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A legal duty to tackle inequality: Scotland first, Wales next, England when?

This month a public consultation is underway in Wales looking at implementing a duty on public bodies to consider the effect of policies on socio-economic inequality.

The same duty was introduced in Scotland in 2018 under the name ‘Fair Scotland Duty’. Scottish public bodies can face judicial review if they are suspected of not abiding by this obligation.

This ‘socio-economic duty’ was created by the UK Parliament 10 years ago. Section 1 of the Equality Act 2010 requires public bodies to exercise their functions “in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.” Yet the huge potential that this section represents for tackling inequality was nipped in the bud.

Although the section was passed with the rest of the Equality Act just before the 2010 election, the winners of the election decided to leave it unenforced – they didn’t repeal it by a vote in Parliament, they simply never ‘commenced’ it.

Defending this decision in November 2010, one Conservative MP told the House of Commons that this “tiny clause” was “nothing more than a gesture and will only add to the burdens and bureaucracy of local authorities.”

But like the rest of the Equality Act, which has had a historic impact on how public bodies take decisions and understand fairness, the socio-economic duty could bring about real change. Scotland has already harnessed its potential. Wales will no doubt follow suit. So why not England?

Inequality is a UK-wide problem. Social mobility has been stagnating due to high housing costs, declining real wages and growing student debt. This has led to growing class inequality as those from wealthier backgrounds rely on their parents to fund studies and buy property while the rest are experiencing living standards below those of their parents at their age.

Even when people of working-class background succeed in entering ‘professional’ occupations, they’ll earn on average 17% less than their more privileged peers in the same job. The class pay gap is comparable to the gender and ethnicity pay gaps: women of professional backgrounds earn 17% less and black male graduates earn 17% less than their peers 5 years after graduating.

Class disadvantage is real. People from wealthier households do better at school, are more likely to attend university, are healthier, have better (and more) teeth and are less likely to be unemployed.

Since 2010 real spending in public services like transport and housing has decreased, affecting low-income households the most. The government’s own Social Mobility Commission reports that cuts to education, welfare and health harm the life prospects of those of disadvantaged backgrounds.

The socio-economic duty would oblige public bodies to consider the effects of their decisions on inequality. In Scotland the duty’s visible effect so far has been the integration of socio-economic issues such as area deprivation, fuel poverty, pay ratios, precarious housing and community empowerment into public planning and decision-making.

One Scottish local authority reported to the Equality and Human Rights Commission (EHRC) that it wrote its Children Services plan with aims cross-referencing poverty themes that had been identified as a result of the socio-economic duty. This was based on the recognition that children in poverty benefit from services in different ways than other children. This isn’t a minor concern – 1 in 4 children in Scotland live in poverty today, according to Scotland’s Poverty and Inequality Commission.

The socio-economic duty therefore helps public bodies to recognise the link between different forms of poverty and the integrated approach that is needed to tackle them. If it were subjected to this duty, the DWP would have had to inform its decisions with evidence, for example, of the fact that demand for food banks has surged in areas where Universal Credit has been introduced. A single policy can often impact inequality in multiple ways. Section 1 would oblige public bodies to consider that multidimensional impact before implementing strategic decisions.

The EHRC has called on the UK government to commence section 1, saying it would incorporate the UK’s international obligations relating to social and economic rights into domestic law. In Westminster two Early Day Motions on commencing section 1 were tabled, the first attracting 83 MP signatures, but neither were debated.

The UK is one of only 3 countries (along with Liechtenstein and Luxembourg) out of 31 EU-EEA countries where discrimination related to socio-economic status is not unlawful. Most have outlawed it, albeit defining it differently (‘economic vulnerability’ in France; ‘social origin’ in Belgium and Denmark, ‘social class’ in Croatia, ‘financial status’ in Iceland). Some countries only prohibit discrimination based on work status or social security status (Ireland), or simply include socio-economic status in an umbrella category of ‘other grounds’.

The socio-economic duty becomes all the more necessary in light of Brexit. The EU has developed a comprehensive system of non-discrimination law partly to address the danger of countries with higher social protection being at a disadvantage in the single market. Once outside the EU, the UK might face economic incentives to strip such protections in order to better compete against the EU trading block. Section 1 would prevent policies seeking to enhance our competitive trading advantage at the expense of equality of opportunity.

Section 1 doesn’t need a vote in the Commons to be passed, it’s already in our law. It only needs a formal decision by the government to ‘commence’ it. Now’s the time. 

Laurène Veale is a pupil at Cloisters.