PRACTICAL ASPECTS OF USING AND APPLYING THE PUBLIC SECTOR EQUALITY DUTY Louise Whitfield Pierce Glynn 19 January 2012

SOURCE MATERIALS to help you use & apply the PSED Wording of s.149, EA 2010 & case law Regulations for specific duties – Previous govt consulted on draft – Current govt re-drafted and consulted – Came into force on 10 Sept 2011 EHRC guidance on: – public sector equality duty – aspects of general duty & parts of specific duties – guidance in a state of flux

The Equality Act 2010 (Specific Duties) Regulations 2011 Reg 2: each public authority listed in either Schedule must publish information to demonstrate its compliance with PSED Sch 1 auths: by 31 January 2012 & annually Sch 2 auths: by 6 April 2012 & annually Reg 3: each public authority must prepare and publish “specific and measurable” objectives by 6 April 2012 then every four years

GUIDANCE Earlier versions of equality duties had statutory codes: race, disability and gender No statutory code yet, only non-statutory guidance (with revisions but incomplete) But even non-stat guidance should be conscientiously taken into account SBS judge also said public body would “have to justify its departure” from non-stat guide

EHRC GUIDANCE: 5 VOLUMES Vol 1: The essential guide to the PSED, Jan 2011 Vol 2: Equality analysis and the equality duty: a guide for public authorities, Jan 2011 “Vol 3”: Engagement and the equality duty: a guide for public auths (revised) Dec 2011 “Vol 4”: Objectives and the equality duty: a guide for public auths (revised) Dec 2011 “Vol 5”: Equality information and the equality duty: a guide for public auths (revised) Dec 2011

EHRC guidance: volumes 1 & 2 Vol 1: the essential guide to the PSED o Some parts out of date because predates new version of specific duties o Provides overview/principles from case law (p. 10) o Assessing relevance (p. 12) o Commissioning & procurement (p.29) Vol 2: equality analysis and the equality duty o “analysis” was aspect of specific duties that has been dropped; it was to replace the concept of EIAs

EHRC guidance: volumes 3, 4 & 5 Engagement and the equality duty: o No explicit legal requirement but engagement helps with evidence base; “case law states...engagement is important”, p.6 o Proportionate and integrated, pp Objectives and the equality duty: o Specific and measurable; proportionate o See examples on p. 11 Equality information and the equality duty: o Regs require publication o What to gather and how: examples on pp.10-11

PUTTING IT INTO PRACTICE: TWO ANGLES TO CONSIDER Public authority’s overall approach to PSED: o Screening existing policies and practices o Integrating general and specific duties o Positive, proactive, supportive engagement Specific decisions and new policies: o Where is evidence duty met? o Look at timing, information, engagement o Importance of raising concerns early

PUBLICATION DEADLINE: 31 JANUARY 2012 Be aware of what the public authorities you work with are meant to publish (see Regulation 2(1)) Information to demonstrate their compliance with s.149 EA 2010: PSED What do you think of the info? What is it based on? Where is the evidence? How did they gather the information? Did they ask you what you thought?

HAVE YOU BEEN ENGAGED? Equality objectives must be set by 6 April 2012 (see Regulation 3) What the auth thinks it should achieve to do any of the things mentioned in s.149(1) Have the public authorities you work with engaged you, your members or service-users in setting their objectives? If not, why not? Who have they engaged with and how have they set their objectives?

PRACTICAL ASPECTS OF USING AND APPLYING THE PUBLIC SECTOR EQUALITY DUTY Louise Whitfield Pierce Glynn 19 January 2012