Kemi Badenoch is right to argue that the Public Sector Equality Duty should go – and I say that as someone who used to help police it. Her wider point in today’s speech at the Institute for Government is even more important: not every disparity in outcome is proof of racism, and we have built an entire bureaucratic religion on pretending that it is.
On paper, the Public Sector Equality Duty (PSED) looks innocuous. It tells public bodies that, when exercising their functions, they must have ‘due regard’ to eliminating discrimination, advancing equality of opportunity and fostering good relations between people with and without protected characteristics such as race, sex, disability or religion. These are sensible aims – and they are already hard‑wired into the Equality Act’s core prohibitions on direct and indirect discrimination, harassment and victimisation.
In practice, the PSED has morphed from a reminder not to discriminate into a dogma that treats any difference in group outcomes as evidence of structural injustice. Officials are pushed to comb through data for disparities and then reverse‑engineer policies to equalise statistical endpoints, regardless of underlying causes or trade‑offs. Instead of asking, ‘Is this decision fair, lawful and effective?’, they are trained to ask, ‘How will this look in an equality impact assessment?’
The courts do not need an equality duty to recognise blatant discrimination
Badenoch’s central challenge to this mindset is simple: not all disparities are discrimination. Health outcomes differ between regions, ethnicities and age groups for reasons that range from genetics to lifestyle to geography. Education results diverge because families, schools and communities are not identical. Crime victimisation rates vary across groups because criminals are not evenly distributed and neither is deprivation.
Yet under the PSED regime, such differences are routinely reinterpreted as proof of systemic bias requiring bureaucratic correction. The more you entrench this mentality in law and guidance, the more you incentivise public bodies to behave as if any gap in outcomes is a problem with them, rather than a signal to look honestly at culture, behaviour or, occasionally, individual responsibility. That is not tackling racism; it is laundering complex social realities through an ideological spreadsheet.
Ministers always insisted the PSED should be applied ‘proportionately’ and without unnecessary bureaucracy. The reality in Whitehall, local government and frontline services has been very different. Once you create a free‑standing procedural duty, backed by judicial review and policed by an army of equality advisers, you create a powerful incentive to gold‑plate.
Risk‑averse managers in high‑risk environments – prisons, policing, counter‑terrorism – quickly learn that their careers can be wrecked not because a decision was substantively unfair, but because they cannot prove they ticked every equality box. So they drown themselves in paperwork. Operational judgement and moral courage are displaced by defensive form‑filling. The people supposedly ‘protected’ by this system do not get better services; they get slower, more timid ones.
The PSED was sold as a way to improve decision‑making, not as a litigation bonanza. In reality it has become a convenient handle for legal challenges where the real argument – about resources or policy direction – would be harder to win on the merits. Because the duty is about ‘due regard’ rather than outcomes, almost any contentious decision by a public body can be recast as a failure of process and dragged into court.
Unsurprisingly, this has been exploited by well‑organised pressure groups and by people with far more troubling agendas. If your goal is to obstruct robust policies on policing, prisons or extremism, it is far easier to allege a procedural PSED failure than to admit that you simply dislike the policy. The state ends up litigating over whether a minister’s briefing note used the right equality language instead of arguing about whether the policy is necessary and proportionate to keep the public safe.
Badenoch’s critics insist that even talking about abolishing the PSED is an attack on equality law. They are wrong. The core protections in the Equality Act 2010 – against direct discrimination, indirect discrimination, harassment and victimisation – are entirely separate from the PSED. Scrapping the duty would not repeal a single one of those rights.
If a council sacks a worker because of their race, or a school discriminates against a disabled pupil, they can still be sued and will still lose. The courts do not need an equality duty to recognise blatant discrimination: the substantive law already does that job. What the PSED adds is not extra protection for victims but an extra procedural tripwire for public bodies, even when they have reached a fair conclusion. Removing it would strip away the fetishisation of process while leaving every meaningful safeguard intact.
None of this means public bodies should stop thinking about equality, or that genuine racism does not exist. It does – and where the state discriminates unlawfully, it should be hammered in court. But the current framework confuses two very different things: protecting individuals from discrimination and socially engineering statistical outcomes between groups.
By arguing for the PSED to go, and by challenging the lazy assumption that every disparity is racism, Badenoch is forcing a grown‑up conversation that much of the public sector has dodged for years. Equality should be about treating people fairly and enforcing clear, comprehensible rules that everyone can see and understand. It should not be about sustaining a sprawling industry of consultants, guidance and litigation devoted to the impossible project of equalising all outcomes.
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