Public sector Equality Duty in Scotland: consultation

Introduction

Purpose of this consultation:

Scottish Ministers are committed to reviewing the effectiveness of the Public Sector Equality Duty (PSED) in Scotland. After months of research and engagement to identify issues within the Scottish Specific Duties (SSDs)^[1], it has become clear that more could be done to improve the regime.

Drawing on our research so far, this consultation now sets out a series of detailed proposals both for legislative changes to the SSDs and changes to the wider implementation environment. The consultation will run from 13 December to 7 March. Due to the technical nature of the SSD regime and the purpose and effect of the regulations, this consultation is mainly targeted to the Scottish public sector and equality advocacy groups. However, we would also welcome responses from members of the public and the private sector, if you/your organisation wishes to. For the 12 week period in which this consultation is live, officials will engage with various equality advocacy groups and listed authorities to continue to develop our thinking and understanding of their views.

This consultation paper is also being published under regulation 12(1) of the SSD as it contains proposals that will ultimately enable listed authorities to better perform the PSED. As per regulation 12(2), we will subsequently publish a report on progress in relation to the development and implantation of these proposals.

Progress of the Review to date:

In March last year, we established that the review would be taken forward in two stages. The first stage involved an intensive programme of engagement with equality stakeholders and listed authorities to understand which aspects of the PSED were working well and where improvement was required. The first stage was completed when we published our Stage One report^[2], setting out the learning from the engagement programme, reflection of equality mainstreaming over COVID-19 pandemic and key improvement proposals.

Based on a wide range of evidence, and valuable dialogue with equality stakeholders and networks over many months, the Stage One report concluded that the overall framework of the positive PSED duty, supported by the Scottish Specific Duties, is worthwhile and can be an effective driver for progress, but that its full potential has not yet been realised.

The report identified eight key cross-cutting issues:

• Making better use of evidence and data;
• Strengthening participatory policy making and hearing lived experience;
• Improving the links between equality and human rights frameworks;
• Strengthening leadership and resourcing;
• Reducing bureaucracy;
• Increasing clarity in relation to coverage, proportionality, and process;
• Improving support and capacity building; and
• Improving the cohesiveness of the regime.

Further to this, the report adds that more could be done to:

• Improve the understanding of and approach to mainstreaming;
• Consider new approaches to outcome setting;
• Strengthen the current approach to assessing policies;
• Support the gathering, use and reporting of a wider range of employee data;
• More effectively leverage purchasing power in procurement processes;
• Enhance the accessibility of PSED related publications, and consider the scope of the SSDs to advance progress on inclusive communication more generally; and
• Explore how best to use the duties relating to Scottish Ministers.

We are now in stage two of the review where we have been progressing work to further explore the key findings from stage one. This has included a questionnaire sent to listed authorities and some equality advocacy groups in July this year. This exercise has helped to progress our thinking and to develop the proposals outlined in this paper.

We would like to thank all stakeholders who have provided views on the operation of the PSED and suggestions to improve the regime.

Our consultation:

This consultation paper will build on our progress on the review to date and within the scope, as outlined above. We have split this paper into 3 parts:

• Part 1: Seeking views on specific and detailed proposals that we think will improve the current regime, based on evidence and views from stakeholders;
• Part 2: Using the opportunity of this consultation to seek further views from stakeholders and build our evidence base on key issues; and
• Part 3: Providing an opportunity for further and general reflections, and providing information on responding to the consultation.

Throughout this paper there are proposals and questions relating to individual SSDs, as well as key themes that are relevant across all of the SSDs. These include:

• Improving the overall cohesiveness and reducing perceived bureaucracy;
• Improving the use of lived experience and participatory policy making;
• Making better use of equality evidence and data; and
• Improving leadership, particularly from the Scottish Government.

This consultation contains both proposals that would likely require regulatory change as well as proposals to improve the wider implementation environment of the duties, including delivering on two key 2021-22 Programme for Government commitments: “Later this year, we will consult on the operation of the Public Sector Equality Duty in Scotland and potential regulatory changes, including a new duty on relevant public bodies to develop accessible and inclusive communications, and expanding existing duties to include reporting on disability and ethnicity pay gaps.”^[3]

Post-consultation:

The responses to this consultation will then inform our suggested improvements to the SSDs and implementation environment. We will continue to engage with stakeholders throughout this period. The suggested changes to the SSDs will be legislated for to the extent possible within the powers of Scottish Ministers. Subject to the Parliamentary timetable, regulations will be introduced to the Scottish Parliament in late 2022 subject to the affirmative SSI procedure to give effect to any proposals that require regulatory changes. This means that they will be scrutinised by the Equality, Human Rights and Civil Justice Committee and must be approved by a resolution of the Parliament.

It is our intention that any regulatory changes will come into force in 2025. This timescale will facilitate a lead in period, which will ensure that listed authorities understand what will be required of them under the new regulatory regime and for new guidance to be developed. This timeline would also align with the reporting cycle for most listed authorities under the current SSDs.

We recognise that regulatory change needs to be accompanied by implementation steps, and we will take forward work both generally and through the development of a wider mainstreaming strategy to ensure that new regulations are underpinned by an effective plan for implementation. This will be developed with public bodies and key stakeholders including the Equality and Human Rights Commission and equality advocacy organisations.