ASPECTO METODOLÓGICO

There is agreement among commentators that the conditions necessary for the deliberative process which is central to both reflexive and responsive regulation ‘must be affirmatively created, rather than taken for granted’ (De Shutter and Deakin 2005 p3). Even at the consultation stage of the Equality Bill McCrudden was

warning that the Bill would not create the necessary conditions for reflexive regulation (McCrudden 2007). McCrudden identified three factors which he considered essential for reflexive regulation: that public bodies have to examine what they are doing on the basis of objective evidence, that they seriously consider alternative approaches to shift entrenched patterns of inequality and that this process is monitored, and that they are required to engage with stakeholders including civil society. He analysed the proposals for the PSED in light of the lessons of Section 75

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of the Northern Ireland Act, arguing that the proposals for the PSED did not contain the elements that would ensure enforced self-regulation and civil society

engagement. Public bodies were not required to carry out the processes of assessment and reporting contained in Section 75, nor were the requirements to consult and engage sufficiently robust.

Hepple (2011) also argued that the PSED lacked important elements needed for reflexive regulation, although he emphasised two changes made by the Coalition Government which undermined reflexivity in the duty. First the Coalition

significantly reduced the functions of the Equality and Human Rights Commission and cut its budget. This severely limits the EHRC’s role at various stages of the regulatory pyramid from providing information and supporting dialogue through scrutinising the actions of public bodies, supporting individuals taking legal challenge and regulation. Secondly it has reduced the obligations on public bodies contained in the specific duties. Among these was the obligation to consult and engage with stakeholders and civil society groups. Hepple argued that the

involvement of stakeholders inside and outside the organisation was central to the working of the PSED as a form of reflexive regulation and that this had to go beyond ‘consultation’ which may only give a passive role to those consulted over policy proposals to a form of ‘engagement’ based on respect for dignity, elimination of discrimination, advancement of equality of opportunity and fostering good relations’ (Hepple 2011 p323). These are actually elements of a responsive rather than

reflexive approach, but Hepple uses the term reflexive regulation throughout. He concluded that as a result of the changes to the specific duties ‘the public sector equality duty places too heavy a reliance on voluntary means to achieve

engagement…. There is not enough carrot or stick to make engagement with interest groups an essential feature of the equality duty’ and that this ‘reduces the likelihood that reflexive regulation will be successful in Britain (Hepple 2011 p332).

Fredman reaches similar conclusions about the weakness of the PSED as a form of reflexive regulation in her analysis of judicial review cases taken under the duty and previous equality duties. Rather than triggering deliberative decision making she argues that the courts have ‘stumbled into the paradox inherent in using judicial review in this context’. The need to establish a stable set of principles which can inform decision making without litigation increases the scope for ‘procedural

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compliance’ rather than flexible decision making (Fredman 2011 p 420). This would suggest that the form of mainstreaming enforced by the PSED is in danger of being bureaucratic rather than participatory. The combination of detailed scrutiny by the courts of the process of decision making and inconsistency in judgements means that ‘courts are in danger of becoming the first rather than the last resort for the

deliberative process’ (Fredman 2011 p420).

Fredman argued that there was a lack of empirical data on the impact the PSED was having on the behaviour of organisations (Fredman 2011). Indeed some have argued that it is difficult to determine the precise impact of any regulation since there are so many different factors influencing the behaviour of organisations and individuals within them (Quick 2011, Laing 2014). Since Fredman’s article there have been a number of studies which have shown a mixed impact of the PSED on practice, which may reflect the different contexts within public authorities. Clayton-Hathaway’s analysis of published evidence on the impact of the duty has revealed widespread examples of good practice, alongside evidence of lack of awareness of the duty, confusion about what it requires, lack of leadership and inadequate enforcement (Clayton-Hathaway 2013a and 2013b). This work drew largely on evidence submitted to the Independent Review of the PSED (see chapter 6) by local

authorities, trade unions and equality organisations. The majority of public bodies who submitted evidence to the Review argued that the PSED had had a positive impact on equalities practice and between them supplied over a hundred specific examples of policies or practices that had been changed as a result of the PSED. However there was a widespread belief that application of the duty was patchy, largely as a result of lack understanding of what was required and inadequate

enforcement. The Fawcett Society’s submission argued that there was a lack of focus on gender in the mainstreaming process (Fawcett 2013) suggesting that concerns that the replacement of the Gender Equality Duty with the PSED would lead to a

reduction in work on gender had proved accurate (Conley and Page 2015 p113). A high proportion of submissions argued that it was too early to judge the impact of the duty since at the time of the review it had only been in force for a short time. The Equality and Human Rights Commission (EHRC) has carried out, or commissioned a number of research projects in England Scotland and Wales focussing on the impact of the specific duties. In England their research on the duty to publish

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equality information (EHRC 2012c) found that around half of the public sector bodies surveyed were publishing some information on staff and service users, with a higher number publishing information on staff only. Among those organisations that did publish information the EHRC identified a number which demonstrated that this had had an impact on their policies. The second EHRC report covered the

requirement to publish equality objectives in England. Eighty seven percent of public authorities had published at least one equality objective, however less than half of these were specific and measurable, setting out the quantity of improvement required and a time frame in which this should happen. A relatively low proportion were specific to gender equality. In local government for example only 24.9% of

objectives related to gender compared to 53.2% on disability, 40.9 on race and 54.5 on age (EHRC 2013). There was a significant variation in publication patterns by type of authority ranging from 93% of healthcare providers to just 21% of schools publishing an objective. Again this suggests a patchy pattern of enforcement.

In Scotland and Wales responsibility for the specific duties has been devolved to the Scottish Parliament and Welsh Assembly. The specific duties in both nations are more extensive than those in England. In Wales research by NatCen for the EHRC found a range of positive impacts of the PSED, with respondents stating that the Welsh specific duties provided greater clarity on the requirements of the law than the duties in England and that the Welsh duties were better able to ensure that equality was fully integrated into the service planning and delivery process (NatCen 2014). Consultation and engagement with service users was felt to be better than before the PSED, Equality Impact Assessments were regarded as having had an impact on mainstreaming equality in policy making and there was progress on action to close the gender pay gap. The report concluded that these outcomes were the result of a strong commitment to work on equality among senior leadership and management in Welsh local authorities, a high level of knowledge of how to address the PSED on a practical level and a widely shared ownership of the equality and diversity agenda. In Scotland a review of action by local authorities was more mixed. Some authorities performed well, integrating equality into their work and tailoring their work to meet the needs of service users. These authorities provided evidence that the duties had had a meaningful impact. Other authorities performed less well, failing to provide detail or specific measurements of progress on equality outcomes (EHRC Scotland

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2015). The findings of these reports suggests that both national and local context has been important in how the duty has been implemented within public bodies. This is in line with research into the impact of regulation in other areas (Laing 2014). Huising and Sibley’s research into environmental and health and safety regulation for example argued that ‘factors internal to the organisation, not legislative or regulatory design influence the dynamics of compliance’ (Huising and Sibley 2011 p17).