The National Assembly for Wales is governed by 'an absolute duty' to promote equality in all its functions. What is an 'absolute duty' and to what extent do you think the Assembly is succeeding

University Degree Law

EQUAL OPPORTUNITIES

The National Assembly for Wales and Absolute Duty

CONTENTS

INTRODUCTION 3-5

EQUALITY IN PRACTICE 6-10

CONCLUSION 11-13

REFERENCES 14-16

The National Assembly for Wales is governed by ‘an absolute duty’ to promote equality in all its functions. What is an ‘absolute duty’ and to what extent do you think the Assembly is succeeding?

Introduction

In July 1997, the Government published its White Paper, A Voice for Wales, which outlined its proposals for devolution in Wales. Subsequently endorsed, by a narrow, 50.3 per cent ‘yes’ vote, in the referendum of September 1997, Parliament passed the Government of Wales Act 1998 (Great Britain, 1998). This Act established the National Assembly for Wales (NAW) and transferred devolved powers and responsibilities from the Secretary of State for Wales to the Assembly in Cardiff, as soon as the new body met. Its provisions included a directly elected Assembly to deal with the massive budget, previously dispensed by the Secretary of State for Wales. The ratification of devolution enabled the NAW to pass secondary legislation and implement policies, which are particularly relevant to Wales. Unlike the Acts governing Scotland and England, equal opportunities are a prominent feature of the Wales Act: they cover equality of language:

‘The Assembly shall in the conduct of its business give effect, so far as is both appropriate in the circumstances and reasonably practicable, to the principle that the English and Welsh languages should be treated on a basis of equality…The standing orders shall be made in both English and Welsh.’

(Great Britain, 1998, 47:1;3).

Equality in business:

‘The Assembly shall make appropriate arrangements with a view to securing that its business is conducted with due regard to the principle that there should be equality of opportunity for all people.’

(ibid, 47).

And, most importantly, equality of opportunity:

‘The Assembly shall make appropriate arrangements with a view to securing that its functions are exercised with due regard to the principle that there should be equality of opportunity for all people.’

(ibid, 120:1)

Although brief, these stipulations confer an unprecedented legal imperative, an absolute duty, upon the Assembly regarding all aspects of, not just implementing, but also promoting, equality in all functions devolved to the Assembly: including education, economic development, health, local government, social services, planning, transport, housing and industry. In simple terms, the Assembly must aim to incorporate equality for all when developing policies across all areas governing Wales. Clements and Thomas (1999) concluded that, in effect, the duty of the Assembly to promote equality confers ‘positive rights’ upon the citizens of Wales,

‘the people of Wales are the first in the UK to be given a series of positive rights to exercise, and if necessary, to enforce through the courts in Wales’

(Clements and Thomas, P., 1999, Human Rights and the Welsh Assembly, Planet, 136, 7-11 in Chaney, 2002).

These rights subsequently sets out what voters can expect from elected representatives in a way that has the potential to shift power back towards the

citizen. The Government of Wales Act also provides citizens of Wales with a strong degree of equality protection: the Welsh Administration Ombudsman (Ombwdsmon Gweinyddiaeth Cymru) has the power to investigate cases of inequality where groups or individuals feel that the Assembly, through its public bodies, has failed to comply with the terms of the Act (op cit:111). The Act further requires the Assembly, at the end of each financial year, publish annual reports detailing the arrangements made for promoting equality for all: together with an assessment of how effective those arrangements were in promoting equality of opportunity (ibid: 120, 1;2). To oversee the Assembly’s compliance with these duties, the procedural rules also require a cross-party Standing Committee on Equality of Opportunity. This committee must include representatives from three of the statutory equality commissions in Wales: Commission for Racial Equality in Wales (CRE), Equal Opportunities Commission in Wales (EOC) and the Disability Rights Commission in Wales (DRC). This Committee is then supported in its work by the Assembly Civil Service Equality Policy Unit (EPU) which was set up in response to the new legal requirements (Chaney and Fevre, 2002: xvi). Although legally binding, the absolute duty of the Assembly, to promote equality throughout Wales, is viewed by many as an adaptable, proactive approach, from which contemporary equality law elsewhere in the United Kingdom may draw more inclusive equality practices (EOC, 2004).

Equality in Practice

In the preface to the first annual report detailing the promotion of equality of opportunity, Edwina Hart, the Chair of the Committee on Equality of Opportunity stated:

‘…equal opportunities is the concern of all of us in the National Assembly, politicians and officials alike. I want the National Assembly to develop a reputation for excellence in equality and to become an inspiration to other public bodies in Wales and beyond. Equality of opportunity must be at the heart of all of our actions.’

(NAW, 2000)

The report went on to outline the Assembly’s central policy of ...

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Equality in Practice

In the preface to the first annual report detailing the promotion of equality of opportunity, Edwina Hart, the Chair of the Committee on Equality of Opportunity stated:

(NAW, 2000)

The report went on to outline the Assembly’s central policy of promoting equal opportunities: first and foremost, from within its own community of Assembly Members (AM) and staff. This was not surprising as, prior to 1997, Welsh constituencies had only ever returned four women Members of Parliament (MPs) to Westminster and little equal opportunities training, if any, had not been detailed from within the Welsh Office (Chaney and Fevre, 2002:1). Whilst being quite short, only covering three sections, the report went on to introduce the Committee on Equality of Opportunities and justified their staff training in relation to the findings of the, then recent, MacPhearson Report, which had highlighted education, amongst other things, as a way of combating institutionalised racism. Some argued that, statutory duty aside, the Assembly had a ‘moral’ duty of representing all people within Wales: one Committee
member added:

‘only once it gets its own house in order can the Assembly take the lead in addressing the enduring barriers to equality.’ (Chaney, 2003:14).

Interest, from within the first report, centred around issues such as the ‘gendered’ pay gap and the work of the Disability Right’s Commission in Wales who wanted to achieve 'a society where all disabled people can participate fully as equal citizens'. The Welsh Assembly had irrevocably adopted equality of opportunity, whether on statutory or moral grounds and went on to implement this duty as one of its three crosscutting themes in its strategic plan for governing Wales: the four-year strategic plan for Wales, betterWales.com, outlined the Assembly’s aim of mainstreaming equality into all of its policies (NAW, 2000). Some commentators have stated that this mainstreaming and devolution offers an unprecedented opportunity for the furthering of equality in Wales: underpinning, as it does, all policy planning, implementation and review (Williams, 2001:57). Of the three ‘major themes’ in the betterWales.com document, two referred to equality of opportunity:

* Tackling social disadvantage - the development of an inclusive society where everyone [emphasis added] has the chance to fulfil their potential.

* Equal opportunities - the promotion of a culture in which diversity is valued and equality of opportunity is a reality.

(op cit:4).

The betterWales.com document categorises certain ‘values’ and ‘tests’ that it believes will prove the effectiveness of their ‘inclusive’ policies: act
strategically; work in partnership; be inclusive and promote good government (ibid:5;6).

During its first two and a half years, the Equality of Opportunities Committee (EOCa, 2004) has overseen and advanced many equality reforms: it has broadened its scope beyond an initial focus on disability, race and gender to consider equality of opportunity for groups defined by language, sexuality, age, and faith, as well as in relation to gypsy-travellers (EOCa, 2004). Further proof of the National Assembly effectively ‘mainstreaming’ equality can be found when we enter the realm of education.

In the spring of 2000, after reviewing the curriculum in Wales, the Assembly issued guidelines to schools, Equal opportunities and diversity in the school curriculum in Wales, which underlined the importance for the mainstreaming of equality: it demonstrated the Assembly’s commitment of proceeding with a policy of equality for all, from a bottom-up, as well as, the previously (p.7) defined, top-down approach. The guidelines for schools focused on the opportunities, available within the school curriculum itself, to teach and learn about issues of equality and diversity relating to disability, gender and race, and the challenging of forms of prejudice and stereotyping often prevalent in schools: and, subsequently, the wider community (ACCAC, 2001). The advice
within the document, aimed at curriculum managers and subject leaders/heads of department in primary, secondary and special schools, defined the approach as being:

‘a plan to provide effective education about equal opportunities. Although the focus is on the curriculum, it aims to encourage the development of a whole

school approach to equality of opportunity covering all aspects of school life

including all subjects of the curriculum, extracurricular activities, organisation, staffing and management.’

(ibid:4).

In an effort to help Assembly Members and their staff mainstream racial equality, and to promote good race relations in all activities over the forthcoming four years, the Commission for Racial Equality in Wales, (CRE) gave evidence to the Richard Commission (NAW, 2003). This evidence highlighted the numbers of Welsh residents from ethnic minority backgrounds. The CRE recounted how, at the 2001 census, 2.7% of the 2.9 million people living in Wales were from ethnic minority groups: the main concentration of ethnic minorities by local authority area being South Wales. The diversity of Wales was detailed: some 11 languages are commonly spoken in Wales by ethnic minority groups, four of which, Arabic, Bengali, Punjabi and Somali, are the most commonly taught. They stated how ethnic minorities continue to be underrepresented as employees in all grades in the police and prison services, and in senior posts in all criminal justice agencies. Whilst the CRE
acknowledged a positive framework now exists in Wales, for the promotion of racial equality in a devolved context, they maintained the struggle of achieving meaningful change and delivery of a racially inclusive policy, against a ‘new politics’ remains great. The CRE warned against thinking about race in the short-term and pressed for a continued strong commitment in eradicating racial inequality for the future (ibid.). A recent report by the CRE, Race equality in

Wales: The agenda for change (CRE, 2004) however, reinforces the belief that the Assembly could move forward to reduce the burden of racial discrimination in Wales:

‘Wales can deliver this vision if it chooses to do so. There are many examples of excellence in race equality work. There are many instances of community cohesion in the face of prejudice and division. Its new Assembly has clear equality requirements laid upon it, reinforcing the requirements of the equality legislation. A new generation of young people wants to be part of a diverse community which delivers for all its members.’

Cherry Short, Commissioner Wales.

(CRE, 2004:3).

Conclusion

In their substantial piece of work, An Absolute Duty, equal opportunities and the National Assembly for Wales, Paul Chaney and Ralph Fevre (2002) claim that the equality for all schemes flow directly from the statutory duty, and are therefore evidence of its impact. This claim is based partly on the frequent reference to the statutory duty in policy documents. They acknowledge
however, that absence of the statutory duty would not necessarily have prevented reforms taking place, though they suggest that some would not have done so, or that they would have taken longer. They also acknowledge that the development of equality policies in Wales have to be seen in the context of factors other than the statutory duty, such as the commitment of key Assembly Members, and the general climate of opinion currently surrounding equality and human rights issues. Teresa Rees, however, in her foreword to Chaney and

Fevre’s report, endorse their claim of the significance of the statutory duty, agreeing that ‘it is the most significant factor driving the equality agenda in Wales’.

We must agree that devolution has placed equality of opportunity issues higher on the political agenda in Wales than ever before. In the wake of constitutional reform, significant progress has been made towards achieving gender balance amongst elected politicians: for example, the Assembly now has the second
highest proportion of women elected to a national government body in Europe;
currently 16 out of 28 Assembly Members are women (BBC News, 2002). Women are now in a majority in the Assembly Government’s Cabinet and a number have professional equality of opportunity expertise. However, it is too soon yet for there to be any evidence that policies resulting from the imposition of a statutory duty have had any impact in actually ‘reducing’ inequalities.

Analysis of the Assembly’s progress so far, has indicated progress in the development of new schemes and the numbers of those that have been completed. A series of measures have been attributed to the statutory duty, but it is very likely that many, if not most, of these might have been advanced in the absence of such as a statutory duty (Breitenbach, 2001). The Report of the Richard Commission highlights how, no matter how much the Assembly attempts to operate to its statute of equality of opportunity, it appears the

devolved powers of the Assembly are far too little to impact certain areas of inequality:

‘…the duty under section 120 allows the Assembly to promote equality of opportunity in the exercise of its functions. However, it does not create new powers in fields that are otherwise outside the Assembly’s remit, such as employment law.’

(Richards Commission, 2004:115).

This position is corroborated in a paper presented to the Annual Conference of the Political Studies Association, the Legitimacy of Devolution: the case of
Wales (Wyn Jones and Scully, 2003). Although many people welcome the
improvements of self-government, this paper finds there are many others who believe that the current constitution, of an elected Assembly with quite limited powers, should be challenged.

One point we can be certain of however, is the continued, regular monitoring of the Assemblys assorted schemes by organisations such as the CRE, EOC,
DRC, and various research units within Universities. Over time therefore much
more evidence of the impact of statutory duties, and of other approaches to the promotion of equality of opportunity, will emerge. Whilst recording the schemes put into place these organisations will also be able to maintain the equal opportunities debate and maybe one day, we will live in a Wales where all are truly equal, with equality of opportunity and, perhaps more importantly, equality of outcome.

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REFERENCES

Breitenbach, E., (2003) Briefing Note for the Strategic Group on Women, Edinburgh: Scottish Executive: H.M.S.O. (online). Available from: . (Accessed 7 May 2004).

British Broadcasting Corporation, (2002) Labour approves all-female lists, London: BBC News, 23 Mar. 2002 (online). Available from: . (Accessed 7 May 2004).

Chaney, P., (2002) Women and the Post-Devolution Equality Agenda in Wales, A Paper Presented to the Gender Research Forum, Women and Equality Unit, Cabinet Office 11

Feb. 2002, Cardiff: Cardiff University of Social Sciences (online). Available from: . (Accessed 7 May 2004).

Chaney, P., and Fevre, R., (2002) An Absolute Duty, equal opportunities and the National Assembly for Wales, Cardiff, Equal Opportunities Commission, the Commission for Racial Equality, the Disability Rights Commission and the Institute of Welsh Affairs Institute of Welsh Affairs (online).

Available from: .

(Accessed 7 May 2004).

Chaney, P., (2003) Women and Constitutional Change in Wales, Centre for Advancement of Women in Politics, Occasional Paper No.7, Belfast: Queens University Belfast (online). Available from: . (Accessed 7 May 2004).

Clements L., and Thomas P., (1999) Human Rights and the Welsh Assembly, Planet, in Chaney, P., (2002) Women and Post-Devolution Equality Agenda in Wales, A Paper Presented to the Gender Research Forum, Women and Equality Unit, Cabinet Office 11

Feb. 2002, Cardiff: Cardiff University of Social Sciences (online). Available from: . (Accessed 7 May 2004).

Commission for Racial Equality in Wales, (2004) Race equality in Wales: the agenda for change 2004-2006, Cardiff: Commission for Racial Equality (online). Available from: . (Accessed 7 May 2004).

Equal Opportunities Commission, (2004) An Absolute Duty, Cardiff, Glasgow, Manchester & London: Equal Opportunities Commission (EOC) (online). Available from: . (Accessed 7 May 2004).

Equality of Opportunity Committee, (EOCa) (2004) Index of Committee Papers from June 1999 to March 2003, Equality of Opportunity Committee (June 1999 - April 2003), Cardiff: Equality of Opportunity Committee (online). Available from: . (Accessed 7 May 2004).

Great Britain, (1998) Government of Wales Act (c.38) London: H.M.S.O. (online). Available from: .

(Accessed 7 May 2004).

National Assembly for Wales, (2000) Annual report on Arrangements to Promote Equality of Opportunity 1999-2000, Cardiff: Equal Opportunity Committee (online). Available from: . (Accessed 7 May 2004).

National Assembly for Wales, (2000a) A Better Wales: strategic plan for the National Assembly for Wales, Cardiff: National Assembly for Wales (online). Available from: . (Accessed 7 May 2004).

National Assembly for Wales, (2001) Arrangements to Promote Equality of Opportunity 2000-2001, Annual Report, Cardiff: Equal Opportunity Committee (online). Available from: . (Accessed 7 May 2004).

National Assembly for Wales, (2002) Arrangements to Promote Equality of Opportunity 2001-2002, Annual Report, Cardiff: Equal Opportunity Committee (online). Available from: . (Accessed 7 May 2004).

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National Assembly for Wales, (2004) Final Report of the Richard Commission, Commission on the Powers and Electoral Arrangements of the National Assembly for Wales, Cardiff: National Assembly for Wales (online). Available from: .

(Accessed 7 May 2004).

Qualifications, Curriculum and Assessment Authority for Wales, (ACCAC) (2001) Equal opportunities and diversity in the school curriculum in Wales, Birmingham; Cardiff: ACCAC Publications (online). Available from: .

(Accessed 7 May 2004).

Williams, C., (2001) Can Mainstreaming Deliver? The Equal Opportunities Agenda and the National Assembly for Wales, Contemporary Wales, Vol. 14: 4, Sept. 2001, Cardiff: University of Wales Press (online). Available from:

. (Accessed 7 May 2004).

Wyn Jones, R., and Scully, R., (2003) The Legitimacy of Devolution: The Case of Wales, Paper Presented to the Annual Conference of the Political Studies Association, Leicester, Apr.2003, Aberystwyth: Institute of Welsh Politics (online). Available from: . (Accessed 7 May 2004).