House of Commons - Business, Enterprise and Regulatory Reform

Select Committee on Business, Enterprise and Regulatory Reform Second Report

4 Government as an exemplar

71. The Equality Act 2006 lays upon all public authorities the statutory duty, in carrying out their functions, to have due regard to the need to eliminate unlawful discrimination and harassment, and to promote equality of opportunity between men and women. In addition to this general equality duty, which came into effect on 6 April 2007, there are also a series of specific duties, which have been deliberately framed to reflect the lessons learned from the earlier race equality duty which, as one of our witnesses suggested, focussed too much on processes and too little on actual effects.[119] These specific duties are:

To prepare and publish a Gender Equality Scheme that shows how the authority will meet its general and specific duties and setting out its gender equality objectives.

To consider the need to include objectives to address the causes of any gender pay gap.

To gather and use information on how the authority's policies and practices affect gender equality in the workforce and in the delivery of services.

To consult stakeholders and take account of relevant information in order to determine its gender equality objectives.

To assess the impact of its current and proposed policies and practices on gender equality.

To implement the actions set out in its scheme within three years, unless it is unreasonable or impracticable to do so.

To report against the scheme every year, and review the scheme at least every three years.

The first Gender Equality Scheme had to be published by 30 April 2007.

The Secretary of State for Equality told us that the Equal Opportunities Commission had reviewed the gender equality schemes of a number of public authorities as they were published. While the EOC held up some (for example, that of the London Development Agency) as examples of best practice, it was not impressed by others.[120] In the meantime, we had decided to write to all the main government departments about their implementation of the public sector gender equality duty. We asked:

What practical measures have you taken to implement the duty in relation to the employees in your department? Have you undertaken an equal pay audit, or another survey to detect any barriers to the full participation of women in your workforce?

What have you done to address under-representation of women in specific grades or types of post?

Have you reviewed the policies and administrative procedures of your Department for gender bias? What action have you taken to correct any such bias?

Generally, are there any differences in your approach to implementing the gender equality duty from your approach to implementing the race equality duty?

We also asked about the departments' procurement policies, which we discuss below.[121] We received replies from 12 departments, which we are publishing with this Report.[122]

72. The responses showed some variation in the amount of effort departments were making in implementing the gender equality duty. While all have drawn up Action Plans and are conducting or have already held equal pay audits, some are more experienced than others in taking action on equality issues and so far the spread of best practice appears limited. A number of departments told us that they were addressing gender imbalances in their workforce, particularly at senior levels, through training and development programmes and mentoring.[123] Several were trying to ensure diversity through improved recruitment practices, diversity awareness training for the whole workforce or particular groups (such as those involved in deciding on appointments and promotion), and the establishment of women's networks.[124] Fewer mentioned specific attempts to encourage flexible working, and only the FCO and CLG seemed actively to be seeking out further opportunities for job-sharing, part-time posts and other forms of flexibility. In the case of CLG, the assumption was that all posts were open to flexible working unless there was a business case to the contrary, and the FCO required all hiring managers to consider how all jobs might be done flexibly, and was trying to identify posts at senior management level in UK missions that could be job-shares or part-time. The CLG was managing a job-share register to help increase the availability of part-time posts. The Department for Transport was reviewing the actual uptake and practical use of its flexible working policies. DFID was actively expanding flexible working following a study of barriers to women's career progression in January 2005.

73. Similar variations were apparent as far as 'gender-proofing' the formulation and implementation of external (rather than internal, personnel) policies was concerned. A number of departments mentioned that they had constructed and were beginning to use an Equalities Impact Assessment for new policies; some departments had proceeded to screening existing policies to see whether they raised particular diversity problems. BERR, DEFRA, DFID, the FCO and possibly HMT appear to have made most progress on this.

74. We were aware that some interest groups had been disappointed with the rather mechanistic approach of departments to the race equality duty, so we asked whether departments had taken a different approach to implementing the gender equality duty. Most reported that their response was broadly similar, though they noted that the need to produce a Gender Equality Scheme with specific actions to be undertaken within a three-year period did make them concentrate more on the desired outcome rather than just the process.[125] Others noted that they had learned lessons from implementing the earlier race and disability duties, in involving affected groups in drawing up the Department's approach, or in how they publicised the duty and trained people in it.[126]

75. It appears from our short survey that departments are making progress in implementation of the Gender Equality Duty, and that this is leading to actions to promote equality rather than just the establishment of formal processes. However, it is obvious that the pursuit of gender equality through positive action (rather than merely the avoidance of discrimination) is a new departure for some departments, and they appear to find it easier to adopt appropriate policies for their own employees than to examine the effect of their policies on their clients. There are some fine examples of best practice, which have yet to spread. We look to the Secretary of State for Equality to maintain pressure on all departments to catch up with the best. The three-yearly review of the Schemes provides a good opportunity to do so.

76. The Discrimination Law Review suggested the merging of the various equality duties into a single equality duty, and requiring public authorities to focus on a limited number of priority areas.[127] This has raised concerns that some of the specific actions now being undertaken, particularly in relation to gender and disability equality, would have to be dropped from action plans to ensure a limited number of priorities across the range of diversity issues. We raised this issue with the Secretary of State for Equality. She said: "There is no point, for the sake of it, putting everything into one single duty if we can keep a clear focus on individual strands and keep those duties". She noted that while some problems were common to various groups who have suffered from discrimination, others were particular to, for example, disabled people, ethnic minorities or women.[128]

77. It would be regrettable if some of the useful actions undertaken to comply with the public sector Gender Equality Duty were lost as a result of a 'tidying-up' process. There is an argument for introducing a consistent approach to the various equality duties, and the focus of the gender duty on outcomes is the appropriate model. However, this does not mean that there has to be a single equality duty: the barriers faced by different groups vary, as do the solutions which need to be applied. Legislative neatness should not take priority over a flexible approach.

Public procurement

78. A number of our witnesses thought that the Government and other public authorities could use the £125 billion a year that the public sector spends on acquiring goods and services as leverage to promote gender equality, as well as other social aims. The Mayor of London suggested that the public sector gender equality duty should contain an "absolute requirement" to ensure equality when procuring services.[129] The Fawcett Society believed that government contracts should be awarded only to organisations with a good record on gender equality.[130] The EOC supported the use of procurement to spread best practice in diversity and equal pay; while the TUC considered that the private sector would eventually have to undertake equal pay audits in order to meet the gender equality requirements of public sector purchasers of their goods or services.[131] The Women and Work Commission held a round table on procurement, and found a sharp division between those recommending a cautious approach for fear of breaching EU internal market rules on public procurement (the Office of Government Commerce, the government body charged with the duty of promoting best practice in the area of public procurement) and those such as the Greater London Authority and the Olympic Delivery Authority already incorporating various requirements into their contracts. Baroness Prosser considered the approach to equalities and training adopted in the GLA's London Underground contracts exemplary.[132]

79. The CBI and TUC told us that there was only patchy evidence of public authorities outside London including equality provisions within their contracts.[133] The CBI reported disillusionment among its members, who had found that even if they were asked to provide evidence of effective diversity policies when tendering for public contracts, the contract was simply awarded to the lowest bid: "it does nothing for this whole issue of diversity or the commitment to diversity if, having put in your bid, you know it has just gone to the lowest bidder who has not actually made any attempt to address the diversity agenda." [134] This experience was true of both central and local government purchasers.[135] Despite this, the CBI believed that procurement could be a highly effective tool for encouraging equality, as long as value for money remained the paramount criterion for the award of public contracts, the purchasers made the obligations in respect of equal pay clear enough to be properly understood, and those judging bids remembered that SMEs were unlikely to have specialist HR departments and therefore might find it difficult to demonstrate that they met some equality criteria.[136] Informal contacts that we have had with businesses, including with staff involved in bidding for contracts, have also indicated that some companies are not at all concerned about the possibility of introducing requirements in respect of gender equality into public sector contracts, on the grounds that they are meeting best practice in their procedures already and would be happy to demonstrate that, and believe that such requirements are within the law

80. We were not surprised by the divergence in opinion over what was permissible under EU procurement law, as we had already heard evidence to this effect in the course of our inquiry into 'The future of UK manufacturing: public procurement', and commented on this matter in our Report.[137] We concluded:

There is clearly scope for greater use of public procurement to promote social policies such as vocational training and the public duty to promote equality. However, there are awkward legal requirements and the best practice guidance just highlights the complexity of the area and the difficulty of complying with the rules. We recommend that the Government look again at its best practice guidance to see if more helpful advice can be given…[138]

81. We included a question about approaches to public procurement in our questionnaire to government departments. Several respondents stated that they were already following or were revising their internal guidelines in line with the OGC's guidance and best practice across government in meeting the public sector equality duties.[139] In some cases, it was not clear whether the departments were thinking only in terms of whether the services provided under the contracts met equality standards, rather than whether the contractors themselves were obliged to meet them. However, the Home Office explained that the company IPS was undertaking a pilot project for the public sector, among other things, to review the tender terms and conditions to ensure that all 'delivery partners' and third party suppliers of goods and services "meet their own standards" in equality and diversity. The FCO stated that all bidders, potential and actual suppliers were asked to provide evidence of their diversity policies. The DWP took a different approach: the most recent New Deal contracts, which came into operation in the summer of 2006, contained clauses that required successful bidders to monitor and report to the DWP on the ethnicity and gender of their employees and on the number of disabled employees.[140]

82. The Secretary of State for Equality was aware of the criticisms that official government advice was too timid in respect of promoting social issues through contractual requirements on suppliers. She noted the work on the role of public procurement being undertaken by the National Employment Panel's Business Commission on Race Equality in the Workplace, and suggested that this might be relevant to gender equality too. She also told us that she was considering the reasons for the Mayor of London's success in pioneering the promotion of gender equality clauses in contracts, which—she suggested—might have been helped by the fact that the legislation setting up the office of Mayor gave a clear, specific power to promote equality. The Secretary of State speculated that some public authorities might be deterred from attempting the same by the fear that they would be challenged on the grounds that they had no authority to do so. She stated that the Government was looking seriously at how to achieve other objectives through procurement policy at the same time as value for money.[141]

83. We consider that the advice given by the Office of Government Commerce in its guidance, Social issues in purchasing, is too timid. There appears to be greater scope for public bodies to require of their suppliers not only simple compliance with anti-discrimination legislation, as recommended now, but also demonstration of active commitment to equality principles in the recruitment, terms and conditions of staff. Indeed, we believe that if they do not, public bodies could be challenged as being in breach of their duty to promote gender equality. We accept that it may be easier for larger than smaller companies and for those supplying services rather than goods, to show how they are promoting gender equality, but procurement guidelines already make such distinctions between what it is reasonable to expect of different types of firm. We urge the OGC to review its guidance accordingly.

84. If, for the sake of certainty, the Government concludes it is necessary to introduce a statutory duty to promote equalities through procurement, the proposed Equality Bill appears to be a good opportunity to do so.

Leadership and co-ordination

85. When asked to name their priorities for bringing about the sort of long-term cultural change aimed at by the Women and Work Commission, the witnesses from the EOC said their first was strong leadership from the Government and the new CEHR.[142] They stated "although there has been a flurry of activity since the report's recommendations were made … we were not convinced that what is going on is sufficiently strategic", adding that, in addition to a failure to finance initiatives enough, the Government was not giving sufficiently clear and high profile leadership to take the recommendations forward. They argued that there needed to be better co-ordination between and even within government departments, closer working with employers, trade unions and organisations like the EOC; and that the Government had to set a timetable for progress (they suggested that the aim should be that within ten years it was clear that the pay gap was going to be closed in this generation), otherwise a pay gap would persist until 2085.[143]

86. Baroness Prosser was less worried about the level of government commitment to change—or perhaps she had been less optimistic in the first place. She said that she was just pleased that the Government had issued an Action Plan at all and was surprised that as much had been achieved as the Government indicated. She considered that there was no need for significant extra funding, although she did think that some areas (such as careers advice and improving work experience in schools) needed to be funded specifically, but she thought political will was essential.[144] When pressed to give examples of lack of coherence in government, Baroness Prosser said that some parts of the (then) Department of Trade and Industry were very good—by implication, others were not—but she was disappointed that the Department for Communities and Local Government did not do more to build on "the relationship between local government and its delivery, its employment of women, its services to women, and the equality agenda." She considered that the Department for Work and Pensions was more aware of the needs of women in relation to work, and the (then) Department for Education and Skills was good in relation to training needs.[145]

87. As Amicus succinctly explained, the action that needs to be taken to address the gender pay gap varies from sector to sector: for example, the construction and engineering industries need to attract more women apprentices and have to address problems of training and skills, whereas the financial sector already employs roughly equal numbers of men and women but the women are concentrated in the lower grade jobs because of the long hours culture and discrimination.[146] This means that there is no simple template for addressing the problem and concerted action is required across a wide range of public sector activities.

88. We suggested to the Minister for Skills that the Government's one year on report showed that it was not lacking in good ideas and initiatives, but there was little sign of co-ordination and strategic thinking. The Minister thought that all the initiatives were consistent in their aims (he assured us, for example, that his Department's Equality Impact Assessments of all policies were ensuring that gender equality was taken into account in everything it did), and he argued that such a deep-seated problem as the gender pay gap required a many-pronged attack. He also pointed out that the Secretary of State for Equality's role was to ensure coherence across the system.[147]

89. The Secretary of State for Equality accepted that the Government needed to be more ambitious than in its Action Plan about the pace of change and the amount of commitment if it was to achieve its ambition of bringing about a significant improvement in relation to the gender pay gap and other aspects of the Women and Work Commission's recommendations.[148] She made it clear that not only did she accept responsibility for co-ordination of government policy across departments but also she was personally very committed to strengthening government policy in this area.[149]

90. In this context, she denied that the new single Equalities Public Service Agreement (PSA)[150] represented a decrease in government enthusiasm for achieving gender equality. Apart from pointing out that departments would still be expected to work towards the existing PSA targets that had not yet been achieved, she argued that the new PSA was more focused than its predecessor and better suited to achieving progress across the range of government departments necessarily involved in addressing a complex issue like gender equality. She also noted that this PSA was not the only one to deal with equality issues: individual departments had reflected their particular responsibilities for equality in their own PSAs.[151]

91. In common with a number of our witnesses, we were disappointed that the Government's initial response to the report of the Women and Work Commission—the Action Plan published in September 2006—failed to commit the Government to providing the money necessary to implement the recommendations, lacked any timetable (however aspirational) by which progress could be judged, and generally gave the appearance of only a half-hearted acceptance of the outcome of the Commission. The one year on report showed that a substantial number of initiatives were in hand, some of which pre-dated the Commission's report, and greater progress was being made than one might have feared from the initial response. However, there was still the appearance of a lack of co-ordination and direction: it was not clear whether the then Minister for Women was able, amidst her other tasks, to maintain oversight of this complex and cross-cutting area. We are reassured by the current Secretary of State for Equality's obvious commitment to this policy and infer from her evidence to us that she intends not only to co-ordinate the efforts of her colleagues but also to keep up pressure on them to take into consideration and address gender equality issues in all their policies and procedures, in relation to both their clients and their employees. To ensure that this commitment is translated into effective practice, we recommend that all Select Committees should see monitoring in this area as being an important part of their remit and that the relevant Select Committee should continue to press the Secretary of State for Equality to give regular reports on progress.

119 Q 83 (EOC) Back

120 Qq 236-237 Back

121 Paragraphs 79-85 Back

122 The 12 respondents-and their acronyms-are as follows: Department for Business, Enterprise and Regulatory Reform (BERR), Department for Communities and Local Government (CLG), Ministry of Defence, Department for Environment, Food and Rural Affairs (DEFRA), Foreign and Commonwealth Office (FCO), Department of Health, Home Office, Department for International Development (DFID), Department for Transport, HM Treasury (HMT), Wales Office, Department for Work and Pensions (DWP). Back

123 BERR, CLG, DEFRA, FCO, Health, Home Office, DFID, HMT, Wales, DWP Back

124 BERR, Home, FCO, DWP, Transport, Defence, DWP, Health, DFID Back

125 CLG, DEFRA, Health, HMT Back

126 Transport and DWP Back

127 Discrimination Law Review, Chapter 5, especially paragraphs 5.21-5.24, 5.31 and 5.39 Back

128 Q 239 Back

129 Ev 90 Back

130 Ev 88 Back