Figuring out the facts

Publicly funded organisations are increasingly called on to provide statistical evidence that they are promoting equality, but equality with whom? The issue is fraught with difficulty says Richard Bird, as a recent case against the schools adjudicator demonstrated.

It is somehow reassuring when things stay the same, for example, when the Mail on Sunday remains predictably indignant over the Christmas period. The paper took to its high horse about a home for retired Christian missionaries which was denied a grant from Brighton and Hove Council because the management refused to ask residents to complete a questionnaire on their sexual orientation.

The story raises all sorts of interesting questions. Is it a breach of the European Convention on Human Rights to invade a person's private life in this way? Any interference with human right by a public authority (in a context like this) has to be, according to law, proportionate and necessary for the protection of the rights and freedoms of others.

The council might, however, have argued that although there is no general (as opposed to employment) statutory code of practice in force for sexual orientation (as there is for race, sex and disability), there is some legal obligation to promote equality. For the council to prove it was doing so, it needed figures - hence the questionnaire.

Numbers count

The story illustrates a growing tendency for legislation and regulation to imply what might be called proactive statistical compliance. Rather than an organisation simply having policies to prevent discrimination, there is an obligation to actively promote equality and to demonstrate it by numbers.

In relation to equality, the process is this. First, determine whether present policies are in fact promoting equality by checking statistically whether the proportion of an excluded group in the institution concerned is in line with the population of the area. If it isn't, the institution must be discriminating.

Next, devise a plan to alter the situation, in consultation with members of the excluded group. Identify obstacles and devise strategies to remove them. Set targets. Then, monitor the scheme so that changes can be identified. And begin the whole process again.

This is as complicated as it sounds. Which population has the distribution within an organisation to be compared with? The distribution of people of a same-sex orientation among former Christian missionaries may be different from the distribution within Brighton and Hove generally.

Or should the comparison be with the whole body of Christians in Brighton and Hove? Or all believers of any faith? And how will one make a reliable comparison? The target may end up being purely arbitrary. At least with gender or disability or race, reasonably reliable local figures are available from the census.

Admissions code

This approach applies to the Code of Practice on Admissions as well. An admissions authority is expected to "act in accordance with the code" by monitoring the distribution of disadvantaged children (however defined) in each school and to take steps to ensure that the proportions in each school are in proportion to the numbers in the area (however defined).

In the recent admissions case, Drayton Manor School v Schools Adjudicator and Others, there was a lack of reliable figures. The case apparently arose from the school's previous efforts to adjust its catchment area so that local children did not have to pass it on the way to another school and therefore to make it more likely that the other, under-subscribed school would be able to fill its roll.

Ealing Council, however, took the view that Drayton Manor had excluded a deprived area. The case was won by the school when the judge concluded that the adjudicator had simply ignored the school's arguments that the change proposed by the council would deny choice to children at one end of the borough (they would, in effect, have to choose a faith school) and deny other children from an equally deprived area from gaining admission. (One may ask whether in London a borough is a relevant 'area' anyway.)

The judge was scathing about the arbitrary way in which the school's case has been effectively dismissed without a hearing.

However, difficulties for all parties including the adjudicator remain. Which area is to be compared with the school population? How are schools to determine their pupils' relative deprivation? How precise must all this be?

In these difficult circumstances, it is easy to see how 'proactive statistical compliance', though attractive, is difficult to implement fairly. Brighton and Hove and the schools adjudicator will not be the last to attract the indignation of the newspapers or the judicial system, as public authorities attempt by administrative means to promote a more equal society.