Public sector Equality Duty in Scotland: consultation

Part 1: Proposals to Improve the Scottish Specific Duty Regime

Seeking views on specific and detailed proposals that we think will improve the current regime, based on evidence and views from stakeholders

Proposal 1: Creating a more cohesive regime and reducing perceived bureaucracy

Background

The purpose of the SSDs as a whole is to enable listed authorities to better meet the three needs of the PSED: to eliminate discrimination; to advance equality of opportunity; and to foster good relations. All of the SSDs should clearly link to helping listed authorities achieve better outcomes for individuals and groups, across all of the protected characteristics and thus they should be seen as key levers to mainstream equality in listed authorities’ everyday work.

Key aspects of the SSDs are data collection and publication, in order to encourage better evidence-informed decision making and increase transparency and accountability. It is therefore important that information collected and/or published on the basis of the duties is then used to inform decisions and action that will lead to real change.

In order for listed authorities to engage meaningfully with the SSDs as a whole, it is essential that they are straightforward and cohesive. Improving cohesiveness and reducing perceived bureaucracy relates to all of the SSDs, with a particular focus on regulation 3: Duty to Report Progress on Mainstreaming the Equality Duty.

Considerations

The Stage One report and general stakeholder engagement identifies issues relating to the cohesiveness of the SSDs. Stakeholders, including EHRC, believe that the duties can sometimes seem disparate, and that they can appear to drive separate but disconnected processes. For example, the setting of equality outcomes is not always informed by the data gathered under the data related SSDs. Many stakeholders see the perceived disconnect between the different parts of the SSDs as adding to a sense that the regime is at present too bureaucratic and process-driven.

Another issue identified in this context is that some of the SSDs are not seen to be prescriptive enough. For example, some stakeholders have said that the current mainstreaming reporting duty (regulation 3), is too vague and not prescriptive enough. This can then lead to listed authorities producing long and bureaucratic reports which provide dense, less relevant information that does little to drive change. Some listed authorities have stated that reporting every two years adds to a feeling of bureaucracy and there are concerns that meeting this requirement becomes the focus, rather than meeting the ambitions of the SSDs in delivering better outcomes for the people of Scotland. It is also recognised that the requirement to report can drive action, including around data collection which may not necessarily have happened without the reporting requirement which can act as an important foundation for dialogue and accountability.^[4]

Potential Solutions

Some stakeholders are of the view that the regime could be strengthened to make the interconnectedness of the duties clearer. For example, some consider that this could be done by requiring listed authorities to demonstrate how their collection and/or publication of data (through regulations 6, 7, and 8), and the relevant inequalities identified, has subsequently informed listed authorities’ decisions and actions.

In looking at practice elsewhere, stakeholders have noted that the Welsh Specific Duties require listed authorities in Wales to publish a Strategic Equality Plan.^[5] In this plan, authorities are required to set out their strategic approach to the Welsh Duties as a whole and their arrangements for performing each of them. EHRC’s Review of the Implementation of the PSED in Wales found that public bodies were positive about the requirement to develop a strategic equality plan as it assisted authorities in thinking about their duties in a more joined-up way and improved the coherence of the overall regime.^[6]

A key theme from stakeholders was that the principle of using lived experience could be strengthened across the SSDs. It was considered that this could help shift the perception that the current regulations are “too process driven”, as it would reemphasise that using lived experience across compliance with the other duties should be undertaken in order to make better policy decisions and to better mainstream equality and human rights.

Other suggestions put forward, primarily from listed authorities, included allowing listed authorities the ability to satisfy multiple SSDs through one report. There have been calls for this report to be published every 4 years; aligning reporting under the SSDs to operational cycles of public bodies; and decoupling reporting timescales which currently align with the financial year end, to allow listed bodies to spread the workload across the year.

The current regulations already allow for this flexibility; for example, regulation 10(2) states: “A listed authority must, so far as practicable, comply with its duty to publish under regulations 3, 4, 7 and 8 by employing an existing means of public performance reporting”. This approach is already encouraged by EHRC. However, based on the feedback received, this may not be well understood. While listed authorities can publish at any time throughout their current reporting cycle, it is clear from practice that the “30 April” date given - for example, in the mainstreaming reporting duty (regulation 3) - is treated as a deadline by many organisations. This may have driven some of the calls for this to be changed.

Stakeholders strongly support improving the cohesiveness of the regime by consolidating previous sets of amending regulations into one new set.

Our proposal

The Scottish Government believes we can improve the cohesiveness of the SSDs and minimise the perceived feeling of bureaucracy, by putting a stronger focus on how each of the duties are implemented to help meet the PSED and assist listed authorities’ efforts to mainstream equality.

In terms of the substance of reporting, we think that this can be achieved by making the mainstreaming reporting duty more prescriptive and require listed authorities to produce a report every 4 years, which would include:

• Publishing a strategic plan that sets out how the listed authority intends to meet all of the SSDs;
• Publishing all of the information required by other SSDs;
• Reporting on listed authorities’ implementation of the SSDs, over the previous 4 years; and
• Reporting on how listed authorities have used lived experience, or the organisations representing people with lived experience, throughout their implementation of the duties.

The intention would be to assist listed authorities in seeing all of the SSDs in an interconnected way, and to encourage listed authorities to explore and publish how they have implemented their duties to better meet the needs of the PSED. This would include duties that previously did not have a publication element to them. For example, this would cover the duty relating to procurement (regulation 9), so listed authorities would have to demonstrate how they have implemented this duty. This could be achieved by publishing case studies and examples.

The revised mainstreaming reporting duty would also cover any new or revised duties introduced as a result of this review of the operation of the PSED.

In relation to the reporting process, we propose to:

• Simplify the regime so that there is only one reporting cycle for all of the duties;
• Allow listed authorities to satisfy all of their reporting duties in one report, reinforce the flexibility of reporting requirements and encourage listed authorities to report on their duties as part of their own operational reporting cycles;
• Ensure that reporting deadlines do not align with the end of the financial year; and
• Require reports to be published at a minimum of every 4 years.

We believe the reduction of the reporting requirement to every 4 years and the ability to satisfy all of the publication duties through one report should reduce the perceived feeling of bureaucracy. We also believe that emphasising the flexibility of the regime will encourage the notion that listed authorities’ compliance with the SSDs should be embedded in their everyday business.

Finally, the Scottish Government proposes to consolidate all previous sets of regulations relating to the SSDs, in one new all-encompassing and clear set of regulations.

Question 1.1:

What are your views on the proposal outlined above in relation to the substance of reporting?

Question 1.2:

What are your views on the proposal outlined above in relation to the reporting process?

Question 1.3:

What are your views on consolidating the previous sets of amending regulations?

Proposal 2: Embedding Inclusive Communications

Background

The Scottish Government is committed to improving and embedding inclusive communication within Government and across the public sector. In March 2021, we published our suite of Equality Outcomes for the current 2021-25 reporting period under the SSDs, which focus on tackling significant inequalities in society. One of those outcomes is focused on inclusive communication and states:

‘By 2025, inclusive communication will be embedded in the approaches of public bodies, with an increased proportion of people in Scotland reporting that their communications needs are being met when accessing public services.’ ^[7]

The Scottish Government committed to several actions to enable us to meet this duty, including:

• Using the review of the PSED as an opportunity to explore the value of using legislation to strengthen duties on the public sector in relation to inclusive communication;
• Working in partnership with other public bodies and stakeholders including third sector organisations and people with lived experience, to co-produce a set of common principles and set national expectations with a long term plan of action;
• Building on the approach progressing in Social Security Scotland for external and internal two way communications to establish a system for monitoring the use of inclusive communication across the public sector;
• Considering all of the above develop national standards, best practice and guidance, and shared resources for public bodies on inclusive communication.

Regulation 10 currently requires that listed authorities undertake their SSD reporting obligations in a manner that makes the information published accessible to the public. In our Programme for Government, we committed to consulting on placing a new duty on listed authorities to develop accessible and inclusive communications more widely.^[8]

There are existing examples of where inclusive communication requirements have been part of legislation. The Social Security (Scotland) Act 2018^[9] and the Consumer Scotland Act 2020^[10] both contain provisions which state that Scottish Ministers and Consumer Scotland, respectively, “must have regard to the importance of communicating in an inclusive way”. Within these Acts, there are also provisions which state that “communicating in an inclusive way” means “communicating in a way that ensures that individuals who have difficulty communicating (in relation to speech, language or otherwise) can receive information and express themselves in ways that best meet each individual's needs.”

Inclusive communication is relevant to everyone as it is about ensuring effective engagement with people who understand and express themselves in different ways.

Considerations

The importance of communicating in an inclusive way was highlighted further during the COVID-19 pandemic, which led to a number of calls for the Scottish Government to take further steps to improve inclusive communications. The Scottish Parliament’s Equalities and Human Rights Committee’s Report on the Impact of COVID-19 on Equalities and Human Rights called for the Scottish Government to make “a national commitment to inclusive communication while the country is recovering from the pandemic”.^[11]

The Social Renewal Advisory Board’s report states: “We have seen the importance of clear and accessible communication during the pandemic, making sure everyone - including those who are visually impaired, British Sign Language users, and those whose first language is not English - can get the information or support they need when they need it. Public bodies should improve their approach to make sure communications are as inclusive as possible.”^[12]

Listed authorities have identified some barriers that currently exist in relation to embedding the use of inclusive communication across the public sector. These include:

• The costs associated with producing documents in an inclusive and accessible manner;
• Insufficient understanding of the wide range of communication needs within communities;
• Capacity, resourcing and training; and
• Timing and practicality, as reports can often be finalised at a later stage before publication and can therefore mean it is difficult to publish alternative formats at the same time.

Potential solutions

From our engagement to date, we have learned that stakeholders are broadly supportive of improving inclusive communication. Views from stakeholders include calls for:

• Clearly defining what ‘accessible’ and ‘inclusive’ communication means;
• Publishing reports and documents using clear and straightforward language;
• Centralised translation service, to avoid disproportionate burden on smaller organisations;
• Ensuring proportionality, for example by making sure alternative versions are made available within a reasonable timeframe or upon request;
• Improved guidance and national standards; and
• Sharing best practice across the public sector.

Our proposal

The Scottish Government is of the view that a new duty should be placed on listed authorities that goes beyond publications under the SSD regulations, and that seeks to ensure inclusive communication is embedded proportionately across the work of listed authorities when they are communicating with the public. We will also provide a clear definition of what communicating in an inclusive way means, recognising that inclusive communication is about ensuring effective engagement with everyone, including those who understand and express themselves in different ways.

As per Proposal 1, listed authorities would be required to report on how they have met this duty as part of their overarching mainstreaming reporting duty.

To create the conditions for effective implementation of the new duty, the Scottish Government intends to progress work to support this duty through our equality outcome on inclusive communication. This will include working in partnership with other public bodies, stakeholders and people with lived experience, to co-produce a set of national standards and a robust monitoring system. We will also develop best practice guidance and shared resources for public bodies on inclusive communication. This work will also consider cost-effective ways to communicate inclusively. This will seek to assist listed authorities to prepare for the proposed new duty on inclusive communication coming into force.

Question 2.1:

What are your views on our proposal to place a duty on listed authorities to embed inclusive communication proportionately across their work?

Proposal 3: Extending pay gap reporting to include ethnicity and disability

Background

Regulation 7: ‘Duty to publish gender pay gap information’ requires listed authorities to publish information, every 2 years, on the percentage difference among its employees between men’s average hourly pay (excluding overtime) and women’s average hourly pay (excluding overtime).

The purpose of the duty on gender pay gap reporting is to deliver transparency and accountability and to encourage listed authorities to make more evidence-based decisions based on the information they have published. Furthermore, a key theme of the proposals outlined in this paper is to ensure that listed authorities see each of the SSDs as key levers to mainstream equality, and to therefore use all of the duties to meet the needs of the PSED, which in turn can lead to meaningful change for people across Scotland.

In our Programme for Government, we committed to consulting on extending the duty outlined, to require listed authorities to also publish ethnicity and disability pay gap information. The disability pay gap represents “the difference in average hourly pay of disabled and non-disabled people…expressed as a percentage of non-disabled people’s pay”.^[13] Likewise, the EHRC has defined the ethnicity pay gap as “the difference in average hourly pay of ethnic minorities and White British People…expressed as a percentage difference, with White British people’s earnings representing 100%.”^[14] For the purposes of the SSDs and to ensure consistency with regulation 8 (explained below), we would define the ethnicity pay gap would be defined as “the difference in average hourly pay of people who belong to a minority racial group and people who do not…expressed as a percentage of people who do not belong to a minority racial group’s pay”.

It is important to note that regulation 8: “Duty to publish equal pay statements, etc.” requires listed authorities to publish an equal pay statement and occupational segregation statement, every 4 years, in relation to their employees between:

• “Women and men;
• People who are disabled and people who are not disabled; and
• People who belong to a minority racial group and people who do not.”

While this is different to publishing pay gap information, some listed authorities have reported that they already voluntarily report on their ethnicity and disability pay gaps through the mechanism of their equal pay statements.

Considerations

As there is already an existing duty in relation to gender pay gap reporting, we intend to use learning from this – where possible – in our approach to extending the duty to ethnicity and disability pay gap reporting. A key issue identified with the current duty to publish gender pay gap information, is that the duty is not prescriptive enough on the formula that should be used to calculate the pay gap, and therefore there is a lack of standardisation and comparability in the methods and results of pay gap calculations across the public sector.

Concerns have been raised by some listed authorities that their very small numbers within the overall workforce could provide “skewed results” once the calculations are done, or individuals could potentially be identified.

In a related vein, some equality advocacy groups raised concerns that an ethnicity pay gap could not be produced robustly (for example, in a way that would provide sufficient insight into the pay disparities between white and people who belong to a minority racial group) in the vast majority of public sector organisations due to the under-representation of people who belong to a minority racial group in the workforce. Those groups tend to advocate that the priority should be on progressing measures to address the under-representation of people who belong to a minority racial group in the workforce.

The Scottish Government considers that publishing intersectional and disaggregated pay gap information would provide a more in-depth evidence base to assist listed authorities in meeting the needs of the PSED. However, we note that there are barriers that would prevent listed authorities from being able to do this effectively. This is explored in more detail in Section 8 on intersectional and disaggregated data analysis.

Potential Solutions

In relation to the current gender pay gap reporting regulation, a number of stakeholders were in agreement that there should be more standardisation in relation to reporting methods, which would in turn lead to improved comparability across the public sector. This would also be relevant to ethnicity and disability pay gaps. Standardisation in this context could include:

• Being specific in the duties as to what formulas listed authorities should use to calculate pay gaps;
• Agreed data gathering questions and answer options; and
• A template for reporting which could enable better consistency of presentation and comparability, enable improved progress monitoring and minimise bureaucracy.

In looking at practice elsewhere, the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 that apply in the UK^[15] are more prescriptive in relation to the formulas that should be used to calculate gender pay gaps. Some stakeholders have suggested that this has resulted in both higher rates of publication and more consistent data. They have therefore suggested that the SSDs should use a similar model across gender, disability and ethnicity pay gap calculations.

There have also been calls from some stakeholders to create a Scottish public sector portal which enables public bodies to upload consistent, comparable information that enables the public to examine and compare public sector pay gap information in a single place. This is explored further in section 12.

In relation to the concerns expressed around the potentially small number of employees for some organisations, the need for a reporting threshold was advocated for consistent with the current reporting threshold for gender pay gap reporting which only applies to a body that has at least 20 employees.

Our proposal

The Scottish Government proposes to extend the current duty on gender pay gap reporting to include ethnicity and disability, with an appropriate reporting threshold to ensure that individuals cannot be identified on the basis of their protected characteristics. This would require listed authorities to publish information on their pay gap between disabled people and non-disabled people, and people who fall into a minority racial group and people who do not.

The Scottish Government will also encourage listed authorities to publish disaggregated pay gap information where possible. We also propose to improve standardisation by prescribing the formulas listed authorities should use to calculate each of their pay gaps.

As per Proposal 1, listed authorities would also be required to report on how they have met and implemented this duty as part of their overarching mainstreaming reporting duty.

Another key driver will be the development of the ethnicity pay gap strategy, which was committed to in our Programme for Government and will be published next year.

Question 3.1:

What are your views on our proposal to require listed authorities to publish ethnicity and disability pay gap information?

Question 3.2:

Should the reporting threshold for ethnicity and disability pay gap reporting be the same as the current reporting threshold for gender pay gap reporting (where a listed authority has at least 20 employees)?

Question 3.3:

What are your views on the respective formulas that should be used to calculate listed authorities’ gender, ethnicity and disability pay gaps?

Proposal 4: Assessing and reviewing policies and practices

Background

Regulation 5: ‘Duty to assess and review policies and practices’ requires listed authorities, where and to the extent necessary to fulfil the PSED, to assess the impact of applying a proposed new or revised policy or practice against the needs mentioned in that duty, i.e. the need to advance equality of opportunity, eliminate discrimination and foster good relations.

In making the assessment, a listed authority must consider relevant evidence relating to persons who share a relevant protected characteristic and take account of the results of their assessment when developing the policy. Listed authorities must also publish the results of the assessment “within a reasonable period”.

The regulation is not prescriptive about how this process of assessing the impact of a proposed new policy or practice should be carried out. However, in practice, it has given rise to a regime of conducting equality impact assessments (EQIAs), via various templates and forms in use across different listed authorities.

Considerations

Throughout our engagement to date, we have received substantial feedback on this regulation, allowing us to identify key issues with the current implementation of the duty:

• A focus on process – this duty can be seen as being centred around completing a form or a template as opposed to essential considerations for the development of better, more inclusive policy;
• Timing – impact assessments are often carried out too late in the policy development process, with some even being undertaken after the policy is in practice. Assessing and reviewing policies and practices must be carried out as early as possible to allow them to meaningfully shape and inform policy;
• The use of evidence and data, including qualitative evidence based on lived experience of inequality – assessments can sometimes use little evidence, or involve limited engagement of people with lived experience;
• Ambition – often being used to check on possible discrimination but too rarely to identify opportunities to positively advance equality, as per the spirit of the PSED;
• Strategic Policy Assessment – an issue which came to light during COVID-19 was whether assessments are routinely completed for strategies, as well as the policies that fall under such strategies. Often a strategy is not impact assessed with an expectation that the individual policies will be assessed in due course. This could be considered to undermine the fact that a strategy is a decision that will impact on people, and should be reviewed and assessed for its likely impact on people with protected characteristics. However, the guidance on this is felt to be unclear; and
• Transparency – impact assessments are sometimes published sometime after a policy is implemented and can be hard to access. Some are not published at all.

A further concern, which became more apparent during our response to COVID-19, was the speed at which policy in particular contexts (such as an emergency response to a global pandemic) may be developed and implemented, as this does not always lend itself well to the current process-style approach to equality impact assessments. Although COVID-19 was an exceptional emergency situation, there are many other situations where policy responses across Government and the public sector must naturally be swift. It is therefore important to improve EQIA capability so that when quick policy development is required, impact assessment can still be done meaningfully. This also highlights the need to continue to review policy after its commencement.

From practice, it is also clear that there can be uncertainty over which policies should be assessed and reviewed, and at what level. As per the current regulations, the EHRC guidance states: “The duty to assess impact applies to new or revised policies as well as to existing policies. However, this does not mean that everything an authority does requires a detailed assessment of impact. The extent to which policies should be subject to assessment will depend on questions of relevance and proportionality.”^[16] This is a broad definition, and can be contrasted with for example the Fairer Scotland Duty which is more specific and focusses explicitly on strategic level decisions.

Potential Solutions

The current regulation states that “in making the assessment, a listed authority must consider relevant evidence relating to persons who share a relevant protected characteristic (including any received from those persons)”. There have been some calls from stakeholders to strengthen this duty, for example, by requiring the involvement of people with lived experience in certain circumstances, like where the policy being assessed is a strategic level decision (of the type that engages the socio-economic duty in part 1 of the Equality Act 2010).

Some organisations would also like to see the review of the operation of the PSED address requests for integrated impact assessments. Work is underway in government to explore the potential enhancement of the system for all required impact assessments. However, the Scottish Government is aware that some stakeholders are not supportive of an integrated approach, and a recent review of impact assessments in other countries has highlighted the issues involved in integrated approaches.^[17]

Many of the concerns raised by stakeholders stem from how equality impact assessments are carried out in practice, rather than the purpose or intention of the regulation. We are therefore not convinced that many of the issues highlighted above are best addressed through regulatory change. A cultural shift in terms of how equality impact assessments are viewed across Government and the public sector is needed in order to highlight the importance of engraining equality considerations at the start of the policy development process. This is a key focus of our capability and capacity work which is an important strand of our wider equality and human rights mainstreaming strategy which we continue to develop.

Our proposal

The Scottish Government proposes to adjust the duty to assess and review policies and practices to emphasise that assessments must be undertaken as early as possible in the policy development process and should aim to test ideas prior to decisions being taken to ultimately make better policy for people.

The Scottish Government also proposes to strengthen the duty to assess and review policies and practices to require the involvement of people with lived experience, or organisations who represent them, in certain circumstances, like where the policy being assessed is a strategic level decision (of the type that engage the socio-economic duty in part 1 of the Equality Act 2010). This is also explored in proposal 7.

As set out in Proposal 1, the Scottish Government proposes to require listed authorities to report on how they have implemented all of their SSDs as part of their overarching mainstreaming reporting duty. This will include assessing and reviewing policies and practices. This could be illustrated through case studies and examples.

Question 4.1:

What are your views on the proposal outlined above?

Question 4.2:

The Scottish Government recognises that improving the regime around assessing and reviewing policies and practices will take more than regulatory change.

How else could improvements be made?

Question 4.2:

What are your views on the current scope of policies that should be assessed and reviewed under regulation 5?

Proposal 5: A new equality outcome setting process

Background

Regulation 4: ‘Duty to publish equality outcomes and report progress’ requires each listed authority to publish a set of equality outcomes which it considers will enable the authority to better perform the general equality duty. The regulation specifies that an authority must publish a report on the progress made to achieve its equality outcomes every two years and publish a fresh set of equality outcomes within four years of publishing its previous set. These outcomes should aim to tackle significant inequalities in society, and authorities must take reasonable steps to involve persons who share a relevant protected characteristic and any person who appears to the authority to represent the interests of those persons; and consider relevant evidence relating to persons who share a relevant protected characteristics.

Considerations

Analysis conducted for the EHRC of the outcomes published in 2018 found that many lacked a focus on producing change for people with protected characteristics. The report says, “In most cases, these equality outcomes were largely administrative and aimed at changing policies or processes within the authority. In other cases, they were very broadly expressed, and this may have led to a lack of clarity or focus during implementation.” The report found “very limited evidence of positive change directly impacting people with protected characteristics available from progress reporting on equality outcomes for the 2013-2017 cycle.”^[18]

Engagement with listed authorities and equality advocacy groups indicated that the lack of clarity and focus continues to be a concern. There is concern about outcomes touching on every protected characteristic, which it attributes to public authorities not wishing to exclude any groups, even where it would be more effective to point to local evidence of a specific need. It may be that outcomes which seek to advance equality for everyone are too broad and too unspecific, diluting their effectiveness.

Overall, a key theme in our engagement to date, was that more leadership could be shown from the Scottish Government in relation to the equality outcome setting process.

Potential Solutions

As part of our initial engagement exercise during the summer of 2021, we asked key stakeholders about the prospect of shared equality outcomes across the public sector. Stakeholders were broadly supportive of this suggestion, if there was sufficient leadership in place to drive this at a strategic level.

Suggestions were put forward on how this could work in practice. These included:

• Scottish Ministers could set national equality outcomes based on the most significant inequalities (some went further suggesting that sector-specific outcomes should be set by portfolio Ministers for each protected characteristic);
• National equality outcomes should be clearly linked to the National Performance Framework;
• Requiring the Scottish Government to involve people with lived experience, or the organisations who represent them (this is explored in more detail in Proposal 6);
• The third sector could have the opportunity to submit suggestions for equality outcomes to the Scottish Government for consideration; and
• Listed authorities could meet their own equality outcome setting duty through adopting the national equality outcomes and set their own agenda for tackling the identified inequality.

However, some concerns were raised in relation to the Scottish Government setting national equality outcomes. These mainly focussed around the idea that organisations (even in the same sector) often have specific or local issues to address and they would like the freedom to focus on addressing the needs of their communities. Some listed authorities were also concerned that setting national outcomes for local incorporation could have a disproportionate burden on smaller bodies who may not be well placed to deliver these outcomes. However, we believe that the Scottish Government taking a leadership role in this space could support bodies to progress equality outcomes in a more effective way.

Beyond the suggestion of shared or national outcomes, some further suggestions have been put forward by stakeholders. For example, some stakeholders have called for the regulations to be strengthened to reinforce that equality outcomes should be measurable.

There were calls to simplify reporting cycles and for the regulation on outcome setting to become more action-focussed, for example, by requiring listed authorities to set out how they plan to meet their equality outcomes. We believe these would be addressed through Proposal 1 in relation to creating a more cohesive regime and reducing perceived bureaucracy.

Our proposal

We propose to take on board the suggestions for the Scottish Government to take on more of a leadership role in setting national equality outcomes, which listed authorities could then adopt to meet their own equality outcome setting duty. If a listed authority chose not to adopt the national equality outcomes, they would still be required to set their own equality outcomes. This would require the Scottish Government to:

• Set national equality outcomes, taking a collaborative approach ensure that outcomes were pertinent to the ambitions of relevant listed authorities;
• Ensure the national equality outcomes are measurable and link to the National Performance Framework; and
• Involve people with lived experience, and work with the organisations who represent them, when developing national equality outcomes, providing information on how they have taken account of that involvement in their development.

As stated above, listed authorities would retain scope to set their own equality outcomes, and in this event, they too would be obliged to involve people with lived experience, or the organisations who represent them, when developing their equality outcomes, and to provide information on how they have taken account of that involvement in their development. Listed authorities would also be required to ensure their outcomes link to the National Performance Framework. Whether listed authorities decide to use national equality outcomes, or set their own, as per the first proposal set out in this paper, they would be required to set out how they plan to meet the equality outcomes, then to subsequently report on how they have progressed towards them, through their overarching mainstreaming reporting obligation.

Question 5.1:

What are your views on our proposal for the Scottish Government to set national equality outcomes, which listed authorities could adopt to meet their own equality outcome setting duty?

Proposal 6: Improving duties relating to Scottish Ministers

Background

Under the current regulations, there are three duties which are focused on actions to be taken by Scottish Ministers. These duties are:

• Regulation 6A which requires that Scottish Ministers from time to time to take steps to gather information on the relevant protected characteristics of members of a listed authority and to provide that information to the authority. An authority must use information received to better perform the PSED and certain authorities must set out specified details in any report on progress on mainstreaming the equality duty (under regulation 3 of the SSDs);
• Regulation 11 which gives Scottish Ministers the power to require a listed authority to consider specific matters from time to time, while carrying out its duties under the SSDs; and
• Regulation 12 which places a duty on Scottish Ministers to publish proposals for activity to enable a listed authority to better perform the equality duty. Proposals must be published at intervals of not more than 4 years, and Scottish Ministers must report on progress within 2 years of publishing their first proposals and at subsequent intervals of not more than 4 years.

Considerations

In relation to regulation 6A, the policy rationale behind this regulation was to increase board diversity across the public sector. Since 2016, when this regulation was introduced, the Gender Representation on Public Boards (Scotland) Act 2018 has been passed and implemented.^[19] The intention of the Gender Representation on Public Boards (Scotland) Act 2018 is to help address the historic and persistent underrepresentation of women in public life.

The Scottish Government is currently working to gather the information from public boards required by this duty. However, there have been barriers to this, due to the challenges around how the data collection requirement is framed and the process for Scottish Ministers to collect information directly from board members. One key concern is that due to the small number of members on some boards, there are concerns that individuals could be identified on the basis of their protected characteristics via the publication of mainstreaming reports.

Regulation 11 allows for Scottish Ministers to direct listed authorities to consider other matters, when carrying out their duties under the SSDs. This regulation has never been used by Scottish Ministers. The policy rationale behind this regulation was to enable Ministers to take a leadership role and direct listed authorities to consider matters that Ministers viewed as important, but were not already covered specifically by the duties.

Regulation 12 again allows for the Scottish Government to take a leadership role and drive continuous improvement in relation to listed authorities’ performance of the general equality duty. In 2013, the Scottish Government published a set of proposals to enable better performance of the Public Sector Equality Duty^[20], and reported on progress in 2015.^[21] To assist with the implementation of proposals under the regulation, the Scottish Government established the Scottish National Equality Improvement Project (SNEIP) in 2014. The Scottish Government had intended to publish a revised set of proposals in 2017, however we took the decision to use the proposed consultation on reforming the operation of PSED in Scotland which at that time was planned to be published in early 2018. Due to circumstances relating to EU exit and COVID-19 there has been a significant delay in publishing this consultation and achieving compliance with this regulation. The Scottish Government acknowledges the requirement to meet all its legal obligations and will reflect on effective compliance with this regulation going forward, in addition to the feedback received through this consultation on how this regulation can be leveraged to improve leadership and drive improvement.

Potential solutions

Overall, the Scottish Government believes these duties could be improved to make them more effective, and to strengthen the interconnectedness with the rest of the SSDs.

Stakeholder views on these regulations have also been limited. However, in 2019, the First Minister’s National Advisory Council on Women and Girls recommended that Scottish Ministers deliver an Annual Statement, followed by a debate, on Gender Policy Coherence to the Scottish Parliament.^[22]

In our response to this we said we would: “consider the merits of aligning delivery of a statement and debate with the existing legal duty on Scottish Ministers to publish a report on progress to better perform the PSED under the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012”. Building on the spirit of this recommendation, we wish to seek further views on whether a regular statement and debate in the Scottish Parliament on mainstreaming equality and the PSED could be another mechanism through which Scottish Ministers could take on a leadership role, drive continuous improvement and contribute to an increased focus on these crucial issues. For example, this could be undertaken through a statement and debate in Parliament when the Scottish Government sets national equality outcomes every 4 years.

Our proposal

The Scottish Government proposes to simplify the regulation 6A process to require listed authorities to gather information on the relevant protected characteristics of members of a listed authority, as part of their own duties on data collection. Listed authorities would then be required to set out how they plan to use the information they have required as part of their overarching mainstreaming reporting obligation (see proposal 1). Listed authorities would not be required to set out the breakdown of the board by protected characteristic, unless they could do this without individuals being identified on the basis of their protected characteristics.

The Scottish Government intends to take more of a leadership role in relation to the equality outcome setting process. This would therefore create a mechanism where the Scottish Government could direct listed authorities to consider what we see as significant inequalities. However, through this system, the Scottish Government proposes to retain key elements of the current regulations 11 and 12 to ensure we have scope to direct listed authorities to consider other matters, or to propose activity to enable better performance, so that we and listed authorities can respond to any arising issues that may not have been foreseen when, for example, setting national equality outcomes.

Question 6.1:

What are your views on the Scottish Government’s proposal to simplify the regulation 6A process?

Question 6.2:

What are your views on the proposal in relation to regulations 11 and 12?

Question 6.3:

In 2019, the First Minister’s National Advisory Council on Women and Girls recommended that Scottish Ministers deliver an Annual Statement, followed by a debate, on Gender Policy Coherence to the Scottish Parliament. In our response to this we said we would: “Consider the merits of aligning the delivery of a statement and debate with the existing legal duty on Scottish Ministers to publish a report on progress to better perform the PSED under the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012”.

What are your views on this?

Proposal 7: Procurement

Background

Under regulation 9, listed authorities are subject to a duty to consider award criteria and conditions in relation to public procurement. The regulation sets out:

• Where a listed authority is a contracting authority and proposes to enter into a relevant agreement on the basis of an offer which is the most economically advantageous, it must have due regard to whether the award criteria should include considerations to enable it to better perform the equality duty;
• Where a listed authority is a contracting authority and proposes to stipulate conditions relating to the performance of a relevant agreement, it must have due regard to whether the conditions should include considerations to enable it to better perform the equality duty;
• Nothing in this regulation imposes any requirement on a listed authority where it would not be proportionate to the subject matter of the proposed agreement.

The Scottish Government believes that procurement is an effective lever to influence change, and could be utilised further across the public sector.

Considerations and potential solutions

In relation to the current regulation, some stakeholders have highlighted that requiring listed authorities to publish information in relation to their procurement duty could strengthen the regime, as it would improve transparency and accountability in relation to meeting this duty, and thus make it easier to enforce by EHRC.

Some stakeholders have also recommended that award and tender specifications should stipulate that all outputs of any work must meet the requirements of the PSED and specify examples. The Scottish Government recognises the importance of proportionality and encouraging listed authorities to consider the risks and opportunities of specific procurement exercises on a case by case basis to ensure listed authorities do what will have the greatest impact, rather than encouraging a blanket approach or “tick-box” exercise which risks placing a disproportionate burden on suppliers and may discourage smaller and third sector enterprises from bidding.

Proposal

As per proposal 1, the Scottish Government proposes to require listed authorities to set out how they plan to meet all of their duties, and then subsequently to report on how they have met and used all of their duties, as part of their overarching mainstreaming reporting obligation. This would include the duty on procurement, and therefore satisfy the suggestions put forward by stakeholders to strengthen the procurement duty by implementing a publication aspect.

The Scottish Government would welcome views on the call from stakeholders to require that award and tender specifications should stipulate that all outputs of any work must meet the requirements of the PSED and specify examples.

Question 7.1:

What are your views on our proposal and call for views in relation to procurement?