Kemi's speech today will show the Tories still don't get it

Prepare for more pretences to 'sensibility'

If our sources are correct, the Tories’ latest policy, to be announced in Kemi Badenoch’s speech later today — scrapping the Public Sector Equality Duty while leaving the Equality Act 2010 intact — shows again that they are fundamentally unreformed in their instincts. In a very similar fashion to Badenoch’s intervention over the Henry Nowak case last week, the Tories are seeking to position themselves as ‘sensible and serious’ by triangulating their policies — unlike Reform, who today they insinuate are not substantially more radical than themselves, or even of a fundamentally different orientation, but instead simply haven’t thought hard enough. I understand the Tories’ statement will say that:

‘Conservatives will scrap the Public Sector Equality Duty, removing the legal foundation that has allowed identity politics, DEI bureaucracy and ideological box-ticking to spread across public services’.

The Tories seem neither to understand the reasons for their failures from 2010 to 2024, nor do they have any real desire to undo the creep of state discrimination against the majority since Macpherson. Indeed, their governments accelerated and further entrenched the Blair-era legislation. Why would they propose to repeal Sections 149-157 of the Equality Act, while leaving the rest (which does a very great deal of harm) intact? The Tory pledge would somewhat reduce the statutory ‘equality’ duties applied to the public sector, but change nothing else.

Kemi’s statement attacks Reform, saying:

‘Reform say they would simply abolish the Equality Act altogether, which would open the floodgates to more DEI and affirmative action in workplaces and services in the public and private sectors. Once again, this shows Reform have not done the detailed policy work required before making an announcement’.

It is clear from even the most cursory reading of the Equality Act and review of the case law that it is the Tories who have not done ‘the detailed policy work’.

For starters, their changes would leave the concept of ‘indirect discrimination’ in place. The Equality Act doesn’t just define as unlawful the ‘direct discrimination’ which most people imagine when thinking of ‘racism’, ‘sexism’, etc., under which a person or organisation treats someone differently because of a protected characteristic. No: the Equality Act is the cornerstone of DEI and positive action in British law. The Act also makes unlawful ‘indirect discrimination’ in which ‘a policy which applies the same way for everybody has an effect which particularly disadvantages people with a protected characteristic’ — that is, the legal enforcement of outcomes, versus equal treatment under the law.

Indirect discrimination flows through the rest of the Equality Act, which the Tories would retain.

For example, Section 65, under which work which a court determines is of ‘equal value’, must be paid the same. It is this law which has led to ruinous pay claims against Asda, Tesco, Next and Birmingham Council, in which English courts are now responsible for determining the value of work and effectively ordering what employers must pay staff. Our courts have consistently ruled that jobs primarily staffed by men (such as bin collectors and warehouse workers) should not be paid more than jobs primarily staffed by women (administrative staff and checkout operators), even though the former occupations are obviously less pleasant and harder to recruit for. There has never been any suggestion that women are barred from the ‘men’s jobs’, nor that there is any discrimination against them. The existence of different male and female preferences has proven sufficient for our courts. These claims will ultimately bankrupt local authorities and layer vast additional costs on businesses, especially retailers, representing a major step into the ‘Judicial Command Economy’, increasingly recognised to be a catastrophe by all. No serious party of the right can retain them.

Similarly, Section 29 of the Equality Act (which requires ‘reasonable adjustments’ for disabled people) has also been used to direct the minutiae of business operations. In 2017, the Supreme Court held that a bus company, FirstGroup, had broken the law. A wheelchair user, Mr Paulley, had boarded one of their buses in 2012 and found the wheelchair space occupied by a mother with a sleeping child in a pushchair. The bus driver asked her to wake her child, fold up the pushchair, and move, in line with FirstGroup policy, but she refused. As a result, Mr Paulley had to wait for the next bus. The Supreme Court determined that FirstGroup’s policy should have required the driver to take ‘further steps’ such as choosing to ‘pressurise the non-wheelchair user to vacate the space’. It is perverse that the state now decides in its Supreme Court how companies and individuals should negotiate case-sensitive competing demands, in this incident of a man in a wheelchair and a mother with a sleeping child.

Section 19 may be even worse. It defines as unlawful discrimination, any ‘provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of [person] B’ unless it is a ‘proportionate means of achieving a legitimate aim’. In practice, this means almost any policy or protocol can be unlawful. If every single person isn’t treated the same, then there will almost certainly be some protected characteristic group which is treated less favourably. An obvious scenario would be a Muslim employee who complains about work drinks. An employer would be unlikely to be able to prove the ‘proportionate means’ test, and so the drinks should be cancelled.

Another horror is Section 159, which functionally codifies anti-white and anti-British discrimination in recruitment. Discrimination is allowed if candidates both meet the nebulous, easily-fulfilled status of ‘equally qualified’ and the recruiter ‘reasonably’ thinks that one group ‘suffers a disadvantage’. Given the vast efforts amongst the media, politicians, the Civil Service and every HR department in the land to insist that minorities do suffer such a disadvantage, it is trivial for hiring organisations to fulfil this requirement.

Indeed, it was the last Tory government that published guidance in 2023 on ‘Positive action in the workplace’ to help employers understand how they can lawfully use ‘positive action measures’ to ‘improve representation’ in their organisations. That publication explains that, unlike the US, which permits ‘quotas’ for hiring minorities, in the UK employers are only allowed to use ‘targets’. They explain that ‘targets differ from quotas as they are not mandatory’, when of course, if an organisation sets managers such targets, they will act to achieve them to advance their own careers. The publication provides the example of an employer offering ‘a development programme which is only open to women’ as an example of lawful ‘positive action’. It is very easy to see how this law has led to internships, development programmes and opportunities for all groups other than white men.

This is no doubt why the Bar Council felt comfortable operating its ‘10,000 Black Interns’ scheme, ‘a programme designed to support black students and graduates’ by offering them internships which ensure they gain ‘hands-on experience at the Bar’. This scheme is explicitly only open to ‘black or…black heritage (including mixed)’ graduates. It’s worth noting that nationality is defined as a protected characteristic under the Equality Act — it is a subset of ‘race’, and so it could be perfectly lawful to design a recruitment process to hire foreigners at the expense of British citizens. Any party genuinely committed to making Britain ‘a colourblind society’, as Badenoch claimed was her goal last week, would not let this stand. Again, we can only conclude that the Tories are either clueless or lying.

Of course, there will be a need to construct a replacement anti-direct discrimination law, with the original Race Relations Act (prior to the creation of the Commission for Racial Equality) potentially offering a framework to prevent more DEI, as Kemi wishes to present her argument. The 2010 Act is far too deeply compromised, far beyond the public sector. It has built a society in which judges set wages and rule on bus company communications policy, and in which it has become customary to actively disadvantage white men. The Tories’ meddling around the edges merely shows us why 2010-2024 was such a disaster, and makes it clear that they are not fit to return to government.

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This article was written by David Shipley, a Pimlico Journal contributor. Have a pitch? Send it to submissions@pimlicojournal.co.uk.

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