The Equality Act has created a damaging culture in Whitehall, and ministers will not reform the Civil Service without changing it.
There is a legal underpinning to the much-attacked wave of Whitehall wokery. Thirteen years after the Equality Act became law, it has created a new culture in the public sector, as well as wider society, which is both culturally and economically damaging. The Equality Act and its ilk are increasingly attacked. But it is important to understand precisely what is wrong.
It is fashionable to believe that politics is downstream from culture, but when it comes to the British public sector, it is arguably the other way round. A web of laws and obligations, stemming from the Equality Act and its Public Sector Equality Duty have created a new culture, reinforced by case law and precedent, which shows no sign of ending, despite many ministers’ attempts to stamp out the Left-wing culture wars in Whitehall.
Before the Equality Act, Britain had a wide range of anti-discrimination laws. The Equality Act superseded these, and implemented new equality laws mandated by the European Union regarding pay between men and women. However, it went significantly further than the EU, and introduced the concept of nine protected characteristics in law, against which any form of discrimination was outlawed.
One of the most important parts of the Act is the Public Sector Equality Duty, which mandates public authorities to advance the cause of non-discrimination as defined by the Act. This turbocharges the equality agenda, instead of simply guarding against undue discrimination. It has entirely changed the way the Government operates.
While newspapers like The Telegraph have done valuable work reporting on the crisis in RAF recruitment, where senior officers refused the promotion of white male fighter pilots in the interest of diversity, or the much publicised issues around gender recognition, the Equality Act has been enacting a great deal of damage below the radar.
See the latest Diversity, Inclusion and Equality report produced by HS2 Ltd, the organisation struggling to build the High-Speed Rail route between London and Birmingham. Its 52-page report lists the ways in which it is reducing inequality through the construction of a railway line.
It even includes a lengthy segment detailing the millions of pounds in grants it has awarded for this purpose, including £67,957 to the Bengali Workers Association in Camden for workshops on loneliness and wellbeing, and detailing its plans to reduce the proportion of white men in the workforce to build the line. By contrast, the organisation’s report on tunnelling costs amounts to a mere 12 pages. This is how an Act has forced the racialisation of our society, even down to infrastructure projects.
One might think it churlish to make these comparisons, but when the project is so over-budget, partly thanks to unnecessary tunnelling, producing lengthy and expensive equality assessments of an infrastructure project appears farcical. The Equality Act has created this. David Cameron pledged to end the mandatory use of equality impact assessments while he was prime minister, but they remain today, and the cottage industry associated with them only gets bigger, the rent seeking more expensive.
This has a chilling effect when it comes to policy making. In the run up to the 2021 Autumn statement, government lawyers in the Department for Levelling Up, Housing and Communities, refused to approve any submission for funding without an equality impact assessment, citing the Public Sector Equality Duty. This posed the ridiculous scenario that high street redevelopment may be refused if it wasn’t proven to increase equality. As it happened, this was an erroneous use of the Duty and the legal objections were overruled, but it indicates the effect that these laws and duties have. They become tools to stop countless things happening, narrowing the window for discussion, ideas and advice.
Similarly, following the judicial review of Dido Harding’s appointment to run Test and Trace on equality grounds – because ministers did not pay due regard to equality concerns in her appointment in a time of emergency – a new precedent has been set which may derail future public appointments of vital importance. Before Health Secretary Steve Barclay mandated that all senior civil service hires must be advertised externally by default, Cabinet Office civil servants attempted to refuse the announcement without an Equality Impact Assessment. It was an extraordinary turn of events for a method of expanding recruitment to the Civil Service to be stymied on equality grounds.
Conservative MPs and ministers will get nowhere in their fight against Left-wing orthodoxy in Whitehall without dismantling its foundations. The Equality Act has created an ever expanding industry for its own enforcement, with even a dedicated quango to monitor it. Any screeds against “Whitehall wokery” are meaningless without structural reform. Such reform is long overdue. There may be little time to enact it.
Fred de Fossard is Head of the British Prosperity Unit at the Legatum Institute