A small amount of legal tweaking can tame the Blob
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.
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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.