Coronavirus (COVID-19): phase 3 measures - equality and fairer Scotland impact assessment

1. Introduction

The Coronavirus (COVID-19): Framework for Decision-Making^[1] and Scotland’s Route Map through and out of the crisis (‘the Route Map’), along with the subsequent updates^[2] made clear that COVID-19 is first and foremost a public health crisis and that the measures and policy responses to combat it have been necessary to save lives. The Route Map set out a range of measures, grouped into categories and divided into four key phases (preceded by the lockdown phase).

The phases, although they sought to restore as much normality as possible were gradual, incremental and accompanied by careful monitoring of the virus. Supporting evidence^[3] was made available to show how Scotland was meeting the World Health Organisation’s six criteria through this phased release.

While it was necessary to take extraordinary measures to protect public health through the Route Map, the proportionality of the measures taken and their differential impacts on the Scottish population, including equality groups, were an intrinsic part of the decision making during this emergency.

As we implemented the Route Map, the Scottish Government was mindful of its obligations under the Equality Act 2010 and the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 as well as its human rights obligations under the European Convention on Human Rights^[4] and related International Law. Section 149 of the Equality Act 2010 places a general duty (known as the Public Sector Equality Duty (PSED)) on public authorities to have due regard to: eliminating discrimination, harassment and victimisation; advancing equality of opportunity; and fostering good relations between persons who share protected characteristics^[5] and those who do not. We are also required by the Fairer Scotland Duty (which forms part of the Equality Act 2010) to actively consider ('pay due regard' to) how to reduce inequalities of outcome caused by socio-economic disadvantage and to consider alternative options to maximise our impact. These duties ensure that we continue to consider the impact of COVID-19 on people with one or more of the protected characteristics and / or socio-economic disadvantage and ensure that impacts on human rights are necessary, proportionate and legal in line with our commitment to creating a modern, inclusive Scotland which protects, respects and realises equality and human rights.^[6]

Individual policy areas have been reflecting on equality and inequality issues within their own areas and speaking to a range of stakeholders while developing policy and guidance. Equality and Fairer Scotland Impacts Assessments (EQFSIA) have been produced alongside the legislation^[7] and on Thursday, 2 July, the Scottish Government published a first overview batch of evidence on the Equality and Fairer Scotland Impact Assessment of the Phase 1 and 2 measures from the Route Map.^[8] This document collates similar evidence for the measures that were taken during Phase 3 of the Route Map.

Where any negative impacts have been identified, we have sought to mitigate / eliminate these. We are also mindful that the equality duty is not just about negating or mitigating negative impacts, as we also have a positive duty to promote equality. We have sought to do this through provisions contained in the Regulations, or by the range of support and guidance^[9] available.

While it is the view of the Scottish Government that any remaining impacts are currently justified and a proportionate means of helping to achieve the legitimate aim of reducing the public health risks posed by coronavirus, the Scottish Government also recognises that these measures are only required to respond to the current set of circumstances, and are only necessary as long as the potential public health benefits can justify any negative impacts caused.

Throughout the phases measures and mitigations continued to be a balance between the public health risks of virus transmission and the other health, social and economic harms. During Phase 3 there was a welcome release of many measures including the return of educational establishments, but some measures which were originally set out as Phase 3 were not released due to updated clinical advice on risk. Additional temporary local and national measures were introduced in recognition of a rapidly increasing rate of transmission of COVID-19 on 9 October. These Regulations partially came into force at 6pm on Friday, 9 October and fully came into force on Saturday, 10 October. A separate Equality Impact Assessment was carried out for this.^[10]

On 23 October, the Scottish Government published COVID-19: Scotland’s Strategic Framework which set out a new approach to outbreak management based on five levels of protection.^[11] This approach allows rapid but proportionate responses to be taken – locally or nationally – using a range of measures and options. The five protection levels in the Strategic Framework consist of four levels above the Route Map Phase 3 baseline (or 'Level 0'). They are designed to achieve progressively stronger effects in suppressing the virus allowing measures to be tailored according to virus levels in local areas.

This report provides an overview of the equality impacts of measures that were set out as Phase 3 of the Route Map and operationalised prior to the 10 October 2020. A separate Equality Impact Assessment has been undertaken in line with the legislation for the Strategic Framework but this document will be useful in understanding the background thinking to measures, guidance and mitigation taken into the Strategic Framework. New evidence is continually being produced and this evidence, alongside the views of partners in the public, private and third sector and the views of Scottish citizens will continue to be important in taking the next steps.