Delivering Equality: Drafting an Outcome-Focused Positive Duty

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Delivering Equality Drafting an Outcome-Focused
Positive Duty

• Sandra Fredman and Sarah Spencer
• Oxford University

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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

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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

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The Goal Equality
Equal Treatment
Fails to recognise different needs
Equality of Opportunity
Equality of Results

• Removal of demand side barriers
• OR facilitation, empowerment?
• Difficult to quantify - becomes results

• Can mask inequality within groups
• Inappropriate for individuals
• Ignores qualitative change

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Sens 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

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Dimensions of Equality

• 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

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Equality DimensionsRecognition

• Promote respect for equal dignity and worth
• Against stigma, harassment, humiliation and
  violence
• Accommodation and affirmation of identity. Beyond
  Identical Treatment
• Facilitate full participation in society

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Two Models
Complaints-led
Positive Duty

• Reliance on individual litigation
• Unlawful discrimination unremedied

Shifts responsibility to organisation to identify
and address unlawful discrimination

• Discrimination
• Individual fault, victim and remedy

• Address institutional and group inequality

• Proactive adjustment

1. Retrospective

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Two Models (cont)
Complaints-led
Positive Duty

• Conflictual defensive

Catalyst for broad range of incentives

1. Narrow issue of discrimination

Broader causes e.g. transport, childcare

1. Qualitative dimension missing

Respect for dignity and equal worth
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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.

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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

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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

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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

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Duty on Whom?

• Private Sector??
• Public Sector Listed bodies or public
  functions?
• Each authority subject to same duty

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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

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Monitoring Performance

• Core Business
• Audit and inspection bodies
• Parent statute

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Compliance

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

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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

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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

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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.

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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?