Back to basics

A year after public authorities were supposed to have their race equality
schemes in place, only a handful have fulfilled their legal obligations, according
to a new survey. Richard Kenyon and Henrietta Hill report

This time last year, public authorities were frantically trying to get their
Race Equality Schemes in place by the 31 May deadline to comply with their
latest obligations under the Race Relations (Amendment) Act 2000 (RR(A)A). This
Act places a ‘general duty’ on specified public authorities to take steps to
eliminate unlawful racial discrimination, promote equality of opportunity and
promote good relations between people of different racial groups. It also
places ‘specific duties’ on certain public authorities to help them meet the
general duty.

The specific duties require public authorities to publish and maintain an
RES and the results of ethnic monitoring. These may provide a complainant with
valuable data to support a county court or employment tribunal claim. Failure
to comply with the minimum requirements puts the authority at a disadvantage in
any litigation, as it suggests it does not take the issue of race
discrimination as seriously as it should, leaving it vulnerable to allegations
of race discrimination and ‘institutional racism’.

The legislation makes no mention of institutional racism, although that
concept was the catalyst for it. The Macpherson Enquiry into the Metropolitan Police’s
handling of the Stephen Lawrence murder investigation described it as:
"the collective failure of an organisation to provide an appropriate and
professional service to people because of their colour, culture, or ethnic
origin. It can be seen or detected in processes, attitudes and behaviour which
amount to discrimination through unwitting prejudice, ignorance,
thoughtlessness and racist stereotyping which disadvantage minority ethnic
people."

Crucially, the report highlighted unconscious, unwitting and unintentional
prejudice, equating its consequences to more overt forms of racism. Unwitting
prejudice is, by nature, difficult to identify not least because the
perpetrators are unaware they are discriminating.

However, the consequences of discrimination may be apparent from statistical
analysis. This is where the RR(A)A should be making a difference. The specific
duties should help provide that statistical analysis and the general duty
should provide the obligation to correct any anomalies revealed. However, a
lack of commitment or a lack of focus by public authorities appears to be
frustrating the purpose of the legislation.

Survey

The Field Fisher Waterhouse Survey looked at 100 randomly selected RESs
across 10 different sectors, including local and central government, health,
transport, criminal justice and media. It was divided into three sections and
scored on a points system out of 100. The first section looks at whether or not
the public authority has complied with the minimum requirements of the
legislation; the second section looks at the quality of compliance with the
minimum requirements; and the third contains bonus points for clarity and
brevity.

An RES must be published, so it is therefore a public document. The survey
approached public authorities as a member of the public might. Public
authorities were not asked to respond to a questionnaire, nor were those tasked
with writing the schemes and monitoring their implementation contacted.
Instead, the survey used reasonable endeavours to obtain an authority’s RES,
using telephone and internet enquiries.

Virtually zero compliance

Perhaps the most surprising finding was that virtually all of the RESs
failed to comply with the minimum requirements of the legislation (96 per
cent). Doing what the legislation says should be the easy part. Doing it well
is what requires effort.

The reasons for this basic failure are likely to vary from authority to
authority. One possible explanation is that those drafting the RESs did not pay
enough attention to the legislation itself, but relied on summaries and
guidance, such as the Code of Practice and guidance produced by the CRE.

RESs were unavailable in 14 per cent of cases. The reasons could range from
complete failure to comply with the legislation, to failure to publish in an
accessible location and educate staff dealing with public enquiries. In one
case, the authority was very reluctant to hand over a copy of its RES, treating
it like valuable intellectual property that others might want to copy, which is
hardly in the spirit of the legislation. Eight per cent of those RESs that were
available were still marked "draft", eight months after the deadline
for implementation.

A contributory factor is likely to be the CRE’s delay in finalising the Code
of Practice and guidance. The legislation came into force on 3 December 2001
but the code was not finalised until immediately before the 31 May deadline,
giving any public authority that had waited for the final version almost no
time to prepare its RES.

The vast majority (91 per cent) of RESs that failed to comply with the
minimum requirements of the legislation did so because they failed to identify
the functions, policies and proposed policies that the authority had assessed
as relevant to the performance of the general duty. This is the most important
step in the process and, without it, any action plan is likely to lack focus
and direction.

Many RESs merely stated that the authority would take steps to identify
relevant functions, policies and proposed policies. The legislation, however,
required authorities to carry out this assessment and include the results in
the RES before the deadline.

Even where some attempt had been made to address the issue of functions,
policies and proposed policies, the survey found very little evidence that
authorities had approached these as three separate things. Some authorities
chose to deal with these issues on the basis of "core functions," a
process conducted at such a high level it was meaningless. One authority in the
health sector stated that it had "212 functions", without any obvious
source for this figure or analysis of how those functions were relevant to the
general duty.

The survey found a similar lack of detail in relation to the various
arrangements for monitoring, training and public access to information. Many
RESs merely stated that "arrangements would be put in place" without
saying what they were, or whether they had been implemented. Action plans were
also noticeably missing from many RESs, or were too vague to provide any real
direction.

An RES should also be an accessible public document. It is likely to be of
interest to members of the public for whom English is not a first language. The
survey therefore gave bonus points to RESs that were clear and concise (more
than 50 pages lost two points), and available in languages other than English,
which was relatively rare.

The survey found RESs varied considerably. The best-scoring scheme was given
91 per cent and the worst 19 per cent, with total non-compliance obviously
scoring 0 per cent. This range of quality and approach is not surprising, as
authorities had little in the way of precedents from which to work and little
time for sharing experiences. But as time moves on, these excuses carry less
weight.

A recent report into the Damilola Taylor murder investigation commented that
the case demonstrated how the Metropolitan Police had "moved on since its
unsatisfactory investigation of the murder of Stephen Lawrence".

It is hoped all public authorities would emerge from a similar review with
positive comments about their practices. But if compliance with the legal
obligations under the RR(A)A is anything to go by, there still appears to be a
long way to go.

Richard Kenyon is a partner in the employment department of solicitors
Field Fisher Waterhouse. Henrietta Hill is a barrister at Doughty Street
Chambers

What are the duties?

A Race Equality Scheme is a set of minimum standards for complying with the
general duty to promote race equality and prevent discrimination. It should
cover:

– the functions, policies and proposed policies of the public
authority that are relevant to the performance of the general duty (this list
should be reviewed at least every three years beginning 31 May 2002)

– arrangements for assessing and consulting on the likely
impact of proposed policies on the promotion of race equality

– arrangements for monitoring policies for any adverse impact
on the promotion of race equality

– arrangements for publishing the results of those assessments,
consultation and monitoring

– arrangements for ensuring public access to information and
services provided by the public authority

– arrangements for training staff in connection with the
general duty

– arrangements for meeting their employment duty (see below)

The specific duty on employment applies to most of the public
authorities to which the general duty applies. These public authorities should
have had arrangements in place by 31 May 2002 to ethnically monitor their
workforce and should have put these arrangements into practice as soon as was
reasonably practicable. The duty is to monitor, by reference to the racial
groups to which they belong, the numbers of employees and applicants for
employment, training and promotion. Where the public authority has 150 or more
full time staff, it must also monitor, by reference to the racial groups to
which they belong, the numbers of employees who:

– receive training

– benefit or suffer detriment as a result of its performance
assessment procedures

– are involved in grievance procedures

– are the subject of disciplinary procedures

– cease employment

The public authority is obliged to publish annually the results
of this monitoring.

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