by Joseph Markus
If anyone was to trust me for a day with unlimited (legal) power, this is what I would do…
The Coalition government, on coming to power, declined to bring into force section 1 of the Equality Act 2010, the duty on certain public authorities to have due regard, when making decisions of a strategic nature, to the desirability of exercising their functions in a way designed to reduce the inequalities of outcome which result from socio-economic disadvantage.
This was a potentially far-reaching addition to the law of England. It built on the various existing (and now consolidated) public sector equality duties (‘PSEDs’) to require authorities to look at, first, outcomes, and, second, underlying socio-economic factors which led to those outcomes. Section 1 embodied an obvious potential for a dramatic overhaul of the role of the law and the courts in ‘social engineering’ through a network of positive duties. It represented a significant break with the individualist and ‘negative’ dominant approach to equality exemplified in discrimination laws.
But that duty, much like the existing PSEDs, consisted of a very formal and limited obligation. The duty was only one to “have due regard”. The government, then, is entitled to ignore the demands of equality just so long as it pays due regard in so doing.
My proposition is this. That a duty be enacted on public authorities (a widely-drawn category for my purposes), following appropriate regard being had to Equality Impact Assessments, to take such steps as appear necessary and proportionate for a progressive realisation of equality (as proposed by the Joint Parliamentary Committee on Human Rights in 2008).
Equality of opportunity/capability will lie at the core of the duty. However, this does not concede the radical potential for change usually associated with outcome-equality. To understand this one need only think about the distinction between targets and strategy. The desired outcome, most agree, is equality of opportunity—in the fullest sense of each of those words. The strategy for reaching that goal will, almost inevitably, involve some number of outcome-based equality measures. This is the point of quotas and other forms of positive action: they are intended to be temporary, until sufficient change has taken place that the protected characteristic no longer leads to the same disadvantage.
The duty, moreover, would expressly make reference to ‘socio-economic factors’. Inequality, inasmuch as it can be delineated, tends to be intersectional. The lived-experience of marginality is never normally forced through one particular (for instance, gender) lens. For present purposes, this admittedly-vague concept seems most appropriately to address the myriad factors that together position an individual in a state of disadvantage. While a full understanding of what ‘opportunity’ demands would probably require a similarly full analysis, in the interests of legal certainty (that the law will hold the government to moving beyond the surface and linear analysis of gender, race and disability) it is worthwhile elucidating precisely what is required.
Enshrining a proportionality requirement within the duty carves out a legitimate role for the courts, as has taken place in the jurisprudence of the South African Constitutional Court in cases such as Government of the Republic of South Africa v Grootboom, Minister of Health v Treatment Action Campaign and Khosa v Minister of Social Development.
A socio-economic PSED would elevate equality to a level comparable to human rights. What is more, unlike human rights, this form of strategic, positive duty would require a systemic approach, in contrast to the often-lamented atomism encouraged by human rights. This is the route to beneficial social change through law.
Lastly, if, as a society, we are dedicated to the norm of equality, it should at least be possible to force our government to be equally dedicated.