Equality and Human Rights Mainstreaming Strategy: Consultation

Introduction and Context

The Equality and Human Rights Strategy (the Strategy) captures the Government’s commitment to take action to further Scotland’s position as a global leader in equality and human rights. It will frame and clearly articulate the approach to mainstreaming in Scotland and provide the foundation to ensure mainstreaming is a core Government and wider public sector function and responsibility.

The Strategy, and a supporting action plan and toolkit, is informed by a continuing collaborative approach. Detail of engagement to date can be found at Annex A.

Current context

We are making progress in Scotland including:

• Scotland has outperformed the UK as a whole on the full-time median Gender Pay Gap since 2003 and the overall median pay gap since 1997.
• The United Nations Convention on the Rights of the Child (Incorporation)(Scotland) Act 2024 received Royal Assent on 16 January 2024. As well as introducing a compatibility duty that makes it unlawful for public authorities to act incompatibly with the UNCRC requirements, as set out in the Act, the Act introduced new reporting requirements on Scottish Ministers and public authorities.
• We have reduced the Scottish Disability Employment Gap ensuring we are on course to meet the target of halving to 18.7 percentage points by 2038.
• In 2021, Scotland became the first country in the world to embed LGBTQI+ inclusive education across the curriculum.
• Scotland’s Census 2022 included a voluntary question on trans status or history for those over 16 and will provide the first official estimate of the trans population in Scotland.
• We published the Non-Binary Equality Action Plan in November 2023, which aims to improve equality and wellbeing for non-binary people in Scotland and is the first of its kind in the UK.
• We are implementing the Anti-Racism Observatory for Scotland as part of the recommendations from the Expert Reference Group on COVID-19 and Ethnicity, in recognition of the need for a strategic and coherent anti-racism approach to data, strategy and policy in Scotland. The Observatory will provide support and oversight of anti-racism work across Scottish Government and the public sector.
• Ethnic minority representation in the Scottish Parliament has improved and the proportion of women on public boards met the Scottish Government’s 50 per cent target in 2019/20, 2020/21 and 2021/22.
• We published the ‘Cash-First – towards ending the need for food banks in Scotland: plan’ in June 2023 to tackle food insecurity, improve the response to financial hardship, reduce the need for emergency food parcels, and eradicate socio-economic inequality.
• In 2023, we consulted on a Human Rights Bill that would give effect to a wide range of internationally-recognised human rights belonging to everyone in Scotland, within the limits of devolved competence, and strengthen domestic legal protections by making them enforceable in Scots law for the very first time. Work is ongoing to continue to develop Bill proposals with a view to introduction next parliamentary session, subject to the outcome of the 2026 Scottish Parliament Election.
• There have been improvements in civic participation as women get closer to equal representation with men as elected officials and in appointments to public boards.
• We strengthened community cohesion and harmony through an exemplary people-centred engagement approach with faith and belief leaders and groups during challenging times in Israel, Gaza, and Ukraine, with less hate crime reported against these communities in Scotland compared to other parts of the UK.
• We published the Hate Crime Strategy Delivery Plan in November 2023 which aims to empower communities and ensure that victims of hate crime are treated with fairness and compassion, using a trauma-informed approach in which their safety and wellbeing being is a priority.
• Since 2016 there has been an increase in disabled young adults (aged 16–19) participating in education, training, or employment. The participation rate among 16–19 year-olds identified as disabled increased from 86.3 per cent in 2018 to 88.7 per cent in 2022.
• We are now delivering 13 devolved social security benefits - seven of which are entirely new forms of financial support available only in Scotland. Income delivered via social security benefits is a key driver in tackling poverty in Scotland and strengthening support for families.

However, inequality persists and too many people are still unable to fully access their human rights. The Equality and Human Rights Commission (EHRC) published the Equality and Human Rights Monitor: ‘Is Scotland Fairer? 2023’. This highlighted there has been ‘mixed picture of progress for equality and human rights’, identifying challenges including:

• the UK’s departure from the European Union,
• the profound impact of the COVID-19 pandemic,
• and increases in the cost of living, partly because of the war in Ukraine.

The Social Renewal Advisory Board in 2021 highlighted ‘More than a decade of ‘equality mainstreaming’ has not brought about the change we need to see’. We know that to achieve our ambitions further work needs to be done. To illustrate, we know that:

• While educational outcomes for racialised minority young people are higher, their job prospects continue to be lower. There continues to be racism and discrimination in the workforce.[1]
• In 2020, 38 per cent of children from racialised minority families were in relative poverty with 34 per cent in absolute poverty.[2]
• In 2021, Scotland had the largest disability pay gap of UK countries, with disabled employees’ median pay (£11.54 per hour) 18.5 per cent less than non-disabled employees (£14.16 per hour).[3]
• According to the 2023 pupil census in Scotland, Gypsy/Traveller pupils were almost twice as likely to be identified as having additional support needs than the general school population. They were also the ethnic group with the highest rate of exclusions and the lowest attendance rate [4].
• 40 per cent of households with disabled members were financially vulnerable in 2018-2020, compared to 25 per cent of households with no disabled members.[5]
• In 2019-22, 27 per cent of LGB+ adults were in poverty, compared to 20 per cent of heterosexual adults and 17 per cent of adults whose sexual orientation we do not know.[6]
• Of all those on persistent low pay, 72 per cent are women. The gender pay gap continues to exist.[7]
• Of all the victims of domestic abuse incidents recorded by the police, 83 per cent were female in 2021/22.[8]
• In 2018, 85 per cent of people who were ‘inactive’ in employment due to caring were women.[9]

This highlights the need to recognise and tackle the structural and systemic barriers to equality and realising human rights. There is a need for a shared vision and ambition, a clear framework to align activity, practical support and provide the basis for increased accountability.

What is Mainstreaming?

Definition of Mainstreaming

In the context of this Strategy, mainstreaming means putting equality and human rights at the core of your business.

In practice, this means that equality and human rights are integral to how:

• decisions are made;
• policies are designed and developed;
• services delivered, and;
• money is allocated and spent.

Only by doing so can we collectively tackle persistent inequality in Scotland and sustain equality of opportunity.

For the Scottish Government and wider public sector, this means removing systemic barriers, changing how decisions are made, establishing the culture, mindset and practice that ensures Government and public sector policy and service delivery are permanently focused on equality and human rights. 

Mainstreaming is an approach to promote and support equality and human rights. It is in essence long-term, sustainable, and adaptable cultural change. Mainstreaming is not an end in itself, but an approach, or a programme of work, to support achievement of the goals of equality and human rights. 

Mainstreaming sets out to effect cultural, procedural, and systemic change in an organisation so that an equality and human rights perspective is integrated into its day-to-day working across all functions. It ensures that equality and human rights sit at the heart of both an organisation’s culture and operational delivery. 

The concept of mainstreaming equality and human rights is underpinned and supported by several cross-cutting principles which will be key to the published Strategy. These include:

• A human rights-based approach which puts people and their rights at the centre of policymaking. Taking this approach means that policies and resources are targeted towards those who need them most and empowers people to claim their rights. This approach recognises the legal underpinning of rights as standards to be delivered without discrimination. It also ensures monitoring and accountability where rights are infringed
• an intersectional approach that recognises the multiple, intersecting disadvantages faced by different groups. The National Advisory Council on Women and Girls has advised the Scottish Government that it must take steps to improve how intersectional gender competence is embedded across Scottish Government, so that our policies deliver greater equality for the most marginalised women in Scotland and our statutory targets to reduce the number of children experiencing poverty by 2030.
• avoiding homogenising equality issues. Homogenising refers to making things more uniform or similar. Every individual is unique and has a different range of experiences. Our proposed strategy advocates heterogenisation, recognising and meeting the distinct needs of diverse communities rather than taking a 'one size fits all' approach.

Overall, the principles aim to put equality and human rights at the heart of policymaking in a way that addresses the needs of diverse communities and empowers and equips people to claim their rights.

Mainstreaming ensures that consideration of all equality and human rights is central to the activities of the Scottish Government, and the wider Scottish public sector. These activities include: 

• Policy development, both new and revised;
• Operational delivery; 
• Research and routine data collection; 
• Legislation; 
• Financial and budgetary planning; 
• Resource allocation; 
• Implementation, evaluation and monitoring of programmes and projects.

Why mainstreaming is important

The Social Renewal Advisory Board Report (2021) said: “…we need to move equality from the margins of policymaking and service delivery to its very centre. Covid-19 has exposed that failing to deal with structural racism, sexism and ableism is literally a matter of life or death…More than a decade of ‘equality mainstreaming’ has not brought about the change we need to see. All public bodies, including the Scottish Government, need to scale up their capacity to address racism, sexism and ableism. Public authorities should also be accountable for their actions to realise the rights set out in international frameworks that Scotland is committed to deliver. We need to be able to demonstrate that we have turned our equality and human rights ambitions into reality….”

We recognise this need and know that truly embedding equality and human rights into the work of the Scottish Government and wider public sector is the only way to address persistent and systemic inequality.

We are therefore developing:

• A Mainstreaming Strategy to lay out our vision and create a clear framework to structure activity;
• A mainstreaming toolkit to provide practical support and guidance;
• A publicly shared and rolling action plan to improve transparency and accountability.

It is the detail of these mechanisms that we describe in this consultation and seek your views on.

Together, this package is intended to provide strategic focus and direction to meet our ambitions, alongside practical support, and guidance for delivery, regardless of an organisation’s role or resources. 

Legal Obligations

Scottish Government and public bodies are already subject to specific legal obligations in relation to mainstreaming. Specifically, the Equality Act 2010 (“Equality Act”) provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. Section 149 places a duty on public authorities, and others who exercise public functions, to have due regard to the need to:

• eliminate discrimination, harassment and victimisation and any other conduct that is prohibited under the Equality Act
• advance equality of opportunity between persons who share a protected characteristic and those who do not, and
• foster good relations between persons who share a protected characteristic and those who do not. 

This is known as the Public Sector Equality Duty (PSED). The Scottish Ministers have used their available powers to enable the better performance of the PSED by placing detailed requirements on specified Scottish public authorities through the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (“the SSDs”).

The SSDs support Scottish listed public authorities to improve performance of the PSED by requiring them to: report progress on mainstreaming equality; propose and publish equality outcomes; assess policies and practices from the perspective of equality; and publish employee information on pay and occupational segregation. 

The Scottish Government is committed to improving the operation of PSED and are phasing in changes to improving the regulatory regime.

The Scottish Government has domestic legal duties (under the Human Rights Act 1998 and the Scotland Act 1998) in respect of rights drawn from the European Convention on Human Rights (known as “Convention rights”). Other public authorities in Scotland also have similar domestic legal duties under the Human Rights Act 1998. Civil and political rights sit at the heart of devolution and all acts of public authorities (including the Scottish Ministers) and all policies and legislation must be compatible with Convention rights.

The Scottish Government is also accountable for compliance with international human rights requirements in devolved areas. The Ministerial Code places an overarching duty on Ministers to comply with international law and treaty obligations, and the Scottish Government contributes to regular reporting cycles regarding implementation of human rights treaties. The Scottish Government is therefore accountable for ensuring that devolved legislation and policies are compatible with international human rights standards, and that human rights are respected, protected and fulfilled.

There are a range of provisions in the UNCRC (Incorporation) (Scotland) Act 2024 (“the UNCRC Act”) that require us to mainstream children’s rights considerations into legislation, policy, and practice. The UNCRC Act introduces a legal requirement for the Scottish Government and its Executive Agencies to prepare and publish Child Rights and Wellbeing Impact Assessments. The UNCRC Act also places reporting requirements on the Scottish Government and listed public authorities in relation to actions taken and planned to ensure compliance with the compatibility duty in the UNCRC Act and to secure better or further effect of the rights of children.

The Strategy is intended to provide a framework and structure to support the Scottish Government and wider public sector meet their legal obligations.

Wider landscape

The Strategy will be the overarching framework within which Scottish Government’s current work to strengthen the legislative environment for equality and human rights in Scotland sits. This includes:

• Human Rights Bill: The proposals for the Bill – which were consulted on in 2023 – seek to incorporate into Scots law a wide range of internationally-recognised human rights, within the limits of devolved competence.

The proposals for the Bill intend to bring an enhanced focus to the implementation of social and economic rights which are central to addressing inequality. The proposals intend to place duties on those delivering public functions to give effect to and realise those rights for the people of Scotland, including specific rights for women, disabled people and people experiencing racism.

Embedding international human rights in Scotland in this way will further emphasise the importance of all people being treated with dignity and ensure that human rights play an even more central role in our strategies, policies, and decision-making processes across all areas of Government and the wider public sector.

The proposals for the Bill intend to introduce reporting requirements for Scottish Government and public authorities and require enhanced assessment of new legislation introduced to the Scottish Parliament, similar to requirements under the UNCRC Act. The proposals will also seek to strengthen accountability through increased powers for the Scottish Human Rights Commission, a specific human rights remit for scrutiny and complaints bodies as well as ensuring that courts can deal effectively with cases involving the rights proposed for incorporation.

• Our ongoing programme of improvement of the effectiveness of the Public Sector Equality Duty (PSED) in Scotland. This will include delivering on two key changes, extending the pay gap reporting duty to include reporting on ethnicity and disability pay gaps and working on guidance and toolkits for listed public bodies’ use of inclusive communications. These should be highly impactful in terms of advancing equality in Scotland for some of the most disadvantaged groups. This reinforces our commitment to advance equality and human rights mainstreaming throughout the public sector, with the goal of bettering the lives of Scotland's most marginalised people.  Improvements to the PSED regime will also be explored through non-regulatory changes and using existing regulations to direct listed authorities to consider specific matters such as disaggregated data analysis and intersectional gender budgeting analysis. We are also exploring how to improve alignment with other reporting obligations and how to create a more cohesive regime as part of our ongoing programme of improvement activity.
• UNCRC: The United Nations Convention on the Rights of the Child (Incorporation)(Scotland) Act 2024 (“the UNCRC Act”) aims to deliver a proactive culture of everyday accountability for children’s rights across public authorities in Scotland. Implementing the UNCRC Act should bring about a fundamental shift in culture in Scottish society and deliver a revolution in children’s rights.
• National Performance Framework: The National Performance Framework (NPF) is Scotland’s wellbeing framework and sets out an overall purpose and vision for Scotland. The National Outcomes, which support the purpose, are enshrined in legislation, and are decided in consultation with the people of Scotland. Policy development in Scottish Government is informed by Scotland’s National Performance Framework (NPF) and the United Nations’ Sustainable Development Goals. The NPF includes a human rights and non-discrimination outcome: ‘We respect, protect and fulfil human rights and live free from discrimination’.

These key areas of policy development will make Scotland a global leader in how equality and human rights are protected in legislation. This proposed strategy will create the framework to support implementation of all these changes and drive changes best addressed outwith legislation.