Death before equality ?

Our devolved government is, once more, trying to draft specific equality duties for public bodies to use as a map in finding their way towards the goal of creating public services free of discrimination.


Having taken a bloody-nosed defeat earlier this year on another draft they tried to push through parliament, there is some evidence in this latest draft of government’s willingness to listen and, having done so, to amend previous positions and accept reasoned rationale for improving how these can deliver measurable, person-centred improvements in the experiences Scotland’s diverse citizens have when accessing and experiencing public services.

Before Ministers and civil servants tremble at the unheard of prospect of my giving them a gold star, I contend the debate is not yet over on just how much needs to be made explicit in the specific duty regulations and how much can be implied if we are to make a fresh start on delivering real, person-centred and measurable equality.

This cannot be viewed as simply being an academic debate.  Discrimination, prejudice, bigotry, hate and the denial of fairness and dignity remain an everyday reality for too many people living in Scotland.  It is also a shameful reality that the public sector in Scotland hosts many of the people, the attitudes, the mindsets and the practices which combine to sustain the denial of fairness and dignity to people who are different from them.

We have had several decades of opportunity to dismantle discrimination based on a person’s ethnicity.  That someone can be murdered in 2011 in Scotland simply because they are of a different ethnicity suggests those opportunities have been wasted and that racism and racial discrimination remains entrenched in our society.  Equal Pay for women has been a goal for several decades, and yet recent research on rates of progress suggest between another 70-90 more years are needed to reach that goal at present rates of change.  In the last few months a major inquiry into the abuse, hate and violence endured by disabled people has destroyed any cosy consensus that we are anywhere near delivering equality with and for disabled people.

The choices are stark.  We can sustain the false consensus which is most often at home in the dining and drawing rooms of Scotland's chattering classes, and has as its truth that all we need is just a few more minor policy tweaks, tick just a few more business plan boxes, airbrush in a just a few more black faces to Visit Scotland videos, and we will surely arrive, very soon, at some equality-Brigadoon.

Or.  We can learn from the history of our equalities work over these last few decades and accept that as a result of our failures, tens of thousands of people from Scotland’s diverse communities will have lived and died before experiencing what it would be like to live each day free from discrimination, prejudice, bigotry, hate and the denial of fairness and dignity.  Having learned, we can resolve to create and use these latest draft specific duties to deliver a robust measure of real equality in the current lifetimes of Scotland’s diverse communities of people.  

Do you want to see your mother, father, sister, brother, daughter, son or your best friend meet each day of the rest of their life knowing they will face discrimination, prejudice, bigotry, hate and the denial of fairness and dignity?  I repeat. This is not an academic debate.  Early last year I visited my mother in an intensive care unit in hospital as she struggled to recover from a fall.  Days before she died I recall walking on to the ward and seeing her on top of her bed, clearly having been restless in her drugged sleep, and with her nightgown ruckled up around the top of her thighs.  I had to remind staff that though she was a heavily drugged patient, an old woman who had little time left to her, she was not only my mother but also a human being in our collective care, and that her dignity was precious to her and so should be to us.  Together we rearranged her nightgown and restored her dignity. 

If you believe we need to aim for real equality in the lifetimes of today's older, vulnerable and marginalised people, contact Nicola Sturgeon by email to let her know these specific duties need to be stronger so that all of our mothers can grow old without the fear of facing discrimination, prejudice, bigotry, or hate, just because they are different.

The NHS, shoes, ships and sealing wax, but not equality

I recall a few years ago being in the company of a bunch of reprobates and denizens of Leith on a wet Friday night, and the crack limped on to wondering what to do with what promised to be a miserably dreich Saturday.  The discussion lasted forever, starting off in the Malt Shovel at the foot of Cockburn Street and lasting well into the small hours of Saturday itself when a decision was finally reached [amongst those still standing and whose lips could still form words] in the bowels of the Pelican Club in the Cowgate, that we would all go searching for the fabled magic mushrooms.  I recall that Saturday afternoon, being driven out in the back of an ancient van and arriving in the middle of endless moorland in central Scotland.  The rain was horizontal, the sheep and sheep droppings everywhere, inadequately clothed and shod for our adventure, the temperature just shy of zero, and yet we harvested sufficient of nature’s free gifts to ensure that our mushroom virgins would swear later at night that the walls of the bar were pulsing, the pool table was really a large tortoise that spoke in tongues, and that they had been served at the bar by a Walrus who kept asking them if pigs had wings.

Magic mushrooms can have that effect.

So why is it, you wonder, I have dragged you down this seedy and disreputable memory lane of my dissolute past? 

Because our government is treating us, people who dare to be different, like mushrooms.  Deliberately keeping us in the dark and, on those rare occasions when we squeeze open a crack of daylight in the doorway of accountability, we find ourselves covered in generous servings of the shit of duplicity, mendacity and half-truth that is now standard government reaction when challenged on why equality is not being experienced by Scotland’s citizens.

In July of this year, the Equality & Human Rights Commission published a report on how well the NHS in England had performed in meeting the previous general equality duties on race, disability and gender.  Some of the key findings from the report were seriously disturbing :

q On the basis of the evidence made available to the assessment team, no authority or trust included in the sample was likely to be fully performing on all the three duties, and most were likely to have significant failings in performance.

q The assessment suggested that performance against the duties was regarded by the majority of authorities and trusts as a ‘box ticking’ exercise and only rarely encompassed the achievement of equality outcomes in practice. 

q Much greater attention needs to be paid to leadership, commissioning, and employment than the assessment suggests has been the case up to this point.

q Performance on the Disability Equality Duty (DED) was strongest, followed by the Gender Equality Duty (GED) and Race Equality Duty (RED) in equal measure.

q Several common causes were found for potentially inadequate performance. A key problem was the lack of equality planning and reporting in mainstream materials such as strategic, employment, and commissioning plans. It was therefore often unclear how the general duties were being delivered.

q It was not clear whether priorities, objectives, and actions were based on adequate needs assessment. Typically, transgender, transsexual and Gypsy and Traveller communities were overlooked.

q The quality of actions and reporting on the equality duties in mainstream plans and documents was very poor. This included action resulting from and reporting of achievements in equality schemes.

q A clear and urgent problem was identified with regards to a lack of action orientated priorities and objectives with real and tangible outcomes. The current state of play suggests that few mechanisms exist by which aims and improvements for equality groups can be defined and achieved.

q Twenty-four of the twenty-eight authorities assessed had failed to: set clear gender objectives; set clear means of effectively promoting equal pay through objectives; and addressing causes of inequality (see Table 3 for more information in Section 2 of the report). Equally, under-representation and gendered occupational segregation in employment was frequently unaddressed, as were health inequalities stemming from gender differences.

In short, the NHS in England has been failing big time on delivering equality under previous legal duties.  The EHRC hopes that these findings will ensure improved performance under the new Equality Act 2010.

Hmmmmm.  So would prodding NHS Chief Executives with a taser cranked all the way up to ‘Max’.

That said, the report did have the effect of providing another brief, illuminating crack of light on just how bad the NHS is in providing equal access to services for all people, and not just for the ‘people like us’ who plan and design NHS services.

Being a reasonable kind of person, I assumed Nicola Sturgeon would want to have the same kind of performance analysis on our NHS in Scotland.  Especially since she carries the bag for government work on equalities in Scotland.  It would really help her, I suggested in a recent missive, draft the specific equality duties required to help public bodies, like NHS Boards, meet the new Equality Act 2010 and provide health services equally accessible to all of the diverse people living in Scotland, and so ensure that they would get the same quality of health service as the ‘people like us’ who run it.  I added that I presumed she would not want Scotland’s citizens to be disadvantaged compared to those in England, as they now had this information and could hold their NHS to account.

government has decided, very deliberately, not to 

check if the last 30 or so years of work on such as 

race equality in our NHS has really made a difference

 This triggered a dialogue with government officials, speaking on behalf of Nicola, which became increasingly surreal as they strained every sinew to frame answers in such a way as avoided my direct questions.  It was as if I had stumbled into that scene where Tweedledum and Tweedledee recite for Alice :

The time has come," the Walrus said,

"To talk of many things:
Of shoes—and ships—and sealing-wax—
Of cabbages—and kings—
And why the sea is boiling hot—
And whether pigs have wings."

The conclusion was that our NHS is not to have its performance checked in a way similar to that already undertaken in England. 

We are about to witness some major changes in how government will work on delivering equality.  Before setting out, government has decided, very deliberately, not to check if the last 30 or so years of work on such as race equality in our NHS has really made a difference.  In Scotland’s NHS, pigs do indeed have wings.

Government breaks equality law - again and again

Most people agree that various forms of engagement between government and citizens is central to a vibrant democracy and the creation of a fair and equal society.  The most common of these in Scotland takes the form of consultation papers published on the government's saltire flapping website.


Government has for a number of years funded an organisation, Scottish Accessible Information Forum, which has produced guidance, provided advice and support and offered training in how to make reports, papers and documents accessible to people who have particular needs if they are to be able to read what government proposes, say, to do about the failings of the NHS.  SAIF says on its web site:

SAIF works towards its aim by providing a range of tools such as publications, training, consultation and advice, to help public bodies and others improve the accessibility of their information.

Simples?  You would think so.  Government knows what it should do.  Has an organisation which it funds ready to show its staff how to do it.


Why then is it then that a random sampling of government's current consultation papers shows:

• The ‘Mental Health Strategy for Scotland 2011-15’ consultation paper uses justified margins both sides instead of using one of the most common recommendations that margins be justified left hand side only. The respondent form in the downloadable pdf of the paper from government’s web site is inaccessible in that it does not allow electronic completion.
• The ‘Patient Rights (Scotland) Act 2011 – consultation on secondary legislation’ paper uses different typefaces and sizes throughout, again in contravention of good practice for the creation of accessible communication. As with the Mental Health Strategy. The respondent form in the downloadable pdf of the paper is inaccessible, not allowing electronic completion.  
• The ‘Devolution of Community Care Grants and Crisis Loans: Consultation on Successor Arrangements’ paper uses different typefaces and different type sizes [at one stage using 11 point] and uses text layout where the margins are justified to both sides. In addition the respondent section is again inaccessible as described above.  
• The ‘Registration of Civil Partnerships Same Sex Marriage - A Consultation’ paper has a text layout throughout where the margins are justified both sides, again contrary to good practice in creating accessible communication. Once more the respondent form included as a part of the downloadable pdf version of the paper does not allow electronic completion, again a failure to meet good practice standards on creating accessible communication.

Government has no excuses. The standards for creating accessible communication in documents, reports and other papers has been around for some years now. Government has also had access to SAIF which provides detailed good practice and other forms of practical support to organisations which want to be accessible. The general duty for disability equality since 2006 has placed a legal requirement on government to identify and remove barriers to access.

Government knows it is breaking the law on an almost daily basis.

This random sample shows clearly that there is a systemic and cultural failure on the part of government to make and sustain simple changes which deliver measurable equality of access and opportunity for disabled people.  Government is breaking the law on disability equality on an almost daily basis.  Government knows it is breaking the law on an almost daily basis.  

Curtains for human rights ?

The Commission on a Bill of Rights published what it calls a discussion paper, 'Do we need a Bill of Rights?',  in August.  My initial encounter with it was disappointing.  I had expected it could sit down with me over a coffee and discuss the merits of David Cameron's take on human rights and maybe laugh gently at the thoughts of Nick Clegg on the same subject.  No.  It just sat there in my desk, not saying a word.

The paper has all the hallmarks of an issue which government cannot simply ignore but prefers it does not occupy centre stage while it wrestles with more pressing affairs of state such as waging war in Libya and Afghanistan [but not Bahrain] and sandbagging the doors [back and front] of 10 Downing Street to prevent the backed up sewage overflow from News Corp phone hacking ruining the carpets.  It has to be seen to be doing something.

Hence the creation of a Commission, stuffed with establishment luminaries steeped in the grand old traditions of UK law.  So too are the terms of reference couched in a language style which has been matured for centuries in the dusty folds of the heavy velvet curtains which have shaded the desks of mandarins in Whitehall since William Pitt the Younger ordered “Roll up that map: it will not be wanted these ten years.”.  The British have rarely embraced Europe with anything other than a curled lip of disdain and distaste.

"Roll up that map: it will not
be wanted these ten years."

 “To investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extends our liberties.  

“To examine the operation and implementation of these obligations, and consider ways to promote a better understanding of the true scope of these obligations and liberties.”

 Before addressing the questions posed in the discussion paper, I suggested to the Commission some wider issues need to be recognised and accepted in their work.

Their paper is in many ways and for many people, thoroughly inaccessible.  The language used and limited context offered suggests an author more at home with constructing exam papers for second year law students, than engaging citizens in transparent and meaningful debates.

There is a similar lack of person-centredness to the paper, with no sense that human rights could or should be central to the daily lives of all citizens or that they could or should be routinely claimed by all citizens without recourse to courts and lawyers.

It would have greatly assisted the quality of debate had the Commission offered some person-centred illustrations of how the current framework of human rights law, practice and culture has been used and abused, as well as offering person-centred illustrations of alternative options or, indeed, what might flow from the adoption of a Bill of Rights.

In many senses, the questions set by the Commission reflect the weaknesses of the present legal frameworks within which the flame that is human rights flickers feebly in the stiff breezes of prejudice, bigotry, political mendacity and duplicity, and swathes of real ignorance across the population.  An entirely different and much more useful debate would have been had if all had been encouraged to take views on whether a Bill of Rights could act as a positive force in rebalancing the relationship between state and citizen and so restoring true accountability, transparency and responsibility between government and citizens.

As written, the paper encourages an almost exclusively theoretical, intellectual and arid  debate around the value of a Bill of Rights.  This represents a lost opportunity.  A significant flaw in the law, practice and culture of human rights in the UK has been that they have become separated from the very people they were supposed to benefit, each and every citizen, and instead have become the plaything of lawyers, courts and politicians.  Unless the Commission aims to return ownership of human rights to each and every citizen, the report produced in 2012 will surely join the legions of other such reports which are hidden within and ultimately turn to layers of dust in the folds of heavy velvet curtains which will still be shading the desks of Whitehall mandarins a century hence.

 Within that context, my answers to the Commission's questions were as follows.

1.    do you think we need a UK Bill of Rights? – yes.  For two simple reasons.  The present system and its constituent elements, including the Human Rights Act 1998, is failing and is in significant disrepute.  It is likely the effort required to reverse this and achieve a goal where human rights are understood, claimed, and respected by all citizens as part of daily living, is thoroughly disproportionate and would it would take several generations to pass in the interim.

Secondly, the unwritten nature of the constitutional relationship between government, state and citizens offers no discernible advantages to citizens and has been a major factor in human rights becoming the plaything of lawyers and others over the course of the latter half of the twentieth century.  The power relationship between state, government and citizens needs to be rebalanced and redressed and a Bill of Rights is more than likely to offer a strong bulwark against government and the state accruing yet more power – usually in the name of security - at the expense of citizens.

2.    what do you think a UK Bill of Rights should contain? – from what I have read, the model on offer in the Northern Ireland Human Rights Commission ‘Advice on a Bill of Rights for Northern Ireland’ provides an excellent core around which to properly debate and introduce a Bill of Rights which meets the needs people and communities in all the different parts of the UK. 

3.    how do you think it should apply to the UK as a whole, including its four component countries of England, Northern Ireland, Scotland and Wales? – if human rights are to be a passport to a place where the relationship between citizen, state and government is one of mutual interdependence, respect, and responsibility, then as long as the UK comprises the four countries in various models of devolved administration, each and every citizen of the UK needs to find the framework of human rights is constant and equal across the UK.  To adopt varying or differing degrees of a human rights framework is I believe a fundamental contradiction of what the the concept at the heart of a universal declaration on human rights.

  

4.    having regard to our terms of reference, are there any other views which you would like to put forward at this stage? – in some senses there is a case to be made that the law itself is not the issue.  What one can learn from the Human Rights Act over the last 11 years is that it has not become an everyday commodity used by UK citizens, that respecting human rights has been played out in courts and not in our streets and workplaces.  If the Commission is to produce a report which sat-navs the way for a person-centred human rights based approach being embedded in the lives of all UK citizens, then that report has to require government and the state accepts the need for a power shift from it to citizens.  Education, knowledge transfer, training, and capacity building has to be put in place alongside any new legal frameworks on human rights to that the claiming of human rights by UK citizens in each and every part of their daily living becomes commonplace.