Examination of Witnesses (Questions 20
- 39)
TUESDAY 24 APRIL 2007
MR TREVOR
PHILLIPS OBE
Q20 Mr Hands: Do you think in a very
general way that the introduction of a single Equality Act is
necessary for the Commission?
Mr Phillips: Yes, without question.
If you would like me to expand on that, I am happy to do so. Let
us start from the proposition that at the current moment our mandate
in various ways encompasses or touches 91 different pieces of
legislation, European directives, regulation and so on. Secondly,
there are different standards often unnecessarily applied to different
kinds of inequality. Thirdly, there are already three different
kinds of positive equality duty on the public bodies. For private
sector bodies and public sector employers there are different
standards deriving often from European directives. All of this
makes the business of ensuring that people are treated equally
dozens of times more difficult than it needs to be. That is one
of the reasons that it is so difficult. It is one of the reasons
it is so difficult to measure. That is why in the Equalities Review
we were very clear; that is to say that we need one single framework,
and in a sense we want to fly our contressa here, to have
as few complexities as are necessary in this regime, which has
grown up over the last 30 to 40 years rather haphazardly. Now
is a great opportunity. It is a tremendous opportunity to rationalise,
to make it simpler and that way make the process of ensuring greater
equality easier. If you make things easier, generally speaking
they are more likely to happen.
Q21 Mr Hands: To summarise, it is
not essential but it makes your job a lot easier?
Mr Phillips: If you were to ask
me "is it essential?" I would also say "yes"
to that. I think at the moment we are going to run out of capacity
to manage some of the differences and I suspect that sooner or
later—and I am not a lawyer—we are going to run into
some clashes in court about dealing with the requirements of different
pieces of legislation, never mind the new gloss that the Human
Rights Act brings to the whole situation.
Q22 Martin Horwood: Is there not
a risk that you might find yourselves accidentally constrained
by the single Equality Act. You have talked about being flexible
and spotting inequalities where people had not spotted them before.
You talk about carers, for instance. I cannot see that is obviously
covered in the list that is attached in the review to the legal
framework. It does not come under sexual orientation, gender,
disability, ethnicity, religion and belief, transgender or age.
Is there not a risk that a single Act might actually chop out
unexpected inequalities that you would like to take up?
Mr Phillips: There is always a
risk that ill-considered and poor legislation will make things
worse but I know that in this Parliament it is unlikely that that
will happen. The place that we have to start is not from the idea
that a single Equality Act simply mashes together what exists.
We have to start from the idea that a single Equality Act is being
brought in to ensure that we have fairer, more equal outcomes.
The problem with most of the legislation at the present time,
and I would argue this is true about for example the positive
duties, is that they do not start from asking the question: what
will secure a fairer, more equal outcome? What they often do is
ask the question: what will provide a fairer, more equal process,
but these are not the same things. My view is that a new Equality
Act has to be focused on what will guarantee fairer, more equal
outcomes, and therefore I think that is the way to deal with it.
In essence, a new Equality Act focused on outcomes will create
a structure which forces us to ask: what sort of people are being
discriminated against or are facing disadvantage because of what
they are? It does not start from: here are six categories. What
it says is: what is causing inequality? In that situation, if
you did that now, it would almost certainly throw up the answer
that carers in a certain category are faced with a huge disadvantage
in the labour market. The Act would be framed in such a way as
to attack that. Rather than starting with the categories, we start
with: what causes inequality and let us address whatever we find.
Q23 Anne Main: I am interested in
quite a few things that you have said. In your opening remarks
you said that the two most important things facing us today are
how we treat the planet and how we treat each other and the Equalities
Review calls for the single Equality Act to facilitate action
to help groups as well as individuals. How would this work in
practice, given your stated two aims, which sound a little bit
like motherhood and apple pie because I cannot think of a third
one if I wanted to. How would you find this Act would work in
practice?
Mr Phillips: The answer to how
a big new Act like this would work in practice is a rather long
answer, but let me try to respond in this way. A single Equality
Act in my view would, first, set out clearly what we mean by equality,
something which we tried to do in the Equalities Review. This
has two parts. First, is it just about income; is it just about
the absence of discrimination?
Anne Main: I think we have explored those
ideas. I am just trying to envisage that you are broadening the
whole range of inequalities, even the ones people do not know
exist yet because they have not spotted them. Can you envisage
some sort of legalistic nightmare really?
Q24 Martin Horwood: Can I give an
example that might help us? If part of your brief is to facilitate
action by groups and, to come back to my earlier example, if a
Christian group came and said, "We are being discriminated
against by atheists or by this legislation to help gay people",
what process are you going to go through to try actually to work
out what action you are going to facilitate by which groups?
Mr Phillips: Part of our business
is not to facilitate action by groups in that sense. There is
nothing in any current Act and there will be nothing, I do not
think, in a new Act which protects groups. It protects people
against unfavourable treatment because of what they are and that
is rather a different concept. You are asking me about the law
now, not about policy. Forgive me if I am trying to be really
careful here.
Martin Horwood: Can I just quote from
the executive summary on page 13 of the Equalities Review: "It
will be essential that the resulting single Equality Act"
will, and at bullet point two, "facilitate action to help
groups as well as individuals".
Q25 Chair: I think what we are asking
you about is positive action and currently there are barriers
in some cases to positive action being taken to remove the discrimination
against certain groups. The example we have been given is the
Metropolitan Police not being able to adopt a scheme to accelerate
recruitment of well qualified female and ethnic minority candidates,
for example.
Mr Phillips: Forgive me if I did
not understand the question you were asking. Is the question I
was being asked about positive action? The straightforward answer
is this. We found that there were some kinds of inequalities which
simply proved not to be susceptible to what you might call the
conventional method; that is to say, giving people different kinds
of opportunities and so on. You can spend a long time, and people
have done, trying to understand exactly what precisely is the
issue here, and so on, but, even where there has been a great
deal of attention and resource ploughed into it, quite often it
is not changing. There is a distinction, if I anticipate the question
that is being asked here, between what people call positive discrimination,
which is essentially making up for a historical wrong by giving
a particular group of people an advantage, which is not something
I would favour, and what is being proposed in the Equalities Review
Report, which is to offer institutions the opportunity for certain
kinds of flexibility that would allow them to carry out their
basic functions more effectively. The example of the Metropolitan
Police you quote says, with good reason, and I can say this as
a former Chair of the London Assembly, that it is quite difficult
for them to do certain things because they are not diverse enough,
both by gender and by ethnicity, and their method of recruitment
restricts them from changing that quickly. We think that with
the right safeguards it would be reasonable to allow them greater
flexibility. By the way, this kind of flexibility I think is more
likely to be used first within the private sector and was greeted
and is greeted I think with more enthusiasm in the private sector,
where there is a need to move faster. For example, you are a retail
outlet, the population around you changes very quickly, you want
to change the profile of your staff. To some extent, the framework
that we have at the present time prevents you from doing that
quickly to respond to commercial needs. One of the reasons that
the private sector likes this idea, or so the CBI tells us, is
that it allows them in an ordered way to be able to respond to
business and commercial pressures.
Q26 Anne Main: I am not quite sure
I understand quite how you can tailor your staff as your business
needs go. That would sound somewhat discriminatory but I will
move on from that.
Mr Phillips: I can give you in
a sentence a very simple answer. You cannot, for example, now
in an area where the population profile has changed very rapidly
over three years, say, "We would like to attract Asian staff".
You cannot do that. I think that Tesco or Sainsbury, or anybody
else who is in the business of serving a local community would
like to be able to have the opportunity to do that.
Q27 Anne Main: In which case, when
do you expect the Government to try to bring forward a single
Equality Bill? Do you have any timetable that you are working
towards?
Mr Phillips: I think you would
have to ask Ministers about that but my expectation is that Ministers
would like to see something in statute before 2009, but it depends
on when the Discrimination Law Review comes forward and so on.
Q28 Chair: Could I ask you about
the integrated public sector duty to promote equality. Do you
think there is a danger that such a duty would simply become a
tick-box exercise?
Mr Phillips: The reason we propose
this is because we think to some extent the duties that exist
are that. The reason they become tick-box exercises is because
they are more focused on process than they are on outcome. Though
the disability equality duty is more modern than the race equality
duty, we have yet to see how the gender equality duty will work,
but in my view there is very little in the existing duties which
sets out an outcome for public bodies or a structure by which
an outcome can be set up. I think at the moment they are too bureaucratic.
There are too many pieces of paper.
Q29 Chair: Why would an integrated
duty be less bureaucratic and more focused on outcome rather than
process?
Mr Phillips: At the heart of an
integrated duty as proposed by the Equalities Review would not
be: "You must go through these steps". At the heart
of that duty would be to say to a public authority, a local authority,
"The gap between different groups, let us say in educational
outcome, should not be larger than a certain degree". How
we set that is a different kind of argument. Essentially, at the
moment we tell local authorities, "You must go through these
steps" but do not say what their results should be. At the
moment, local authorities can fulfil the public duties, if they
are prepared to do all the bureaucracy, without changing their
outcomes or indeed their practice one iota. It is proposed in
the Equalities Review to say to a hospital authority or local
authority, "We are not going to tell you your business, how
to do things, but we will say if we think something is not acceptable":
for example, that the pay gap should be this large or that the
gap in achievement at Key Stage 4 between Chinese children and
Gypsy and Traveller children should be 60%." That is what
an outcome-focused duty would concentrate on. It would concentrate
on what a community thinks is the right and acceptable gap rather
than on the bureaucratic process.
Q30 Anne Main: Further to that, what
would you envisage as any form of penalty? It does not become
a tick-box exercise. Would you therefore have to regard it as
something that would have to be achieved or what?
Mr Phillips: As you will see in
the Equalities Review Report, we put great store not by fines
and being in the High Court but on transparency. If I may say,
by way of preface, my background is in the private sector and
I am a great believer in competition. I am a great believer that
knowing where you are relative to your competitors is incredibly
important. My own view is that the great driver here will be transparency
and accountability, which means that you have to measure and publish
what your results are. My guess is that the most important thing
about an integrated, positive duty is that we will have a common
framework that states all your outcomes and, secondly, that you
have to publish them, so that your electorate, if you are a local
authority, will know that you are the worst in the country when
it comes to, say, the treatment of women. I think that is going
to be the great driver rather than any other kind of sanction.
Q31 Anne Main: I am sceptical about
that but I shall move on.
Mr Phillips: You are sceptical
about competition?
Q32 Anne Main: No, about how much
impact that name and shame sort of thing would have, but there
you go. You have called for the establishment of a new Equality
Select Committee in the Equalities Review. We touched on this
earlier, about whether or not this would end up perhaps marginalising
the issues. Would you like to say how this would help mainstream
equality issues, if there was an Equality Select Committee?
Mr Phillips: Our view about this
is not inspired, if I may make this point, by any disrespect of
this committee—
Q33 Chair: That is a sensible point
to make, if I may say so.
Mr Phillips: If I may be clear
about this, but more inspired by the fact that we think that equality
and fairness should be tests in the same way as financial probity
is for all parts of government. That is to say, this should not
be a responsibility that is held solely or even principally by
one department. Our view was that we needed to provide every lever
that is possible to ensure that the whole of the Government's
machine is paying attention, is being measured and is being scrutinised
on its performance in relation to fairness and equality and human
rights.
Q34 Mr Hands: You would envisage
something similar to the Public Accounts Committee. You mentioned
financial probity.
Mr Phillips: Precisely.
Q35 Mr Hands: Currently—correct
me if I am wrong, Chair—I think the Joint Human Rights Committee
in Parliament does not have a particularly high profile and is
there a danger that this Equality Select Committee could have
a dangerously equally low profile?
Mr Phillips: With the greatest
of respect, that is down to parliamentarians. All we can do is
provide what we think is the best advice about a framework that
would allow you to scrutinise government in the most effective
way. It was our judgment that this parallel—and you are
exactly right in making the parallel—with the PAC would
be that framework.
Q36 Chair: Is there not an inconsistency
in your suggestions on this matter and the answer you gave to
the first question about not concentrating responsibility within
government within a single department? Would this not exactly
avoid the sort of mainstreaming from the parliamentary select
committee sort of end that you were concerned about, if equality
was concentrated in one single government department?
Mr Phillips: I do not see why
it should do. The point about such a select committee would be
to scrutinise the Government's performance, as a very specific
function. That does not mean that no other body would be concerning
itself with issues of equality. I would expect, for example, the
select committee on the new Ministry of Justice to be asking pretty
serious questions about the way that ministry performs its business
in relation to the treatment of women compared to men and so on.
But it seems to me this scrutinising equality is not achieving
an exclusive business for one body in the parliamentary jungle.
Chair: I think our experience would be
that if you set up a single Equalities Committee it would stop
everybody else trespassing on its patch, but there we go.
Q37 Martin Horwood: I would like
to come back to your monitoring, the naming and shaming kind of
approach to services and local authorities.
Mr Phillips: Naming and shaming
was not my expression, by the way.
Q38 Martin Horwood: It is not a bad
way to describe what you said. Is there not a problem that this
ends up being quite data driven and it misses some of the subtle
discriminations that are difficult to measure? To put a different
example to the one I gave earlier, you could tick the box, as
the Chair said, on something like disability without spotting
the very, very different attitudes that the public and presumably
employers have between, for instance, people who are disabled
and in a wheelchair—where there is generally a very positive
public perception—and people with a mental illness or with
learning disabilities. Do you not see there is this risk of being
very data driven and therefore missing some of those important
subtleties?
Mr Phillips: I do not see why
it has to be either/or.
Q39 Martin Horwood: You described
a process that was very data oriented.
Mr Phillips: That is one of the
things that we are proposing; it is not the only thing we are
proposing. Let me deal with the points you raise. First of all,
comparing performance is not just about isolating who is bad.
In relation to, for example, the other great challenge that I
mentioned, climate change, ask ourselves why it is now that every
major corporate entity produces a report on its carbon footprint
and its performance. The reason is not just because they are all
good guys; the reason is because their competitors are doing it
and they know that becomes part of their profile. For example,
if you talk to them in relation to equality, they now worry—private
sector employees, particularly—that if they get a reputation
for not treating women employees well, they will not get the best
talent from the graduate classes amongst women.
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