by James McSweeney
Monday, 21
March 2022
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16:09

Conservatives should amend the Equality Act — not repeal it

A small amount of legal tweaking can tame the Blob
by James McSweeney
They’re alright, but do they have to run the NHS?

Conservative culture warriors will find little to love about the Government’s new policy paper, Inclusive Britain. With actions ranging from beefing-up online censorship to ensuring NHS hospitals are “held to account” for insufficiently zealous diversity drives, the manifesto will nudge along the Left-wing tilt of public bodies.

When Conservatives wonder why this keeps happening, they often focus their ire on the Equality Act 2010. When they complain about the Equality Act, they’re usually angry about specific clauses.

Clauses like Section 149 which introduced a ‘public sector equality duty’. This obliged public bodies to “encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low”.

Subsequent regulations (introduced by Conservative ministers) toughened Section 149 — imposing on public bodies a requirement to publish measurable “equity objectives”, including a concrete steps to strengthen diversity and extensive annual reports on progress. This effectively meant that every public body — from your local hospital trust to the Royal Navy — had to hire a diversity bureaucracy.

What followed was predictable. The number of Diversity & Inclusion roles surged 71% between 2015 and 2020. According to LinkedIn, the UK now has twice as many D&I workers per capita as any other country. How do these workers boost diversity?

While the Equality Act forbids explicit quotas, it provides two loopholes. Section 158 facilitates “enabling or encouraging” protected groups to “participate in an activity” where they are underrepresented. This covers targeted outreach schemes such Civil Service Summer Diversity Internship. And Section 159 does allow forms of preferential treatment for candidates from underrepresented groups. However, as university grades, A Levels, and psychometric tests consistently produce large group differences, the diversity and inclusion bureaucracy has been forced to get creative.

Some bodies, such as the civil service and police, have dumped numerical and verbal reasoning tests (the former has also dropped A Level requirements) — replacing them with situational judgment tests, which largely query candidates on how they would navigate professional relationships. These lack predictive validity but produce results without any clear group-correlated patterns.

Other bodies rely on more informal discrimination. NHS England’s pledge to reduce the ratio of ethnically European medical directors by 27% probably falls into this category — with candidates failing to fit the profile likely to be looked over. The Army has simply lowered standards.

These trends are unlikely to be reversed by repealing the Equality Act. When the Reagan administration scaled back US affirmative action compliance requirements, companies failed to change their behaviour. I suspect we’d see the same in the UK — after years of on-message statements, no CEO or public sector leader will want to be seen as anti-diversity.

Instead of revoking the Equality Act, the Conservatives should amend it — removing Part 11 (which contains the above sections). With this adjustment, any private or public body pursuing diversity targets would become liable to near-bottomless lawsuits for violating the Equality Act’s prohibition on discrimination on grounds of race, sex, religion, gender identity or sexuality. Overnight, statements of intent to alter any group’s share of the workforce would become damning legal evidence. The entire diversity bureaucracy would be severely damaged.

The Government can do this quite easily, and it must. The alternative is to erode meritocracy and mandate growing discrimination against any group judged to be inappropriately successful.

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Matt M
Matt M
3 months ago

Excellent! A practical idea for once.

Stephen Walshe
Stephen Walshe
3 months ago

The link to the NHS England pledge is shocking. “While the number of BME medical directors increased to 20.3% and the proportion of clinical directors is now above one quarter, both figures would need to be at 42% to be representative, one of the reasons that the NHS Long Term Plan has called on everyNHS trust to set its own target on senior BME representation by 2022, to reflect their overall workforce”. So while BME people are far less than 42% of the adult population, because they are already over represented within the NHS workforce, senior roles need to have more BME staff regardless of qualification or competence. And sod the medical needs of the patients paying for it all.

Jeremy Bray
Jeremy Bray
3 months ago
Reply to  Stephen Walshe

If diversity, in the sense of a workforce that is representative of the population as a whole, was actually the aim the NHS set itself there would have to be a halt on BME recruitment and a massive drive to recruit indigenous native doctors and nurses to rebalance the gross BME over-representation in their workforce. As the UK is not a racist country there is, of course, no agitation for such a policy. It is true, however, that our failure over many years to train sufficient medical staff and to rely on overseas recruitment leaves the country vulnerable to staff shortages should the lure of the UK for foreign born staff wane.

Andrew Fisher
Andrew Fisher
3 months ago
Reply to  Stephen Walshe

Where does the 42% figure come from? I suspect many organisations will not rest until they have a MAJORITY of ethnic minority management.

Jeremy Bray
Jeremy Bray
3 months ago

Box-ticking Diversity is a bad policy imported from the US that is struggling to correct deeply institutionally racist policies in the true sense of that phrase from its recent past.
The author has identified the problem with the Equalities Act, namely those sections that promote not equality, which is desirable if the talents of all the citizens are to be harnessed, but diversity which requires artificial discrimination not based on merit but ethnic balance, or in the case of the NHS overlooking ethnic imbalance.
The colour of a man’s skin and the proportion of skin colours in any occupation should be totally irrelevant in a rational world.

Sharon Overy
Sharon Overy
3 months ago

… ethnically European ….

No need to be shy – you mean white. But that would reveal it as racist.

Nicky Samengo-Turner
Nicky Samengo-Turner
3 months ago

There is no such thing as equality, save in the mind of misty eyed totalitarian idealogues… there never has been and there never will be, because the real ‘ diversity’ is that different people, and peoples, have differing skills, talents, abilities, and also negatives… and always have had and always will have.

Graeme Laws
Graeme Laws
3 months ago

A proper Government would say that this Act is bad law and simply repeal the work of Harman, whose politics, like those of her old flat mate Hewitt, were destructive. Remember the NCCL. Tells you everything.

Caroline Watson
Caroline Watson
3 months ago

The Equality Act should be amended to relate only to physical characteristics: sex, ethnic origin, disability and age. Anything relating to ‘identity’ or ‘belief’ should be removed.