Interacción del sector petrolero con otros sectores económicos

As the literature review explained, the original proposals for the PSED highlighted critiques of both self-regulation, which only works where organisations have a clear self-interest and command and control that can lead to resistance to change. In order to address these problems the proposals developed an approach based on Ayres and Braithwaite’s model of ‘responsive regulation’ (Ayres and Braithwaite 1992), arguing that ‘regulation needs to be responsive to the different behaviour of the various organisations subject to regulation’ (Hepple et al 2000 p57). It recommended that regulation should be based on both ‘the self-interest of business and providers’ and opportunities for ‘information, consultation and engagement’ for interest groups. While it emphasised the ‘strong “business case” for inclusivity and diversity’ the review also recognised that ‘voluntarism can only work if complimented by other methods such as enforced self-regulation’ (Hepple et al 2000 p56-57). In order to encourage this the review proposed a ‘regulatory pyramid’ that moved from persuasion and provision of information through increasing levels of sanction

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including investigation by an equality commission, judicial action and finally loss of contract. The pyramid rests on ‘three interlocking mechanisms: internal scrutiny within the organisation to ensure effective self-regulation, consultation and engagement with interest groups, and a commission providing assistance and ultimately enforcement if regulation fails (Hepple et al 2000 p58). As chapter two showed this approach has been described as an example of responsive and/or reflexive regulation.

Neither the Equalities Review nor the Discrimination Law Review refer to either responsive or reflexive regulation by name. However both built on the idea that regulation is most effective when it is responsive to the needs of the regulated organisation. The Equalities Review argued that the duty should be flexible so as to enable ‘different public bodies to establish their own priorities, relevant to the customers and communities they serve (Equalities Review 2007 p116). The

Discrimination Law review similarly argued that public authorities should ‘be given flexibility to respond to the duty in ways which are appropriate for their particular functions and circumstances’ (DCLG 2007 p93). This approach is central to models of reflexive regulation. The Discrimination Law review also emphasised four principles of consultation/involvement, use of evidence, transparency and capability (ensuring staff have the knowledge of their obligations and the skills to discharge the duty) (DCLG 2007 p93); the emphasis on participation and involvement of the wider community in developing and scrutinising responses to the duty is central to Nonet and Selznick’s model of ‘responsive law’.

Both the Equalities Review and the Discrimination Law Review recommended enforcement models that moved from persuasion to increasingly severe sanctions if persuasion failed. The Equalities Review suggested a number of functions that a Commission for Equality and Human Rights (the proposed name for what became the EHRC) could fulfil. These included publishing guidance, sharing good practice and providing assistance to help organisations fulfil their obligations. These should be backed up by powers of enforcement including powers of inspection, powers to publish the names of organisations that were not complying with the duty and powers to enter into binding agreements with public bodies on the action they would take. Involvement of the public and interest groups in developing approaches to delivering equality, and scrutinising the performance of public bodies were central to

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this model (Equalities Review 2007). The Discrimination Law Review proposed a model of good practice for public bodies based on consultation and involvement of affected groups, use of evidence in policy making, public transparency over progress or lack of it and ensuring the capacity of staff responsible for equality through training and support. Based on the experience of the previous equality duties it argued that the role of the EHRC should be to ‘work in the first instance through informal contact with bodies which are not carrying out the duty adequately and seek improvement through providing advice and support. It is likely that formal

enforcement action will only be used where necessary when informal routes have been unsuccessful – though it is important that strong enforcement powers are available for use when needed’ (DCLG 2007 p 102/3).

The assumption in all the various consultation documents and the final Equality Bill was that the primary route for enforcement of the PSED would be through the Equality and Human Rights Commission. The powers of the EHRC were set out in the 2006 Equality Act, which established the Commission. The persuasion and information end of the pyramid of enforcement was promoted through the powers of the EHRC to give advice, publish information and produce guidance on the law as well as a general duty which the 2006 Act placed on the EHRC to encourage and support a society in which ‘people's ability to achieve their potential is not limited by prejudice or discrimination, there is respect for and protection of each individual's human rights, there is respect for the dignity and worth of each individual, each individual has an equal opportunity to participate in society, and there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights’ (Equality Act 2006, 3). It also

contained a duty on the EHRC to promote good relations between different groups to work towards the elimination of prejudice against, hatred of and hostility towards members of groups, and to work towards enabling members of all groups to participate in society (Equality Act 2006 10). This provided a broad basis for the EHRC to carry out work to educate individuals and organisations about the duty, and what it required, and to provide advice and support for public bodies to help them meet their obligations.

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The 2006 Act also contained a range of enforcement powers, which cover all equality and human rights legislation. These include powers of formal investigation if the EHRC suspects an unlawful act has been committed (section 20), the power to issue a notice requiring action if an unlawful act has been committed (section 21) the power to enter into an agreement with a person not to commit an unlawful act

(section 23), the power to apply for an injunction preventing a person from undertaking an unlawful act (section 24), the power to assist in legal proceedings (section 28) and the power to intervene in legal proceedings (section 30). There are two powers specifically relating to public sector equality duties (initially covering the race, gender and disability duties, now covering the PSED). These are the power to carry out an assessment of the ‘extent to which or the manner in which’ a public body has carried out its public sector equality duties (section 31) and the power to issue a compliance notice requiring a public body to comply with public sector equality duties (section 32).

Following the 2010 election the Coalition Government introduced policies which significantly reduced the budget and role of the EHRC. The next chapter will consider the impact that this has had on enforcement of the PSED.

In addition to the enforcement powers of the EHRC, a failure by a public body to meet its obligations under the PSED can be challenged by way of judicial review. Judicial review had proved significant in enforcing previous public sector duties on race, gender and disability. Most notably in R (Brown) v Secretary of State for Work and Pensions [2008], taken under the Disability Equality Duty, the court set out a series of principles for public bodies when meeting their ‘due regard’ obligations. In R (Kaur) v London Borough of Ealing [2008] Ealing Council was found to have breached the Race Equality Duty in not carrying out an impact assessment of a decision to cut funding to Southall Black Sisters. As subsequent chapters will show judicial review has become central to the enforcement of the PSED. However the Coalition Government launched a review of the PSED which recommended

restrictions on judicial review and the rules relating to judicial review were changed by the Coalition in the 2015 Criminal Justice and Courts Act. This will be discussed in the next chapter.

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4.7 Conclusions

Although there are differences in approach in the various Government proposals and policy documents that led to the Equality Act they share some common themes. All frame equality in a way that goes beyond individual acts of discrimination to include ‘substantive equality’ and recognition of both ‘structural inequality’ and differences in needs and priorities between different groups. All address multiple discrimination, although the Equalities Review goes furthest in addressing the ways in which

inequalities intersect. All include the importance of participation of affected groups in strategies to tackle inequality. All justify government action to tackle inequality not only on concepts of fairness or justice but on the benefits to the wider economy and improved social cohesion alongside ‘business case’ arguments for the benefit to individual organisation. Finally all recommend an approach based on

‘mainstreaming’ consideration of equality throughout the policies and practices of public sector organisations and all argue that this should be done in a way that is responsive to the needs of the organisation concerned, an approach which characterises reflexive regulation.

This shift of focus from individual acts of discrimination to the structures policies and processes of organisations (although limited to the Public Sector) is the basis for claims by both Hepple (2010) and Squires (2009) that the Public Sector Equality Duty represents a potentially ‘transformatory’ approach to equality. Whether these objectives have been realised in practice is the focus of this thesis. Both Squires and Hepple identify the danger that the potential of this new approach to equalities will not be realised. Squires argues that while the single equality duty ‘may allow public authorities to address proactively cumulative and combined inequalities’ it can only offer ‘the potential for Britain’s equality framework to recognise intersectionality’ if combined with the multiple discrimination provision (Squires 2009 p508). Hepple warns that despite the Equality Act being a ‘major achievement’, and representing a move to ‘substantive and transformative equality’ there is still a ‘serious risk that the positive duties will become marginalised and ineffective.’ (Hepple 2010 p22). More recently Hepple has argued that the changes in approach to equalities introduced by the Coalition government risk undermining the potential for the PSED to effectively mainstream equality (Hepple 2012).

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The next chapter will look at the changing political context in since the 2010 election and the impact this may have had on the implementation of the Public Sector

Equality Duty. In particular it will examine the new approach to equality introduced by the Coalition Government and the context of public spending cuts which many have argued will have a negative impact on equality. It will explore claims by both Hepple (2011) and Fredman (2011) that the changed approach to equality introduced by the Coalition government will reduce the effectiveness of the PSED in

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