Equality Duty Revised Draft Regulations Analysis of Consultation Findings

SECTION 1: THE CONSULTATION

1.1 This report presents the findings of a consultation carried out by the Scottish Government on the Public Sector Equality Duty Revised Draft Regulations. The consultation document was issued in September 2011 and closed on 25^th November 2011.

1.2 The report is in 5 sections. This section details the background to the consultation and the nature of this, as well as giving a brief outline of the methods of analysis and the pattern of respondents. Sections 2-5 provide an analysis of the responses in terms of the findings relating to proposals for changes at:

• Regulations 3 and 5 covering equality outcomes; and assessment and review (Section 2).
• Regulations 6,7 and 8 covering employment information (Section 3).
• Regulation 9, covering public procurement (Section 4).

1.3 Any additional comments and issues raised are presented in Section 5. The questions are set out in Annex 1. Annex 2 contains a list of respondents to the consultation.

Background to the consultation

1.4 The Equality Act 2010 brought together a range of previous equalities legislation into a single approach, and sought to strengthen protection and advance equality. Under the Act, three previous duties (the race equality duty, disability equality duty and gender equality duty) were replaced by a new single equality duty, and coverage was extended to additional 'protected characteristics' (i.e. those which may lead to prejudice and discrimination). This provided protection not only for ethnic minority groups; disabled people and women and men (as had previously been the case), but for a wider range of equality groups, including Lesbian, Gay, Bisexual and Transgender (LGBT) people; older and younger people; religious and faith groups. Although the issues facing these additional equality groups had been recognised previously by the Scottish Government and Scottish Parliament in their work, they were now included in the legislation.

1.5 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. Enforcement of the Public Sector Equality Duty is by judicial review or through the Equality and Human Rights Commission (EHRC).

1.6 Scottish Ministers intend to make Specific Duties to enable better performance of the General Duty, and two previous consultations have already taken place to help Scottish Ministers determine the form of these. The first explored the broad scope of the duties and reported in 2010^[3]. The second focused on the draft Regulations and reported in early 2011^[4]. A number of themes emerged from these consultations, with broad support for Specific Duties as well as for particular aspects of the approach, such as: mainstreaming; demonstrating equality impact; equality outcomes and reporting; and employment monitoring and reporting. There were also a number of related themes which were identified as important, including the perceived need for: flexibility and proportionality (i.e. being fair and reasonable); action and measurement; using existing systems and processes; consulting service users and equality groups, and using evidence. Draft Regulations were prepared, informed by the findings.

1.7 When the draft Regulations were introduced to the Scottish Parliament and considered by the Equal Opportunities Committee in 2011, the Committee did not support them. Scottish Ministers withdrew the draft Regulations and agreed to re-examine them. The proposed revisions to the Draft Regulations were the subject of this consultation, carried out at the end of 2011.

The consultation process

1.8 The consultation focused only upon proposed revisions, which relate specifically to:

• Equality outcomes (that authorities should publish reasons if their equality outcomes do not cover all relevant protected characteristics).
• Assessment and review (that the results of impact assessment should be published; that an authority should consider relevant evidence received from equality groups; that there should be a duty to make arrangements to review existing policies and practices; and that impact assessment is not required when a policy or practice has no bearing on the General Duty).
• Employment monitoring and reporting (that information should be gathered across all relevant protected characteristics; that it should be used to assist progress on the General Duty; that the information gathered should be reported; and that the equal pay statement should extend beyond the traditional arena of gender to include race and disability).
• Public procurement (that there should be specific procurement duties which make clear how the General Duty applies to procurement).

1.9 The changes sought to increase transparency and accountability and provide more details in the Regulations rather than in guidance.

1.10 Written responses were invited, along with the completion of a Respondent Information Form (RIF). The consultation contained 12 questions, most of which involved a "yes" / "no" / "don't know" option, and space for further comments. Question 1-11 invited respondents to agree or disagree with the specific proposed changes (summarised above), and to provide further information. Question 12 invited any other comments on the proposed draft Regulations. The consultation closed on 25th November 2011, and generated a large amount of qualitative material (along with quantitative data from the closed responses). A list of the questions is provided at Annex 1.

Submissions and respondents

1.11 A total of 140 responses to the consultation were received and included. These were grouped into broad categories for the purpose of analysis. This provided a useful indication of the types of respondents, although it is acknowledged that this required some subjective judgement.

1.12 Table 1 (below) summarises the numbers and proportions of respondents by category.

Table 1. Respondents by category

Type of respondent	Number	% total[5]
Equality	41	29
Local authority, department or representative body	26	19
Education	22	16
Other public bodies (covered by the Regulations)	18	13
NHS	12	9
Trade Unions / Professional Bodies	11	8
Individual	5	4
Other organisations (not covered by the Regulations)	3	2
Multi-agency partnerships	2	1
Total	140

1.13 As can be seen from table 1, respondents spanned a number of categories. The most common type of respondent overall was equality organisations, with 41 (29%). A total of 26 local authorities, departments or representative bodies responded (19% of all responses). The other main sector represented was education (22 or 16%). A total of 18 "other" public bodies (covered by the Regulations) responded (13%). As far as can be ascertained, 6 respondents requested confidentiality. In consultation with the Scottish Government, it was identified that a total of 76 respondents (54%) were covered by the Regulations, with 64 (46%) not being covered^[6].

1.14 Most of the respondents addressed all of the specific questions, while some addressed a smaller number of the questions or provided a more general response. Where a respondent did not address the questions directly, or did not use the form provided, it was generally possible to discern which question a comment related to and to include the material at the appropriate point in the report. Additionally, there were some cases where information provided in response to one question was relevant to issues covered elsewhere in the consultation. Again, this material has been presented in the report at the appropriate points.

Analysis of the data

1.15 The analysis of the data involved a number of stages, as follows:

• An Access database was designed to include the data by question.
• The information was input verbatim to the database.
• Responses where respondents stated "yes", "no" or "don't know", and provided additional comments were analysed.
• A quantitative report was prepared and submitted to the Scottish Government.
• A series of Word documents containing all of the qualitative material in the responses to each of the questions was generated.
• Key themes and sub-themes for each question were identified, and the detailed comments organised into a series of issue-based "books".
• This report was prepared, summarising the findings.

The report

1.16 The quantitative and qualitative material in the responses has been analysed fully and has generated a very large amount of information which is summarised in this report. For the quantitative information, the proportions of respondents who addressed each question, and those who specifically stated "yes", "no" or "don't know" have been identified. Where a respondent did not tick one of the boxes provided these have not been included in the quantitative material, but their comments have been reflected in the qualitative analysis. It would be inappropriate to assign a closed category ("yes", "no" or "don't know") to these responses, as it must be assumed that the respondent made a choice to provide only qualitative material. Any emergent patterns by type of respondent have also been identified.

1.17 For the qualitative material, the focus of the presentation of the information is upon highlighting the themes and issues which emerged in response to each question, and the range and depth of views expressed, rather than the numbers expressing particular views. It is neither appropriate nor possible to provide definitive numbers of respondents who expressed particular views in the qualitative data. There are a number of reasons for this, including that: not all of the respondents used the form for their response; some points were made at a number of different questions or overlapped different themes; comments about one issue were sometimes made in relation to another; some responses were submitted on behalf of organisations and represented the views of a number of respondents; and there was inevitably a need for some judgement about where to include particular material in the report.

1.18 For all of these reasons, the focus is on qualitative presentation, combined with the basic quantitative material discussed above. Broad proportions of respondents are given in relation to the identification of the overall themes at each question, along with a general indication of the range of sub-themes within each of the main themes. Within these themes and sub-themes, qualitative terms are used, such as "a number"; "several"; "a small number" and "a few". It should be borne in mind that these terms are intended only to provide a sense of where there were common issues within the themes and sub-themes, and, although they have been used consistently, should not be seen to represent particular numbers, nor to provide a means of direct comparison within or between questions. It should also be borne in mind that, within the themes and sub-themes, the actual number of respondents making specific points (whichever of the terms is used) will not be a large proportion of the total respondents overall. It is also important to recognise that the purpose of a consultation such as this is not "weigh" the qualitative views, but to use the views expressed to help to identify issues and to inform consideration of the way forward. The means of presentation of the data is therefore consistent with the purpose of the consultation as being to identify overall views of the proposals, along with details of the additional themes and issues raised.

1.19 In many cases, in the qualitative material, similar views were expressed by a range of different types of organisations and by individuals. It would be impossible to note, for each issue, all of the types of respondent, as this would often involve lengthy lists. Instead, variations by type of respondent (for example, between respondents covered by the Regulations and those not covered) have generally been identified only where there appeared to be a clear difference of view related to this. As will become clear, the levels of overall agreement in this consultation were such that few meaningful differences by category / sector could be identified.

1.20 It should be noted that where the term "respondent" is used, this refers to one response, even where that response may represent the views of more than one contributor.

1.21 In presenting the qualitative data, the wording sometimes follows the wording in a response, to preserve the sense of the point (even though it is not presented as a "quote"). The use of the original wording helps reflect respondents' intended messages, and it is generally clear to respondents that their comments will form the basis of a report.

1.22 The report cannot present all of the individual points made by every respondent, nor can it provide a compendium of material. The individual non-confidential responses are available in full, and can be viewed on the Scottish Government website^[7].

Summary of issues: The consultation

1.23 In summary, the main points relating to the consultation are as follows:

• A Scottish Government consultation on the Public Sector Equality Duty Revised Draft Regulations took place between September and November 2011.
• 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 analysis of the data involved: design of an Access database; input of the responses; analysis of "yes", "no" or "don't know" responses; identification of key themes and sub-themes for each question from the qualitative material; and preparation of the report.
• The report presents the quantitative findings along with the detailed qualitative material, including the themes which emerged and the range and depth of views expressed.
• The full responses are available for inspection on the Scottish Government website.