The Equality and Human Rights Commission has written to department heads to remind them of their equality duties after taking enforcement action against the Welsh Government last week.
The commission has sent letters to permanent secretaries at 15 government departments seeking assurance that key government work, such as the NHS 10-year plan, is informed by a thorough understanding of the different needs of the people they are being designed for.
The letters set out how the EHRC will monitor departments’ compliance with the public sector equality duty (PSED) over the coming year. Steps will include reviewing evidence that ministerial departments have published equality information annually, as they are obliged to do, as well as specific, measurable equality objectives. The EHRC will also engage with departments responsible for developing equality-related policy and programmes that require particularly robust compliance.
The EHRC said the letters aim to ensure compliance from departments without needing to escalate to formal legal action.
It comes after the EHRC announced on Friday that it had signed a legally binding Section 23 agreement and agreed a formal action plan with the Welsh Government to address its non-compliance with the public sector equality duty.
The commission also noted that last year, it had concluded a legally binding agreement with the Home Office, put in place after the department failed to comply with the PSED when implementing “hostile environment” immigration measures. It found the Home Office had neglected to fully consider the impact its policies would have on black members of the Windrush generation.
The EHRC says the department has since made significant improvements, including PSED training for all staff, improving equality considerations in advice to ministers, and clear senior-level ownership of PSED compliance.
The PSED helps government departments to consider and meet the needs of people with the nine protected characteristics set out in the Equality Act 2010: age, disability, race, religion or belief, sex, sexual orientation, gender reassignment, pregnancy and maternity, and marriage and civil partnership. The specific duty to set equality objectives can also help departments take action to address the biggest inequalities in their sector, whoever these are experienced by.
John Kirkpatrick, chief executive of the EHRC, said: "As Britain’s equality law regulator, we support the UK government’s commitment to embed equality and opportunity in all its work. Key policies, such as the government's ‘NHS fit for the future’ mission or its SEND reforms, must benefit from thorough equality consideration.
“Compliance with the public sector equality duty is an effective way of achieving this and that is why the EHRC is reminding government departments of their legal obligations under the PSED. Fulfilling these obligations will help the government to achieve its own stated mission of breaking down barriers to opportunity.”
Kirkpatrick said it is “especially important that departments think carefully about the likely equality impacts as they develop new policies, to proactively identify potential problems and take action to ensure they do not impact anyone unfairly”.
He added: “We hope to build positive collaborative relationships as we support departments with their compliance, avoiding use of our legal enforcement powers. Where necessary, we will take action to enforce the duty, as we have done recently with the Welsh Government.”
Where did the Welsh Government fail to comply with its equality duties?
The EHRC found that the Welsh Government had failed to comply with equality law by not showing “due regard to the three aims of the PSED" when it decided to discontinue funding for free school meals.
It found that the Welsh Government had also failed to conduct and publish equality impact assessments for many of its policies which were likely to have a substantial impact on its ability to comply with the PSED.
It also failed to meet the duty which requires it to publish an annual equality report by 31 March each year for the reporting period of January to December 2023, publishing it 11 days later, the commission found.
The regulator first wrote to the Welsh Government to express its concerns about PSED compliance in 2020 and monitored the issue in the following years. The EHRC has now taken formal enforcement action in the form of a Section 23 legal agreement with the Welsh Government to improve its compliance with equality law.
The legally binding agreement between the two parties sets out the actions the Welsh Government will take to ensure that there are no further breaches.
Under the action plan, the Welsh Government will:
- Review current procedures and guidance relating to the PSED and equality impact assessments (EIAs)
- Deliver training on the PSED and EIAs to ministers, senior civil servants, special advisers, policy officials and other relevant staff
- Improve governance of PSED compliance, including the development of a quality assurance monitoring process for EIAs
- Develop guidance to help staff to complete EIAs and ensure PSED compliance
- Implement an internal communication plan to drive cultural reform and improve knowledge of equality law requirements
The EHRC will monitor the Welsh Government’s compliance with the action plan, which is targeted for implementation by 21 November 2027.