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PSED: specific duties in England (and non-devolved bodies)

From 5th April 2011, the previous disability equality duty on public authorities was replaced by a single Public Sector Equality Duty (PSED). For English bodies, and other bodies controlled by Westminster, rather limited 'specific duties' came into force on 10th September 2011.

Note: this page covers the new single Equality Act 2010 duty which took effect from 5th April 2011. For the position before then, see the Disability Equality Duty.

In summary

Specific duties are intended to support the General duty. There are separate specific duties for Scottish and Welsh devolved bodies. However, this page deals with the specific duties for English bodies, and for other bodies which are not devolved. The duties are in regulations passed by the Westminster Government.

In summary, these specific duties require listed public bodies to publish:

From February 2012 the Equality and Human Rights Commission are monitoring to what extent authorities have published relevant and accessible information to demonstrate compliance with the PSED: Monitoring (link to EHRC website).

There is no longer a requirement to publish an 'equality scheme' (compare pre-April 2011 position).

Guidance for English and non-devolved bodies (there are no statutory Codes of Practice as yet):

Although the 'general duty' under the Public Sector Equality Duty has been in force since April 2011, specific duties in England only came into force on 10th September 2011.

The regulations

The Equality Act 2010 (Specific Duties) Regulations 2011 (link to legislation.gov.uk) came into force on 10th September 2011. That link also includes an Explanatory Memorandum.

There is a broad summary of the regulations above. For more, see detail, see below:

The regulations were debated in the House of Commons (link to Hansard) on 11th July 2011 - there was some stong criticism of them, and also some clarification by the Minister Lynne Featherstone MP of what is envisaged. The House of Lords debate (link to Hansard) was on 6th September.

Lynne Featherstone MP for the Government said in the 11th July debate (link to Hansard): "the Government are committed to reducing burdens on public bodies, and our aim is to shift public bodies from bureaucratic accountability to democratic accountability, with a key focus on transparency. Instead of the process requirements of the past, we propose just two specific duties: public bodies listed in the regulations should publish information to demonstrate their compliance with the equality duty, and they should set themselves equality objectives."

Further links on the regulations:

Which authorities are covered?

This page deals with specific duties for bodies for which the Westminster government is entitled to make regulations. Broadly these are bodies in England, plus non-devolved bodies in Scotland and Wales. The relevant bodies on which the Westminster government may impose specific duties are listed in Part 1 of Schedule 19. The slightly more limited list of bodies on which proposed regulations will actually impose specific duties is set out in the two Schedules to the regulations. The Explanatory Memorandum says:

"The objective behind the duty is to ensure that consideration of equality issues forms part of the routine, day-to-day decision making and operational delivery of public authorities, and the purpose of the specific duties is to ensure better performance of the duty. The specific duties will therefore be imposed on almost all of the public authorities subject to the duty. The only exceptions are a few very small organisations for which the imposition of the specific duties would not be proportionate or sensible. These include parish meetings, local waste and drainage bodies, and some professional regulatory bodies."

Accordingly, the bodies listed in the regulations include, for example most central government ministries, county councils, district/borough councils, police, further education colleges and universities, and much more.

Publishing annual information

A public body listed in the regulations will be required to publish annually "information to demonstrate its compliance" with the 'general' duty. Most bodies have to do this by 31st January 2012, and at least yearly after that. However, for bodies in Schedule 2 of the regulations, broadly schools, the date is 6th April 2012.

The duty to publish information includes in particular:

The Explanatory Memorandum (para 18.15) says that information to demonstrate a body's compliance with the duty "is likely to include details of the analysis it undertook and the information on which it was based. It is also likely to include details of any engagement or consultation that it undertook in complying with the duty. But the Government did not wish to impose a burden on public authorities to publish details of every single meeting that it has with its staff and members of the public, and every single document that it considers during the exercise of a function. Public authorities should be able to decide what information would be proportionate to disclose for this purpose and the public should be free to challenge authorities if they require more or for it to presented differently. They simply signal flexibility to public bodies, in how they demonstrate their compliance with the regulations."

There was much concern expressed in the House of Commons committee that public bodies were not being required to publish sufficient information, or that the obligation to do so was not clear enough. Apart from stressing the legal obligation to publish under the specific duty regulations, the Minister Lynne Featherstone MP added (11th July (link to Hansard)) that citizens will have further rights to information to help them hold public bodies to account:

"The individual will have the right to challenge and the right to data and can request any information that is held by that authority. Under the Protection of Freedoms Bill that is going through Parliament at the moment, the data that must be released have been increased to include anything and everything that the public body holds and must be published in a usable, comparable and accessible manner."

In response to a comment by Fiona Mctaggart MP that standardised data would help both citizens seeking to make judgments and public bodies looking for clarity as to what they should publish, Lynne Featherstone for the Government said in the 11th July debate (link to Hansard):

"The hon. Lady asked about standardised data. I totally agree with her about that. It is extremely important that the data are accessible, understandable, comparable and usable. The previous duties did not provide guidance about that. The EHRC and the Government will provide guidance for public bodies to help them decide what information to publish. We think tailored guidance, which is appropriate for those different types of bodies, is much more helpful than a blanket legislative requirement."

Setting objectives

At least every four years, starting not later than 6th April 2012, each public body within the regulations will have to prepare and publish "one or more objectives" it thinks it should achieve to do any of the things mentioned in the general duty. Objectives must be "specific and measurable".

According to the Explanatory Memorandum, the 31 January 2012 deadline for most public bodies is intended to ensure that the public, and voluntary and community sector organisations, have the opportunity to review the data that has been published before public bodies set their equality objectives in April. Public bodies should be transparent and accountable to the people they serve for their work on equality. The timescale is supposed to give people at least two clear months in which to review the data that has been published, and engage with and influence public bodies, from an informed perspective, about what their equality objectives should be.

The obligation in the regulations is just to publish at least one objective. The Minister Lynne Featherstone speaking for the Government said on 11th July 2011 (link to Hansard):

"I would expect a large public body to set any number of objectives - 20, 30 or whatever it felt appropriate to demonstrate that it could achieve its equality objectives - and to have the information and data that would deliver them. For a small rural primary school with a good record, between one and three might be the proportionate number of equality objectives, because it is already complying with the general duty. This is about the specific areas that it wishes to cover in particular and to make that demonstrable, so that anyone can hold it to account."

There is a 2011 guide by brap: Equality objectives and public authorities: tips, hints and bright ideas (link to brap.org.uk).

Future review of the duties

The Explanatory Memorandum says that the Government will review how the specific duties are working in practice in two years time. The Minister Lynne Featherstone said on 11th July 2011 (link to Hansard):

"The review will consider issues such as whether public bodies have set themselves challenging enough objectives. Are public bodies publishing sufficient equality information to demonstrate their compliance with the equality duty? Is the right sort of information in the right format to enable the public easily to hold the bodies to account? Have public bodies engaged with and been challenged by the public and voluntary sector? It is impossible to envisage a situation where, to comply with the duties, a public body would not engage and demonstrate that compliance."

Previous history: March 2011 consultation

The Government published draft regulations in January 2011, following a consultation which ran from August 2010. However, in a late change, on 17th March 2011 the Government issued a second consultation document (link to GEO website on National Archives) setting out revised proposals and draft regulations on the specific duties. Fuller links are below. The result is the revised regulations above, and the responses to the consultation and the Government's view on them is discussed in the Explanatory Memorandum to those regulations.



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© Allan Tyrer 1999-2012
Last updated 24th October, 2011 (part update 30th January, 2012)