Equality Duty Revised Draft Regulations Analysis of Consultation Findings

SECTION 2: FINDINGS - PROPOSALS RELATING TO EQUALITY OUTCOMES; AND ASSESSMENT AND REVIEW

2.1 This section presents the findings on proposals relating to equality outcomes; and assessment and review (covered by Regulations 3 and 5).

Publication of reasons when outcomes do not cover all relevant protected characteristics

2.2 The revised proposals involve the addition of a requirement to publish reasons if an authority's equality outcomes do not cover all relevant protected characteristics. Question 1 asked:

"Do you agree that if a public authority's equality outcomes do not cover all relevant protected characteristics, it should publish the reason(s) why?"

Table 2. Responses to yes/no/don't know element of Question 1

Response	Respondents	% of all respondents	% of respondents addressing y/n/dk
Yes	121	86	93
No	6	4	5
Don't know	3	2	2
Not answered	10	7
Total	140

2.3 This question was addressed by 133 respondents (95%). Almost all of these (130) addressed the "yes", "no" or "don't know" element of the question, with a high level of agreement. Of those who addressed this element of the question, a total of 93% indicated "yes", and only 5% stated "no" and 2% "don't know" ^[8], with virtually no difference between those covered and not covered by the Regulations. Among the small number who answered "no" or "don't know" however, almost all were from organisations covered by the Regulations.

2.4 A small number of respondents (6) did not tick any of the boxes provided, but made comments (here or elsewhere) relating directly to this question. Of these, it could be inferred that 3 agreed with the proposal, at least in principle, 1 disagreed and 2 made comments from which their overall view could not be inferred^[9].

2.5 A large majority (87%)^[10] of the respondents who addressed this question made additional comments, as did a few others who made relevant comments elsewhere^[11]. Additional comments focused on three main areas: perceived benefits or general support for publishing reasons; issues or concerns with the proposal or its implications; and suggestions or perceived requirements for the way forward.

Perceived benefits of publishing reasons

2.6 The most common additional comments related to perceived benefits or general support for publishing the reasons if a public authority's equality outcomes do not cover all relevant protected characteristics. A high proportion of respondents^[12] highlighted some perceived benefits or expressed general support. These were of three main types: general 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 or equalities work^[13].

2.7 A number of respondents expressed general agreement with, or support for the proposal, or welcomed the requirement to publish reasons. Several expressed the view that there may be instances in which there may be a valid reason for outcomes not covering all relevant protected characteristics (e.g. the local context and priorities; data difficulties), although a few suggested that this would be relatively rare (and one respondent from an equality organisation stated that they could not imagine such a situation). Where such a situation arose, however, it was suggested that it should be explained, and this proposal provided the opportunity. A small number of respondents made reference to the current requirements of the General Duty, with a few (most of which were covered by the Regulations) stating specifically that, in their view, this amendment would not increase the administrative burden upon public authorities. Some issues in current practice which required to be addressed were also identified (e.g. a perceived lack of focus on some characteristics, or a potential lack of equality objective setting without this).

2.8 A further broad theme in the identification of benefits of publishing related to a perceived positive impact on aspects of the overall approach / ways of working in public authorities. The impact identified most commonly was increased transparency of the process (and the need for this), and several respondents also mentioned increased accountability, or the opportunity for scrutiny and challenge. Further benefits identified were the provision of a clear evidence base for outcomes, the need to demonstrate that all of the issues have been considered, and improved decision making (e.g. more robust and strategic, and improved planning).

2.9 Several perceived benefits of the proposal for equality were also highlighted, and these included: the general promotion of equality and fairness; delivery of the General Duty; increased engagement with, and mainstreaming of the issues; consideration and promotion of equality across all protected characteristics and avoidance of a "hierarchy"; improved engagement with, and involvement of equality groups; demonstration of a public authority's commitment to equality and engagement; the identification of gaps in equality outcomes, evidence and work; and the development of work, outcomes and evidence to address the gaps.

Issues or concerns raised - publishing reasons

2.10 Around a third of those who made additional comments raised issues for consideration, or expressed concerns with some aspect of the proposal or its implications, although most of these respondents agreed with the principle overall. Most, although not all of those who raised such issues were organisations covered by the Regulations. Issues or concerns raised related to: data; the substance or wording of the Regulation; the potential impact of the requirement; and, in a small number of cases, the perceived relevance of, or need for the Regulation.

2.11 The most common issues raised related to data (at least in the short term) and almost all of these comments were made by those covered by the Regulations, particularly local authorities. These included: a lack of, or limited data (national and local) relating to some of the protected characteristics; data collection issues (raised particularly by local authorities); and capacity issues for equality groups. One education respondent, who did not support the proposal, raised concerns about interpretation, and comparing compliance between different authorities.

2.12 Several respondents (most, but not all of which were equality organisations) identified specific concerns relating to the substance of the proposed Regulation (although the numbers in each case were small). The most common related to the perceived lack of a clear definition of an equality outcome and the difference between the definition in the Regulations and other definitions used by the Scottish Government, local partners and other public bodies in Scotland. Other issues relating to the substance of the proposed Regulation included: the lack of a requirement to publish outcomes for all protected characteristics; a concern that the wording might imply that the listed authority has the discretion of whether to publish the equality outcomes which further the objectives of the Duty under s.149 of the Equality Act or not; and a concern about the inclusion of the word "relevant". One respondent, who disagreed with the proposal, disagreed with an approach focusing on equality outcomes.

2.13 A small number of respondents, most of whom were covered by the Regulations (including some who disagreed with the proposal), raised issues or concerns with the potential impact of the proposal. These related to: the impact on action (e.g. the potential for inappropriate action; to detract from the "strategic message"; to hinder positive action or mainstreaming; or to detract from other work); the impact on resources (e.g. as a burden on administrative and other resources). A small number of respondents raised issues with the need for, effectiveness or relevance of the proposed change. Reasons cited, for example included: the other requirements of the General and Specific Duties; a perceived need to focus on working towards identified outcomes; or concerns about the effectiveness of the requirement in increasing transparency / accountability.

Suggestions for the way forward - publishing reasons

2.14 There were some overlaps between the issues or concerns raised and suggestions or perceived requirements for the way forward, identified by over half of those who made comments and by respondents of different types. A common theme was the perceived need for guidance and support, while other broad themes were: the substance of the Regulation; the overall type of approach seen to be required; and some implementation issues.

2.15 A number of those who made suggestions (mostly, but not only those covered by the Regulations) made comments on guidance and support. Several suggested a general need for clear and detailed guidance, or a need for this to be "timely". The largest number of comments focused upon issues perceived to be required in guidance, and these included: definition of an equality outcome (the most common suggestion); setting and measuring equality outcomes; evidence requirements and acceptable reasons; and how to engage with and involve groups, including co-production methods. One respondent stated that the guidance should highlight the need to consider issues relating to refugees and asylum seekers, as they are not protected characteristics under the Equality Act. A small number of respondents identified other support requirements, such as capacity building for equality groups; and support from the Equality and Human Rights Commission (EHRC).

2.16 A number of suggestions were made in relation to the specific substance of the Regulation. Some of these (identified particularly, but not only, by equality organisations) related to issues which respondents believed should be required for inclusion for publication, such as: the decision process; the nature of evidence; involvement of persons with relevant protected characteristics; whether those involved agree with the published reasons; consideration of multi-factorial dimensions of equality and personal characteristics; an action plan to address issues in the future; target dates; steps to achieve outcomes; and measurement of progress. One health respondent suggested a need for consideration of both workforce and service delivery issues in equality outcomes.

2.17 Other views expressed (by small numbers of respondents in each case, and particularly those from equality organisations) were that: their preference would be for a requirement that public authorities set outcomes covering all protected characteristics; there should be a requirement to work jointly with equality groups; and those with (or representing those with) relevant protected characteristics should be able to consider the evidence before outcomes are finalised. One local authority respondent stated that the proposal should be "repackaged" with a more positive emphasis on outcomes being based on good information, local evidence and consultation. One respondent (who disagreed with the proposal) suggested that there should be a requirement on public bodies to demonstrate how they take account of each characteristic in mainstreamed activity. A small number of issues for clarification were also identified by respondents covered by the Regulations, including: the publication requirements (extent and mechanisms); and what would constitute "reasonable steps". A few wording amendments were also suggested, and one equality organisation respondent expressed the view that outcomes should be defined in the Regulations.

2.18 Comments were also made on the type of overall approach required to support the proposal, and some respondents stressed a need for: a proportionate approach (the most frequent suggestion and made by organisations covered by the Regulations); flexibility; an evidence base; meaningful engagement / involvement (e.g. of equality groups, representatives and trade unions); and co-production (with these suggestions made generally, but not only by equality organisations); and reporting in, or alongside, the authority's structures.

2.19 In terms of implementation issues, suggestions were made about the need for: data and information sharing; engagement; scrutiny of published reasons; a mechanism to challenge decisions (e.g. without going to court); and resources and support. A small number of local authority respondents stated that it would be beneficial to align equality outcomes to other outcomes, and one equality organisation stated that outcomes for all other protected characteristics should be gendered.

Publication of the results of Equality Impact Assessment

2.20 The revised proposals involve the addition of a duty on authorities to publish the results of Equality Impact Assessment (EQIAs). Question 2 asked:

"Do you agree that a public authority should publish the results of equality impact assessment?"

Table 3. Responses to yes/no/don't know element of Question 2

Response	Respondents	% of all respondents	% of respondents addressing y/n/dk
Yes	117	84	90
No	10	7	8
Don't know	3	2	2
Not answered	10	7
Total	140

2.21 This question was addressed by 133 respondents (95%) and almost all of these (130) addressed the "yes", "no" or "don't know" element. There was a high level of agreement with the proposal, both among respondents covered and not covered by the Regulations. Of those who addressed this element of the question, a total of 90% indicated "yes", while 8% stated "no" (over half of which were from the education sector, although a variety of reasons were given for their views) and 2% "don't know". Almost all of those who answered "no" or "don't know" were from organisations covered by the Regulations. A small number of respondents (6) did not tick any of the boxes provided, but made comments (here or elsewhere) relating directly to this question. Of these, it could be inferred that 4 agreed with the proposal, at least in principle, 1 disagreed and 1 made comments from which their overall view could not be inferred.

2.22 A large number (90%) made additional comments, again of three main types: perceived benefits or general support (the most common theme); issues or concerns (the least common); and suggestions or perceived requirements for the way forward.

Perceived benefits of publishing results of EQIAs

2.23 Around three quarters of those who made comments identified perceived benefits of, or expressed general support for publishing the results. These included general expressions of support, and more specific comments, within which the most common themes identified related to a perceived positive impact on: the nature of the overall approach / process of the public authority and aspects of practice; equality; and groups and the community.

2.24 Among the general expressions of support, comments included respondents expressing their overall agreement; identifying publication of EQIAs as part of the organisation's current approach (a point made particularly by organisations covered by the Regulations); or identifying the overall importance of this (a point made particularly by some equality organisation and trade union / professional bodies respondents). A small number (of equality organisation and individual respondents) identified specific problematic aspects of the current situation which the requirement could address (e.g. a lack of EQIAs; delays in publication; or the persistence of discrimination).

2.25 A number of respondents of different types commented on the perceived positive impact of this proposal upon the overall approach / process of a public authority, particularly in terms of transparency and accountability, or stressed the importance of these issues. It was also suggested that it could improve: scrutiny; consistency; information sharing; decision making; responsiveness to needs; and quality assurance. A small number of respondents (mostly covered by the Regulations) expressed the view that it would be consistent with Freedom of Information (FOI) legislation, may reduce the number of FOI requests, or assist with responding to these. A few respondents identified a positive impact on staff / partners.

2.26 A number of respondents of different types who highlighted benefits identified a positive impact of the proposal on equality, particularly the performance of the General Duty (an issue raised particularly by organisations covered by this). It was suggested that active consideration of the likely impact of policies, procedures and practices on people with protected characteristics, informed by evidence, is inherent to having "due regard" to meeting the General Duty. It was also seen to be a means of evidencing progress and commitment to this work. Other perceived types of impact on equality were that the proposal would: ensure an emphasis on equality issues; enhance and raise the profile of EQIAs; enable benchmarking; identify gaps; prompt action; promote change; assist mainstreaming; and promote good practice.

2.27 A number of respondents (including some from equality organisations and trade unions / professional bodies, as well as from organisations covered by the Regulations) also identified a positive impact on other interested parties, such as: people with protected characteristics; equality organisations; staff associations; and others in the community. This included issues such as, for example: assurance that equality has been taken into account; improved information and awareness of processes, policy decisions and services; increased confidence and reduced scepticism; more information about the outcome of participation / involvement; opportunity for scrutiny and challenge; and increased likelihood of future engagement and involvement.

Issues or concerns raised - publication of results of EQIAs

2.28 A smaller proportion of respondents (around a fifth of those who made comments) identified perceived drawbacks or issues for consideration relating to this proposal. These comments were made by a mix of those who agreed with the proposal, and some who did not, or stated "don't know" or did not tick a box. Most were made by organisations covered by the Duty, and themes on which comments were made related to: the nature of EQIAs and evidence gathering; demands of the proposal; the substance of the proposal / Regulation; and the perceived need for, or effectiveness of the proposal.

2.29 The most common concerns (raised largely by respondents who supported the proposal) related to the nature of EQIAs or to evidence gathering. These included: the sensitive nature of some information (personally or commercially) and its potential unsuitability for publication; the timing and potential volume of publication requirements; the lack of quality standards for EQIAs; data collection problems; and limitations to data.

2.30 Comments on the demands of the proposal were made largely (but not only) by respondents who disagreed with it, or did not express a definitive view. These included that: the proposal would have general resource implications; involve administrative time and work; have cost implications; place an added burden on authorities; and that these resources could be better targeted.

2.31 A small number of comments were made on the substance of the proposal, including the wording (e.g. the subjectivity of "reasonable" in relation to the time period); and the suggestion by one respondent that it might conflict with the principles of proportionality and flexibility and would be unlikely to "embed" equality. A small number of respondents (none of whom expressed agreement with the proposal) raised questions about the need for, or effectiveness of the proposal. Comments included: that EQIAs are already publicly available on request; that the proposal would lead to process-driven activity which may not have increased impact; and that it could deter carrying out EQIAs in some situations.

Suggestions for the way forward - publication of results of EQIAs

2.32 Over half of the respondents who made comments identified suggestions or requirements for the way forward, and these were made by various respondents with differing views of the proposal overall and from different types of respondents. The most common suggestions related to the nature and means of publication, or other aspects of the substance of the Regulation. A further group of comments focused on the perceived need for, or content of guidance. A further issue on which comments were made was the overall type of approach seen to be required. A small number of additional observations were also made.

2.33 In terms of the nature and means of publication, several respondents of a range of types provided views of issues which should be included in the material published. Suggestions included: the purpose of the proposed policy or practice; the evidence considered and nature of assessment; the involvement of stakeholders; the anticipated impact; evidence of changes or action taken; actions planned; and plans for monitoring / review.

2.34 Several commented on the means of publishing, and several suggested a need for clarification of what to publish. A small number, for example, suggested that all assessments should be published in draft and fully consulted on, or made available unpublished, then a final version published. A small number of others suggested that they should be published when approved, while it was also suggested that they should be published within a short time of completion. Another respondent, however, stated that there should not be "episodic" publication of the results.

2.35 A range of views were expressed about whether assessments should be published: in full; in summary form; as a list; in a single report; within another report; or in a form to be determined by the public authority. One respondent suggested that there should be more focus in the Duty on a "targeted" approach to EQIA, with those relevant being on open view. A small number of respondents suggested that there should be exemptions for some restricted policies and practices. Two suggested that follow-up reports should be published. A small number (who disagreed with the proposal or stated "don't know") stated that publication should be an option, not a requirement (e.g. with a requirement to make them available on request). It was also suggested that the required approach should be made explicit.

2.36 A number of respondents made suggestions about the nature of the published information. Many of these comments related to the need for it to be accessible, (an issue raised frequently, but not only by equality organisations) and, in the view of some, for this to be expressly stated. There was seen to be a need for the information to be: in a range of formats; easily located at a range of outlets; up to date; in plain language; using appropriate text style and formatting; concise; and disseminated to relevant stakeholders. It was also suggested that published information should protect confidentiality. In terms of other aspects of the substance of the Regulation, other suggestions included: that the EQIA Regulation should specifically include reference to key policies and procedures that affect service users; and a proposed wording amendment. It was also suggested that a pro forma / template for EQIAs could be issued.

2.37 A number of respondents (mostly, but not only those covered by the Regulations) commented on the need for, or content of guidance or the provision of other support. Most of the comments identified issues for inclusion in guidance, such as: the EQIA process; the application of the "standard" for assessment; types / formats and content of publishing that would satisfy the requirement (see above); what is meant by "results"; clarification of the notion of policy (either in the guidance or Regulations); how to resolve complexities relating to the timing of publication; how to translate the requirement into practice (with case studies suggested); and the need to consider issues relating to asylum seekers and refugees (raised by one of the equality organisations).

2.38 Several respondents (particularly, but not only equality organisations) identified the overall type of approach required, and this included a perceived need for: proportionality; relevance (i.e. that the content of the assessment be confined to an analysis of equality issues and the impact in relation to the General Duty); and the inclusion of communities in the process. Other suggestions included: a need for benchmarking; sharing lessons learned; and taking action on the results of assessments. One individual respondent suggested a wording addition to Regulation 4, to require details of the progress that the authority has made in using the outcomes from impact assessments to assist in performing the General Duty.

Evidence from equality groups

2.39 The revised proposals involve making explicit that an authority must consider relevant evidence received from equality groups. Question 3 asked:

"Do you 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?"

Table 4. Responses to yes/no/don't know element of Question 3

Response	Respondents	% of all respondents	% of respondents addressing y/n/dk
Yes	123	88	94
No	5	4	4
Don't know	3	2	2
Not answered	9	6
Total	140

2.40 This question was addressed by 133 respondents (95%) and almost all of these (131) answered the "yes", "no" or "don't know" element. There was a high level of agreement with the proposal both among respondents covered and not covered by the Regulations, with 94% of those who addressed this element indicating "yes", 4% "no" and 2% "don't know". Almost all of the small number who answered "no" or "don't know" were from organisations covered by the Regulations. A small number of respondents (5) did not tick any of the boxes provided, but made comments (here or elsewhere) relating directly to this question. Of these, it could be inferred that 3 agreed with the proposal, at least in principle, and 2 made comments from which their overall view could not be inferred.

2.41 A large number of respondents (89%) made additional comments at this question, along with a few made elsewhere. As at previous questions, these were grouped broadly into perceived benefits or general support; issues or concerns; and suggestions or perceived requirements for the way forward. Similar proportions identified benefits and suggestions, and a smaller number identified issues or concerns.

Perceived benefits of considering relevant evidence from equality groups

2.42 Around two thirds of those who made additional comments, including respondents of different types, identified perceived benefits of this proposal or expressed general support. As at previous questions, some expressed their overall agreement with the changes, while others identified more specific benefits. Among the latter, the most common themes were: the impact on the overall approach and process in public authorities; and the impact on equality. Additional benefits identified related to the perceived positive impact on groups and the community; and on services.

2.43 Where respondents expressed overall agreement, the types of comments included: a number of respondents stated that they agreed, agreed strongly, or welcomed this; and small numbers who stressed the importance of this, stated that they agreed subject to other comments, or specifically welcomed the requirement to pay due regard to the findings of such assessments. A few stated that it was consistent with their own principles or practice, and a few highlighted current problems, such as a lack of understanding on the part of policy makers of issues for people with protected characteristics.

2.44 As noted, a number of the comments focused on the impact of the proposal on the overall approach and process in public authorities, with comments made by respondents of a range of different types. Benefits highlighted included, for example: using the experience and expertise of individuals with protected characteristics, as well as equality organisations; identifying local issues; a more robust, evidence-based approach with a range of sources (raised particularly by several organisations covered by the Regulations); the need for higher quality evidence (raised particularly by a small number of trade unions / professional bodies); better consideration of the evidence; fewer gaps in evidence; well-informed and improved decision making; and better assessments overall. A small number of respondents identified a positive impact on transparency and accountability or on general good practice. A few suggested that the proposal was consistent with issues raised in the Christie Commission report^[14].

2.45 A further common issue raised in terms of perceived benefits, again by a number of respondents of different types, was that the proposal would have a positive impact on equality, particularly in terms of the impact on EQIAs, which a number of respondents, including some local authorities, "other" public bodies, trade unions / professional bodies and equality organisations stated would be enhanced, legitimised, more robust and more meaningful. A further suggestion was that it would contribute to meeting the General Duty and help demonstrate this. It was also suggested that it would help to: identify issues and gaps; prevent discrimination; improve consistency across protected characteristics; increase commitment to the agreed policy / practice; and have a positive impact on mainstreaming.

2.46 A small number of respondents of different types highlighted the positive impact of this proposal on groups and the community, in terms of: increased involvement and engagement; increased involvement in developments; and better relationships. A similar small number (particularly, but not only, equality organisations) identified a positive impact on services / provision, in terms of: general improvements; removal of barriers / promotion of inclusive services; responsiveness to needs; and cost effectiveness.

Issues or concerns raised - evidence from equality groups

2.47 Around a third of those who made comments (including respondents with differing views of the proposal overall) identified issues or concerns with the proposal. These were most commonly, although not only made by those covered by the Regulations. The most common issues or concerns raised related to resources and the collection of evidence and data issues. Other themes, identified by small numbers in each case, included: the substance of the Regulation; the implications for other work; and the perceived relevance of, or need for, the Regulation.

2.48 Several respondents (generally, but not only, those who supported the proposal and would be covered by the Regulations) raised issues or concerns about resources. These included general concerns about limited funding for the work, or stretched resources in the current climate, as well as concerns about capacity issues (the most common theme relating to resources, and raised by several respondents, from local authorities and other categories). It was suggested, for example, that the capacity for community engagement does not always exist, and that there is a danger of "over-consultation" with small groups. A small number of respondents suggested implications for administration and other resources.

2.49 Several respondents raised issues or concerns about evidence-gathering and data (again mostly organisations covered by the Regulations), the most common of which related to perceived challenges in undertaking meaningful engagement with, or involvement of people with protected characteristics. Within this, the issue of "involvement fatigue" (described variously) was identified by several respondents (and relates to some points made above about resources). It was also suggested that it can be difficult to find groups to engage with (e.g. because of local demography and / or geography). Other issues with data were also raised by organisations covered by the Regulations, including: general problems in obtaining evidence; current gaps in data (national and local); issues with the representativeness of data; and issues with protection of confidentiality and anonymity.

2.50 A small number of respondents identified issues relating to the clarity or wording of the Regulation. For example, it was suggested that the scope of the requirement is unclear, and that this could raise expectations that could not be met. It was also suggested by an equality organisation respondent that it is unclear whether an authority has to seek the information before submitting a report, or whether this is just considered good practice. It was also suggested by a trade union / professional body that the use of the word "relevant" in Regulation 5 (2) could cause confusion by introducing a "wide element of discretion prematurely".

2.51 A small number of respondents (most of whom did not express agreement with the proposal and most of which were education respondents) identified negative implications for other work; questioned the impact of the proposal; or suggested that it would be burdensome. One suggested that managing the process could be problematic in a large public authority. A small number of respondents (all who disagreed with the proposal) stated that the Regulation is not required, as public bodies already have to do this, and legal remedies are in place where it does not happen.

Suggestions for the way forward - evidence from equality groups

2.52 Around two thirds of those who made comments, including respondents of different types, made suggestions or identified requirements for the way forward. The largest number focused on the nature, purpose and use of evidence. These issues were raised largely by equality organisations, trade unions / professional bodies and an individual respondent, but also by some of those covered by the Regulations. Other common themes were the nature of the approach required by public authorities, and the provision of guidance. A small number of other suggestions relating to the Regulation were made, and a few examples provided of practice considered relevant to this proposal.

2.53 Most of the suggestions about the inclusion of evidence from equality groups related to the means of engagement / involvement. Several respondents, particularly from equality organisations and trade unions / professional bodies, suggested who should be involved in providing evidence, and those identified included: people with protected characteristics; representatives of people with protected characteristics; organisations that work with, support and / or enable participation by people with protected characteristics; trade unions and staff associations. One respondent stated that where employees provide evidence for impact assessments, this should also be included. A few stressed a perceived need to avoid "selective" involvement or to ensure that evidence is representative. Several respondents commented on the importance of a range of sources of evidence, the need to include quantitative and qualitative material and the need for evidence to be up to date.

2.54 Comments were also made about the process of involvement. These included that it should be: "active"; timely; and allow a sufficient period for participation. A few respondents stated that people with protected characteristics should be involved at all stages of an impact assessment, or that a co-production approach should be adopted. Several respondents suggested mechanisms for involvement, most of which involved a specific focus on groups with protected characteristics. Suggestions included: generally developing means of gathering information; building on existing structures; outreach; provision of support; and working with local organisations of and for people with protected characteristics. One education respondent, however, argued that the Scottish Government should acknowledge that the use of mainstream consultation mechanisms is acceptable for EQIAs, with specific mechanisms targeted in response to issues arising. A local authority respondent stated that it must be understood that the Duty will not require "bespoke" consultation and engagement for each EQIA project. A small number of differing views were expressed about whether involvement should be facilitated by public authorities or groups in the community and representative bodies.

2.55 A small number of respondents (largely from equality organisations) suggested that there should be a duty to actively seek evidence from people with protected characteristics (although, conversely, a small number of respondents covered by the Regulations argued that relevant evidence should not be mandatory). A few respondents suggested that the scope of the proposed requirement should be more explicit (e.g. to include service users and others affected). It was also suggested that, where evidence relating to one or more characteristic is lacking, there should be a duty to take steps to gather additional evidence, or actions identified. A few equality organisation respondents stated that public authorities should be required to set out details of what the engagement process entailed. A small number of suggestions were also made by respondents of different types about aspects of the use of evidence, including: that information and knowledge should be considered and shared; and whether the actual comments from the process should be published. One respondent stated that they would welcome further dialogue about aspects of the use of evidence.

2.56 A further broad theme on which a number of respondents made suggestions (particularly, but not only organisations covered by the Regulations) was the nature of the approach required by public authorities. The most common of these (raised largely by those covered by the Regulations) was the perceived need for proportionality (e.g. to the scale of issues; demographic issues; and the significance of policy or practice in terms of equality). It was also suggested that the approach should be relevant, and should recognise data issues. One local authority respondent stated that the notion of "relevant" evidence and "relevant" protected characteristics should be strengthened. An education respondent stated that it should be explicitly acknowledged that it is acceptable that impact assessments might not include evidence relating to every protected characteristic. Other suggestions from equality organisation respondents were that the approach should: involve partnership; involve co-production; and be based on empowerment. A small number of respondents stated that resources would be required to provide support and to enable capacity building.

2.57 A number of respondents (particularly, but not only by those covered by the Regulations) also made comments on guidance. A few stated the general need for this, but most identified issues for inclusion. The most common suggestions were for guidance on: evidence requirements / what constitutes relevant evidence; how relevance is determined (with two respondents, for example, suggesting that guidance should state that the organisation should determine this); what is "proportionate"; effective engagement; and requirements for this. A small number of respondents suggested additional forms of support, particularly the further development of a national and local evidence base, and access to this.

2.58 A small number of other suggestions relating to the Regulation were made. Several respondents (largely local authorities) suggested a need for greater clarity about compliance. A few respondents from trade unions / professional bodies stated that there should be an obligation to consult with trade unions when carrying out impact assessments. A small number of respondents suggested a need for clarification of other terms in the Regulation (e.g. "due regard"; and "reasonable"). A small number of wording suggestions were also made, including changes to: include a requirement to seek evidence; delete "relevant"; enable the involvement of those who represent the interests of those with protected characteristics; and require authorities to demonstrate having given priority to identifying and addressing the root causes of any inequalities identified.

Review of existing policies and practices

2.59 The revised proposals involve the addition of a duty to make arrangements to review existing policies and practices. Question 4 asked:

"Do you 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?"

Table 5. Responses to yes/no/don't know element of Question 4

Response	Respondents	% of all respondents	% of respondents addressing y/n/dk
Yes	119	85	90
No	12	9	9
Don't know	1	1	1
Not answered	8	6
Total	140

2.60 This question was addressed by 133 respondents (95%) and almost all of these (132) addressed the "yes", "no" or "don't know" element. There was a high level of agreement with the proposal 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 those who addressed this element answered "yes", while 12 respondents (9%) stated "no" (almost half of which were from the education sector) and 1% "don't know". A small number of respondents (3) did not tick any of the boxes provided, but made comments (here or elsewhere) relating directly to this question. It could be inferred that all 3 agreed with the proposal, at least in principle.

2.61 A large number of respondents (89%) made additional comments at this question, and a few additional comments were made elsewhere. As at previous questions, the broad themes identified in comments were: the perceived benefits and general support; issues and concerns; and suggestions or perceived requirements for the way forward (comprising the largest number of comments).

Perceived benefits of review of existing policy and practice

2.62 Over half of the respondents who made comments, including respondents of different types, highlighted perceived benefits or expressed general support. Common themes were expressions of overall support, and the identification of relevant aspects of current practice; and issues relating to the positive impact of the proposal upon equality (particularly meeting the General Duty and the general promotion of such work). Other themes (with comments from small numbers of respondents) were a perceived positive impact upon: the approach / process in public authorities; equality groups / community members; and services.

2.63 A number of respondents expressed their general agreement, stating that it is a welcome, or positive requirement or stressing the importance of this (e.g. particularly in relation to "newer" protected characteristics). Several, in expressing their general agreement, identified aspects of current practice which they felt supported this view. Such comments included, for example, the view that this is something that public authorities are already expected to do, or respondents noting that their own organisation was doing so. Comments (made particularly, but not only by equality organisations) also included issues that were seen to need to be addressed (e.g. that existing or older policies or practices may never have been assessed, may not take equality issues fully into account, or may no longer be "fit for purpose" in relation to equality). Other comments identified potential consequences of not having such a requirement (e.g. that it could be some time until review took place or that policy and practice could have a discriminatory impact).

2.64 The other main type of perceived benefit identified at Question 4 was a positive impact on equality, particularly in relation to the General Duty. Comments (particularly, but not only from local authorities) included the relevance of existing policies and practices to the implementation of this, or the view that the proposal would help to ensure compliance. A few respondents stated that a lack of review could undermine the General Duty. Several respondents of different types also stated that the proposal could have a positive impact on the general prevention of discrimination and promotion of equalities work (and specific aspects of this), that it could encourage action and identify progress. A few suggested that it would promote and encourage mainstreaming.

2.65 A small number of respondents of different types highlighted a positive impact on the approach or process in public authorities, in terms of issues such as: engagement; consistency; transparency and accountability; an evidence-based approach; good practice and continuous improvement. Several respondents suggested that there would be a positive impact upon equality groups and other community members, in, for example: identifying issues impacting on them; and developing improved policies and services to meet their needs. A small number of respondents suggested a positive impact on the general delivery of services by public authorities.

Issues or concerns raised - review of existing policy and practice

2.66 Over a quarter of respondents identified issues and concerns with this proposal, almost all of which were organisations covered by the Regulations. Themes related to: perceived potential implications of implementation, particularly the impact on resources; concerns (expressed by most of those who disagreed with the proposal, including the small group of education respondents) about whether the proposal is necessary, proportionate or effective; and a small number of other concerns about its potential impact on other work.

2.67 A number of respondents (including some who agreed and most of those who disagreed with the proposal) raised issues relating to the implications of this proposal. The most common concerns related to resources or the volume of work, and was raised largely by those in support of the proposal. A small number of local authority respondents, for example, raised concerns about staffing levels, while issues were also raised about capacity, administrative requirements and other resources, which it was suggested could impact on the timescales for fulfilling this. A small number of respondents who disagreed with the proposal stated that it would be time-consuming and unnecessary. Other concerns included the views that it could: be onerous; be impractical; become a "tick box" exercise and reduce the quality of assessments; detract from development of new policies and practices; encourage inappropriate action; raise industrial relations problems; or hinder progress.

2.68 Several respondents (almost all of which were those who disagreed with the proposal) questioned the relevance, need for, or effectiveness of the proposal. Comments included that: review would take place anyway over time, or when an issue was raised; that the proposal was not considered to be proportionate or realistic; or that it may not have the desired impact.

Suggestions for the way forward - review of existing policy and practice

2.69 The largest number of comments made at Question 4 (by around two thirds of those who made comments, and by respondents of different types) were suggestions or perceived requirements for the way forward. The most common theme related to the means and nature of review, particularly: the perceived need for this to be proportionate and relevant; how to determine the nature, order and timing of review; the review processes to be employed; the need to involve others; and the timescale. Other themes included comments on issues for guidance or clarification and a small number of suggested changes to the nature or wording of the proposal.

2.70 A number of respondents (particularly, but not only, local authorities and "other" public bodies) stated that the requirement should be proportionate, relevant and reasonable (including, for some, the timescale). One local authority respondent specifically stated that there should be more emphasis on this, suggesting that it should be defined by the listed authority's published equality outcomes. Several respondents of different types also identified a need to prioritise the review process, and some ways of undertaking this were suggested. These included: identifying policies and practices likely to have the greatest impact or risk; focusing on "key" policies; focusing on policies most likely to have an impact on fulfilling the General Duty; using the Equality and Human Rights Commission or other guidance; involving equality groups in identifying priorities; and screening all policies. One respondent from an equality organisation suggested taking a "first among equals" focus on disability issues. Another respondent stated that those affecting procurement decisions should also be revised on a planned basis, while a further respondent stated that the cumulative effect of different policies should be acknowledged. A small number of respondents suggested that review should only be required by exception, or be applicable only to policies likely to have an impact on people with protected characteristics.

2.71 One respondent stated that a requirement for initial EQIA screening was missing from the revised Regulations. A small number of equality organisations and individual respondents argued that authorities must use EQIAs for this process and these must be published (or the reasons for not doing so published, as with equality outcomes). One education respondent stated that public authorities should be required to demonstrate efficient systems and processes being in place, as well as outcomes and targets and progress.

2.72 Several respondents who would be covered by the Regulation stated that organisations' existing review processes should be used for this, or that it should be integral to policy and practice development. A small number expressed the view that the exception would be where concerns raised or evidence suggested a need for assessment outwith this, or where other factors such as changes to legislation or strategy might impact. Such views (with some variations in emphasis) were expressed both by some respondents who answered "yes" and some who answered "no" to the overall question. Several respondents covered by the Regulations also stated that public authorities should have the discretion to set priorities.

2.73 Several respondents (particularly equality organisations and trade unions / professional bodies) also argued that there is a need to involve others in the process of prioritisation and / or review. Suggestions included: groups of and for people with protected characteristics and organisations working with them; others with a clear understanding of equality issues; trade unions and workplace representatives; local communities; and other interested stakeholders.

2.74 A number of respondents (of different types but generally those in support of the proposal) made comments relating to the timescale. Suggestions included: to establish a timetable or timescale for completion (with the additional suggestion that this should be set out in the Regulation or clarified in guidance); that this should be "reasonable"; that it should fit with planned timescales (while allowing exceptions); and that, where there is no review date, this should be set. A small number of respondents from equality organisations and a local authority suggested that, in establishing the timescale, issues such as the size of organisation and number of policies should be taken into account.

2.75 As at previous questions, several respondents identified issues for inclusion in guidance or for further clarification in the Regulation, and these were: timescales (as noted above); arrangements needed; what would constitute a proportionate response; what "practices" means; the process of prioritisation; and the use of EQIAs in the process. In terms of other support, two respondents from "other" public bodies suggested that staff should be kept up to date with changes to equalities legislation.

2.76 Among the small number of other suggestions relating to the substance or wording of the Regulations made at Question 4 were: a change to the wording to refer to the need to not just avoid 'detrimental effect' but also to explore positive opportunities; the need for a consistent method; more flexible and pragmatic Regulations on EQIAs; consideration of whether to ask authorities to report completion to the Scottish Government; a requirement to publish details of the arrangements made; and better integration of Regulation 5(4) with the overall Regulation to impact assess.

Impact assessment where a policy or practice has no bearing on a public authority's ability to fulfil the General Duty

2.77 The revised proposals involve the addition of an element that impact assessment is not required when a policy or practice has no bearing on the General Duty. Question 5 asked:

"Do you 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)?"

Table 6. Responses to yes/no/don't know element of Question 5

Response	Respondents	% of all respondents	% of respondents addressing y/n/dk
Yes	101	72	80
No	21	15	17
Don't know	5	4	4
Not answered	13	9
Total	140

2.78 This question was addressed by 132 respondents (94%) and almost all of these (127) addressed the "yes", "no" or "don't know" element. There was a high level of overall agreement, and 80% of those who addressed this 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". Overall, among the respondents who stated "no" the largest number were equality organisations, along with a small number of trade unions / professional bodies, and another respondent not covered by the Regulations. Only two organisations covered by the Regulations (both of which were health respondents) answered "no".

2.79 A small number of respondents (7) did not tick any of the boxes provided, but made comments (here or elsewhere) relating directly to this question. Of these, it could be inferred that 2 agreed with the proposal, at least in principle, 4 disagreed and 1 made comments from which their overall view could not be inferred.

2.80 A large number of respondents (83%) made additional comments at this question, and a few additional comments were made elsewhere. These again were of three main types: benefits or general support; issues and concerns; and suggestions or perceived requirements for the way forward, with the largest number of comments focusing on the latter.

Perceived benefits - no impact assessment when no bearing

2.81 Around half of those who provided additional comments (mostly, but not only respondents who answered "yes" and mostly, but not only organisations covered by the Regulations) identified benefits of this proposal, or expressed general support. The themes identified included: expressions of overall support; benefits relating to the nature of the approach; a perceived positive impact on resources; and a perceived positive impact on equality.

2.82 Again, several of these respondents highlighted their overall support (although a small number stated that this was qualified by, or conditional on addressing concerns or suggestions, which are presented below). A few stated that they believed that the situation might arise where a policy or practice has "no bearing", and a few stated that the existing impact assessment process already provides for this approach.

2.83 The most common benefits identified in relation to this proposal related to the nature of the approach implied by the proposal. A number of respondents stated variously that it would be: proportionate; relevant; appropriate / sensible; helpful in prioritising; or that it would avoid a "tick box" approach. Comments also included: the perceived importance of the type of approach and the view that to expect otherwise would reduce EQIAs to a meaningless bureaucratic exercise, or would be unnecessary.

2.84 Linked to this, a further theme which emerged was that several respondents believed that the proposal would have a positive impact on resources (or at least avoid a negative impact). It was suggested, for example, that to carry out impact assessments where a policy or practice has no bearing on the General Duty would be wasteful of resources, would risk diluting these, or would be burdensome. A few respondents also stated that the proposal would allow resources to be directed to where they are most needed and where the impact is most important. One stated that it makes sound business sense.

2.85 A small number of respondents (but only one equality organisation) identified a positive impact on equality, particularly in terms of focusing work on key issues / areas which make a difference, and improving the quality of the impact assessments carried out. It was also suggested that it would help to prevent "over consultation" with organisations.

Issues or concerns raised - no impact assessment when no bearing

2.86 Over a third of those who provided comments identified issues and concerns with the proposal. The majority, but not all of the respondents making these comments were equality organisations, and over half of all of the equality organisation respondents raised concerns with this proposal. Issues were also raised by respondents from trade unions / professional bodies; others not covered by the Regulations; education, health, local authority and "other" public bodies. Concerns were expressed in relation to the following themes: the potential negative impact on equalities issues; the potential negative impact on authorities' processes; the substance of the Regulation; and a perceived lack of need for the proposal.

2.87 The most common concerns related to the possibility of excluding relevant policies and practices from impact assessment, and the potential impact on equalities issues. Several respondents, for example, argued that a situation where a policy or practice has no bearing on the General Duty would be difficult to envisage, or very rare. Comments included that: equalities issues are relevant to all functions of public authorities; most policies and practices have a bearing on the General Duty; and it is not always the case that policies and practices for technical and scientific matters will not have an impact on equality (with examples given). It was also suggested that the impact of such policies and practices may not be immediately apparent, and those making decisions may not recognise the impact, or may lack evidence. Other related comments included that: a policy or practice may lead to unintentional discrimination; a change may have an impact by default; and there may be "untested assumptions" and subjective decisions about whether policies and practices have a bearing. It was also suggested that the impact of a policy or practice cannot be known until impact assessment is carried out, and a few respondents argued that mainstreaming requires all policy and practices to be assessed.

2.88 Several respondents also raised issues relating to the perceived impact of the proposal on public authorities' processes. It was suggested that it could create a "loophole"; provide a reason not to carry out impact assessment; or be used to avoid or exempt necessary impact assessments. It was also argued that, where public money has been spent, impact assessment should take place. Small numbers of respondents raised issues relating to a potential negative impact on: transparency; objectivity; and consistency. One stated that, in its current form, the proposed approach is not proportionate, targeted or cost effective.

2.89 Several respondents made general comments on the substance of the Regulation, and almost all of these related to a perceived lack of clarity or potential confusion in the current wording, particularly the ambiguity of "no bearing" and the lack of definition of this, and the lack of clarity / criteria relating to how the decision would be made. These issues are linked to other concerns noted above. One trade union / professional body respondent also stated that the discretion may leave public authorities open to challenge that they failed to assess the impact of a policy or practice which did transpire to have a bearing on the authority's ability to meet the General Duty. A small number of respondents argued that the proposal is unnecessary, and brings no additional value.

Suggestions for the way forward - no impact assessment when no bearing

2.90 The largest number of additional comments focused on suggestions or perceived requirements for the way forward. These were made by respondents of a range of types, and by a high proportion of local authority and equality organisation respondents. Common themes related to: the substance of the Regulation and the process of identifying policies and practices with "no bearing"; other perceived requirements for implementation; and issues for guidance.

2.91 In relation to comments on the substance of the Regulation and the process of identifying policies and practices with "no bearing", a number of these respondents suggested a need for some initial screening of all policies and practices to determine their relevance. It was suggested that this would: allow a public authority to demonstrate the structured assessment; provide a clear and consistent approach; and reduce the possibility of challenge; as well as that most authorities have already developed such an approach (e.g. assuming potential impact until demonstrated otherwise).

2.92 A small number of respondents suggested the removal of Clause 5 (5), with the additional suggestion (from a few of these) that issues of screening for relevance could be addressed in the Equality and Human Rights Commission's Code and non-statutory guidance.

2.93 Several respondents (largely, but not only from equality organisations) suggested that the reasons and evidence for not carrying out impact assessment (e.g. on existing or proposed policies and practices) should be recorded and / or published, with some additional suggestions made about what should be included within this information. A few respondents suggested that it should be subject to scrutiny, tracking and review, or the need for mechanisms for challenge.

2.94 Amongst a small number of other suggestions about the substance of the Regulation and process of identification were: clearer definition / wording of the Regulation; the identification of a mechanism to agree exemptions (subject to agreement from local stakeholders and with a process of appeal); and the specific suggestion from one respondent that organisations should be required to demonstrate how their investment decisions facilitate or hinder compliance.

2.95 In terms of other perceived requirements for implementation, suggestions included comments on the means of screening or decision making. Some of these comments related to suggestions about the basis of the decision: e.g. the identification of policies and practices affecting people in any way; the use of evidence; inclusion of people with protected characteristics / other stakeholders; use of a checklist or a template. One local authority respondent suggested a further review of the EQIA specific duty to place more emphasis on an authority's published list of equality outcomes as the primary driver for EQIA activity. Some suggestions related to conditions for decision making, such as the need for: awareness and understanding of issues; common sense; flexibility for public authorities; and clear and objective standards.

2.96 A number of respondents (particularly from amongst those covered by the Regulations, but also some equality organisations) made comments about guidance, including the general need for clear, consistent and robust guidance and a Code of Practice. Most of the suggestions, however, focused on respondents identifying issues for inclusion in guidance. Most related to screening and how to determine relevance, an issue raised by local authorities and some others. Other suggestions for issues to cover in guidance included: what qualifies as "technical"; what to do if it is not considered necessary to do an impact assessment; and what falls into the categories of "policies and practices".

Summary: Findings - proposals relating to Regulations 3 and 5: equality outcomes; and assessment and review

2.97 In summary, the main points relating to Section 2 are as follows:

• In relation to Question 1, there was a high level of agreement that if a public authority's equality outcomes do not cover all relevant protected characteristics, it should publish the reason(s) why, with 93% of respondents indicating "yes", and virtually no difference between those covered and not covered by the Regulations.
• In relation to Question 2, there was a high level of agreement that a public authority should publish the results of equality impact assessment, both among respondents covered and not covered by the Regulations. A total of 90% of respondents who addressed the yes/no element indicated "yes", while 8% stated "no" (over half of which were from the education sector).
• In relation to Question 3, there was a high level of agreement both among respondents covered and not covered by the Regulations 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 94% of respondents who addressed the yes/no element indicated "yes", 4% "no" and 2% "don't know".
• In relation to Question 4, there was a high level of agreement 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, with 90% of respondents who addressed the yes/no element answering "yes", 9% "no" and 1% "don't know". A high level of agreement was found across respondents, although the small number who disagreed were virtually all organisations covered by the Regulations.
• In relation to Question 5, there was a high level of agreement 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, 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 (and 95% stated "yes"), while the views of those not covered were more mixed, and more than a third (36%) stated "no". Among the respondents who stated "no" the largest number were equality organisations.