Oral Statement - Launch of the public consultation on the Draft Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011

I would like to make a statement about the proposed draft Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011. Once commenced, the Equality Act 2010 will, for the first time, give powers to Welsh Ministers to make regulations to introduce specific public sector equality duties in relation to devolved authorities in Wales. Today, I am starting a public consultation on the proposals and draft regulations that will introduce these new duties. The consultation will last for 12 weeks, closing on 17 December. Alongside the draft regulations, I will be making available draft regulatory and equality assessments for the consultation. These are now published on the Welsh Assembly Government website, and I have provided the electronic link to Members.

Before I give an outline of the draft regulations themselves, I would like to take a few moments to reaffirm our policy objectives in developing these duties. We want these duties to make a positive difference to the citizens of Wales—especially people that society has traditionally undervalued or discriminated against. We need to acknowledge that society does not intentionally discriminate, victimise or harass, and it does not seek to foster bad relations or hold people back from achieving their full potential. However, sometimes, in the rush to get things done, people can get left behind—often the most vulnerable in our society. That is not acceptable, and when it happens people can feel excluded from the world we are creating.

Government and the wider public sector have a role to play. The Welsh Assembly Government has led the way on equality. The source of this leadership is the Government of Wales Act 2006, which places a duty on us to have due regard to promote equality of opportunity to all citizens in Wales. The Welsh Assembly Government was the first in the UK to establish a children’s commissioner and an older people’s commissioner. We were one of the first public authorities to develop and publish a single equality scheme going beyond our statutory duties.

Our ambition is to continue to lead the way on equality. Some people fear that driving an agenda of equality of outcome and opportunity, and building a fair and tolerant society, falls to the bottom of the list of priorities in a challenging economic climate. However, we will not be stepping back from our commitment to tackle discrimination wherever it persists. We will continue to lead on narrowing the gender pay gap, to ensure that disabled people can reach their full potential, and to promote more cohesive communities. Our vision is for Wales to be a place where people come together to make things happen that benefit not the minority, nor the majority, but all the people who make up our communities.

This is at the heart of these draft proposals and the focus is on outcome-focused equality objectives. If these are to be meaningful, credible evidence needs to be gathered and analysed to identify where action needs to be focused. However, that takes time. I am therefore proposing that public authorities gather the evidence, engage with people and develop objectives that will make a difference to people’s lives. These objectives will need to be published by April 2012. Therefore, this is not a year off for equality duties; it is recognition that time is needed to create objectives that will make a difference to people.

Objectives do not need to be limited by artificial time constraints, but theydo need to say why something needs to be done, what is going to be done, by when and how. These objectives will leave people in no doubt as to what public authorities are going to do. It is not intended that these duties will put everything right from the first day that they come into force in April next year. We have learned from experience that the change in attitudes that we need to foster does not happen overnight because of regulation; it takes time for change to happen and it needs continued leadership. The requirements being proposed for the public sector in Wales are the first steps to start us on our way. Lessons have been learned from duties that have gone before, and from our own experiences. Therefore, we will build on what has worked well and improve it as we go forward.

These proposed statutory duties will be more prescriptive than those being proposed elsewhere. They provide clarity and flexibility where needed, and given that this is a public consultation, I am prepared to listen to any changes that people might like to suggest. However, these duties must enable better performance of the public sector general equality duty. The new general duty will require any public authority listed in Schedule 19 to the Act to have due regard in the exercise of its functions to the need to eliminate discrimination, harassment or victimisation; advance equality of opportunity; and foster good relations. The new duty will apply to eight equality strands, or, as they are known in the Act, 'protected characteristics’, which moves away from the three equality strands that we have been accustomed to these past years—disability, race and gender.

That does not mean that positive attitudes that have developed towards those familiar equality duties are being diluted. It means that we are extending the benefits that these public sector duties can bring to others who have also been subject to discrimination in the past. Therefore, the new duties will also apply to the protected characteristics of age, gender reassignment, pregnancy and maternity, religion or belief, and sexual orientation. Having due regard to eliminate discrimination, harassment and victimisation within the general duty is also relevant to the protected characteristic of marriage and civil partnership.

It is important to remember that the purpose of specific duties is to enable better performance of the general duty by the listed public authorities. We need to strike the right balance and there should be clarity about what needs to be done to enable better performance. There should be flexibility to allow authorities to fully use the systems already in place. We have remained true to the principles set out last year that laid the foundations for these duties within the regulations to be developed—flexibility, proportionality, citizen involvement and transparency. That is fundamental to moving forward.

Our stakeholders gave us some clear messages about what should be included in these duties and the listening exercise undertaken last year gave us a clear steer. The messages that came across to us were that public authorities should develop and publish evidenced-based equality objectives; that the objectives should be outcome focused; that equality schemes should be retained; and that elements of the existing specific equality duties regarding race and disability should be incorporated into the new duty. Other clear messages were the need to retain impact assessments, but for them to be easier to understand and to be used proportionately, and for citizen engagement to be at the core of the new duty, which is extremely important.

These requirements are set out in these draft regulations. Relevant Welsh public authorities will be required to develop outcome-focused objectives based on evidence; ensure that arrangements are in place or are proposed to enable the authority to fulfil the objectives; and publish an equality scheme by no later than April 2012 that pulls all this information together to improve transparency for the people we serve. I am also proposing some other requirements, including that the duties will also require listed public authorities to collect relevant information about their employees on employment-related issues, such as pay, training, grievance procedures and recruitment. This will enable public authorities to give the consideration that is needed to employment-related objectives.

At the moment, the employer-related duties are required on all characteristics except sexual orientation and gender reassignment. Some people have said that some of these employer-related requirements should be removed. Others have said that they should be retained, and that sexual orientation together with gender reassignment should be included. I will be giving further consideration to these issues following further public consultation. Public authorities will be given the flexibility to use existing reporting mechanisms to publish schemes and any relevant information.

There has been a lot of discussion about the benefits of impact assessments. At worst, they are seen as a tick-box exercise and, at best, as a systematic process providing an opportunity to improve our policies and practices. I propose that impact assessments, if used proportionately, are an effective way to engage and to enable public authorities to give due regard to the requirements of their general duty as functions are exercised. Therefore, I propose to retain the requirement for listed public authorities to undertake impact assessments.

The draft regulations contain a duty in relation to public procurement. Contracting public authorities will have to have due regard to whether the contract awarded should include considerations that are relevant to an authority’s performance of the general duty. A similar requirement is proposed in relation to setting the contract’s conditions. Authorities must, of course, operate within the confines of EU procurement law. The proposed duty will have some effect by focusing the attention of the public authorities during procurement exercisesthat are above the EU thresholds.

Engagement provisions, which are drawn from the current disability duty, are included. Engagement is integral to the development of objectives and to the assessment of the impact that our policies and practices have on the citizens of Wales.Engagement is fundamental to the citizen-centred approach. It has been a feature of successive Assembly Governments, and building this into theduties is essential. Similarly, any information that is published by a public authority must be accessible.All reasonable steps must be taken to ensure that people are able to access the information that they need.

I also propose to retain the requirement that Welsh Ministers report on the implementation of the disability duty. The next report will be published in December 2011.Thereafter, it is proposed that the report should be on implementation of the general public sector equality duty. That report will be made every four years to coincide with the terms of the National Assembly for Wales. I am mindful that these duties must be applied where they can achieve the best effect. I am proposing that 90 of our larger public authorities, including Ministers in the Welsh Assembly Government, should be subject to the duties.

While there will be a need for some current working practices to be amended to take account of the new requirements, we have incorporated sufficient flexibility to ensure that there is time for arrangements to be put in place. Governing bodies of schools and community health councils are not included in the specific duties. To do so would place an unreasonable burden on them and would require disproportionate effort in comparison withthe benefit that could be gained. They will, however, remain subject to the general duty in the exercise of their public functions.

In developing the requirements in the draft regulations, we have built in flexibility for public authorities to use existing processes where it has been sensible to do so. Requirements that are considered necessary and proportionate to enable better performance of the general duty have been included. The purpose of the public consultation is to ensure that the duties that we are proposing are right for us in Wales.

In conclusion, the new general public sector equality duty will put equality at the heart of the work of the public sector. Having meaningful specific duties that are designed to focus on enabling better performance of the duty is a worthwhile endeavour. The duties will enable us to work closely with the Equality and Human Rights Commission, which retains the statutory function for publishing guidance in support of the duties, and their enforcement. To do so effectively, the commission needs clarity about what we require the public authorities that are subject to the duties to do. I look forward to tabling the draft regulations early next year for the Assembly’s formal consideration following the public consultation.