The High Court will shortly rule on a request for judicial review which, if upheld, will tear up George Osborne’s plan to cut the budget deficit. Indeed, if the request is successful, it could fundamentally constrain the freedom of all future governments to act according to perceived economic imperatives if they are shown to have disproportionately negative outcomes on particular groups in society.
The legal challenge is being brought by the Fawcett Society which campaigns for sexual equality. The proposition is a simple one. It is that successive anti-discriminatory legislation, culminating in Harriet Harman’s statutory behemoth, the Equality Act (which received its Royal Assent in April), forces all government departments to undertake an impact assessment on the likely outcomes for ‘protected’ groups in society before implementing policy. Where such an assessment shows a policy may widen rather than close inequality gaps, the government is expected to take corrective action. The Equality Act defines the ‘protected’ groups as those who suffer discrimination on grounds of age, race, disability, sex, sexual orientation, gender reassignment, marriage and civil partnership, religion and belief, pregnancy and maternity.
The Fawcett Society has deposited papers at the High Court questioning whether the Treasury and related departments met their statutory duty to undertake a gender inequality impact assessment on the provisions of the Budget. Whether this is true will have to be tested, although nobody in the Government has yet brought forth any evidence that such an exercise was launched. The Government cannot, however, claim that it was not warned. Exhibit ‘A’ is likely to be the letter of 9 June 2010 (read the full letter here) sent by Theresa May in her guise as Minister for Women and Equalities which was sent to colleagues, including George Osborne, reminding them of ‘the legal requirements to additionally consider how women, disabled people and ethnic minorities are affected’ by budget cuts.
The Chancellor could have been forgiven for imagining Ms May was doing no more than covering her own back with a circular stating her department’s special interest without imagining that he could find himself in considerable trouble by politely ignoring it. But if he was still reading as far as the second page of the May missive he would have discovered that ‘there is a real risk of successful legal challenge’ by those affected by cuts or by the Equality and Human Rights Commission. Ms May also warned that because of the Equality Act, policy planning should also take account of the needs of ‘older people, LGB and T’ [Lesbian, Gay, Bisexual and Transsexual] ‘people and people of different religions’ for any changes that were to take effect from April of next year.
If such an assessment was undertaken, or will now be rushed through retrospectively, it would most likely conclude that key provisions of the Chancellor’s budget will fall disproportionately on some of the ‘protected’ groups in the Equality Act - in particular women (since women fall under the category of those affected by sexual discrimination). The Fawcett Society claims that in particular the changes to the tax credit system and cuts to benefits will target women. This was also the suggestion in Theresa May’s letter which warned that since women were more likely to be employed by the public sector and to be in receipt of key benefits than men so cuts would have a disproportionately larger effect upon them.
But even if this is the case, what conclusion must be drawn from it? Does this mean that no Chancellor can cut public sector jobs or welfare benefits because doing so might increase gender inequality? We should be aware that, as Ceri Goddard the Fawcett Society’s chief executive puts it, ‘some £5.8 billion of the £8 billion of cuts contained in the budget will be taken from women, who will also be worst affected by the coming cuts to public services - 65 per cent of public sector workers are women. ’
Let us put to one side Ms Goddard’s apparent indifference to the fact that, at 35 per cent, men are chronically under-represented in public sector employment. Doubtless she would argue that this is a necessary means of addressing gender imbalances elsewhere. Where she may well be found to be correct is in her assumption that the Treasury was not sufficiently concerned - as she and the Minister for Equality maintains by law it must be – on the imperative of discovering whether its spending review would impact upon women more heavily than upon men. It may be that given the urgent necessity of finding cuts to public spending, the Treasury was instead focussing on a simple test – what spending cuts could generate the greatest savings for the least negative social impact.
To many of us, this would have been the truly equitable approach and one more likely to secure the long term prosperity upon which both sexes depend. But it is not the agenda of the Equality Act. We shall have to await learned opinion on whether Ceri Goddard understands the letter of the law better than George Osborne. But we may be sure that it is an opinion that will be based on the detail of statute law and not on political legitimacy or economic necessity. A decision that went against the Treasury would take us into unchartered territory. Would the budget proposals have to be ripped up and, if not, to what further legal action would the Government be exposed?
But the cuts must go through or the United Kingdom faces ruin. And it will be a ruin that will not discriminate between men and women, the able bodied and the disabled, the unisexuals from the transsexuals or whatever other section of society the Equality Act wishes to ring fence as exceptional. So the choice for the Government is clear. Either the budget must be enacted in full or the obstructive passages of the Equality Act must be repealed.
Yet, is this something to which the Liberal Democrat coalition partners will acquiesce? We can be sure that it is not something that Theresa May, who positioned herself carefully by both joining and popularising the denigration of the Tories as the ‘nasty party,’ will want to endorse. But if it is a choice between staving off a collapse in government finances or saving the Cabinet career of the Minister for Women and Equalities, David Cameron must surely be reminded of what he was elected to do.