Equality Duty Revised Draft Regulations Analysis of Consultation Findings

EXECUTIVE SUMMARY

This report presents the findings of a consultation carried out by the Scottish Government on the Public Sector Equality Duty Revised Draft Regulations between September and the end of November 2011.

The new Public Sector Equality Duty, contained in the Equality Act 2010, has two parts: a General Duty, and provision for Specific Duties to be made by Scottish Ministers through Regulations, and imposed on Scottish Public Authorities. The General Duty came into force in April 2011, and requires public authorities to have due regard to the need to eliminate unlawful conduct; advance equality of opportunity across all relevant protected characteristics; and foster good relations across all relevant protected characteristics.

The Specific Duties are intended to set out a framework to assist public authorities to meet the requirements of the General Duty, and can only be placed on public authorities listed in Schedule 19 of the Equality Act. Scottish Ministers intend to make such Specific Duties, and a set of draft Regulations was introduced to the Scottish Parliament in 2011. However, the Equal Opportunities Committee did not support them, and these were re-examined. The proposed revisions to the draft Regulations were the subject of this consultation.

The consultation process

The consultation focused only upon the proposed revisions, relating specifically to: equality outcomes; assessment and review; employment monitoring and reporting; and public procurement. The changes sought to increase transparency and accountability and provide more details in the Regulations rather than in guidance. The consultation process involved the Scottish Government issuing a paper with details of the proposed amendments to the Regulations, with 12 questions, most of which involved a "yes" / "no" / "don't know" option, and space for further comments.

A total of 140 written responses were received. The most common type of respondent overall was equality organisations (29%). Also common were responses from local authorities, departments and representative bodies (19%) and education (16%). Other respondents included "other" public bodies covered by the Regulations (13%); NHS (9%); trade unions / professional bodies (8%); individuals (4%); "other" organisations not covered by the Regulations (2%); and multi-agency partnerships (1%). A total of 76 respondents (54%) were covered by the Regulations, and 64 (46%) were not covered. The consultation generated a large amount of material and the findings are summarised below.

Overall findings

A very high proportion of respondents answered "yes", "no" or "don't know" in each case. A large majority made additional comments, focusing on perceived benefits or general support; issues or concerns; and suggestions or perceived requirements for the way forward.

Overall, a large majority of respondents expressed agreement with all aspects of the revised draft Regulations, with 80% or more answering "yes" in each case (and in many cases, 90% or over). The question where there was the highest level of disagreement was question 5, relating to whether impact assessment should not be required when a policy or practice has no bearing on the General Duty. In this case, 17% stated "no", and there was a difference in the level of agreement between respondents covered by the Regulations (95% of whom answered "yes") and those not covered by the Regulations (36% of whom stated "no").

Proposals relating to equality outcomes / assessment and review

Question 1 asked whether respondents agree that if a public authority's equality outcomes do not cover all relevant protected characteristics, it should publish the reason(s) why. A total of 133 respondents (95%) addressed this question, and almost all of these (130) addressed the "yes", "no" or "don't know" part of the question. There was a high level of agreement, and 93% of these respondents^[1] answered "yes", with virtually no difference between those covered and not covered by the Regulations.

Question 2 asked whether respondents agree that a public authority should publish the results of equality impact assessment. A total of 133 respondents (95%) addressed this question, and almost all (130) answered the "yes", "no" or "don't know" part. There was a high level of agreement, both among respondents covered and not covered by the Regulations. A total of 90% of respondents who addressed the yes/no element answered "yes", while 8% stated "no" and 2% "don't know".

Question 3 asked whether respondents agree that a public authority's impact assessments should consider relevant evidence including any received from people with relevant protected characteristics in relation to the policy or practice in question. A total of 133 respondents (95%) addressed the question, and almost all of these (131) answered the "yes", "no" or "don't know" part. There was a high level of agreement with the proposal both among respondents covered and not covered by the Regulations, with 94% of respondents who addressed the yes/no element indicating "yes", only 4% "no" and 2% "don't know".

Question 4 asked whether respondents agree that a public authority should make arrangements to review and where necessary change or revise existing policies and practices to ensure that these do not have a detrimental effect on its ability to fulfil the General Duty. 133 respondents (95%) addressed this question, and almost all of them (132) addressed the "yes", "no" or "don't know" part. There was a high level of agreement both among respondents covered and not covered by the Regulations, although virtually all of those who disagreed were drawn from those covered by the Regulations. A total of 90% of respondents who addressed the yes/no element stated "yes", 9% "no" and 1% "don't know".

Question 5 asked whether respondents agree that a public authority should not be required to undertake an impact assessment where the policy or practice in question has no bearing on its ability to fulfil or otherwise the General Duty (e.g. purely technical or scientific matters). A total of 132 respondents (94%) addressed this question, almost all of whom (127) addressed the "yes", "no" or "don't know" part. There was a high level of overall agreement, and 80% of respondents who addressed the yes/no element answered "yes". Just under a fifth (17%) stated "no" and 4% "don't know". There was a high level of agreement from respondents covered by the Regulations (95% of whom answered "yes"), while the views of those not covered were more mixed, with more than a third (36%) who stated "no". Among the respondents who stated "no" the largest number were equality organisations.

A large majority of respondents made additional comments at all of these questions. These focused on three main areas: perceived benefits or general support for the proposals; issues or concerns; and suggestions or perceived requirements for the way forward. The most common themes were generally the identification of benefits and the identification of suggestions / perceived requirements for the way forward, with fewer respondents identifying issues or concerns.

In relation to equality outcomes, perceived benefits or general support for the proposal focused on: views of the proposal as an appropriate requirement; the positive impact upon the overall approach / ways of working in public authorities; and the positive impact upon equality^[2]. Issues or concerns raised related to: collection of data; the substance of the Regulation or the way it was worded; the potential impact of the requirement; and the perceived relevance of, or need for the Regulation. In terms of suggestions or requirements, a common theme was the perceived need for guidance and support, while other themes included: the substance of the Regulation; issues for clarification; the overall type of approach seen to be required; and some implementation issues.

In relation to the proposals relating to assessment and review, perceived benefits or expressions of general support focused on: perceptions of these proposals as appropriate; the overall approach / process of the public authority; aspects of practice; equality; groups and the community; and services. Issues or concerns related to: evidence gathering and data issues; the nature of Equality Impact Assessments (EQIAs); demands of the proposals; potential negative implications of the proposals; resources; the substance of the Regulation; lack of clarity of some issues; and the perceived relevance, need for, or effectiveness of the Regulation. Suggestions or perceived requirements related to: the substance of the Regulation and requirements; issues for clarification; the method and nature of implementation; the nature, purpose and use of evidence; the perceived need for, or content of guidance; and the overall type of approach seen to be required.

Proposals relating to employment information

Question 6 asked whether respondents agree that authorities subject to the Specific Duties should be required to take reasonable steps to gather information on the relevant protected characteristics of employees, including information on the recruitment, retention and development of employees. A total of 133 respondents (95%) addressed the question, and almost all (128) answered the "yes", "no" or "don't know" part. There was a high level of agreement, both among respondents covered by the Regulations and those not covered, and 96% of respondents who addressed the yes/no element stated "yes".

Question 7 asked whether respondents agree that authorities subject to the Specific Duties should be required to use the employment information which they have gathered to assist progress on the General Duty. A total of 132 respondents (94%) addressed this question, and almost all of these (129) addressed the "yes", "no" or "don't know" part. There was a high level of agreement both among those covered by the Regulations and those not covered, and 95% of respondents who addressed the yes/no element stated "yes".

Question 8 asked whether respondents agree that authorities subject to the Specific Duties should be required to report on progress on gathering and using employment information, including an annual breakdown of information gathered, within the mainstreaming report. This question was addressed by 133 respondents (95%) and almost all (130) addressed the "yes", "no" or "don't know" part. There was a high level of agreement both among respondents covered by the Regulations and those not covered, with 87% of respondents who addressed the yes/no element stating "yes". Only 7% stated "no" and 6% answered "don't know".

Question 9 asked whether respondents agree that authorities with more than 150 employees should publish an equal pay statement, the first of these covering gender and the second and subsequent statements covering gender, disability and race. A total of 131 respondents (94%) addressed this question, and almost all of these (120) addressed the "yes", "no" or "don't know" part. There was a high level of agreement both among respondents covered by the Regulations and those not covered. A total of 86% who addressed the yes/no element stated "yes", 10% stated "no" and 4% answered "don't know".

As with the previous questions, a large majority of respondents made additional comments at all of the questions on the proposals relating to employment information. Again these focused on the three main areas identified previously: perceived benefits or general support for the proposals; issues or concerns; and suggestions or perceived requirements for the way forward. Again fewer respondents identified issues or concerns than made other types of comments.

Perceived benefits and general expressions of support relating to employment information focused on: overall support and the perceived value and importance of these proposals; the positive impact on equality; the positive impact on aspects of the approach / process in public authorities; and on resources. Issues and concerns identified with the proposals about employment information related to: data collection, storage and use; reporting issues; aspects of the substance of the Regulation; a lack of clarity of some issues; the perceived impact on practice and resources; and a perceived lack of need for aspects of the proposals, or concerns about their effectiveness. Suggestions and perceived requirements for the way forward focused on comments about: the means of implementation (including aspects of the approach required, data collection and use, reporting and timing); the substance of the Regulation; issues for clarification; other aspects of implementation; and the provision of guidance and other support.

Proposals relating to public procurement

Question 10 asked whether respondents agree that where a listed authority is a contracting authority and proposes to enter into a relevant agreement on the basis of an offer which is the most economically advantageous it must have due regard to whether the award criteria should include considerations relevant to its performance of the General Duty. A total of 131 respondents (94%) addressed this question and almost all of these (128) addressed the "yes", "no" or "don't know" part. There was a high level of agreement among both respondents covered by the Regulations and those not covered, with 85% of respondents who addressed the yes/no element stating "yes". A total of 7% stated "no" and 8% answered "don't know".

Question 11 asked whether respondents agree that where a listed authority is a contracting authority and proposes to stipulate conditions relating to the performance of a relevant agreement it must have due regard to whether the conditions should include considerations relevant to its performance of the General Duty. A total of 129 respondents (92%) addressed this question, and almost all of these (123) addressed the "yes", "no" or "don't know" part. There was a high level of agreement among both respondents covered by the Regulations and those not covered, and 87% who addressed the yes/no element stated "yes". A total of 7% stated "no" (all of which were drawn from among those covered by the Regulations) and 7% "don't know".

Again, a large majority of respondents made additional comments on the proposals relating to public procurement, focusing on the same three broad areas: perceived benefits or general support for the proposals; issues or concerns; and suggestions or perceived requirements for the way forward. Again fewer respondents identified issues or concerns than made other types of comments.

Perceived benefits and expressions of general support for the proposals about public procurement focused on: consistency with existing developments and the importance of such requirements; a positive impact on equality; benefits relating to the contracting relationship; and a positive impact on the approach / process in public authorities. Issues and concerns raised about the proposals about public procurement related to: the substance of the Regulation; lack of clarity of some issues; aspects of implementation and / or the demands of this; and a lack of perceived need for the proposals. Suggestions and perceived requirements for the way forward in relation to public procurement focused on: the substance of the Regulation; issues for clarification; aspects of implementation; wider developments to support implementation; and the need for, or content of guidance.

Other comments

Question 12 asked respondents for any other comments on the proposed draft Regulations. A total of 99 respondents (71%) made other comments at Question 12 and 21 made additional comments at other points in their response (with some overlaps). The comments covered similar broad themes to those identified at specific questions (i.e. perceived benefits or general support; issues or concerns; and suggestions or perceived requirements), with the addition of some comments on aspects of the consultation.

Within the broad themes, some of these covered similar issues to those raised in response to specific questions. For example, perceived benefits or general expressions of support focused on: overall support, or support for specific aspects of the proposals; a perceived positive impact of the proposals on equality; and a perceived positive impact on the approach / process in public authorities.

In terms of issues or concerns, the main themes which emerged related to aspects of the substance of the Regulations, and challenges with equality issues. Additional comments were made about data issues or about the perceived impact / effectiveness of the proposals.

Suggestions or perceived requirements for the way forward included comments on: issues for emphasis or inclusion; the substance and implementation of the Regulations; developments to equalities work; the need for, or content of guidance; and other support perceived as beneficial.

A number of respondents made additional comments about the consultation. Among these, several welcomed the consultation, or the opportunity to respond, while one stated that they considered the consultation unnecessary and a "nonsense exercise". Several provided additional details about the nature of the respondent. A small number of respondents also provided details of the nature of their response to the consultation. A few respondents commented on the nature of the consultation process (e.g. wording and the need for plain English; the need for appropriate analysis and presentation) or made suggestions for future consultations (e.g. to require organisational respondents to identify the provenance of their response; and to review the design and use of Respondent Information Forms (RIFs)).