Can Equality Act protections be replaced with common sense, as Kemi Badenoch suggests?

For more than two decades, an important part of Britain’s equality laws ensured public institutions had to think about the impact the decisions they make could have on different groups within society.

Introduced in the wake of the Stephen Lawrence inquiry, the public sector equality duty required public bodies – such as local councils, police forces and hospitals – to think proactively about equality law. Now this once uncontroversial public duty is a new battleground in Britain’s culture wars.

In a speech on Tuesday, the Conservative leader, Kemi Badenoch, pledged to abolish the duty, arguing it has encouraged public bodies to prioritise “dangerous and divisive agendas” over common sense and effective decision-making. For her, it was the culprit behind nonsensical diversity policies and training programmes.

Among the examples cited by the Conservative leader was the Bank of England’s decision to replace historical figures, including Winston Churchill, on future banknotes with images of British wildlife.

But are Badenoch’s claims borne out by the evidence? Experts in equality law say many of the examples cited by critics of the duty misunderstand both its purpose and how it operates in practice.

Others have gone further. The TUC’s general secretary, Paul Nowak, accused Badenoch of wanting to legalise discrimination. “This proposal would give a future Tory government a free hand to harm your life chances if you’re a woman, gay, black, disabled or working class,” he said.

The Equality Act is designed to protect people from discrimination in the workplace and in wider society on a number of protected characteristics, such as race, sex, disability, religion, age and sexual orientation, as well as rights relating to equal pay, pregnancy and maternity.

The 2010 legislation, which consolidated most equality laws into one act, also introduced the public sector equality duty.

Karon Monaghan KC, a British barrister specialising in equality and human rights law, stressed that the duty does not require public organisations to provide a particular service or introduce a particular policy. “It requires them to have due regard, which in simple language means take account of a number of aims: eliminating discrimination, advancing equality of opportunity and fostering good relations,” she said.

She uses an example of a local authority considering cutting a library service in an area where many disabled people live, and opening a service for disadvantaged young people instead.

“So they’re trying to balance those needs in the context of a limited budget. When they do, they will have to take account of the need to eliminate discrimination against disabled people and other groups, advance equality and foster good relations,” she says.

The local council must look at the likely impact of any decision on those groups, Monaghan explains, and ask questions like: How many children will be disadvantaged by the absence of facilities for young people? What can they do to mitigate the impact on disabled people?