EQUALITIES AND HUMAN RIGHTS COMMISSION – WRITTEN EVIDENCE (PSR0107)

Table of contents

Equalities and Human Rights Commission – written evidence (PSR0107)

Introduction

A. Inequalities across Britain              4

B. Levelling up and ‘building back better’

C. Strengthening the Public Sector Equality Duty to promote equality as we rebuild

D. Addressing socio-economic disadvantage

E. Concerns related to certain protected characteristic groups

Annex A: Proposals for strengthening the PSED

Annex B: List of relevant EHRC submissions to other Parliamentary select committees

Introduction

1. The Equality and Human Rights Commission has powers to advise Government on the equality and human rights implications of laws and proposed laws, and to publish information or provide advice, including to Parliament, on any matter related to equality, diversity and human rights.[1]
2. This evidence supports and supplements oral evidence provided by the Chair of the Equality and Human Rights Commission, David Isaac, on Thursday 2nd July 2020 during a session that asked: “Can lessons be learned from the COVID-19 crisis for reducing inequalities for individuals with Protected Characteristics?”[2]
3. The pandemic has exposed and in some cases exacerbated many of the entrenched inequalities already apparent in Britain.[3] While services have gone to great lengths to continue service in very challenging circumstances, we are aware of specific barriers and the risk of unequal outcomes for people sharing protected characteristics across a range of public services during the pandemic.[4] 
4. As they did at the peak of the crisis, public services will continue to play a vital role in the recovery.  It is important that clear frameworks and sufficient support and guidance are in place to ensure that activity is prioritised to address persistent inequalities as we rebuild. This should be integral to the Government’s ‘levelling up’ and ‘building back better’ agendas.
5. We make recommendations in this submission for policy measures we think should be taken by Government and other public bodies to guard against further entrenching inequalities across Britain and to learn lessons from experiences during the pandemic in readiness for a potential second wave.

A. Inequalities across Britain

6. Before the outbreak of coronavirus, we knew that persistent disadvantages faced by certain groups were leaving too many people behind. Our state of the nation report, ‘Is Britain Fairer? 2018’, found that prospects for disabled people, some ethnic minorities and children from poorer backgrounds had worsened in many areas of life. Sexual harassment and domestic violence remained persistent and growing concerns, affecting women and girls disproportionately. Older people and disabled people were less likely to be treated with dignity in social care and were at greater risk of suffering isolation or being excluded from transport and other services. Poverty was particularly prevalent among women, disabled people and some ethnic minorities.[5]
7. Many of the inequalities faced by groups sharing protected characteristics across Britain are compounded by regional inequalities. Our ‘Is England Fairer? 2018’ report found that rates of severe material deprivation were higher in both the North East and the North West than in England in general. Adults in the North West from a Pakistani background experienced particularly high rates of severe deprivation. In the North East 25% of adults in general and half of all disabled adults experienced severe material deprivation. [6]
8. The pandemic has exposed and in some cases exacerbated many of the entrenched inequalities already apparent in Britain. Compounding this, and as recently acknowledged by Government, the UK is facing a ‘significant’ recession.[7] We know that following the 2008 recession many existing disparities widened, both between different regions and between different groups of people.[8] Our analysis and modelling on the cumulative impact of tax and social security changes since 2010 showed that women, disabled people, children and some ethnic minorities were among some of the hardest hit, and that many struggled to meet the most basic costs of living.[9]

B. Levelling up and ‘building back better’

9. The UK Government has committed to a ‘levelling up’ agenda and to ‘build back better’ as we recover from this pandemic. We welcome this and urge that equality and human rights considerations are central to the Government’s approach, including in relation to investment and procurement.
10.         Research on the 2012 Olympics and other major structural investment projects has demonstrated that building equality conditions into strategic frameworks and contracts can sustain a socio-economic legacy which can help address key underlying drivers of deprivation and inequality. It is vital however that these considerations are actively integrated into all stages of the investment cycle, from planning through to delivery; that decisions are based on a sound understanding of the local and regional dynamics and demographics; and that robust mechanisms are in place to monitor and track outcomes.[10]
11.         We urge Government to put equality at the heart of its post-pandemic investment strategies, ensuring meaningful equality conditions are built into strategic frameworks and contracts and that delivery is monitored robustly.[11]
12.         We welcome that public authorities are increasingly scoring for social value in procurement,[12] but to achieve the greatest impact, authorities need to identify the most pressing inequalities in their area and weight scoring to address these issues. A local-first approach, such as the Preston Model for public procurement,[13] can help to achieve this provided it is tailored, based on local evidence and in line with the Public Sector Equality Duty (PSED),[14] to ensure it is not only some communities that end up benefitting.
13.         We welcomed the Government’s 2019 consultation on how central government procurement can be used to achieve the aims set out in the Public Services (Social Value) Act 2012 (the “SV Act”), and recommended steps to strengthen the proposals.[15]
14.         The consultation recognised that public procurement, worth £284 billion in the UK in 2017/8[16], has the power to achieve real social change, and that equality is a key consideration. However, the approach proposed in the consultation lacked a specific link to the PSED and its scope was limited to central government procurement when this model is equally relevant to the NHS, local government and other public bodies. This will be increasingly important as the UK emerges from the pandemic.
15.         We recommend Government should expedite its plans to embed social value in procurement and ensure clear reference to the PSED. We further recommend Government expand these plans beyond central government and encourage public bodies to go beyond the minimum 10% weighting for social value proposed in the 2019 consultation. 
16.         As Britain moves into recovery it is also important to revisit how we measure success and identify priority areas for action to ‘level up’. Gross Domestic Product focuses on economic output and so will not indicate progress in equality, human rights and general wellbeing – issues that have grown in importance during the pandemic, with only 12% of people stating in a recent poll they wished to return fully to pre-pandemic life as it was.[17]
17.         It is time we considered different indicators to chart progress in an inclusive economy so that we measure not just economic outputs but how effectively we are improving equality of opportunity and people’s ability to lead fulfilling lives, regardless of their background. We have developed a measurement framework that we use to monitor progress on equality and human rights in Britain. We use it to assess progress against six areas of life or ‘domains’: education, work, living standards, health, justice and personal security and participation.[18] We believe it is a helpful and flexible tool which can be used to underpin wider efforts to develop new ways of providing more holistic assessments of people’s quality of life, which in turn should drive our public policy and investment choices.     
18.         We recommend Government should use our measurement framework for equality and human rights as part of a wider approach to track and measure progress as we recover from the crisis and attempt to ‘level up’

C. Strengthening the Public Sector Equality Duty to promote equality as we rebuild

19.         The PSED places a positive duty on public authorities to promote equality and take proactive steps to tackle discrimination. It was intended as a strategic tool for public authorities to drive change in relation to the starkest inequalities in their relevant sectors. However, our research on the implementation of the PSED suggests public bodies have not done this consistently.[19] Too often, public authorities focus on internally-facing objectives aimed at improving their own capacity to address inequality (for example, equality training for staff).
20.         We have developed proposals for amendments to the specific duties underpinning the PSED to require public bodies and Government departments to set, publish and pursue equality objectives that focus on the most significant inequalities for people affected by their functions.[20]
21.         Now, and as we move towards recovery from the pandemic, it is vital that public services identify the most significant equality challenges facing their sector and adopt and pursue equality objectives to address them. 
22.         We recommend the Government should review and amend the specific duties underpinning the PSED to ensure public bodies are required to focus on the most significant inequalities for people affected by their functions. The change to secondary legislation we propose would require Ministers to set and publish national equality objectives for the sectors for which they are responsible. Public authorities would then set equality objectives that reflect these and publish information on progress against action plans to address them.
23.         Public authorities can take strategic action in line with our proposals ahead of any legislative change and we are working to encourage more to do so. For example, our report Is Britain Fairer?2018 found that disabled people, Pakistani and Bangladeshi people, and Muslims have consistently lower employment and higher unemployment rates and are more likely to be in insecure employment than other groups.[21] These key employment gaps could be one area for public services across Britain to focus their equality objectives on as we move into crisis recovery, for instance by taking action to increase employment from these communities in their own workforce.
24.         We invite the Committee to consider endorsing our proposals for strengthening the Public Sector Equality Duty and ensuring it is used by public authorities strategically to tackle key persistent inequalities.

D. Addressing socio-economic disadvantage

25.         Socio-economic disadvantage often lies underneath and compounds many of the inequalities evident across the protected characteristics.[22] The crisis is also likely to exacerbate these as economic downturns affect people on low incomes or with less accumulated wealth more greatly.[23]

26.         The Socio-economic Duty under Part 1 of the Equality Act 2020 provides a framework for public authorities to address these impacts effectively by requiring them to have due regard to reducing the inequalities resulting from socio-economic disadvantage when making strategic decisions.

27.         The Socio-economic Duty is not in force in England but has been implemented in Scotland and will come in to force in Wales in 2021. Some public authorities in England have also voluntarily implemented the duty, including Newcastle Council and North of Tyne Combined Authority.

28.         We recommend the UK Government should bring the socio-economic duty into force at the earliest opportunity to help ensure that everyone can share equitably in the post-crisis recovery. Meanwhile, public services should seek to minimise the extent to which the inequalities resulting from socio-economic disadvantage are compounded when developing responses to the pandemic.

E. Concerns related to certain protected characteristic groups

29.         The terms of reference for this inquiry specifically seek to understand whether groups with protected characteristics were ‘less able to access the services that they needed during lockdown’, and whether ‘inequalities have worsened as a result of the lockdown’. The short answer is yes, but that evidence of impact on outcomes is still emerging. We have identified a wide range of relevant concerns and recommendations across protected characteristics.[24] We highlight a small number of issues below that may be of particular interest to the Committee.
30.         One overarching concern is that very few Government policies appear to have been assessed for their impact on equality and human rights, and there has been limited information published to demonstrate how these policies are being monitored for their ongoing impact and tailored to the needs of people sharing protected characteristics.
31.         Government should show leadership in ensuring equality and human rights considerations are embedded into decision making during the pandemic and publishing information on how this has been done. For example, we recommend that statutory reports to Parliament required under the Coronavirus Act 2020,[25] including the report prepared ahead of the six-month review,[26] adequately address the impact of the legislation and associated regulations on equality and human rights and reflect the views and experiences of groups sharing protected characteristics.

Ethnic minorities

32.         The evidence shows that coronavirus has had a disproportionate impact on people from certain ethnic minorities, both in terms of infection and death rates.[27]
33.         It is our view that the unequal health impacts of coronavirus are intricately linked to long-standing and interlocking racial inequalities across many areas of life.
34.         We have identified barriers faced by ethnic minority groups in relation to a range of public services including healthcare, education, housing, employment and the justice system during the pandemic and have proposed specific recommendations to address them.[28] Many of these concerns are not new, but the pandemic has highlighted and exacerbated them. We propose that in order to address the unequal health impacts, the Government must identify and address the cumulative, and overlapping, effects of racial inequality in all these areas.
35.         Since 2017, we have been calling for the Government to develop a comprehensive, coordinated and long-term race equality strategy for England designed to tackle more persistent and systemic racial inequalities.[29] The strategy should have adequate resources, clear targets and timescales as well as clear governance and accountability structures.  We propose a single UK Government department, preferably the Cabinet Office, should set the strategy, levering actions across Government and coordinating effectively with the devolved administrations in Scotland and Wales as appropriate. In line with our suggested reforms to the PSED (see paras 19-24 above) public authorities, such as the NHS, should target their PSED equality objectives (outcomes in Scotland) at key priorities for their sectors identified in the race equality strategy.

Gypsies, Roma and Travellers

36.         The inquiry terms of reference specifically seek to understand any barriers to services faced by Gypsies, Roma and Travellers. We are aware of particular challenges for Gypsy, Roma and Traveller pupils in accessing remote learning, including high rates of digital exclusion.[30] These factors could risk significantly widening the existing attainment gap.[31] We are also concerned about outcomes for children in Alternative Provision[32] and the impact of exam cancellations on children who are home-schooled or have not been at their current school for long,[33] issues that disproportionately affect Gypsy, Roma and Traveller children.
37.         In housing, recent changes in planning policies[34] have exacerbated long-standing failures by Government and local authorities to provide sufficient, safe and culturally appropriate sites for Gypsies, Roma and Travellers.[35] Compounding this, the current 90-day stay of possession claims does not cover Gypsies and Travellers living on unauthorised encampments.[36] Eviction powers remain available to the police and local authorities[37], and there have been reports of some continued evictions from public and private land during the pandemic.[38] We also note that access to basic amenities such as water and sanitation for Gypsies, Roma and Travellers remain inconsistent between local authorities in England.[39]
38.         There has also been limited guidance for Local authorities in England concerning their duties toward Gypsies, Roma and Travellers during this time, leading to divergent practice across local areas.  The lack of Government guidance has clear knock-on implications for the delivery of services at the local level.[40]
39.         We are further concerned that a significant number of Gypsies and Travellers[41] may not be able to take part in the NHS test and trace service.[42] Those living on unauthorised encampments and with no fixed address will be unable to receive home testing kits. There are also accessibility issues to accessing drive through regional test sites for those with large live-in vehicles and towing vehicles.[43]
40.         We have developed a number of recommendations to address these and other issues faced by Gypsies, Roma and Travellers[44] including that Government must:

• Develop a plan of concrete actions to tackle the disproportionate levels of exclusion, absences and attainment rates among certain ethnic minority groups, including Gypsy, Roma and Traveller children, in primary and secondary schools.
• Review the adequacy of site provision for Gypsies and Travellers across all local authorities. It should also direct local authorities and other local partners to open additional temporary sites throughout the period of the pandemic and adopt a presumption against eviction (including by police) unless suitable alternative provision has been secured.
• Explore options to enable Gypsies, Roma and Travellers to access NHS test and tracing services either through local authorities or assertive outreach models of testing.

Disabled and older people

41.         The pandemic and responses to it have created a range of barriers for disabled and older people in accessing essential services, and presented significant threats to the right to independent living.[45] Concerns are wide-ranging and span reductions to personal, residential and other community support services; reductions to health services, including mental health services; and barriers in accessing food and essentials as well as transport services. In addition, disabled children and students have faced particular barriers in accessing education. [46]
42.         We are deeply concerned about evidence of disproportionate deaths of disabled people and older people during the pandemic, including older people in care homes. Between 2 March and 15 May, over 22,000 disabled people died from COVID-19 in England and Wales – representing almost two-thirds of all deaths from COVID-19 in England in Wales during this period.[47] For certain disabled groups, including disabled women,[48] those with dementia,[49] and those with learning disabilities and/or autism,[50] the risk of harm from COVID-19 may be particularly high.
43.         Earlier in the crisis we raised our concern about easements introduced under the Coronavirus Act 2020 that enabled local authorities in England to suspend their duties under the Care Act 2014.[51] While our concerns that these easements would be widely triggered have to date not materialised,[52] we are concerned by reports that local social care provision has nonetheless significantly reduced,[53] with wide-ranging implications for human rights.[54]
44.         We recommend that provisions for Care Act easements in the Coronavirus Act 2020 should be repealed at the earliest opportunity. In line with its obligations under the Public Sector Equality Duty, the Department for Health and Social Care should increase its oversight of changes to social care provision across local areas and ensure that recovery planning and national policy decisions are informed by accurate and up-to-date data.
45.         The impact of the pandemic on care homes has also raised serious questions about how older people’s fundamental rights are valued and protected.[55] We have significant concerns about how decisions made in response to the pandemic contributed to the loss of life in care homes and the detrimental impact on older people’s health and wellbeing – including decisions about hospital discharge, testing, restrictions and withdrawal of healthcare services, supply of personal protective equipment (PPE) and restrictions on family visits.[56]
46.         There were more than 18,500 care home deaths in England and Wales involving COVID-19 up to 12 June, accounting for almost 40 per cent of all deaths related to the virus.[57] Overall, there were 57,588 deaths in care homes during this period, which represents approximately 26,230 ‘excess’ deaths compared with previous years.[58] The COVID-19 mortality rate for care home residents was significantly higher than for other people of the same age[59] and data indicates a disproportionate impact on those from ethnic minorities.[60] Almost half of all care home deaths involving COVID-19 were of people with dementia and Alzheimer’s disease.[61]
47.         We recommend the Government undertake or commission urgent reviews into the disproportionate deaths of disabled people and of older people in care homes respectively. We recommend a review into the deaths of disabled people includes an assessment of the excess deaths of people with recognised physical or mental impairments, deaths in care homes, and deaths of people with learning disabilities and/or autism. We recommend a review into deaths in care homes includes the impact of policies on hospital discharge, care home admissions, testing and PPE, the causes of ‘excess’ deaths in this period, regional variations in how care homes have been affected and the differential impact on groups sharing protected characteristics. Disabled people, older people, their relatives and representative bodies must be meaningfully consulted and engaged in establishing and directing these reviews. The findings should be used to identify and implement changes in policy and practice to ensure older and disabled people’s rights are protected, both in the immediate term and in preparing for a potential second wave.

Specialist domestic abuse services

48.         During the evidence session attended by David Isaac, the Committee heard compelling evidence from the Angelou Centre on issues faced by specialist violence against women and girls services and the survivors they serve.
49.         Evidence suggests that domestic abuse increased during the pandemic, with large increases in calls to helplines[62] and concerns about a potential rise in domestic homicides.[63]
50.         There is a long-standing serious lack of funding and shortage of services for domestic abuse survivors. Funding cuts have disproportionately affected organisations run by and for certain groups,[64] including disabled and ethnic minority women, even though some ethnic minority groups and disabled people are more likely to experience sexual violence and domestic abuse.[65] Specialist services for survivors are essential to enable them to leave an abusive relationship and/or report to the police; to persist with the criminal justice process; or to seek civil remedies and protection. 
51.         The coronavirus pandemic has both highlighted long-standing inequalities faced by ethnic minority survivors and survivors with other protected characteristics, and exacerbated the issues faced by small specialist organisations, meaning that long-term adequate funding is now more important than ever.
52.         The Domestic Abuse Bill, currently before Parliament, is an opportunity to address the shortfalls in service provision and to protect and support all survivors.[66]
53.         We recommend that the Domestic Abuse Bill should be amended to ensure sufficient specialist services are available to survivors in the community as well as in refuges. Protection and support should be available to all on a non-discriminatory basis and this includes ensuring that migrant survivors with insecure immigration status, and their children, have equal access to services.[67]
54.         We recommend the Government should urgently think beyond the pandemic-related emergency funding (which comes to an end in October), to ensure sufficient, long-term sustainable funding for the violence against women and girls (VAWG) sector (both refuges and community-based services). This must include specific ring-fenced funding for smaller organisations run by and for survivors sharing protected characteristics. 
    

Annex A: Proposals for strengthening the PSED

The Public Sector Equality Duty has its roots in the Macpherson Report into the circumstances surrounding the murder of Stephen Lawrence, and the subsequent police investigation. The PSED was envisaged as a powerful tool for tackling systemic discrimination, but as we approach the duty’s 10th anniversary it is clear that, while it has led to some positive change, it has not fully lived up to this vision.

We have identified four core issues with the way many public authorities currently set their equality objectives to comply with the PSED, which mean it is not reaching its potential:

• Reliance on tacit knowledge of equality issues rather than robust evidence
• Focus on ‘low-hanging fruit’ rather than targeting the most persistent inequalities
• Disproportionate attention directed at internally-focused, capacity-building objectives
• Lack of transparency in what actions are being taken to achieve objectives

The specific duties of the PSED are set out in secondary legislation (which differs in England, Scotland and Wales) and we have been working on proposals to reform them. We want to make it clearer and easier for public authorities to comply with the duty, driving a more strategic response that encourages public authorities to set evidence-based and outcomes-focused equality objectives that target the most pressing inequalities.

Our draft proposals

1. Ministers should be required to publish equality priorities for their department or sectors, using key evidence including our Is Britain Fairer? report
2. Public authorities should be required to publish objectives in pursuit of these priorities, unless context justifies a different approach (‘comply or explain’ model)
3. Public authorities should be required to take positive action to achieve the set objectives unless context justifies otherwise (‘comply or explain’ model)
4. Public authorities, when procuring goods and services, should be required to use purchasing power to achieve their equality objectives unless they can explain why it is not appropriate (‘comply or explain’)
5. Public bodies should be required to publish action plans and measure and publish progress against objectives, using guidance from Ministers
6. Bodies with responsibility for regulating, inspecting or auditing public authorities should be required to oversee progress in relation to relevant key findings in Is Britain Fairer?

We are also considering whether some of the existing specific duties should be amended to encourage public bodies to focus on taking action to promote equality.

The impact of these proposals

These proposals would mean that:

• Public authorities prioritise the most significant and persistent inequalities within their equality objectives, rather than easy wins.
• All bodies within a sector are focused on addressing the same inequalities, resulting in significant, systemic impact on those issues (rather than selecting disparate issues of varying importance).
• Inequalities are addressed through cross-sectoral action.  Inequalities affecting a particular group, such as a particular ethnic group, will be prioritised in bodies’ objectives
• The relevant regulators or inspectorates for a sector, which already have regular access to, and influence over relevant bodies, will exert pressure to make progress on those issues. The National Audit Office could also report on departments’ progress through effectiveness reviews. 
• The EHRC would remain responsible for monitoring and enforcing compliance with the specific duties – the process duties requiring bodies to set appropriate objectives, to publish action plans and to measure progress, etc. – but the relevant regulator, inspectorate or auditor would measure progress in relation to addressing the substantive inequalities.
• Private and voluntary sector bodies are also engaged in tackling the most significant and persistent inequalities through public procurement.

How this would work in practice

• For example, our evidence from Is Britain Fairer? shows that fewer Black, Pakistani and, particularly, Gypsy, Roma and Traveller children in England are likely to achieve a ‘good level of development’ at both school entry and school leaving age than White British and Irish children.
• The Schools Minister would set an objective to reduce these educational attainment gaps and publish guidance on measuring progress.
• All schools would set themselves equality objectives and action plans to reduce these gaps (or explain why they weren’t appropriate for that particular school) and publish their progress in terms of action and outcomes, and Ofsted would inspect schools’ progress towards reducing these attainment gaps.

Annex B: List of relevant EHRC submissions to other Parliamentary select committees

• Evidence to the Joint Committee on Human Rights inquiry on the Government’s response to Covid-19: human rights implications: Older people in residential social care (24 July 2020).

• Evidence to the Joint Committee on Human Rights inquiry on the Government’s response to Covid-19: human rights implications: Adult social care and the right to independent living (13 July 2020).

• Evidence to the Women and Equalities Committee inquiry: “Unequal impact? Coronavirus, disability and access to services (13 July 2020).

• Evidence to Women and Equalities Committee inquiry: “Unequal impact? Coronavirus and BAME people” (10 July 2020).
• Evidence to the Transport Select Committee inquiry on the implications of coronavirus for transport (16 June 2020).

• Evidence to the Joint Committee on Human Rights inquiry on inquiry on the Government’s response to Covid-19: human rights implications: women in prison (17 June 2020).

• Evidence to the Education Select Committee inquiry on the impact of coronavirus (COVID-19) on children's services and education (29 May 2020).

• Evidence to the Health and Social Care Select Committee inquiry on delivering core NHS and care services during the pandemic and beyond (7 May 2020).
• Evidence to the Women and Equalities Committee inquiry on coronavirus (COVID-19) and the impact on people with protected characteristics (1 May 2020).