Memorandum by the Public Interest Research Unit (E 46)

 

DOES THE BILL PROVIDE FOR AN EVER DIMINISHING EQUALITY DUTY (AND IS THIS WHAT PARLIAMENT WANTS)?

 

EQUALITY BILL PART 11, CHAPTER 1 ('PUBLIC SECTOR EQUALITY DUTY)

 

1. SUMMARY

The Public Interest Research Unit (PIRU) is a small UK charity which promotes democratic practice, civil rights and social inclusion; and has a strong focus on anti-discrimination law.

 

PIRU welcomes the proposed extension of equality duty coverage to additional equality strands. We note, however, that - unless Part 11, Chapter 1 of the Equality Bill is amended - the number of bodies and functions subject in law to the Equality Duty is likely to be far fewer than the number that Parliament appears to have intended to be subject to the Race, Disability, and Gender Equality Duties.

 

Further, as more and more public authority functions are contracted out, fewer and fewer functions will be subject to the Equality Duty; and, as the Work and Pensions Committee argued at recommendation 39 (1), "there is a concern that the equality duties will become of ever diminishing practical significance".

 

If such a diminution is the Government's intention (perhaps based upon a continued taste for deregulation), it needs to be candid about this, and so give Parliament and the public the informed opportunity to decide whether or not they agree.

 

The reasons why the Equality Duty appears set, unless amended, to be inadequate and diminishing include:

(a) The Schedule 19 list, of persons subject (except when specified otherwise) in relation to all of their functions, is startlingly short; and omits many organisations which would normally be understood to be public authorities; and there is no good reason to believe that the Minister will by order substantially expand this list.

(b) Equality Bill clause 144 (5) provides that those not on the Schedule 19 list must, to be subject to the Equality Duty at all, exercise a function which meets the Human Rights Act (HRA) definition of a function of a public nature. If Parliament adopts this clause unammended, it will leave no doubt that (for the purposes of Equality Duty cases in the High Court) the correct interpretation of 'a function of a public nature' is the highly restrictive one given in the House of Lords surprising majority decision in YL (2). We believe that this would be a disaster for the potential effectiveness of the Equality Duty.

(c) Even if an organisation, not on the Schedule 19 list, is taken to be subject to the Equality Duty in relation to, for instance, a particular public authority contract, it will not be subject in relation to most or any of its other functions. These functions, however, may (such as in the case of equalities training and other HR functions) have a substantial impact upon equality and on how the contracted function is performed.

The use of the definition from the HRA (upon which the judgement in YL arguably placed a complex, narrow, and contradictory interpretation), and the lack of effective enforcement mechanisms, will tend to leave organisations confused as to what if any of their functions the Equality Duty applies to; and will provide the opportunity for organisations to breach the Duty with little or no prospect of enforcement action being taken. For example, as we noted in our evidence (at Q101) before the Work and Pensions Committee (3), just one of the Government's 11 Employment and Support Allowance (ESA) 'Prime' contractors appeared to regard itself as subject to the Disability Equality Duty; whereas there seems no doubt (even after YL) that all are subject to the Duty in relation to their ESA contracts.

 

To help ensure that the Equality Duty is not of limited and of ever diminishing practical significance, and (relatedly) to implement the Work and Pensions Committee's recommendation 39, we suggest that the Equality Bill be amended so as to provide the following (a possible wording for such an amendment is included below at para. 3.2).

(a) The Equality Duty should (with specified exceptions, such as, for example, 'either House of Parliament' and 'judicial functions') apply to all the functions of all bodies with any 'function of a public nature'.

(b) The definition of 'function of a public nature' should be broadened from that indicated in YL (2), and, in particular, should incorporate the definition in recommendation 39 of the Work and Pensions Committee's report on the Equality Bill (1); take proper account of the suggestions of the Joint Committee on Human Rights' report (4); and ensure that sub-contractors, as well as contractors, are covered.

(c) At the earliest opportunity, the Government should introduce a separate interpretative statute to ensure that the definition of 'functions of a public nature' in the HRA, and other statutes, is brought into line with the (proposed) new definition in the Equality Act 2009.

 

2. EVER DIMINISHING COVERAGE (clauses 143-146)

2.1 the problem with the Equality Bill Schedule 19 short-list

list startlingly short, and will create legal confusion

2.1.1 The Equality Bill (EB) Schedule 19 list of public authorities is startlingly short, and omits many organisations which would normally be understood to be public authorities (including 'pure' public authorities). The argument for a list appears, in the EB explanatory notes (para. 475), to be that it would 'provide legal certainty'. However, on account of the nature of the bodies in the list, it seems unlikely that there would (even in the absence of a list) be much or any uncertainty as to their status as public authorities. Indeed, it may well create considerable confusion (and work against the promotion of human rights and equality) to have one system for determining public authorities for the purposes of the Equality Duty and another (which relies upon a definition alone) for the purposes of the Human Rights Act.

 

2.1.2 It might also be noted that the Joint Committee on Human Rights cautioned (4) against the use of an HRA list of public authorities, arguing, for example, that "Providing a list of public authorities ... could lead to inconsistency and confusion as to whether 'unlisted' ... public authorities should be considered subject to the application of the HRA' (para. 137). Comparable arguments would appear to apply to an Equality Duty list.

 

Minister will have excessive power over the list

2.1.3 The Schedule 19 list would, of course, be open to amendment by a Minister. However, there seems no strong reason to expect that a Minister would, in the near future at least, add additional existing organisations (since, presumably, Ministerial thought was given to what should be included in the list in the Bill). Further, the use of a list arguably gives the Minister excessive power to (including, perhaps, for what should be irrelevant reasons) decide who to not include; and, of course, there may be significant delay (during the very time that organisational structures and policies are being put in place) in adding newly formed organisations.

 

2.2 the problem with the Equality Bill definition of 'function of a public nature'

2.2.1 It might be argued that the shortness of the list would not be a problem, as clause 143(2) would bring other bodies, with a function of a public nature, partially within the scope of the Equality Duty. We would argue, however, that the use of the short list, along with (what, after YL, is in effect) a weakened definition of 'functions of a public nature', will lead to legal confusion, inadequate and diminishing equality duty coverage, and general non-compliance.

narrow definition of functions of a public nature

2.2.2 The majority decision in YL (2) in the House of Lords established, for the purposes of the Human Rights Act (HRA), a highly restrictive interpretation of 'functions of a public nature'; which Baroness Hale 'had no doubt' (para. 73 of judgment in YL) was at variance with what Parliament had intended. If, however, Parliament now adopts the HRA definition, as provided for in the Equality Bill Equality Duty clauses, it will leave no doubt that Parliament's intention is that 'functions of a public nature' carries, for the purposes of the Equality Duty, the interpretation placed upon it in YL (with the possible addition, as a result of the Health and Social Care Act 2008, of 'certain social care'). We believe that this would be a disaster for the potential effectiveness of the Equality Duty; and would clearly be contrary to the Work and Pensions Committee's recommendation 39 (1).

 

the definition would mean that an ever diminishing number of functions would be subject to the Equality Duty

2.2.3 (a) many contracted-out public authority functions will not be subject to the Equality Duty'

'Public authorities' listed in EB Schedule 19 would (unless specified otherwise) be subject to the Equality Duty in relation to all their functions. However, many of the functions which these public authorities contract-out will not be subject to the Duty. This is, in particular, because private and third sector contractors would only be subject to the Duty 'in the exercise' of their functions of a public nature, and because (including on account of YL) many of their functions contracted from public authorities will not be taken to constitute functions of a public nature.

 

2.2.3 (b) private and voluntary sector contractors not subject in relation to other functions

Private and third sector organisations which are subject to the Equality Duty, in relation to a contracted function, may well not be subject in relation to most or any of their other functions (see clause 143(2)). These other functions, however, could have a substantial impact on equality; and, indeed, on the contracted function. For example, how HR functions are carried out (including, for instance, whether equalities training is provided) will tend to have a considerable impact on whether a contracted function is carried out in a discriminatory fashion. Nonetheless, HR functions will probably not be taken to constitute functions of a public nature.

 

2.2.3 (c) uncertainty, non-compliance, and evasion

On account of the definition being the definition in the Human Rights Act (the interpretation of which the judgment in YL has arguably left complex, narrow, and contradictory) many organisations will not know in relation to which (if any) functions they are subject to the Equality Duty. Further, along with the absence of effective enforcement mechanisms, this definition will provide the opportunity for organisations to breach the Duty with little or no prospect of facing enforcement action. For example, as we noted in our evidence (at Q101) before the Work and Pensions Committee (3), just one of the Government's 11 Employment and Support Allowance (ESA) 'Prime' contractors appeared to regard itself as subject to the Disability Equality Duty; whereas there seems no doubt (even after YL) that all are subject to the Duty in relation to their ESA contracts.

 

2.2.3 (d) as more and more public authority functions are contracted out, the Equality Duty will become of ever diminishing practical significance

The Work and Pensions Committee, in recommendation 39, argues that "As more and more public functions are contracted out to private and third sector organisations, there is a concern that the equality duties will become of ever diminishing practical significance' (1). However, the Government, in drafting the Equality Bill, has so far ignored or rejected the recommendations that the Work and Pensions Committee went on to make in recommendation 39.

 

3. NEED FOR AMENDMENT

3.1 rationale for proposed amendments

3.1.1 To help ensure that the Equality Duty is not of limited, and ever diminishing practical significance, we consider that Part 11, Chapter 1 of the Equality Bill needs to be substantially amended; and that such amendment needs to take proper account of the concerns and recommendations of the Joint Committee on Human Rights (4) and the Work and Pensions Committee (1). We, therefore, suggest the amendments set out below at para. 3.2.

 

3.1.2 The arguments for the suggested amendments are set-out above in paras. 2.1 to 2.2. In brief, it seems central to the effectiveness of the Equality Duty that (with specified exceptions, presumably including, for example, 'either House of Parliament' and 'judicial functions') it applies to all the functions of all bodies with any function of a public nature; and that the definition of 'functions of a public nature' be broadened from that indicated in the surprising majority House of Lords judgment in YL (2).

 

3.1.3 These points appear to be consistent with the Work and Pensions Committee's recommendation 39. There, the Committee agues that "there is a need for clarification in the forthcoming Bill that private and third sector organisations carrying out public functions need to fulfil the same requirements as public sector organisations in terms of promoting equality...". This would appear (in "a need to fulfill the same requirements") to indicate the need for the Equality Duty to apply to all the functions of such private and third sector organisations. The Committee also recommends (again in recommendation 39) that "Any person or body acting on behalf of a public body should be deemed to be exercising a public function". This would appear to indicate the need for a definition which is considerably broader than that established in YL.

 

3.2 the proposed amendments

clause 143 (1)

Replace 'A public authority must, in the exercise of its functions, have due regard to the need to -' with the following:

'Unless subsection (2) applies, a public authority must, in the exercise of all of its functions, have due regard to the need to- '

Reasoning

This is to provide that, except in specified cases (such as, for example, 'judicial functions'), all public authorities are subject to the duty in relation to all of their functions.

 

clause 143(2)

Replace existing 143(2) with this new 143(2):

'The subsection (1) duty does not apply to -

(a) any of the functions of a person specified in Part 1 of Schedule 19; or

(b) the specified functions of a person specified in Part 2 of Schedule 19'.

(N.B. The current Schedule 19 list (of public authorities) would, of course, need to be replaced with this list of exceptions).

Reasoning

This new 143(2) would, with the different kind of list at Schedule 19, provide for the kind of exceptions currently provided for under the Disability and Gender Equality Duties. Schedule 19 might include exceptions such as, for example, 'either House of Parliament', 'a judicial act', 'the Scottish Parliament' etc.

 

The existing clause 143(2) would be left out because it implies that a body can exercise public functions without being a public authority (which the proposed amendments would make no longer the case), and because it indicates that unlisted bodies would only be subject to the Duty in relation to their functions of a public nature (which, following on from the Work and Pensions Committee's recommendation 39, the proposed amendments would make no longer the case).

 

clause 144

Replace the whole clause with the following new clause 144:

(1) For the purposes of this Act, a "public authority" includes any person with a "function of a public nature".

(2) For the purposes of this Act, a "function of a public nature" shall include -

(a) a function which is, or includes acts which are, carried out on behalf of a public body;

(b) a function which is, or includes acts which are, performed pursuant to a contract or other arrangement with a public body which is under a duty to perform the function or acts;

(c) a function which is, or include acts which are, performed pursuant to a contract or other arrangement with a person who (in relation to the function or acts) has a contract, sub-contract, or other arrangement, with a public body which is under a duty to perform the function or act; and

(d) a function which is otherwise a function of a public nature.

 

Reasoning

This is designed to implement the Work and Pensions Committee's recommendation 39 (1), and take full account of the concerns of the Joint Committee on Human Rights (4). It is also, however, designed to ensure (through the inclusion of 'acts') that an overly narrow interpretation is not placed on 'function'; and (through the inclusion of subsection (2)(c)) that sub-contractors (many of whom are taking on public functions) are not necessarily exempted from the Equality Duty.

 

It will be noted that (2)(a) is based upon the Work and Pensions Committee's recommendation 39 (1), and that (2)(b) is based upon the Joint Committee on Human Rights' example of a possible wording for an HRA interpretative statute. We consider that (2)(a) and (2)(b) may very well be interpreted in such as way as not to entail each other; and, therefore, to ensure coverage and certainty, both should be included.

 

clause 145

This would need to be amended to take account of the changed nature of Schedule 19 (which would specify exemptions).

 

NOTES

1. House of Commons Work and Pensions Committee (2009). The Equality Bill: How disability equality fits within a single Equality Act, Third Report of Session 2008-09, Volume I. HC 158-I.

 

2. YL (by her litigation friend the Official Solicitor) (FC) (Appellant) v Birmingham City Council and others (Respondents) (2007) UKHL 27

 

3. House of Commons Work and Pensions Committee (2009) The Equality Bill: How disability equality fits within a single Equality Act, Third Report of Session 2008-09, Volume II. HC 158-II.

 

4. Joint Committee on Human Rights (2007). The Meaning of Public Authority under the Human Rights Act, Ninth Report of Session 2006-07. HL Paper 77, HC 410.

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June 2009