The Equality Act’s fatal paradox Badenoch 1 - Farage 0

As the World Cup kicks off, at least one person in Westminster seems to have been watching the habits of effective centre-forwards. Delivering a speech on Tuesday, Kemi Badenoch found a pocket of space between defenders on Left and Right and nimbly exploited the gap.

Citing her proven record of “fighting against identity politics on the Left” during the madness of the George Floyd era, the Conservative leader vowed that her party would do the same again against racialised messages from Farage, or those to the Right of him. “The answer to Black Lives Matter is not a White Lives Matter born of the same racial grievance,” she argued. “We will not defeat identity politics by building a mirror-image of it.”

Even as she said this, news was starting to circulate about the attempting beheading of Stephen Ogilvie in Belfast, by Sudanese migrant Hadi Alodid, with a wave of anti-immigrant violence quickly following. The unfolding of this awful situation has only made Badenoch’s proposed Hegelian manoeuvre — from “Black Lives Matter”  to “White Lives Matter” to the comfortingly non-specific synthesis “Everyone Matters” — look more attractive, and especially to those of us keen to avoid a civil war in the near future.

Meanwhile, her suggested method for rooting out identity politics from the public sphere is a further example of a channel run — in the Old Trafford sense, rather than the Calais one. The colourless legalese of the 2010 Equality Act remains, for Keir Starmer, a sacred text, offering the closest thing to a positive articulation of British values he is willing to provide. Reform has said it would get rid of the Act altogether, claiming it causes unfair discrimination against white people. No doubt anticipating voter unease at wholesale destruction of anti-discrimination law without a clear sense of what would replace it, Badenoch says she wants to ditch only a single part: the Public Sector Equality Duty (PSED). She therefore gets to look impressively decisive relative to Starmer, and reassuringly humane relative to Farage.

In overview, the PSED forces public bodies to have proactive, anticipatory “due regard” to three areas: ending unlawful discrimination, advancing equal opportunities for those with protected characteristics, and fostering good relations between protected and non-protected groups. As was drily pointed out in the legal opinion accompanying Badenoch’s speech, there is a tension between these last two objectives that perhaps should have been anticipated at the time of drafting. Artificially boosting the chances of some groups over others, it turns out, tends not to be conducive to close social harmony, and perhaps especially not when it is done in the name of equality.

But according to Badenoch, the biggest problem with the duty is that it distracts public bodies from their core functions, sometimes with deadly results. With the horrific image of Henry Nowak’s dying moments in handcuffs weighing heavily on many minds, she reminded her audience of other high-profile cases where the threat of perceived racism had probably or definitely got in the way of effective action. These included the Manchester arena bombing; the Stockport and Nottingham murders; and rape-gang activity up and down the country. Whether or not the PSED was a direct causal factor in these failures is difficult to establish, but Badenoch is surely right that that its presence on the scene didn’t help.

Though, in theory, the duty doesn’t mandate any particular outcome, in practice it has allowed DEI professionals and external bodies to run amok in the public sector, feeding managers legally illiterate lines while making it punitive for wiser employees to dissent. When the National Police Chief’s Council offers a training session which confidently announces that an anti-racist stance “does not mean treating everyone ‘the same’ or being ‘colour blind’”, you can be sure that serving officers didn’t come up with that stuff on their own. The result of the embedding of such context-free platitudes seems to be enhanced opportunities for minority stabbers, rapers, and bombers, and an end to all opportunities for their unfortunate victims.

Something has obviously gone very wrong. Badenoch, writing in The Sunday Times, has lamented the loss of “common sense” from institutions, replaced by “box-ticking” and “bad frameworks” from outside, adding that “you can’t write common sense down in a policy manual, it is about judgment”. Assuming she is talking about specialist skills, honed on the job through repeated experience, she is absolutely right, echoing a venerable philosophical distinction between “knowing-how” (which can’t be got through book learning alone) and “knowing-that” (which can). Incredibly, a lot of DEI professionals these days appear to lack both. Still, it is interesting to note that in the early days of the Equality Act, various optimists imagined that the PSED would be a boon to good judgement and common sense at the local level, rather than an obstacle.

When first introduced, the duty was framed by some academics as an example of an admirably “reflexive” law, contrasted with heavy-handed regulatory approaches that specify certain outcomes as mandatory. With its vague requirement that bodies show “due regard” to equality considerations, but not that actions be determined in a particular direction, the PSED was supposed — as one commentator put it in 2012 — to defer “to the expertise and local knowledge of the decision-maker rather than imposing prescribed solutions”. Roughly, the idea was that, in making an important decision, a public body would first have to gather a lot of information about how something called “equality” might be affected — detailed data, predictions about possible outcomes, views of stakeholders, and so on — and then seriously consider all of this material in deciding how to proceed. The consideration process would also have to be documented.

If this is the most the PSED had ever amounted to, then though it would have been cumbersome, it would also have been quite useful, encouraging organisations to notice the consequences of their choices for certain local groups. But since cold, hard facts don’t determine values or actions, it seems that those in charge could not leave matters there. Additionally, a top-down layer of pressure was introduced, to prioritise certain progressive values wherever possible. While it remained true that no particular outcomes were mandated at a fine-grained level, it was clear that bodies were supposed to favour a certain kind of decision. And quite bizarrely, the kind of decision in question was defined by being directed at social injustices writ large.

This is evident from the EHRC’s description of the purpose of the PSED as “to make sure that public authorities and organisations… think about how they can improve society and promote equality in every aspect of their day-to-day business”. Improving society is obviously quite a big task. It is even more obvious from the Conservative government’s 2023 guidance, including its advice about how organisations might formulate their equality objectives; namely, to “try not to rely on basic, internal goals like diversity training instead of ambitious, customer-facing goals like closing the educational disadvantage gap in schools or fixing big imbalances in participation in technical industries”.

In other words: alongside the usual, already highly demanding day jobs, managers in the NHS, social services, police, judiciary, and education (etc) now had to work out what that elusive philosophical value, “equality”, looked like — not just nearby, but also at a national level — and then pursue that too, wherever practicable. Suddenly faced with the sort of intellectual problem that frequently makes its way onto philosophy exam papers at university, it is scarcely surprising most organisations felt the need to bring in some kind of outside help.

And nor is it surprising that so many public servants ended up treating evidence of different outcomes as evidence of disadvantage, presumed to be the result of background discrimination. For it is an extremely complicated matter to reconstruct the causal routes that explain differences in outcome between sexes, races, or sexual orientations, for instance — not to mention reputationally dangerous to discuss in polite society. It is so much easier to assume prejudice as the uniform cause, then make some clumsy adjustment, supposedly in the name of a fairer society overall.

So Badenoch is correct that the PSED has resulted in distraction from core institutional functions, despite — or perhaps even because of — its non-committal and vague wording. Thanks to the implied demand to think about addressing society-wide problems, spelt out in various bits of guidance, the traditional direction of focus for crucial public services has been altered, moving away from the present and the local towards the absent and the abstract. Instead of just concentrating on what is best for the people in front of you here and now, applying the specialist expertise you have gained as a professional, you are simultaneously supposed to treat these people as units in a much bigger moral, national calculation. Quite apart from the ludicrously hubristic idea that — for instance — failing to section this particular black man in Nottingham will do something meaningful to shift country-wide patterns — the extra mental effort and attentional split is bound to result in misjudgements and blindspots. And that’s presumably how you get a police officer chummily saying, “I don’t think you have, mate”, in response to a young white man dying in front of him, describing how he’s just been stabbed by a Sikh.

---