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Equality and Human Rights: The First Decade of Devolution

EHRC First Annual Lecture

Dr Paul Chaney

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Institutionalising equality? Public policy Elections Law “Infrastructure” Political Representation Evaluating the First Decade?

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Pre-1999

Welsh Office generally did not have responsibility for equalities matters

Mid-1990s CRE opens first office in Wales ‘women’s inequality in Wales comes together in an

underlying alienation of women from legislative institutions, in particular what can be perceived as male institutions, male agenda, male political methods …’ (Val Feld, 1994)

‘There is nothing to talk about’ (Former Secretary of State for Wales)

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Govt of Wales Act (2006) s.77

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Statutory Equality Duty

Broader in scope than GB equality statutes

Duty falls on Welsh ministers Applies to all government functions ‘Fourth generation’ equality duty Significant in reprioritising equalities in

public policy Internationally, equalities clauses found

in constitutional law of ‘regional’ governments

S.77 Unique in non-prescriptive phrasing

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Chaney, P. (2008) Devolved Governance and the Substantive Representation of Women:The Second Term of the National Assembly for Wales, 2003–2007, Parliamentary Affairs, 83, 217-56.

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Voluntary Sector Scheme

‘the goal is the creation of a civil society which: has a duty to promote equality of opportunity to all its members regardless of race, colour, sex, sexual orientation, age, marital status, disability, language preference, religion or family/domestic responsibilities’ (NAfW, 2000).

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Scope of operation Forum heading WCVA classification

National

Regional

Local

Branch

Project

Total (Number of organisations)

% of whole sector1

60 72 1689 25 9 Gender

0.2% 0.3% 5.9% 0.1% 0.0%

1855 6.5

21 20 238 3 2 Men

0.1% 0.1% 0.8% 0.0% 0.0%

284 1.0

53 67 1476 24 7 Women

0.2% 0.2% 5.1% 0.1% 0.0%

1627 5.7

62 43 232 15 11 Ethnic minorities

0.2% 0.2% 0.8% 0.1% 0.0%

363 1.3

20 2 11 4 0 Refugees

0.1% 0.0% 0.0% 0.0% %

37 0.1

55 43 226 14 11 Ethnic minorities

0.2% 0.2% 0.8% 0.1% 0.0%

349 1.2

113 123 3512 17 7 Religion

0.4% 0.4% 12.2% 0.1% 0.0%

3772 13.1

113 123 3512 17 7 Religious organisations

0.4% 0.4% 12.2% 0.1% 0.0%

3772 13.1

154 168 1143 151 63 Disability

0.5% 0.6% 4.0% 0.5% 0.2%

1679 5.8

132 132 873 98 42 Physical disabilities

0.5% 0.5% 3.0% 0.3% 0.2%

1277 4.4

86 97 630 107 40 Learning disabilities

0.3% 0.3% 2.2% 0.4% 0.1%

960 3.3

163 140 2724 116 110 Children and Families

0.6% 0.5% 9.5% 0.4% 0.4%

3253 11.3

76 55 415 72 86 Family welfare

0.3% 0.2% 1.4% 0.3% 0.3%

704 2.5

133 119 2524 68 84 Children

0.5% 0.4% 8.8% 0.2% 0.3%

2928 10.2

140 142 2227 58 61 Youth

0.5% 0.5% 7.8% 0.2% 0.2%

2628 9.1

140 142 2227 58 61 Youth

0.5% 0.5% 7.8% 0.2% 0.2%

2628 9.1

TOTAL 692 688 11527 382 261 13550 47.1

Table 8.0. Details of Equalities –related Voluntary Organisations from the All Wales Database of Voluntary organisations (WCVA, 2008).

1 28,754 Organisations as at July 1, 2008.

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Meetings when key topic discussed

Key topic Examples of Policy Discussions around each Topic in Ministerial Meetings

No. % Disability Concerns from voluntary sector about the availability of funding for implementation of new Strategy on

Disability and the Arts, discussion of implementation of recommendations around disability in WAG ‘Climbing Higher’ Sports Strategy, ‘there were voluntary sector provider concerns over therapy. Disabled children often could not access the relevant services.

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Gender Minister updates voluntary sector representatives on WAG’s equal pay campaign, gender balance in the arts ‘the Minister assured the group that he would ensure that gender balance issues would be addressed in ASPB’s remit letters, including the collection of relevant gender statistics’,

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‘Race’ / ethnicity

The voluntary sector expressed concern over schools awareness of diversity… ‘especially within schools with a low number of BME pupils who sometimes refuse to report racial bullying when it occurs’, discussion of funding for The North Wales Race Equality Network, discussion of WAG’s Race Equality Scheme,

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Faith It was reported that WAG is represented on the Office for National Statistics Census Topic Group, discussion of faith in the Statistical Focus on Diversity.

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Language Questioning minister whether EHRC will be covered by the Welsh Language Act’, discussion of how the Welsh Language could be better represented in the guidance for Communities First economic aid programme, ‘voluntary sector expressed an interest in how the principles expressed in "Iaith Pawb" [WAG’s Welsh Language strategy] are integrated into the Minister's portfolio’,

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Sexual orientation

Minister discusses policy around homophobic bullying in schools, discussion of WAG support for sexual orientation amendments to UK Equality Bill (2005), Stonewall Cymru lobbying the Office for National Statistics for the collection of Sexual Orientation data,

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Age ‘the Minister expressed concerns that the formalised structures of volunteer work and representation may not be the most appropriate for many of the children and young people in Communities First areas’,

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Generic equalities

Government minister outlines departmental cross stand equality action plans, discussion of the need for improved equalities data covering Wales, discussion of the ‘Voluntary Sector’s views on the need for an equalities fund,

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Figure 9.4. A Nexus for the Advancement of Equalities? Details of 45 Ministerial Meetings with Voluntary Sector Representatives 2003-07

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Views of 3rd Sector Equality Organisations Mixed views on whether voices heard in policy

consultations/ effectiveness of lobbying Some children’s, older people’s, learning

disabilities, women’s orgs cited good policy influence

Others felt they were not always listened to – “not a partnership of equals”

Small orgs concerns ‘uneven playing field’ > bigger, better funded 3rd sector orgs greatest influence in policy circles

Increasing competition over access/ “dilution of influence”

Complexity of Welsh devolution settlement > challenge to some 3rd sector orgs

General acknowledgement: positive effect of new structures of engagement/ political recognition

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Equalities and Public Policy (1). Plethora of equalities policy initiatives -

significant discontinuity with pre-’99. Prevailing political ideology a factor Raft of policies to promote participation of

children and young people in public decision-making

Significant broadening of the focus on equalities policies

Early years of devolution prone to ‘declaratory approach to equalities’

Today, some evidence of more sophisticated approach–more to be done before universal

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Equalities and Public Policy (2). Policy innovation: e.g. Children’s/ Older People’s

Commissioners; Schools Councils Some evidence of devolved policies going beyond

approach seen at Westminster Variability between govt departments Creation of extensive range of all-Wales equalities

policies on topics – where, before constitutional reform, none existed

No. of policies set out aims in terms of universal entitlements/ rights

Redistributive approaches : e.g. state grants to promote equalities

Implementation Gap: Mixed evidence of policy outcomes

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Equalities and Public Policy (3).

Significant levels of govt. funding to equalities-related orgs, projects, policy networks and forums

Some evidence of participatory approach to policy making

Scope for broadening circles of those outside govt engaged in equalities policy work

Need for further development of expertise & participation of NGOs / private sector on equalities and human rights in the devolved context.

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Politics, Parties and Elections Distinctive policy agenda, in

part, stems from Wales-only Assembly elections Increasingly, equalities area of electoral competition Political parties issuing equalities ‘mini-manifestos’ Civil / civic society orgs issuing own manifestos (e.g.

Cerebral palsy org. called on govt. ‘banish disablism’ through public procurement)

Alliances of equalities NGOs issuing manifestos on single policy issues (e.g. free home care for disabled people, child poverty etc)

Alliances of equalities NGOs issuing manifestos on all aspects of equality (e.g. Welsh Equality Reference Group)

Effect? Some evidence of parties/ candidates signing up to adopt 3rd sector orgs proposals (e.g. Refugees’ org/ ‘One Wales’)

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Incidence of ‘equality’ / ‘equal opportunities’

Incidence of ‘women’ / ‘gender’

Country/ Province

Party

2003 2007 2003 2007

Examples of Gender Equality Policy Statements - 2007

Scottish National Party † 15 10 3 5 ‘In government we will pull together the different strands of equality legislation under our control to deliver an integrated equality strategy’ (p.66).

Scottish Conservative Party

1 0 0 1 -

Scottish Liberal Democrats† 3 14 3 6 ‘Mainstreaming equality across every area of government is an important agenda that must move forward. We are committed to producing an annual report on the progress on mainstreaming equality as part of this process’ (p.57)

SCOTLAND

Scottish Labour* 2 16 4 8 ‘A commitment to social and economic equality is perhaps the most fundamental of Scottish Labour’s values. Tackling prejudice, intolerance and discrimination will always be one of our main priorities’ (p.80).

Sinn Féin*† 102 69 48 43 ‘Use public procurement contracts to deliver equality and inclusion’, (p.7). Northern Ireland Women's Coalition*

5 - 8 - -

Democratic Unionist Party 15 2 4 0 ‘We will strive to ensure genuine equality for all including equality in funding’ (p.6)

Ulster Unionist Party* 2 4 1 13 ‘Ulster Unionists want to create opportunities for women of all ages, providing them with genuine choices, and equipping each to reach their potential’, (p.25).

NORTHERN IRELAND

Social Democratic and Labour Party (SDLP)

68 26 2 5 ‘Equality and Human Rights are not just slogans – they are a part of our founding philosophy’ (p.42).

Plaid Cymru- the Party of Wales*†

23 8 5 9 ‘We will give a new impetus to the National Assembly’s duty to promote equal opportunities and will seek devolution of statutory responsibility for equality and full legislative powers over the child protection system’ (p.31).

Welsh Conservatives 2 10 1 1 ‘Welsh Conservatives would look at the feasibility of ending compulsory retirement in the public sector by 2011’, (p.25).

Welsh Labour*†‡ 24 3 19 1 ‘Action will be taken to address inequality in performance [in education], particularly by boys and some ethnic minority groups’ (p.22).

WALES

Welsh Liberal Democrats*† 11 14 5 13 ‘The commitment to equality of opportunity is intrinsic to our approach to public policy, and building a fairer, better-educated, inclusive and prosperous Wales’ (p.40)

Table 8.2. Gender Equality: Content Analysis of Party Manifestos in the Devolved Elections 2003 and 2007.i i Key: †Manifesto has dedicated section on equality and/or women; or, ‡ separate, dedicated ‘mini-manifesto’ on equalities issued.

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Equalities Law in Wales Creation of distinctive legal framework on

equalities in Wales Move towards increasing use of ‘hard policy

enforcement mechanisms’ General lack of awareness of legislative

dimension Pre-2007: founded on secondary legislation Regulatory Impact Assessments (inc. S.77

compliance) required for all Welsh subordinate legislation

Result of legislative dimension to devolution in Wales, Scot. & N. Ireland = different legal rights, means of redress and welfare entitlements apply in the countries of the UK

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School Government (Terms of Reference) (Wales) Regulations (2000)– Places legal duties on governing bodies and head teachers to

exercise their functions with due regard to the promotion of equal opportunities and good relations

The Education (Assembly Learning Grant Scheme) (Wales) (Amendment) Regulations (2002)– To enable persons to undertake FE / HE courses by providing financial assistance in or

towards meeting the cost of childcare incurred in consequence of their attending such a course

The Education (Induction Arrangements for School Teachers) (Amendment) (Wales) Regulations (2004)– Requires public bodies to have greater consideration of mat/ paternity leave etc. in induction

arrangements for school teachers The Single Education Plan (Wales) Regulations (2006)

– Education authorities’ Plans must contain a statement of the overall strategic vision and values in discharging their education responsibilities, having regard to equality legislation

The Local Authorities (Model Code of Conduct) (Wales) Order (2008)– LA staff: ‘You must —(a) carry out your duties and responsibilities with due regard to the

principle that there should be equality of opportunity for all people …’

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Equalities Law in Wales Post- ’07 primary lawmaking powers –

(Measures via LCO process) has significant potential for increasingly divergent equalities law

Each of the first five proposed Assembly Measures (2008-9) dealt explicitly with an equality-related topic

(Legislative Competence) (Welsh Language) Order (2009) – potential duties cover parts of private/ vol. –sectors – as well as public sector

Equality Bill (2009) allows Welsh ministers to powers to impose specific equality duties on certain public authorities in Wales– And, ‘impose specific duties in relation to the devolved

Welsh functions of the cross-border authorities’

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The Case for Full Lawmaking Powers Complexity & opaque nature of NAfW’s powers undermines

EC principles of good governance Survey of 1,000 members of equalities NGOs – uncertainty

over powers may limit engagement with NAfW/ WAG Analysis of NAfW Equality Committee Transcripts 2006-8 –

approx. half of meetings e.g.s of frustration/ uncertainty stemming from limitations or lack of clarity over powers

“I would like some clarity” (24.01.2007); “The trouble is that, as you quite rightly said, most of this is not devolved to us” (28.02.2007); “What powers does the Assembly have…?” (12.04.2007); “This is a cause for concern ... I am not sure with whom the responsibility lies for this. Can you help us?” (18.05.2007).

Full lawmaking powers would limit Westminster constraints on devolved equality policies

LCO process gives Westminster potential veto over WAG legislating on manifesto commitments

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Human Rights ECHR enshrined in GOWA s.81 Limited evidence of policy divergence on HR WAG commitment to UNCRC ‘Children and Young

People: Rights into Action’ (2004) Requirement: ‘learners to explore their rights’ in in

line with UNCRC in National Curriculum Orders (WAG, 2008)

Progressive measure: UNCRC enacted into secondary legislation relating to the creation of Office of Children’s Commissioner for Wales

Social Welfare and Other Fields LCO (2008) offers potential to embed UN HR conventions etc into devolved policymaking/ service delivery

Growing legislative dimension to devolution in Wales leading to increasingly distinctive Human Rights framework

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Equalities ‘Infrastructure’ Significant development of the Welsh state

“equalities infrastructure New dedicated Wales-only bodies e.g. Welsh

Commissioners for Children and Older People Devolved structures of Equality and Human

Rights Commission

Advice Provision– New bodies (e.g. EHRC Wales, CAFCASS Cymru)– Overall picture = growing capacity; also of uneven

provision– issue - extent to which advice provision coordinated

across ‘strands’/ human rights/ the public, private & voluntary sectors

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Women’s Political Representation

Demand for descriptive representationfor groups traditionally marginalized in politics

Women’s representation - significant progress Analysis of gender dynamics of plenary debates

the importance of descriptive representation Probabilistically women more likely than men to

advance the substantive representation of women

Women more likely to initiate debate on equality

Women more likely to advance gender equality in ministerial intervention in debate

Key role of “equality champion” “Situated knowledge” Future progress not assured – key role of

political parties

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Debating Term

Female

Male

% All references to

Topic % All references to Topic

Childcare 64.7 35.3 Domestic Violence 70.2 29.8 Equal Pay 68.0 32.0 ‘Women’s Issues’ 77.8 22.2 Equality 52.2 47.8 All 59.8 40.2

Table 1. The incidence of key terms featuring in political debate recorded in the Official Record of the first term of the National Assembly for Wales 1999-2003

Chaney P, (2006) Critical Mass, Deliberation and the SubstantiveRepresentation of Women: Evidence from the UK’s Devolution Programme, Political Studies, 54, 4. 671-91. ISSN 0032 3217

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Has Devolution Delivered on Equalities?

Issues around scrutiny of govt. policy Variability between govt departments/ policy

areas regarding the promotion of equalities. Gaps and limitations in official statistics Early years:

– A ‘disconnect’ between the aim of mainstreaming and government actions.

– An emphasis on bureaucratic processes associated with government equalities initiatives rather than the results that they achieve

– Absence of a systematic and robust process of setting equality targets accompanied by rigorous scrutiny and monitoring of whether policy goals have been met

Greater progress needed in increasing no.s / capacity of NGOs etc to engage in equalities policymaking

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Has Devolution Delivered on Equalities? Devolution has had positive impact Institutionalising of equalities

in constitutional law, governance structures and procedures > enabling context > full potential yet to be realised

Plethora of public policy initiatives > a major discontinuity with past

Innovative e.g.s of post-devolution equality policies

Variety of approaches: rights, recognition, redistribution, representation, positive action + mainstreaming

Participatory dimension to policy making Increasing legislative dimension to promoting

equalities Further step in end of universalism in social policy