Last summer, it emerged that the RAF, desperate to hit diversity targets for new recruits, had proposed outright stopping the recruitment of white male applicants. This prompted the then head of recruitment, Group Captain Elizabeth Nicholl, to resign in protest.

The story has rumbled on since then, with a succession of leaks and revelations illustrating the depths which the RAF was willing to plumb in order to meet its targets. Senior RAF personnel confirmed that recruitment was “slowed” when it became clear the service was missing its targets. Leaked emails have shown RAF staff complaining about “useless white male pilots”. It’s been reported that 31 white men have received payouts from the RAF after being disadvantaged by its recruitment policy.

When the story first broke, defence minister James Heappey was on hand to reassure us that we’re all trying to find the guy who did this. “If there is evidence of positive discrimination,” he said, “the people responsible for that will be held vigorously to account.”

Positive discrimination, of course, is technically unlawful in this country. You’re not supposed to be able to, say, set hiring quotas than discriminate for or against certain groups in order to improve your organisation’s diversity statistics. The Government’s own website says as much.

The prohibition on positive discrimination is riddled with loopholes

The problem is that the prohibition on positive discrimination in the Equality Act (2010) is weak and riddled with loopholes, some by omission and some explicitly written into the Act.

The RAF’s diversity targets are an example of the first type of loophole. There’s just nothing banning them. More to the point, as the RAF itself has pointed out when triumphantly announcing that it’s achieved its targets in the past, the Government itself is setting the targets.

It’s not just the RAF, and it’s not just the Government. Diversity targets are rife in the public sector. The Met Police wants 50 per cent of new recruits to be female. The BBC previously wanted 15 per cent of staff to be non-white, but then it achieved that, so it changed the target to 20 per cent — which is a higher proportion than the country as a whole.

To be fair, it’s not just the public sector. Sky also wants its workforce to be five per cent black and 20 per cent non-white by 2025.

You might wonder how these targets are different from unlawful hiring quotas, and it’s a fair question. Targets for new hires, like the RAF’s and the Met’s, are very similar to hiring quotas. Targets for the overall workforce, like the BBC’s and Sky’s, imply a target for new hires — once you take into account office turnover and how quickly you want to reach your target.

The difference, in theory, is that targets aren’t binding. The RAF case lays bare how seriously these targets can be taken in practice, however, considering the pressure that can be put on recruiters to meet them. Given that we only know about the situation at the RAF because of leaks, investigative journalism and Group Captain Nicholl’s principled stand, it’s hard not to believe that the RAF case is the tip of the iceberg.

The more explicit loopholes in the Equality Act fall under the banner of “positive action”. This ranges from relatively innocuous outreach programmes, to outright discriminatory paid opportunities that pass the legal test because they’re technically not jobs.

For example, the Tory MP Neil O’Brien recently criticised a TfL internship that, quite literally, bans white applicants. The scheme is open to graduates, runs for 11 months and pays a “bursary” of almost £22,000 — but because it’s technically an internship rather than, say, a graduate scheme, it comes under the umbrella of “positive action”.

Why are these loopholes so especially beloved by the public sector? Because the Government incentivises them. Public sector organisations are required by regulations to regularly publish reports on what they are doing to comply with the “public sector equality duty”, another feature of the Equality Act. The Equality and Human Rights Commission openly recommends that public sector employers consider using “positive action” to help them demonstrate compliance with the duty.

Selection on merit is morally right, and it works

The RAF case neatly exposes how current law and policy are allowing and even encouraging organisations to move away from selection on merit. It also exposes the dangers of this move.

It’s obviously essential for national security that the best personnel are hired for the air force, irrespective of background, and that recruitment isn’t slowed down in order to massage statistics. That’s true at the best of times, let alone when senior politicians in nuclear-armed states are calling us their “eternal enemy” and declaring Government ministers “legitimate military targets”.

The stakes might not always be as high as the defence of the realm, but the same principle applies across the economy: selection on merit is morally right, it’s common sense and it works.

Selection on merit is also a basic Conservative principle. O’Brien was right to call out the TfL scheme. Rishi Sunak was right to respond to the RAF case last summer by saying, “the only thing that should matter in recruitment is the content of your character, not your sex or the colour of your skin.”

The Government they run should go beyond words, though. It should take action to strengthen the Equality Act’s safeguards against positive discrimination and reassert the principle of selection on merit.

The Act should be amended to explicitly prohibit hiring quotas, including non-binding targets. “Positive action” should be restricted to genuine outreach work aimed at widening the pool of applicants. It specifically should not allow paid roles such as internships to run on a discriminatory basis. The public sector equality duty could also be scrapped, placing public sector organisations under the same set of equality rules as the private sector.

The Equality Act was rushed in by New Labour during their final days in office, and it purported to ban positive discrimination. The RAF case shows how, thirteen years on, the Act needs updating to close the loopholes that allow positive discrimination to persist in all but name.