equality actThe irony of the Equality Act getting in the way of diversity initiatives was not lost on TV execs and campaigners last night as they listened to politicians setting out their stall on the industry’s thorniest subject.

TV diversity: Who Gets Your Vote, hosted by the Royal Television Society, saw MPs Ed Vaizey, Helen Goodman and Stephen Gilbert –representing the Tory, Labour and Liberal parties respectively – answer questions on quotas; BBC Charter Renewal; disability targets and Lenny Henry’s high-profile campaign on ring-fencing money for diverse content.

However, for a debate that generates more heat than Michael Buerk’s forehead in a celebrity jungle, it was, for the most part, an amicable affair. Politicians were for once, in agreement: the lack of diversity in TV is a massive problem, as highlighted by Creative Skillset figures showing the industry is going backwards when it comes to on and off-screen representation. Reversing that trend, they argued, is paramount.

 Vaizey singled out Sky and the BBC’s “pretty stretching targets”, which, he said: “you may as well call quotas” with Sky boss Stuart Murphy committing to cast at least 20% of significant roles from black Asian and minority ethnic (BAME) talent by the end of next year and for 20% of writers on team-written shows to be ethnically diverse, while the BBC is aiming for 15% diverse representation on- and off-air by 2017.

“Sky is by far and away the most impressive in its can-do, get-on-with-it way,” added Vaizey.

Yet one crucial question emerged from the debate – what is lawful positive action as opposed to unlawful positive discrimination, as laid out in the Equality Act.

“But is the Equality Act being used as an excuse by some?” asked a frustrated voice from the floor.

Reed Smith employment partner, Graham Green, who represents broadcasters and indies, and represented C4 and IMG in the high-profile John McCririck case responded:

“The Equality Act is not being used as an excuse but it is very important to understand whether some initiatives being considered can be implemented lawfully. The Channel 4 approach has been to look at the issue in detail and take a responsible approach to risk. We cannot announce short term initiatives which may require our commissioners or producers to act unlawfully.”

Which is why, Channel 4 chief marketing and communications officer, Dan Brooke stressed: “We’re taking our time for good reasons, we need to get it right”. The broadcaster will announce a new initiative with similarities to the BFI’s tick system in January following a consultation with producers’ trade body Pact.

As Green pointed out, some of the confusion as to what is lawful and what isn’t makes it difficult for broadcasters to communicate clearly their plans to improve representation of currently underrepresented groups in a way that is immediately understood.

There is a real commitment, however, and long term initiatives are being introduced by broadcasters, such as Channel 4. These are aimed at increasing the size of talent pools and opening up the industry to a greater variety of talent for selection.

“The existing systems are too closed/narrow. There needs to be more creative thinking about where people are going to get talent from,” said Green. This approach is based on sound legal principles, and may well prove very effective, but doesn’t grab the headlines in the way that more direct action initiatives do.

So without going into the legal complexities, the Equality Act essentially means positive discrimination is unlawful. There are exceptions to this, for example, as Green explained, the political practice of using all-women shortlists (AWS), intended to increase the proportion of female MPs, was only made possible as an exception because Labour introduced the Sex Discrimination (Election Candidates) Act 2002, which allows parties to use positive discrimination in the selection of candidates. 

What was agreed among the industry players in the room (sadly, the politicians had left by this point) is that greater understanding is needed as to the current state of the law, to ensure pressure is not put on broadcasters and producers to introduce initiatives which expose them to legal challenge. Green offered to assist in discussion which could identify “commonly accepted boundaries of risk” that will ensure protection for broadcasters like Channel 4 and importantly, its suppliers, the majority of whom don’t have, and certainly can’t afford, in-house lawyers.

In answer to a follow up question from vociferous equality campaigner Simon Albury on what changes might be made to avoid being hamstrung by the law, Green concluded by giving three simple examples for consideration of where politicians might assist the industry:

1) Produce clear guidance on what broadcasters and producers can do. The Statutory Code has examples of lawful action but not one of them is set in the media industry. “We can work with them to produce that guidance and that wouldn’t require legislative change.”

2) If there is a call for it, legislative change could be considered in a similar way as to the interventions which made lawful the all-female parliamentary list example. At the moment, it is unclear whether there is an appetite for this but it is important to understand that some of the initiatives being called for by the politicians would require changes like these.

3) The Rooney Rule could be considered. (Dan Rooney introduced a system in the US which requires National Football League teams to interview minority candidates for senior management roles. “But again, depending on how it is introduced it could be considered unlawful so politicians need to be open to potential tweaks to the legislation that could make that apply here… it’s proved to have been effective elsewhere.”

The evening ended with a rallying cry from Baroness Floella Benjamin, who pointed out that she has been dealing with this issue – whether as a presenter, producer, regulator at Ofcom, or as a politician – since 1973. She credited Ed Vaizey, as did vociferous equality campaigner Simon Albury, for “pushing for real change” within political circles and among the industry.

She concluded:“Things are changing and we’re not going to give up because we can smell victory.”

This marks the first time that the unintended restrictions imposed by Equality Act have been seriously debated. Let lobbying commence.

Originally posted here