The Equality Act’s fatal paradox

As the World Cup kicks off, at least one person in Westminster seems to have been watching the habits of effective centre-forwards. Delivering a speech  on Tuesday, Kemi Badenoch found a pocket of space between defenders on Left and Right and nimbly exploited the gap.

Citing her proven record of “fighting against identity politics on the Left” during the madness of the George Floyd era, the Conservative leader vowed that her party would do the same again against racialised messages from Farage, or those to the Right of him. “The answer to Black Lives Matter is not a White Lives Matter born of the same racial grievance,” she argued. “We will not defeat identity politics by building a mirror-image of it.”

Even as she said this, news was starting to circulate about the attempted beheading of Stephen Ogilvie in Belfast, by Sudanese migrant Hadi Alodid, with a wave of anti-immigrant violence quickly following. The unfolding of this awful situation has only made Badenoch’s proposed Hegelian manoeuvre — from “Black Lives Matter”  to “White Lives Matter” to the comfortingly non-specific synthesis “Everyone Matters” — look more attractive, and especially to those of us keen to avoid a civil war in the near future.

Meanwhile, her suggested method for rooting out identity politics from the public sphere is a further example of a channel run — in the Old Trafford sense, rather than the Calais one. The colourless legalese of the 2010 Equality Act remains, for Keir Starmer, a sacred text, offering the closest thing to a positive articulation of British values he is willing to provide. Reform has said it would get rid of the Act altogether, claiming it causes unfair discrimination against white people. No doubt anticipating voter unease at wholesale destruction of anti-discrimination law without a clear sense of what would replace it, Badenoch says she wants to ditch only a single part: the Public Sector Equality Duty (PSED). She therefore gets to look impressively decisive relative to Starmer, and reassuringly humane relative to Farage.

In overview, the PSED forces public bodies to have proactive, anticipatory “due regard” to three areas: ending unlawful discrimination, advancing equal opportunities for those with protected characteristics, and fostering good relations between protected and non-protected groups. As was drily pointed out in the legal opinion accompanying Badenoch’s speech, there is a tension between these last two objectives that perhaps should have been anticipated at the time of drafting. Artificially boosting the chances of some groups over others, it turns out, tends not to be conducive to close social harmony, and perhaps especially not when it is done in the name of equality.

But according to Badenoch, the biggest problem with the duty is that it distracts public bodies from their core functions, sometimes with deadly results. With the horrific image of Henry Nowak’s dying moments in handcuffs weighing heavily on many minds, she reminded her audience of other high-profile cases where the threat of perceived racism had probably or definitely got in the way of effective action. These included the Manchester arena bombing; the Stockport and Nottingham murders; and rape-gang activity up and down the country. Whether or not the PSED was a direct causal factor in these failures is difficult to establish, but Badenoch is surely right that its presence on the scene didn’t help.

Though, in theory, the duty doesn’t mandate any particular outcome, in practice it has allowed DEI professionals and external bodies to run amok in the public sector, feeding managers legally illiterate lines while making it punitive for wiser employees to dissent. When the National Police Chief’s Council offers a training session which confidently announces that an anti-racist stance “does not mean treating everyone ‘the same’ or being ‘colour blind’”, you can be sure that serving officers didn’t come up with that stuff on their own. The result of the embedding of such context-free platitudes seems to be enhanced opportunities for minority stabbers, rapers, and bombers, and an end to all opportunities for their unfortunate victims.

Something has obviously gone very wrong. Badenoch, writing in  The Sunday Times , has lamented the loss of “common sense” from institutions, replaced by “box-ticking” and “bad frameworks” from outside, adding that “you can’t write common sense down in a policy manual, it is about judgment”. Assuming she is talking about specialist skills, honed on the job through repeated experience, she is absolutely right, echoing a venerable philosophical distinction between “knowing-how” (which can’t be got through book learning alone) and “knowing-that” (which can). Incredibly, a lot of DEI professionals these days appear to lack both. Still, it is interesting to note that in the early days of the Equality Act, various optimists imagined that the PSED would be a boon to good judgement and common sense at the l…