This is our submission (sent on 4 October 2018) to the UK Parliament’s Women and Equalities Select Committee’s inquiry into ‘Enforcing the Equality Act: the law and the role of the EHRC.’
Nordic Model Now! is a grassroots women’s group campaigning for the Nordic Model (also known as the Sex Buyer Law). Group members come from a variety of backgrounds and include survivors of prostitution and child sexual exploitation.
This submission focuses on the Public Sector Equality Duty (PSED) introduced by the Equality Act 2010 and argues that it has failed as a mechanism for achieving wide-scale change and improvements in equality between the sexes. Using three case studies, we show that the PSED is weak, legal challenges under it are hard to bring and are seldom successful, and that the Equalities and Human Rights Commission (EHRC) has been ineffective at using it to bring about change.
Case study 1: Impact of successive budgets
In 2010 the Fawcett Society brought a legal challenge to the Coalition Government’s first budget under the similar provisions of the Sex Discrimination Act 1975 (the PSED didn’t come into force until the following year). However, it failed.
Fawcett’s barrister is quoted in The Guardian saying: “Top-line analysis demonstrates a grossly disproportionate and devastating impact so far as women are concerned.” She argued:
“[T]he chancellor, the Treasury and HM Customs and Revenue failed to comply with the government’s duty under the 1975 Sex Discrimination Act ‘to eliminate unlawful discrimination’ and promote equality of opportunity between men and women.”
Even though the Government conceded that they should have undertaken early equality assessments and the case led to the EHRC committing to conduct an investigation, things have only got worse over the subsequent eight years.
In their analysis of the following year’s budget, the Women’s Budget Group (WBG) explained why assessing economic policy for its impact on equality between women and men is key to improving inequality:
“It is important to note that it in order for any such assessment to be useful it must explicitly recognise and address the impact of economic decisions on wider society. Decisions made by the Chancellor have an impact not just on the economy but on the structure of our society. Each measure in the budget therefore has the potential to further the progress of equality, produce no change in existing levels of inequality, or further entrench inequality.”
The WBG report showed that sex inequality was getting worse due to the Government’s economic policies. The WBG analysis of economic policy in all the years since then have come to the same conclusion. In their 2016 report, they estimated that “cumulatively, 86% of savings in the period from 2010-2020 will have come from women’s pockets.”
The 2017 report states that “as in previous years the Treasury has failed to carry out a meaningful equality impact assessment of its policies.”
These economic changes are not theoretical. They have made it almost impossible for the vast majority of mothers of minor children to survive without a partner’s economic support – meaning that millions of women have little choice but to be financially dependent on a partner and remain in the relationship if it becomes abusive.
We should not be surprised therefore to find that domestic violence has increased. The following chart represents the volume of Crown Prosecution Service (CPS) domestic abuse (DA) cases as a percentage of all court prosecutions for the years 2010 to 2017. This shows that the proportion of domestic abuse cases has more than doubled since 2010, representing an unimaginable amount of suffering, misery and danger for countless women and children.
As a result of the worsening inequality, women of all ages are now turning to prostitution under the duress of extreme poverty. For more on this (including case studies) see our submission to the UN Special Rapporteur on Extreme Poverty & Human Rights in the UK.
The Government’s economic policies have had a vast financial cost to the country in terms of the policing and criminal justice system alone. The social costs will be felt for decades. The cost to women’s independence, wellbeing and equality, and to children’s welfare is unquantifiable. In a speech in November 2010, Lisa Ansell described the Government’s economic polices as:
“an attack on ALL women, whether they choose to have children or not, whether they are married or not. Whether they are working or not. It is an attack on our children. It is an attack […] which enshrines in social policy that a woman’s place is in the home, dependent on a man – and that men should be tied to being the sole breadwinner.”
This increased inequality will cost the country more in the medium to long term and so it is hard to understand why the government would pursue this course for so many years – if not because it is ideologically committed to furthering inequality between the sexes.
The EHRC claims to have worked with the Treasury and Government departments to improve their compliance with the PSED. Their 2014 report on progress was congratulatory in tone. However, their assessment three years later shows the impact of tax and benefit changes remain regressive, with women (particularly lone mothers, and disabled and minority ethnic women) much harder hit than men. This suggests that the EHRC is not able or willing to effectively challenge, stop or change policies that worsen sex inequality on a large scale.
Case study 2: Sheffield City Council SEV policy
Campaigners successfully brought two judicial reviews against Sheffield City Council for failing to comply with the PSED when considering the licensing of local sexual entertainment venues (SEVs). Although the council conceded both cases, experience suggests there is little reason to be optimistic that there will be any significant change in its cavalier approach to sex equality.
The first case challenged the council’s May 2016 decision to relicense Spearmint Rhino in the face of more than 70 written objections from local people and women’s groups. Many of these objections set out: the harms of SEVs in terms of the objectification of women working in the clubs and of women generally, and on men’s attitudes to women and sexual relationships; research that demonstrates the sexual harassment of women increases in the streets around SEVs; the effect on women’s sense of safety and capacity to go out and engage fully in public life; and so on.
The judge found there was no evidence that the council had considered its equality duty and that it had wrongly written off objections as irrelevant “morality” and not as the serious equality issues they clearly are. In spite of conceding the judicial review, the council relicensed Spearmint Rhino in 2018 – in the face of 145 written objections this time.
In 2017 the council consulted on a proposal for the maximum number of SEVs allowed in the city to be raised to two – and then introduced a no-limit policy. A local resident brought a second judicial review with the support of a coalition of women’s groups. Again the council conceded that it had not followed proper procedures, including under the PSED, and the no-limit policy was quashed. Clearly losing the previous case had made little or no change to the council’s attitudes and procedures.
Arguments put forward by the council included that there was no obligation to consider the effects on wider society, that licensing SEVs was pro-equality because otherwise they would “go underground,” and that they are not sexist because women can go to them too.
This shows not only that the PSED is weak and not taken seriously, but that there is a shocking degree of institutional sexism in the political culture. There is also an alarming acceptance of the incorrect idea that all that is required to comply with the PSED is for gender-neutral provisions – even though these nearly always benefit men at the expense of women and therefore exacerbate sex inequality. The idea that SEVs are not sexist because women can go to them too is an excellent example of this. For a man they mean ego flattery and bonding with other men over the objectification of women. For a woman they mean being confronted with one’s own objectification as a female and men getting off on that. Her choices are limited to colluding with that objectification or dissociation – both of which are likely to cause huge stress.
Case study 3: Prostitution policy and policing
The UK has ratified both CEDAW and the Palermo Protocol and has binding obligations to implement their terms. Both of these treaties implicitly recognise prostitution as a consequence of women’s inequality and an obstacle to furthering women’s equality with men.
Furthermore, the 1949 UN Convention on the Suppression of the Trafficking in Persons recognises prostitution as incompatible with the dignity and worth of the human person. Although not ratified by the UK, its adoption by the General Assembly means the UN recognises prostitution as a human rights violation. So prostitution should never be considered an acceptable solution to women’s poverty.
Prior to May 2010 the CPS recognised prostitution as a form of violence against women, and the Labour Government appeared to be taking seriously its obligations under Article 9 of the Palermo Protocol to address the poverty and inequality that make women and girls vulnerable to entry into prostitution and being trafficked, and to discourage the demand from men for prostitution that drives sex trafficking.
Since then these obligations have been abandoned. Not only have women’s poverty and inequality deteriorated rapidly as explained earlier, but National Policing Sex Work Guidance now advises police forces against using the law to target sex buyers and brothel-keepers (unless, for example, there is evidence of the involvement of “organised crime” or the neighbours complain). The guidance also claims – without evidence – that “experience suggests that enforcement does not resolve the issue, but rather displaces it, making sex workers more vulnerable.”
This flies in the face of the obligation under the Palermo Protocol to discourage the demand for prostitution that drives sex trafficking and the obligation under Article 6 of CEDAW to take all appropriate measures to suppress those who exploit (i.e. profit) from women’s prostitution.
Nowhere in the guidance document is equality mentioned – neither in terms of the structural inequality that makes women and girls vulnerable to entry into prostitution, and being pimped and sex trafficked, and how prostitution worsens the inequality between the sexes, nor that the police are legally required to consider the impacts of their approach on equality between the sexes and to promote such equality.
The guidance mentions the Palermo Protocol – but says, “This guidance, in line with the UN Protocol, highlights the exploitation element of illegal immigration.” This appears to misinterpret human trafficking as illegal immigration – albeit with some associated exploitation – when immigration is irrelevant to the definition.
The guidance advises policing of the sex trade to focus on “organised crime.” The plight of British women turning to prostitution out of naivety, financial desperation, or coercion from “boyfriends,” is largely ignored, which implies pimping your girlfriend is now an acceptable way to make a living.
We have documented how an increase in prostitution in the Leyton area coincided with a marked increase in the sexual harassment of women and girls in the street. The guidance lacks awareness of such impacts, and that any escalation of prostitution is likely to deepen the inequality between the sexes and lead to an increase in male violence against women and girls in the wider community, because prostitution normalises treating women and girls with contempt.
We submitted a freedom of information (FOI) request to the NPCC asking what steps were taken to comply with the PSED when developing and reviewing the guidance and to ensure it complies with obligations under CEDAW and the Palermo Protocol.
The FOI response states:
“The NPCC does not hold information captured by your request. There are no records held by the NPCC Portfolio that answer the questions posed. This is because the current holders of the portfolio took over in late 2017. You will note from the published National Policing Sex Work Guidance (provided below for convenience) was authored by ACC Nikki Holland. ACC Holland no longer represents the NPCC or works for a police force.”
It is unclear what is the relevance of ACC Nikki Holland leaving the police force. She gave evidence to the Home Affairs Committee during its 2016 inquiry into prostitution, where she was described as “NPCC Lead for Prostitution and Sex Work.” Her work on the guidance was therefore under the auspices of the NPCC and, presumably ACPO, the NPCC’s predecessor, rather than in a personal capacity – so we would expect any supporting documents to belong to the NPCC (with any created under the auspices of ACPO having been transferred over).
The FOI response therefore suggests that, even though the police are bound by the PSED, there was no attempt to comply with it during the development of the guidance or its 2017 review, nor to comply with binding obligations under CEDAW and the Palermo Protocol.
The FOI response goes on to say that “It should however be noted that this is ‘guidance’ and each Chief Officer is responsible for their own force.” While this might be technically correct, it is disingenuous because the local and regional police forces are likely to take guidance handed down from above at face value and assume that all obligations and duties have already been complied with – particularly in the current climate of loss of resources and funding.
The guidance has been accepted by the Crown Prosecution Service (CPS) and is referred to in its guidance on prostitution-related offences. For example, in the section on kerb crawling states:
“National policing guidance advises that forces may give consideration to environmental solutions to encourage those involved in street prostitution to work in areas that are well lit and where CCTV is in operation. Enforcement on either those selling sex or ‘customers’ in cars or on foot is not encouraged as this is likely to result in displacement and put those selling sex at greater risk.”
The kerb crawling legislation is one way of cracking down on the demand that drives sex trafficking. So not enforcing it is in direct opposition to binding obligations under the Palermo Protocol. In addition, kerb crawling has a huge impact on women and girls in the community and thus on the possibility of their ability to participate in public life on the same terms as men. Not enforcing the kerb crawling legislation could therefore be construed as a direct attack on sex equality – in direct contravention of the CPS’s duties under the PSED – including to seek to eliminate harassment and discrimination of women and girls.
We found no evidence on the CPS website that they have considered the impact of this guidance on the requirement under the PSED to eliminate unlawful harassment of women and girls by men, to advance equality of opportunity and to foster good relations between men and women. This suggests that the CPS is not taking its obligations under the PSED seriously.
Conclusion and recommendations
These case studies illustrate that the PSED has been of little use in promoting equality between the sexes, of fostering good relations between the sexes or redressing the historical and structural foundations of that inequality. Similarly the EHRC has not been effective in bringing about change.
Inequality based on the protected characteristic of sex affects all women, who make up approximately 51% of the population. This is a far larger group than those based on any of the other protected characteristics. (Of course many women are also affected by one or more of those other protected characteristics.)
Our case studies show that in spite of the number of people affected, the nature and extent of sex inequality appears to be practically invisible to policy makers. Moreover there seems to be a conviction that complying with the sex equality PSED is simply a matter of providing gender neutral provisions.
Women’s lives are different from men’s for a variety of reasons, including how children are socialised, biological reproductive functions, the unique nature of the mother-child bond and the work associated with raising children, gender stereotyping, the pay gap, the long history of men’s systematic advantaging at women’s expense, the palpable misogyny that pervades our culture, the way porn eroticises violence against women, men’s greater propensity for violence – whatever that is caused by – and women’s smaller average body size and muscle mass.
As we have seen in the case studies, when provisions are gender-neutral and do not recognise and address the actual realities of women’s lives, those provisions invariably benefit men at the expense of women, and are therefore likely to exacerbate the situation. To achieve sex equality, provisions need to address the historic and structural nature of the inequality between the sexes and all of the complex realities.
Our recommendations are as follows:
- Strengthen the PSED to include a stronger obligation – for example, replace “due regard for” with “take reasonable steps to” advance equality and foster good relations and address the historical disadvantaging of women and girls, and to make equality schemes, action plans, and impact assessments mandatory.
- Create new stronger statutory guidance on mainstreaming sex equality and using the PSED to promote sex equality.
- Invest in experts in mainstreaming sex equality to train policy makers in all departments so the Government can set an example by rigorously and wholeheartedly applying the PSED.
- Introduce a statutory mechanism for inspecting compliance with the PSED, and make Legal Aid available to people challenging failures to comply with it.
- Strengthen the EHRC, increase its funding, and increase its focus on sex inequality as this affects more than 50% of the population. Ensure that the sex inequality team is led and staffed by females who have been trained in mainstreaming sex equality.
You can download a PDF version of this submission from the Women and Equalities Committee’s website.