Justificació

Hepple argued that there are three interlocking mechanisms which must be in place for reflexive legislation to be effective on a practical level. Firstly, he maintained that internal organisational scrutiny is required to underpin effective self-regulation by public authorities. As organisations are required to adapt, and will best understand how the legal requirements impact on their internal environment, they must also be responsible for overseeing their own internal structures and systems to ensure compliance. Secondly, interest groups such as service users and community organisations must be involved as an essential source of knowledge and expertise and a range of voices. Through consultation and their engagement with policy-making and change processes, it is argued that they will ensure any decision-making process is fairer and more transparent, taking a range of needs into account. Finally, ‘enforcement agencies’ must guard the public interest, and to this end an independent regulatory agency is needed to provide back-up, and assist with building capabilities and impose sanctions when necessary. Each of these mechanisms is now explored further.

2.2.4.1 Internal organisational scrutiny

Hepple identified internal processes as essential for maintaining levels of self-scrutiny. These can include internal governance processes; data monitoring, which includes both collecting and publishing information to measure and publicise progress, and empowering individuals who have a role in monitoring or facilitating change. Individuals can include internal managers (ie, leadership) and employees¹⁸⁶. In systems language, these individuals can have an important role in ‘translating’ the stimuli received from the legal ‘system’ into the local ‘language’

185 1978, ibid

186 Manfredi et al, ibid; O’Brien, N. (2013). Positive about Equality: The Public Sector Duty under Threat. The Political Quarterly, 84(4), pp. 486-496; McLaughlin, ibid.

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so that the aims of the law are better understood¹⁸⁷, which enables a set of organisational norms to be developed and maintained. Nonet and Selznick described the ideal traits for achieving this as being ‘self-administering’, in the sense of having a decentralised power base and operating principles of participation, initiative and responsibility.

Reported experiences of implementing the Duty from previous studies also suggest that internal structures for support and knowledge-sharing such as training programmes, champions or staff networks, with committed leadership and management are key elements for successful implementation¹⁸⁸. In relation to data monitoring, the specific duties established a structure to publish equality objectives and supporting data which therefore both requires and supports internal scrutiny. However, mechanisms which might promote ‘engagement’ with employees, or others who might support change – such as trade unions - in a more meaningful way are not addressed within the legislation¹⁸⁹. Equality impact assessments (EIAs) were required under the previous race, gender and disability duties and encouraged those managing services to consider equality issues when exercising their day-to-day roles. These were a valued aspect of organisational scrutiny¹⁹⁰ that is absent from the requirements of the single Duty and, I would argue, present a missed opportunity for consistent and effective internal scrutiny in decision-making.

2.2.4.2 Involvement of interest groups

Interest groups are particularly important in their role as ‘bridging institutions’

between the legal and other systems, and can perform a ‘structural coupling’ role.

Their local expertise also supports a translation process, helping organisations to adapt general legal norms and practices into contextualised organisational and workplace practices. In addition, this contributes to a process of mutual learning and communication which is highlighted as an important aspect of deliberation¹⁹¹.

187 Cotterell, R. (1992). The Sociology of Law. London: Butterworth.

188 Manfredi et al, ibid.

189 Hepple (2014), ibid.

190 Conley, H. and Page, M. (2010). The Gender Equality Duty in Local Government: The Prospects for Integration. Industrial Law Journal 39 (3), pp. 321-325.

191 Deakin and McLaughlin, ibid; Deakin, S. (2009) Reflexive Governance and European Company Law. European Law Journal, 15(2), pp. 224-245.

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Moreover, McCrudden maintains the significance of these groups for continually challenging public bodies’ existing assumptions¹⁹².

The involvement of interest groups can serve other important functions. Firstly, stakeholder and ‘citizenship’ involvement can increase the legitimacy of outcomes, though Hepple argues that for this to happen there must be meaningful engagement, ie, reciprocity, respect and a goal of consensus¹⁹³. Secondly, there is a case for involving those who have faced discrimination or disadvantage, ie, to be representative as they can better articulate the needs of their ‘group’. To achieve this, participants must be allowed a platform to articulate the consequences of the disadvantage they have suffered and how this might be rectified. It is important to recognise, however, that individuals may not always voice the needs of their group, or that there may be conflicting interests within groups¹⁹⁴. Women, for example, are not a homogeneous group and may also experience inequalities which are compounded through intersection between differing sets of social relations such as age, ethnicity and class¹⁹⁵.

Although there is no specific requirement under the Duty to consult stakeholders, case law suggests that public authorities are expected to do so¹⁹⁶. Hepple cites the lack of a need for engagement, ie, the lack of an “active participatory role”¹⁹⁷ which facilitates the sharing of power to allow for dignity and support political legitimacy, as a shortcoming in the legislation. Engagement differs from

‘consultation’ which allows only a passive role in responding to proposals.

However, the consultation process can still be important not least because, as we argue, the process itself can “hold the potential to fulfil aspects of the equality aims of the Duty”¹⁹⁸, through the benefits of gaining recognition and dignity.

192 McCrudden, C. (2007). Equality legislation and reflexive regulation: a response to the Discrimination Law Review’s consultative paper. Industrial Law Journal, 36(3), pp. 255-266.

193 Hepple (2013), ibid; McLaughlin, ibid.

194 Hepple, ibid.

195 Walby, S. (2007). Complexity Theory, Systems Theory, and Multiple Intersecting Social Inequalities. Philosophy of the Social Sciences, 37(4), p. 449-470.

196 See, for example, R(LH) v Shropshire Council [2014] EWCA Civ 404 and R. (Rahman) v.

Birmingham City Council [2011] EWHC 944.

197 Hepple (2013), ibid, p. 25.

198 Manfredi et al, ibid, p. 21.

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2.2.4.3 Enforcement

A central idea for enforcement of reflexive legislation has an initial focus on

‘restorative dialogue’, with increasingly demanding sanctions and interventions in the belief that a threat of tougher enforcement acts as an incentive for compliance.

Drawing on the ‘regulatory pyramid’ devised by Ayres and Braithwaite, Hepple describes seven levels beginning with ‘information and persuasion’ as the first level, progressing through internal scrutiny, support and conciliation, inquiry and investigation, compliance notices, agreements in lieu of enforcement and finally, if these fail, enforced compliance¹⁹⁹. These may include ‘classical’ sanctions of monetary and reputational deterrents and must be “sufficiently strong … to deter even the most persistent offender”²⁰⁰. The signals given by the threat of tough sanctions for non-compliance, it is argued, encourage organisations towards a more voluntaristic approach, and “regulators will be more able to speak softly when they carry big sticks (and crucially, a hierarchy of lesser sanctions)”²⁰¹.

Figure 2: Compliance Pyramid

(Source: Ayres and Braithwaite (1992), ibid)

The Equality and Human Rights Commission (EHRC) has responsibility for enforcing the Duty and is granted several special statutory powers²⁰² which enable it to enforce the specific and general duties. These can include giving advice and guidance, eg, through codes of practice; consultation and publishing

199 Hepple (2011), ibid.

200 Hepple (2013), ibid, p. 28.

201 Ayres, I. and Braithwaite, J. (1992). Responsive Regulation: Transcending the Deregulation Debate, Oxford: Oxford University Press, p. 19.

202 Equality Act 2006.

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terms of reference; assessing compliance; conducting enquiries; entering into an agreement with a public authority; putting an action plan in place to ensure compliance; issuing a compliance notice which sets out steps to be taken and is enforceable by court order; bringing a claim for judicial review against a public authority that has not complied with the general Duty; or applying to the court for permission to intervene in an existing claim being brought by a third party.²⁰³ Other parties with sufficient interest can also apply to the High Court for judicial review²⁰⁴, which enables a party to try to challenge a decision or policy to determine whether the Duty has been breached. The cost of legal fees and the damage to the authority’s reputation as a service provider which would potentially result from this are intended to act as motivation to implement the Duty fully to avoid such sanctions. Use of both the previous and subsequent, single Duty for challenging public authority funding decisions is discussed in the following sections.

The potential participants in the regulatory process and the progressive deterrents can be combined and illustrated as an ‘enforcement pyramid’, as follows:

Figure 3: The ‘triangular relationship’ required for effective reflexive legislation (Source: Hepple et al, ibid)

203 Equality and Human Rights Commission (EHRC) (2016). Monitoring and enforcement, https://www.equalityhumanrights.com/en/advice-and-guidance/monitoring-and-enforcement [Retrieved 1/7/2016].

204 Senior Courts Act 1981, S31 (3)

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Hepple, however, identified concerns regarding the erosion of the enforcement body for the Duty – the EHRC – which, it is argued, has undermined one of the key mechanisms needed for reflexive law to operate successfully, citing this as the “most serious of all the challenges to the new legal framework”²⁰⁵. Furthermore, Blackham has argued that despite having these powers of enforcement, they are rarely used²⁰⁶.

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Section 1 was used to explain the reasons that the positive duties were developed and the underpinning theoretical basis. Furthermore, I outlined the model proposed by Hepple for key mechanisms which must be in place for reflexive law to operate successfully. These will form the key analytical frame for the legal empirical element of this thesis in chapter 6. Having now established the background and theoretical basis for reflexive law, the next section begins to explore the way that the Duty has so far had some impact ‘on the ground’.