Equality Duty Revised Draft Regulations Analysis of Consultation Findings

SECTION 5: FINDINGS - OTHER COMMENTS

5.1 This section presents the findings relating to Question 12, in which respondents were invited to make any other comments on the proposed draft Regulations. Additionally, any other issues which were raised in responses (e.g. in covering letters etc.) have been included, and are summarised here.

Identification of other issues

5.2 Question 12 asked:

"Do you have any other comments on the proposed draft Regulations?"

5.3 A total of 99 respondents (71%) made other comments at Question 12. Additionally 21 respondents made additional comments at other points in their response (with some overlaps with those who addressed Question 12). These comments have also been included here. The comments were made by respondents of different types, and covered similar broad themes to those identified at specific questions (perceived benefits or general support; issues or concerns; and suggestions or perceived requirements), with the addition of some comments on aspects of the consultation.

Perceived benefits of the proposals

5.4 Around half of those who made comments identified perceived benefits of the proposals overall or expressed general support. These comments covered similar issues to those identified at various points in the report, and were in three broad areas: 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.

5.5 Expressions of general support included several respondents who welcomed the revised document, or argued that it was better and / or stronger than the previous version (a point made by respondents who were not covered by the Regulations, including equality organisations, trade unions / professional bodies and individuals, as well as by respondents covered by the Regulations). Several respondents of different types stated that they particularly welcomed specific aspects of the revised Regulations, including: the additional detail; clarity; and streamlining of duties; as well as the focus on: impact assessment; outcomes; employment data; and mainstreaming. Other aspects which were identified as being welcomed were: the reporting and publication requirements; aspects of timescales; the criteria for inclusion of public bodies; the commitment to monitoring and amendment if required; and the proposal to produce guidance.

5.6 Several respondents made comments in support of the Scottish Government's perceived commitment to equality, commitment to strengthening the draft Regulations, willingness to listen and to take on board many of the concerns raised previously. Several comments were made on the overall substance of the Regulations, including that they were: acceptable; proportionate; simplified; competent; fair; positive; coherent; balanced; and a useful framework for promoting equality. Other comments made included an expressed commitment to implementation of the specific duties, or more generally to equality and human rights.

5.7 Several respondents both covered and not covered by the Regulations suggested that the proposals would have a positive impact on equality or argued that they would: promote and drive equalities work; support the implementation of the General Duty; embed equality within systems and practices; deliver better equalities outcomes; and support public authorities' work. It was also suggested that the proposals would have wider benefits in contributing to: taking forward the recommendations of the Christie Commission; building a fairer Scotland; and making equality a reality.

5.8 A further common perceived benefit of the proposals overall was that they would have a positive impact on the overall approach in public authorities, including in terms of: clarity; transparency; openness and accountability.

Issues or concerns

5.9 Around a third of those who made comments at Question 12, or additional comments elsewhere, raised issues or concerns. These were raised by respondents of different types, including those covered and not covered by the Regulations. The main themes which emerged related to aspects of the substance of the Regulations, and challenges with equality issues. A small number of additional comments were made about data issues or about the perceived impact / effectiveness of the proposals.

5.10 In terms of issues or concerns about particular aspects of the Regulations, several respondents expressed concerns about the coverage of the requirements. These included: the lack of inclusion of service users and those affected by policies and practices (raised particularly by a number of education respondents); perceived limitations in relation to some protected characteristics and the potential for a "two tier" approach; the absence of socio-economic status as a source of discrimination; exclusion of Housing Associations from the listed public bodies; inclusion of grant aided special schools; inclusion of Licensing Boards; and the lack of duties on private sector providers.

5.11 Other issues, concerns and challenges identified in relation to the overall substance of the Regulations (expressed by small numbers in each case) included: how public authorities who do not meet the Regulations will be held to account; reporting issues (e.g. that reports do not reflect the situation; or will divert resources to more process driven measures); and timescale issues (e.g. the absence of Specific Duties for over a year; specific timing issues for particular organisations; the impact of data limitations on meeting timescales; and dislocation of equality reporting from corporate reporting for some bodies). A small number of respondents also suggested that there was a lack of clarity of some issues (discussed earlier and below). One education respondent stated that the revised Regulations remove the pragmatism and flexibility offered by the previous proposals, while another respondent from an equality organisation highlighted perceived dangers of flexibility (e.g. as providing a means of avoiding some duties). One respondent reiterated concerns about the specific duty relating to EQIA (discussed earlier).

5.12 Several respondents (particularly equality organisations) identified continuing challenges and concerns with equality issues and equalities work. These included some concerns relating to equality legislation, such as: the adoption of policies and approaches that are tokenistic and ignored; the generation of regulatory and compliance-based activities; the promotion of expectations that concerns will be met; the lack of learning from reports on the impact of previous legislation; and the potential loss of focus on individual equality strands with the single Public Sector Equality Duty.

5.13 Other concerns and issues raised relating to equalities work included challenges in the overall context for this (e.g. the influence of senior decision makers; structural and social influences; continuing discrimination; and the lack of capacity and / or resources for equality organisations); and issues for specific groups. A few respondents suggested difficulties in translating policies into practice; and challenges with monitoring and data collection. One respondent expressed concern with the proposal for Scottish Ministers to set out priorities and the potential for implying a hierarchy. Another expressed regret that, at the time of the consultation, the Government had been unable to secure the publication of the Section 31 Inquiry by the Equality and Human Rights Commission (EHRC) into how government has been using impact assessments in forming policy.

5.14 A small number of respondents from organisations covered by the Regulations expressed concerns about the impact of the proposals (e.g. increased administration requirements; resources); or a perceived lack of effectiveness (e.g. on outcomes; increasing transparency; or accountability).

Suggestions for the way forward

5.15 Around two thirds of those who made additional comments identified suggestions or perceived requirements for the way forward. These were made by respondents of different types, and themes included: issues for emphasis or inclusion; aspects of the substance and implementation of the Regulations; the way forward for equalities work; and issues relating to guidance and other forms of support.

5.16 Issues suggested for emphasis or inclusion were: the importance of impact assessing financial decisions; reference to service users; a general requirement to assess whether people are treated fairly and according to facts and evidence; and a requirement for involvement and engagement. One respondent reiterated previous comments on the specific duty on Equality Impact Assessments (EQIAs). Other specific suggestions included: that the Duty on Scottish Ministers should be extended to explicitly refer to their obligation to report on equality outcomes in respect of all Ministerial Public Appointments; that Education Scotland be listed specifically in Schedule 19; and that there should be additional emphasis on the need for public authorities to identify where new policies might be required. A small number of specific comments / suggestions were also made about Regulations 4, 10 and 11.

5.17 Suggestions relating to other aspects of the substance or implementation of the Regulations (largely from a small number of organisations covered by the Regulations) included that they should be: realistic; manageable; flexible; reasonable; proportionate; and efficient. One respondent from an "other" public body expressed a preference for Regulations more in line with England. Another respondent (responding as an individual) expressed disappointment that it is still uncertain whether the Regulations will include procurement duties. An education respondent stated that the Specific Duties should require public authorities to have in place robust evaluation processes that clearly demonstrate outcomes in relation to equalities, and demonstrate that equalities is fully embedded in the organisation (rather than having to complete EQIAs for every policy and function). Several respondents made comments about timescales, and these included expressions of agreement and particular suggestions. These included to: address the lack of Specific Duties urgently; align reporting dates with financial year reporting, annual reporting or other existing corporate schedules; take account of issues facing specific organisations; and provide a reasonable timescale.

5.18 Several respondents (particularly, but not only respondents not covered by the Regulations) stressed or supported the need for monitoring and review, with amendment if necessary. Suggestions included that there should be more explicit reference to monitoring, and that review should be built into the Regulations. It was also suggested that stakeholders (including the public sector; equality groups and representatives; and trade unions) should be involved in review. A few respondents suggested that a review date should be set and / or suggested the means of undertaking review. It was also suggested that there is a need for enforcement.

5.19 Several issues for clarity were suggested. These included definitions of terms such as: "reasonable steps", "relevant"; "accessible" and "equality". Other issues for clarity included: links to human rights; the scope and level of outcomes; consideration of costs of implementation; capacity building and effective involvement; proposals for review; timescale for the mainstreaming report; the position relating to Licensing Boards; the intention of Regulation 12; and the role of the EHRC in guiding, monitoring and compliance. One respondent made a specific suggestion about the timescale for reporting pay gap information.

5.20 A number of respondents (particularly, but not only equality organisations and others not covered by the Regulations) made comments about ways of working to take the Regulations forward, including, for example, taking a partnership approach (or a co-production approach). Several respondents specified who should be involved in taking the Regulations forward, and suggestions included: equality groups and organisations; third sector organisations; service users; trade unions; and public sector organisations. A small number made specific comments about the nature of the roles of specific bodies / organisations, and a small number identified their own potential role. It was also argued that the Scottish Ministers have a role in assisting and supporting the fulfilment of the Public Sector Equality Duty; and that there is a need for clear direction and leadership from the Scottish Government.

5.21 One respondent from an equality organisation suggested that there is a need for an effective structure, an arbitration / appeals process (without requiring legal action), and a clear approach to be set out. Other suggestions were that there is a need for effective, accessible and inclusive communication, and that reports should be linked to formal or Government reporting processes. One respondent identified a need for staff training.

5.22 Several respondents (particularly, but not only from equality organisations) made comments relating to the way forward for equalities work (linked to taking the Regulations forward). A range of issues were raised (by small numbers in each case) relating to: the importance of legislation and regulation; the need for an outcome focus; work to tackle issues for specific groups; improved involvement and engagement; the need to develop information and data; and the need for publication of information, ensuring accessibility. Other suggestions included: national equality objectives to support a cohesive approach to all strands; a move from Ministers setting priorities to more detailed instructions about priorities (or, in the view of another respondent, consultation with public authorities to determine these); wider work to address discrimination and inequalities in Scotland.

5.23 A number of respondents of different types made comments about guidance, including several who stressed the need for Codes of Practice or guidance. Suggestions were also made that guidance should be: timely; clear; accessible; specific to Scotland; and that it should support existing responsibilities and public sector frameworks. Issues suggested for inclusion were: core requirements of EQIA; publication requirements; the nature of mainstreaming reports; setting equality outcomes; monitoring; the role of regulation bodies; engagement; links to human rights; data collection and reporting; governance and accountability; application of flexibility; the need for strand by strand analysis; and how to promote change. It was suggested that best practice examples would be helpful.

5.24 Other forms of support identified as beneficial were: common definitions and categories; and centralised access to case studies / test cases. A small number of examples of practice or developments in organisations were given. Two respondents acknowledged the debate about how much needs to be explicit in Regulations and how much can be implied or hosted in guidance.

The consultation

5.25 Around a fifth of respondents who made additional comments provided additional information or expressed views about the consultation. These comments were made by respondents of all types, but particularly by respondents from equality organisations. Themes included: general views of the consultation; details of the respondent organisation or the nature of the response; and the nature of the consultation process.

5.26 In terms of general views, several respondents welcomed the consultation, or the opportunity to respond, while one individual respondent stated that they considered the consultation unnecessary and a "nonsense exercise".

5.27 Several respondents provided additional details about the nature of their organisation. Information included details of: the type of respondent organisation; membership or who is represented by the organisation; funding; aims and objectives; the nature of their work and its relevance to equality issues and the issues in the consultation; and specific areas of expertise. A small number of respondents also provided details of the nature of their response to the consultation (e.g. whose views are represented; how the response was produced; and particular areas of interest or focus of the response).

5.28 A few respondents commented on the nature of the consultation process. Issues raised included the views that: the consultation could have been written in simpler format using plain English; Questions 10 and 11 are not well-worded and could be confusing. One individual respondent commented on the analysis and stated that lessons must be learned from flaws in the previous round (e.g. the lack of distinction between the positions taken by those to whom the Regulations apply and those representing the views of those whom the Regulations are intended to protect; and the perceived lack of properly objective analysis and transparent presentation). It was suggested that future consultations should require organisational respondents to identify the provenance of their response; and that the design and use of Respondent Information Forms should be reviewed, to remove the sense conveyed that a respondent must complete it for their views to be considered.

Summary: Findings - Other comments

5.29 In summary, the main points relating to Section 5 are as follows:

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