The International Experience - Positive Duty
Description
The Race Relations (Amendment) Act (2000) sets both generals and specific legal obligations on listed public bodies throughout the UK. In addition, specific positive gender duty legislation has been implemented in England, Wales, Scotland and Northern Ireland.
Positive Duty is a broader approach to influencing equity by requiring the mainstreaming of equity considerations into all aspects of policy development and service delivery by local authorities and public bodies. At its heart is the need to deliver quality and relevant services. As part of the policy and service development process it is required that an assessment is made of the impact on the policy or service recipients and the service providers - especially those acknowledged to be in the most vulnerable groups. Contract compliance is one mechanism for achieving this.
Such positive duties are designed to compensate for the limitations of existing antidiscrimination law, by requiring the taking of positive steps to promote equality and eliminate discrimination, rather than just compelling a reactive compliance with the letter of the (equality) law.[32]
The Race Duty
In 2000, the UK government introduced a positive duty on public sector bodies to promote race equality in the wake of the Stephen Lawrence inquiry[33].
The provisions of the Race Duties cover both employment and services delivery. The two general duties under Section 71 of the Act oblige public bodies to
'eliminate unlawful racial discrimination'
and
'promote equality of opportunity and good relations between persons of different racial groups.'
Specific duties include[34]:
- Ensue equal employment opportunities in their employment practices
- Prepare and publish a Race Equality Scheme including their plans for assessing and consulting on the impact of any new polices for the promotion of race equality
- Ensure access to information and services to ethnic minority communities
- Train their staff on the implications of the duties.
Northern Ireland
Section 75 of the Northern Ireland Act 1998 introduced a new statutory obligation requiring public bodies to have due regard to the need to promote equality of opportunity for a wide range of groups. As well as dealing with disability and differences of religion and politics, sex, or race, this requirement also extends to people of different ages, of different sexual orientation and to those with or without dependents. It is described as 'mainstreaming' equality considerations into the heart of public policy and decision making.
Separate Schedules of the Act impose several specific Duties upon public bodies and government departments. They must first prepare Equality Schemes setting out how they will fulfil their Duties and second undertake Equality Impact Assessments. In this regard, Section 75 builds on the Policy Appraisal and Fair Treatment (PAFT) Guidelines established in 1993 which had limited effect primarily because they were voluntary guidelines and applied only to government departments.
As a result of the Duty requirement authorities report the implementation of many changes to recruitment, selection and promotion procedures, grant and licence conditions and funding policies. In addition there have been more substantial policy changes
Authorities must undertake equality impact assessments that subject new and existing policies to a systematic process of appraisal to establish their likely impact on the nine different equalities groups. Where adverse impact is identified the public bodies and government departments must also state how they will amend the legislation/policy to ameliorate these effects or introduce other measures to offset them. The Equality Commission for Northern Ireland has established a seven-stage procedure for the conduct of assessments and the outcomes of these impact assessments must be published.
A self-assessed report on progress on positive duty requirements is submitted to the Equality Commission by the public authority. The Commission collates this information and issues an annual report. While the Commission reports considerable variability in the quality of the schemes and the impact assessments the Centre for Public Services reported that, 'All government departments reported positive impacts in policy planning, implementation and assessment and in service delivery. This included increased awareness of equality considerations in the design, delivery and monitoring of policies and services, increased engagement of equalities groups and changes and adjustments to policies and services...(however) Evidence from progress reports in 2002-03 indicated that there was limited evidence that government departments were monitoring the impact of policies that had been equality impact assessed.'[35]
Wales
Sub-section 1 of Section 120 of the Wales Act (1998) requires the National Assembly for Wales (NAW) to:
'make appropriate arrangements with a view to securing that its functions are exercised with due regard to the principle that there should be equality of opportunity for all people.'
Further subsections mandate the NAW to prepare an annual report containing
(a) a statement of the arrangements made in pursuance of subsection (1) which had effect during that financial year, and (b) an assessment of how effective those arrangements were in promoting equality of opportunity.
There are two key limitations on the scope of this Duty. First, it extends only to devolved policy areas such as education, health, economic development and local government. Second, the legal provisions placed by Section 120 on the NAW lack more specific Duties such as Duties to monitor specific methods of implementation and there are few legally sanctioned enforcement mechanisms open to the NAW.
Chaney and Fevre's 2002 report for the Institute of Welsh Affairs[36] assessed progress to date in implementing the legal duty placed upon the National Assembly for Wales by Section 120 of the Wales Act (1998). The report described glowing progress by the Welsh Assembly government in promoting an equalities culture and in mainstreaming equalities concerns throughout executive and Assembly business. However, other commentators suggest that, 'the short time elapsed since the implementation of the Wales Act meant that it was impossible to produce outcome based evidence of progress.' (Centre for Public Services 2004).
The Welsh National Assembly has developed the use of contract compliance to support its positive duty legislation.
They determined they would do this by:
'Developing our Value for Money (contract) criteria to take equality of opportunity policies and practices of suppliers into account; clearly specifying the information we want from prospective suppliers, in order that we can apply those criteria fairly - these should include practical, measurable demonstrations of their commitment to equality in terms of their working practices, recruitment policy, equal opportunity plans and their contractual arrangements with others; inviting prospective suppliers to describe their equality of opportunity policies and credentials to us, whilst taking care not to impose unnecessary barriers to public sector markets; and working with suppliers to identify how their employment and other policies and practices can reflect the code of practice.'
The Assembly executive launched a voluntary code of equality practice supported by a dedicated website. In accordance with EC law, most contracts are still awarded on the basis of open competition, but suppliers who support the new voluntary Code are be assisted with positive action such as guidance on ways to improve their practices, and constructive feedback on unsuccessful tenders. This aims to assist businesses improve their competitive advantage and be better placed to secure future contracts. In the first few months following its introduction 70 new suppliers signed up to the Voluntary Code.
If contractors do not comply with the Code, they will not be invited to tender. Interestingly, procurement performance is measured against six targets, which include value for money and sustainable development but not equality of opportunity.
However 'The Welsh strategy is very much in the 'persuasive' category and falls short of having equalities duties and fair wages as contract conditions and evaluated in the award of contracts.' [37]
Scotland
While the Scottish Parliament has no statutory powers to promote equality, Schedule 5 of the Scotland Act (1998) enables the Scottish Parliament to undertake the following matters:
encouragement (other by prohibition or regulation) of equal opportunities and in particular of the observance of the equal opportunity requirements.
Imposing duties on -
a) any office holder in the Scottish Administration, or any Scottish public authority, to make arrangements with a view to ensuring that their functions are carried out with due regard to the need to meet the equal opportunities requirements, or
b) any cross-border public authority to make arrangements with a view to securing that its Scottish functions are carried out with due regard to the need to meet the equal opportunity requirements.
In 2002 the Scottish Executive signed a protocol ensuring that in all future public private partnerships (PPPs) contract workers will receive 'fair pay' and rights over pensions. The protocol is said to have convinced a number of Scottish councils to alter plans on staff transfers to the private sector. The aim of this is to avoid the much-described 'two tier workforce in local government services'.
In addition to the Scottish Local Government Act (2003), the Scottish Executive has issued Statutory Best Value Guidance. This Guidance, includes Equal Opportunities and places specific obligations on authorities to ensure that the encouragement of equal opportunities is reflected in the authorities' overall objectives and highlighted in plans 'at corporate and service level. Officers and elected members are to be committed to mainstreaming 'equalities' in the Best Value process including ensuring that equality requirements are taken into account in the procurement strategy.
England
In February 2003, the Office of Deputy Prime Minister introduced changes governing contracting out in all Best Value[38] authorities including English local government and police authorities. The Code of Practice on Workforce Matters in Local Authority Service Contracts obliges contractors to offer new staff 'fair' and reasonable terms and conditions which are no less favourable than those of transferred employees. The Code guarantees new joiners reasonable pension provision - with a minimum of 6 percent employer contribution.
The Local Government minister said at the time:
'It will prevent good contractors with high quality employment standards from being undercut by those willing to abuse the system. And it will remove the risk that service quality is undermined during the life of the contract by a provider who is willing to drive down staff terms and conditions.'
The Code requires that service providers must contact representatives of a trade union where one is recognised, or other elected representatives of the employees, on the terms and conditions to be offered to new recruits.
Local authorities are required to monitor compliance with the Code by service providers. However, the Code does not cover situations where there has been no transfer of staff, such as home help service, where a local authority is paying contractors to provide the staff for the service or where it only provides funding to a voluntary or community sector organisation. This clearly limits its impact. However, UNISON note that local authorities do have the power to require contractors to ensure that staff employed on local authority contracts receive fair pay and conditions.[39]
In 2005 the Cabinet office issued a Code of Practice on Workforce Matters in Public Service Contracts. This covers public sector organisations and requires that even when TUPE does not apply in strict legal terms, the principles of TUPE should be followed and the staff involved should be treated no less favourably than had the regulations applied.
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[32] O'Cinneide, Colm. (2005). Positive Duties and Gender Equity. International Journal of Discrimination and the Law.
[33] In the 1990s videotaped the brutal treatment of a young black man (Stephen Lawrence) resulted in a highly publicised inquiry into racism within the police force
[34] Not all duties apply to all public bodies.
[35] Centre for Public Services. (2004). The Case for a Positive Public Duty on Age Equality.
[36] Chaney, Paul & Fevre, Ralph. (2002). An Absolute Duty: Equal Opportunities and the National Assembly for Wales. A Study of the Equality Policies of the Welsh Assembly Government and their Implementation: July 1999 to March 2002. Institute of Welsh Affaires.
[37] Centre for Public Services. (2004), op cit.
[38] The best value regime was designed by central government to improve local public services. Under legislation, best value authorities - must:: 'make arrangements to secure continuous improvement in the way in which they exercise their functions, having regard to a combination of economy, efficiency and effectiveness' (Local Government Act 1999)
[39] UNISON. (2003, April). UNISON Guide - Best Value Code of Practice on Workforce Matters in Local Authority Service Contracts in England.
