The Equality Duty: Obstacle or Opportunity

The Equality Duty: Obstacle or Opportunity

It’s long been recognised that procurers in the public and private sector possess the potential to move beyond the ‘right product, right time, right price’ mantra that permeates much of their profession. The extent to which procurement can be used as a lever to promote wider socio-economic benefits has been widely debated, albeit with mixed results. For some, the power of the public (and private?) purse should be pressed into service to alleviate inequalities and bolster regeneration of communities and disadvantaged businesses. Others see equality as antithetical to procurement objectives and a needless administrative burden.

These competing currents shaped the evolution and introduction of the Single Equality Act. Conceived by a Labour government, this legislative device was intended to ensure that the pursuit of equality was integral to all the functions of public sector bodies. Procurement was to be named in recognition of its central importance to wider social goals. That was then. The advent of the Coalition Government with an alternative vision for the public sector has seen a weakening of the intended purpose of the Act, and the removal of procurement as named vehicle for the promotion of equality.

The dropping of procurement is clearly a setback for many who believe that it would have provided a much needed stick to encourage procurers to acknowledge the importance of social, as well as economic, returns on their activities. Procurers are not noted for their embrace of wider equality considerations. And the extent to which such considerations will be recognised in an era of severe public sector retrenchment certainly invites further scepticism. When this is set against the laisser fair approach of central Government, hopes for substantive change might well fade.

The Government recently published the results of its consultation on the new Equality Duty. Nearly half of the many contributions to this process related to procurement. The Government has responded in variety of ways. The key changes to the regulations are that: public authorities should publish sufficient information to show that they complied with the general duty; public authorities should report on their engagement with interested parties, particularly in relation to the setting of equality objectives; and public authorities should undertake an ‘equality analysis’ of the effects of their policies.

Although procurement is not identified as a specific function for attention, each of these changes provides grounds for (qualified) optimism. For example, public authorities ‘will need to publish sufficient information to demonstrate compliance with the duty across their functions’. Surely this includes procurement, since it is a key activity of such bodies. Although there is currently no guidance on the meaning of ‘sufficient information’, there is no reason to suggest that diversity data on existing and potential suppliers should be excluded. Empowered citizens – which the Government hope all of us will become – may be in a position to demand access to such information. After all, ‘transparency’ is current preoccupation of policy makers.

The requirement for public authorities to report on the engagement activity that they have undertaken in developing their objectives is another potentially useful incentive to encourage a more inclusive approach to procurement. Research undertaken by the Centre for Research in Ethnic Minority Entrepreneurship (CRÈME) and many others has shown that enlightened procurers can diversify their supply base by engaging with a range of networks (for example, intermediary organisations, representatives of minority enterprise, business associations). The regulations could encourage productive interactions between equality-conscious procurement officers and intermediary bodies with access to firms that are ‘fit to supply’ the public sector.

We don’t yet know what form the ‘equality analysis’ envisaged in the regulations will take; but at a minimum, public authorities will need to be cognisant of the equality implications of their policies. The Government has made clear that ‘in order to comply with the general duty, public authorities need to understand the impact of their current and proposed policies and practices.’ This requirement could well cast light on how public authorities (and their private sector partners) are endeavouring to incorporate equality considerations in their procurement practices. It may encourage the procurers to become more ‘diversity-aware’ by including equality as one of the factors that they have to consider as part of their work.

Notwithstanding these recent amendments, the Equality Duty remains shrouded with ambiguity. There is little consensus on how the Duty will operate in practice, and much remains to be clarified. This will no doubt mean that the legal profession will be the immediate beneficiaries, eagerly exploiting the occasionally nebulous drafting of the regulations. However, and in keeping glass half-full sentiments of this posting, we should bear in mind the following. First, the Equalities and Human Rights Commission (EHRC) have been tasked with the job of providing guidance to accompany the regulations. The EHRC is a keen advocate of effective and inclusive approaches to procurement. It is taking soundings from a range of interested parties on how the regulations can work in a way that produces ‘better procurement practice’ (where equality and procurement objectives complement rather contradict each other).

Second, there are many public and private sector organisations that are working to become more inclusive without the stimulus of government legislation. Organisations like CRÈME, Business in the Community and Supplier Diversity Europe have considerable experience of working on this agenda. These experiences could be shared as part of a process to disseminate exemplar initiatives.

Finally the less prescriptive approach favoured by the Government (and evident in the regulations), provides ample scope for innovation in this area. As the organisations noted above have demonstrated, there are many ways of pursuing equality outcomes through the procurement process. We need to use these examples to think more imaginatively about moving towards this goal. The Equality Duty may not have gone as far as some would have liked; but it certainly offers an invitation to think creatively about an issue that will only increase in importance.

Monder Ram