Ten years ago, I found myself accompanying the then Permanent Under Secretary of the Foreign Office to the Locarno room in the department’s palatial HQ building. I was covering as one of Simon McDonald’s private secretaries for the week and he was on his way to address the ‘Summer Diversity Internship Programme’ cohort. I still recall looking at the assembled group of perhaps a 100 interns and barely being able to find a white face.
That is the context of Kemi Badenoch’s announcement yesterday that a future Tory government would finally ditch the Public Sector Equality Duty (PSED). For this the Conservative party leader should be commended. In so doing, the Tories have finally broken free of the ‘protected characteristics’ racket. And not a moment too soon.
This ‘duty’ has infiltrated every part of the public sector and undermined the very fairness it was meant to ensure. It enabled the civil service to limit eligibility to its ‘multi-award-winning’ graduate internship, from the early 2000s through to 2023, to only ethnic minorities, those with a disability and from a lower socio-economic background. There was no internship for middle-class whites. Those doing the internship, of course, ‘greatly increase their chances of being selected’ for a permanent government job.
Now is the time for radicalism. The rot runs deep
The same has been true across other parts of the public sector. Just this week we learnt that middle-class white boys are banned from the National Audit Office’s 6-week paid scheme. Iterations of this can also be seen in RAF recruitment, university scholarships and so much more.
These sorts of ‘positive action’ measures were always egregious. But they have become even more inexcusable as there is ever less of a diversity issue to solve. Last year the proportion of civil servants describing themselves as disabled (17.9 per cent) matched the proportion in the economically active working-age population as a whole. Likewise, the percentage of ethnic minority officials, at 18 per cent, basically matches the economically active working-age population (18.6 per cent). As so often, DEI is a case of slaying imaginary dragons.
The PSED requires public bodies to think about how they can improve society and promote equality in their day-to-day business. Hence Black History Month, Windrush Day and Islamophobia Awareness Month, which have become as commonplace in the sector as the gold-plated pensions. I also saw how countless management decisions – from moving more civil service jobs out of London to imposing stricter limits on work-from-home – were delayed or stymied by the need for equality impact assessments.
Alongside these everyday cases of unfairness and bureaucratic dysfunction have been grotesque absurdities. The idea that prison officials should find themselves in breach of the equality duty for separating Islamic terrorists from the general prison population, simply because the move disproportionately affected Muslims, is patently farcical.
The official guidance around the PSED contains in its ‘myth buster’ section: ‘Myth 3’ states: ‘I’m treating everyone the same, so I’ve met the general duty.’ Rather, it clarifies that:
Like other anti-discrimination laws, the general duty does not require you to treat everyone the same. In fact, sometimes, you should treat protected characteristics differently.
It also explicitly sanctions equal outcomes over equal treatment:
It may be appropriate to consider positive action…[to] help you to achieve your equality objectives.
If that all sounds familiar, it is because it echoes the scandalous language of the Police Anti-Racism Commitment published by the National Police Chiefs’ Council, thrown into the spotlight by Henry Nowak’s murder. That document makes clear that ‘it is not enough for us to not be racist’ – instead, rates of arrest and charge should be made equal between racial groups, despite levels of criminality being different. It goes on: ‘It does not mean treating everyone “the same” or being “colour blind” (racial equality).’ The document explicitly cites the PSED as one of its foundational legal obligations.
But while ditching the PSED is part of the answer, Badenoch should go further. There are other parts of the 2010 Equality Act – of which the duty is a part – which are deeply perverse. Sections 65 and 66 are responsible for the courts now adjudicating equal pay claims that threaten to bankrupt local councils because categories of jobs done primarily by men cannot be paid more than jobs done primarily by women (or vice versa), no matter that they might involve more back-breaking labour or be harder to recruit for.
Or Section 159, which enables organisations to discriminate against white applicants if there is an equally qualified ethnic minority candidate for a job who they ‘reasonably’ judge ‘suffers a disadvantage’. All of this must go. What the Equality Act creates is not the absence of direct discrimination – a laudable aim – but state-enforced diversity at the expense of meritocracy and fairness.
It is fair to point out that the Equality Act has had some good uses. For example, the law protecting single-sex spaces (in, for example, toilets, changing rooms, and refuges) comes from this. But vast swathes of the Act must either be scrapped or the whole thing abandoned (as Reform are proposing) with new legislation, narrowly focused on protecting against direct discrimination, drawn up from scratch.
Now is the time for radicalism. The rot runs deep. The public will reward the political parties who come up with big answers that match the scale of the problems that the Blair-Brown era has bequeathed us.
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