1. Professor Simonetta Manfredi and Professor Lucy Vickers Centre for Diversity Policy Research and Practice Oxford Brookes University smanfredi@brookes.ac.uk lvickers@brookes.ac.uk.

2. The PSED and Reflexive Law Public Sector Equality Duty created by the Equality Act 2010 Mixed reception – fifth generation of equality legislation (Hepple) – But also: subject to intense and somewhat negative scrutiny Concerns about the adequacies of enforcement Bureaucratic burden

3. The PSED and Reflexive Law Concept of equality used in the PSED is comprehensive and inclusionary. See the work of Fredman and Collins

4. The PSED and Reflexive Law PSED drafted as reflexive law Concerns with the reflexive turn: – insufficient recognition of the conflicting political and economic interests – Reinforcing neo-liberal approaches? – Who determines the stakeholders to be consulted? – Fragile regulatory mechansim

5. What is needed for reflexive law to be effective in practice? The three interlocking mechanisms (Hepple, 2011): 1.‘Scrutiny by the organisation itself to ensure effective self-regulation’ 2.The involvement of ‘interest groups (such as managers, employees and service users) who must be informed, consulted and engaged in the process of change’ 3.‘An enforcement agency (such EHRC) which should provide the back-up role of assistance, building capabilities and ultimately sanction where voluntary methods fail’

6. RAE 2008/REF 2014: A case study of how the three interlocking mechanisms can work in practice

7. Interlocking mechanism one: ‘self-regulation’ Equality proofing of research assessment, (Equality Challenge Unit 2003) : made substantive recommendations to establish new rules (e.g. Reduction of research outputs to take account of maternity leave, part-time working etc.) to achieve objectives to eliminate discrimination by tackling indirect discrimination and to promote equality of opportunities; recommendations to establish processes to put into practice the new rules HEFCE equality guidance RAE 2008

8. Interlocking mechanism one: self-regulation’ Review of the implementation of the equality guidance (ECU 2009) More robust equality guidance issued for REF 2014 – clearer rules (i.e. Introduction of distinction between clearly defined and complex circumstances); Greater level of scrutiny by ECU/HEFCE Greater role exercised by ECU to provide guidance to HEIs and develop their capability through training Retention of equality impact assessments

9. Interlocking mechanism two: involvement of interest groups Information/consultation/engagement within the HE macro-system: HEFCE consultation on the draft equality guidance with HEIs/trade unions Information/consultation/engagement within HEIs micro-system: Development of code of practice and implementation; equality training; equality impact assessment

10. Interlocking mechanism three: assistance building capabilities, enforcement ECU provided assistance (e.g guidance, templates) helped to build capabilities e.i. Train the trainer sessions Setting up Equality and Diversity advisory panel to scrutinise: HEIs codes of practice (these could be sent back if they did meet appropriate standards; HEIs final Equality Impact Assessments

11. What equality outcomes have been achieved? A more inclusive REF submission: 16,361 staff with equality related personal circumstances returned to REF 2014 (EDAP, 2015) Better understanding of what it means to promote equality within the context of the REF Importance of putting equality issues on the research agenda of HEIs Pointing to core issues that prevent the achievement of greater equality in research careers e.g. Work-life balance issues

12. What can we learn from this case study? The flow between the interlocking systems

13. Interlocking mechanism one: development of self-regulation Rules and processes Interlocking mechanism three: ECU/EDAP provide guidance; build capabilities; scrutinise implementation, sanction lack of compliance with self-regulation Interlocking mechanism two: Interest groups: Information, consultation, engagement Involvement in the process of change

14. Should there be a fourth interlocking mechanism? EHRC to initiate judicial review as a ultimate sanction if self-enforcement mechanisms within the system fail?

15. What would happen if the PSED were to be repealed? The Equality Bug – HE System Athena SWAN UKRC equality standards EU funding requiring equality evidence REF Equality Guidance

16. The PSED and Reflexive Law Reflexive law, with its participatory processes may work well where the equality aim is related to participation. Reflexive mechanisms, once ‘infection’ has taken place, may be resilient, even where formal regulation is dismantled.