Capítulo 3 RESULTADOS
3.2 Diagnóstico o estudio de campo:
The positive duty model was introduced in the UK in response to two separate crisis; the conflict in Northern Ireland and the institutional racism in the police revealed by the murder of Stephen Lawrence. In Northern Ireland both equality and human rights been an important part of the peace process, culminating in the inclusion of a
commitment to mainstreaming in the Good Friday Agreement (McCrudden 1999). This resulted in Section 75 of the 1998 Northern Ireland Act which placed a duty on public authorities to have ‘due regard to the need to promote equality of opportunity’ between people of different religious belief, political opinion, racial group, age, marital status or sexual orientation, men and women, disabled and non disabled people and people with and without dependents. Section 75 also requires public bodies to have ‘due regard to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group’ (Northern Ireland Act 1998, Section 75). This positive duty to promote equality was a response to the failure of the Policy Appraisal and Fair Treatment (PAFT) guidelines, which had represented a non-statutory approach to mainstreaming. It drew on models of environmental impact assessment in the US and Europe (McCrudden 1991 p 1717). The first positive duty to promote equality was introduced in Britain in the 2000 Race Relations (Amendment) Act. This followed the Macpherson Inquiry into the murder of the Black teenager, Stephen Lawrence, which concluded that the Metropolitan Police Service was institutionally racist. The Macpherson report defined institutional racism as:
‘The collective failure of an organisation to provide an appropriate professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance,
thoughtlessness and racist stereotyping which disadvantage minority ethnic people’ (Home Office 1999 para 6.34).
The Macpherson report made a large number of recommendations, including that there should be a public duty on public authorities to promote racial equality. The Race Relations (Amendment) Act 2000 provided that public bodies ‘shall in carrying out [their] functions have due regard to the need to eliminate unlawful racial
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discrimination and to promote equality and good relations between people of different racial groups’ (Race Relations Act 1975, Section 71 as amended 2000). According to the Equality and Human Rights Commission the purpose of this duty was to ‘shift the onus from individuals to organisations, placing for the first time an obligation on public authorities to positively promote equality, not merely to avoid discrimination’ (EHRC 2011)
This model of positive duties was then extended in the 2005 Disability Discrimination Act and the 2006 Sex Discrimination Act following sustained lobbying from Disability and Women’s organisations (Sayce and O’Brien 2005, Conley and Page 2015). The Disability Equality Duty, introduced in the 2005 Disability Discrimination Act, required public authorities to have ‘due regard’ to eliminate unlawful discrimination, harassment and to promote equality of
opportunity. It also required public authorities to ‘take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons’ to promote positive attitudes towards disabled persons and to encourage participation by disabled people in public life (Disability Discrimination Act 1995, Section 49A as amended 2005). The Gender Equality Duty introduced in the Sex Discrimination (Amendment) Act 2006 required public
authorities to have ‘due regard to the need to eliminate unlawful sex discrimination and harassment’ and to ‘promote equality of opportunity between men and women’ (Sex Discrimination Act 1975, article 76A as amended 2006).
Statutory codes of practice, agreed by Parliament, were produced by the relevant equality bodies for all three duties (Commission for Racial Equality 2002, Disability Rights Commission 2005 and Equal Opportunities Commission 2006). There were separate codes of practice for England and Wales and for Scotland. This section focusses on the codes for England and Wales. Although these are not a complete statement of the law they were admissible in court; public bodies who did not follow them might need to demonstrate how they had met the terms of the public duties in other ways (CRE 2002 p10).
All three codes of practice emphasise that the duties include a requirement to address structural inequality as well as individual acts of discrimination, an approach that moves beyond treating people equally to considering the different specific needs of
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affected groups and the need to consult and involve all relevant groups (CRE 2002, DRC 2005, EOC 2006). All three emphasise the importance of consideration of equality throughout the policy making process. The codes of practice for the
Disability Duty and Gender Duty specifically refer to this as ‘mainstreaming’ (DRC 2005 p4, EOC 2006 p7&16). The Code of practice for the Race Equality Duty does not use the term mainstreaming but refers throughout to the need to consider equality at all stages in the policy making process, which, as the previous chapter argued, is central to a mainstreaming approach (see CRE 2002 p18). All three justify the duties with arguments based on utility as well as morality, emphasising the benefits of increased efficiency and effectiveness they would bring to public sector
organisations (CRE 2002 p8-9, DRC 2005 p8-12, EOC 2006 p7&16).
Although the duties on race, gender and disability shared these common points of approach there were notable differences. These were justified as reflecting ‘the different nature of discrimination faced by different groups, the varied communities involved and the lessons learned from the introduction of earlier duties’ (EHRC 2009). However others have argued that they represented ‘unnecessary
inconsistencies’ (Wadham et al, 2012 p 152).
The most significant difference between the duties can be found in the
understandings of equality that they draw on. None of the duties contain a definition of equality similar to that given in the PSED, however the codes of practice for both the Gender Equality Duty and the Disability Equality Duty do set out an
understanding of what ‘equality’ means in terms of gender and disability. The Race Equality Duty code of practice does not give any definition of racial equality. The Disability Duty code of practice states that the Disability Duty rests on the ‘social model’ of disability arguing that the ‘poverty, disadvantage and social exclusion experienced by many disabled people is not the inevitable result of their impairments or medical conditions, but rather stems from attitudinal and environmental barriers’ (DRC 2005 p2) and that equality for disabled people requires equality of
‘opportunities and choices’ as well as ‘equal respect and full inclusion’. The Gender Equality Duty code of practice does not explicitly define equality but states that ‘gender roles and relationships structure men’s and women’s lives’ and that ‘policies and practices that seem neutral can have a significantly different effect on women
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and on men, often contributing to greater gender inequality’ (EOC 2006 p7). There are a variety of understandings of gender equality implicit in the outcomes that the code of practice claims the duty will help achieve including equality as sameness (‘the gap between women and men's pay narrows and is eventually eliminated’), recognition of difference (‘the level of discrimination experienced by pregnant staff and staff returning from maternity leave reduces significantly and is eventually eliminated’) and transformation of gender roles (‘Fathers receive greater support for their childcare responsibilities from public services and employers’) (EOC 2006 p8). The gender equality duty code of practice also recognises issues of intersectionality; ‘[w]omen and men, including transsexual women and men, will experience different forms of disadvantage depending on their age, ethnicity, religion or belief, sexual orientation, marital or civil partnership status, and whether or not they have a disability’ (EOC 2006 p9).
In addition to these differing models of equality there were other differences between the duties. The Gender and Disability Duties included a requirement to eliminate harassment, but this was not included in the race equality duty. The Race Equality Duty included the promotion of ‘good relations’, which was not included in the other two duties. The Disability Duty included a number of specific requirements that were not included in the other two duties including ‘the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons’, to ‘promote positive attitudes towards disabled persons’ and to ‘encourage participation by disabled persons in public life’. Both women and members of ethnic minority communities continue to be under represented in public life, but there was no obligation in the race or gender duties to address this. All three duties contained specific as well as general duties and there were differences between the specific duties for each. Significantly the specific duties on disability specifically required the participation of disabled people in drawing up an equality scheme, which was not required for women or members of ethnic minority groups. The gender duties referred to the gender pay gap, although bodies were only required to ‘consider the need to have objectives’ (EOC 2006 p27) rather than actually address the causes of the gender pay gap.
These differences, and the fact that positive duties only applied to race, gender and disability rather than covering a broader range of equality issues ‘appeared to create
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a hierarchy of regulation inimical to a coherent and fair domestic anti-discrimination framework’ (Wadham et al 2012p149). The extension of equality legislation to cover sexual orientation, religion and belief and age following the EU framework
employment directive created pressure for a general public sector equality duty to replace the previous equality duties (Hepple 2010). The differences between the legislation covering race, sex and disability discrimination was one of the arguments used for a single Equality Act to bring together existing equalities legislation (see for example Hepple et al 2000, GEO 2007).