed a series of Acts from 1998 to 2010, this gives the courts a mandate to uphold the concept. What constitutes “due regard” for equality of opportunity is, of course, open to interpretation, but it is not too great a leap to suggest that the courts’ current view that the duty is essentially to think about equality of opportunity is too cautious.
If equality of opportunity is truly to be a “fundamental of our society,” it may be appropriate to say that “due regard” means taking steps to achieve. This in turn could lead to proactive measures to ensure all groups have equal opportunity to avail of social support even in the absence of specific provision on socio-economic rights.