Public sector Equality Duty in Scotland: consultation

Part 2: Exploring Further Areas

Using the opportunity of this consultation to seek further views from stakeholders and build our evidence base on key issues

8. Intersectional and disaggregated data analysis

Background

The Scottish Government recognises that national and local policy makers must have access to a wide-ranging and robust equality evidence base in order to develop inclusive policies and to measure the impact of policies on equality groups. However, we acknowledge there are barriers and challenges to collecting, analysing and reporting intersectional equality data and, despite improvements in recent years, there remain significant gaps in Scotland’s equality evidence base.

There is widespread recognition of the importance of improving the collection and use of intersectional data from stakeholders. For example, the Expert Reference Group on COVID-19 and Ethnicity stated that: “Intersectionality is important and consideration should be given to reporting social characteristics separately and in combination, whenever possible. For example, this would include also considering religious groups, migrant status, gender and the multiple dimensions of socio-economic position”.^[23]

In their 2020 Report and Recommendations, the First Minister’s National Advisory Council on Women and Girls called on the Scottish Government as part of the current review of the SSDs to place an additional specific duty on listed authorities to: “Gather and use intersectional data, including employment and service-user data, to advance equality between protected groups, including men and women”.^[24]

In this report, the National Advisory Council on Women and Girls define intersectionality as “a framework for understanding how multiple categories of identity (such as gender, race and class) interact in ways that create complex systems of oppression and power”. This means recognising how multiple factors, such as gender, race and socio-economic status interact to produce different outcomes for some groups.

If the SSDs were to reference “intersectionality”, it is likely that a slightly narrower definition of “intersectionality” than the ones set out above would be required. This is because Scottish Ministers have powers to place duties on listed authorities to help them better perform their PSED. The PSED’s focus is the relevant protected characteristics (age, disability, race, gender reassignment, pregnancy and maternity, religion and belief, sex, and sexual orientation). Therefore, considerations such as socio-economic disadvantage would likely be outwith competence, however this is addressed through the Fairer Scotland Duty.

Data disaggregation means breaking down large data categories into more specific sub-categories. When data is broken down and disaggregated by protected characteristic groups and sub-groups, they can show the unique differences among groups and reveal significant disparities.

Therefore, in practical terms, any duty which referenced intersectional and/or disaggregated data collection would require this on the basis of the relevant protected characteristics. For example, in relation to the proposal on pay gap reporting set out above (see proposal 3) intersectionality would require listed authorities to collect and publish multiple breakdowns of the pay gap on the basis of the relevant protected characteristics.

Specifically in relation to ethnicity pay gap reporting, disaggregation would also be key. This would require listed authorities to not just collect information and publish pay gap information on an aggregate basis (between people who belong to a minority racial group and people who do not), but require organisations to collect and publish more granular pay gap data on individual minority racial groups. In relation to disability pay gap reporting, care would need to be taken in both the collection and use of the data to ensure that it does not endorse a reductionist or deficit-based model of disability, and is consistent with the commitment to the social model of disability’.

However, as explored in more detail below, there are concerns around listed authorities’ ability to improve intersectional and disaggregated data collection and use in the short term, due to barriers that exist, including the risk of identifying people on the basis of their protected characteristics through publishing granular data.

Equality Data Improvement Programme

To complement our work on this review, we established the Equality Data Improvement Programme in April 2021. This is a multi-phase programme of work that aims to strengthen Scotland’s equality evidence base enabling policy makers to develop sound and inclusive policy. The Equality Data Improvement Programme is one part of a broader programme of mainstreaming equality and human rights within the public sector.

An Equality Data Improvement Programme Project Board has been established, chaired jointly by the Scottish Government’s Chief Social Researcher and Chief Statistician, which reports to the Minister for Equalities and Older People. The Project Board brings together Scottish Government officials with representatives from a range of external partner public sector bodies. An internal network of lead analysts from each analytical area in the Scottish Government has also been established to support the programme.

The purpose of the first phase of the Equality Data Improvement Programme is to (1) build the knowledge and skills required to analyse, report and use equality data among policy makers and analysts and (2) increase the availability of robust equality datasets. We will work with equality stakeholders in drafting forward plans to ensure that we are identifying important gaps and prioritising the right data sets. The first phase will conclude with the publication of a revised equality evidence strategy in late 2022.

There are a number of actions within the first phase of the Equality Data Improvement Programme that aim to improve the collection, analysis and use of intersectional equality data, including:

• Producing a report to build knowledge of intersectionality among public sector analysts, covering what is meant by ‘intersectionality’, examples of how the concept of intersectionality has been used to identify and understand structural inequality, and statistical approaches to carrying out intersectional data analysis.
• Systematically examining key population survey and administrative datasets to identify where intersectional data breakdowns are already published and where intersectional breakdowns could be provided, noting the protected characteristic variables collected and available sample size.
• Producing a new equality dataset through the secure linkage of existing administrative and Census data, to support robust intersectional outcomes-based equality data analysis.
• Commissioning independent research with people with lived experience of different and intersecting protected characteristics to explore response issues, to investigate data fears and to understand what positive messaging would help to reduce fears and encourage participation in surveys. The research findings will be used to develop guidance for public sector data collectors.

The Scottish Government believes that the Equality Data Improvement Programme can be a key driver in improving the collection and use of intersectional and disaggregated equality data across the public sector in Scotland.

Stakeholder views

There are some concerns expressed around listed authority capacity and capability to improve data collection effectively in the short term. In March 2021, we published research which details the major barriers that exist in relation to the collection and use of equality and socio-economic disadvantage data across the public sector.^[25] In our engagement, key barriers were highlighted by a listed authority who summarised: “The costs and challenges of collecting and analysing data and intersectional data in particular are considerable”. Furthermore, there are other concerns relating to privacy, because the more detailed the disaggregation of data is, then the risk of identifying individuals on the basis of their characteristics increases.

However, we do not yet have a strong sense of stakeholder views on this specific issue, and therefore we are seeking to use this consultation to gather more views from stakeholders on this issue and on the feasibility of mandating intersectional and disaggregated data analysis throughout the SSDs.

Question 8.1:

The First Minister’s National Advisory Council on Women and Girls called for the Scottish Government to place an additional duty on listed authorities to “gather and use intersectional data, including employment and service-user data, to advance equality between protected groups, including men and women”?

(a) What are your views on this?

(b) How could listed authorities be supported to meet this requirement?

Question 8.2:

[Question directed specifically to listed authorities]

(a) If there was a requirement for your organisation to “gather and use intersectional data, including employment and service-user data, to advance equality between protected groups, including men and women”, would you be confident your organisation could comply with it?

Yes/No

Routing depending on answer to part (a).

(b) If yes, why?

(b) If no, what would you need to ensure you could comply by 2025?

9. Intersectional gender budget analysis

Background

We have committed to take steps to further embed equality and human rights in all stages of the Budget process in the Scottish Government’s Programme for Government 2021-2022, and in the Scottish Government and Scottish Green Party Shared Policy Programme. Interest in understanding budgets from various perspectives has grown in recent years, and a number of recommendations and proposals relating to budget analysis have been made to the Scottish Government, covering interests from equality, to human rights and children’s rights.

Amongst these proposals, the First Minister’s National Advisory Council on Women and Girls has recommended that the Scottish Government “integrate intersectional Gender Budget Analysis into the Scottish Budget process, and to give this a statutory footing”. In relation to the SSDs, the National Advisory Council on Women and Girls called for the Scottish Government to “place an additional duty on listed authorities to integrate intersectional gender budget analysis into their budget setting procedures.”

In our response to the National Advisory Council on Women and Girls, we committed to consulting on the proposals relating to intersectional gender budget analysis, in order to seek more views from stakeholders and build our evidence base.

Defining intersectional gender budget analysis

Gender budgeting, sometimes called gender-sensitive or gender-responsive budgeting, is a way of analysing the budget for its effect on gender equality. The National Advisory Council on Women and Girls defines it as “a means of preparing budgets or analysing them from a gender perspective”.

Gender budgeting does not mean that there should be separate budgets for women, or that money should be divided equally between women and men, but acknowledges that spending and taxation can affect women and men differently because of their different situations, needs and priorities, including how they experience paid and unpaid work, access education, and use services. Gender budgeting can help to examine and restructure revenue and spending decisions in order to eliminate unequal outcomes between women and men.

In its recommendation, the National Advisory Council on Women and Girls places emphasis on intersectional gender budget analysis. An intersectional gender budgeting approach would involve analysing budgets by more than one category, for example, examining not only how a spending proposal might impact women and girls compared to men and boys, but additionally, how that proposal might impact disabled women compared to non-disabled women. The relevant intersectional breakdowns of groups would depend on the budget decision under consideration.

The exploration of the definition of “intersectionality” in the above section remains relevant here: That for the purposes of the SSDs any reference to the intersectional disaggregation of data would be on the basis of only the relevant protected characteristics, and would not likely be able to encompass other factors such as socio-economic disadvantage, which is addressed through the Fairer Scotland Duty. Any steps to develop budgeting methods embedding relevant intersectional analysis would be dependent on progress on the gathering and use of intersectional data set out in (8) above, and agreement that it is gender intersectional data that should be prioritised.

Existing actions to analyse the Scottish budget from a gender and wider equality and human rights perspective

The Scottish Government already takes steps to analyse the Scottish budget from a gender and wider equality and human rights perspective, and we have sought to continually improve how equality is embedded in the budget process over a number of years. A key part of our work is the development and publication of the Equality and Fairer Scotland Budget Statement alongside the Scottish Budget. This statement assesses the impact of the Budget on groups of people who have and share protected characteristics and people experiencing socio-economic disadvantage. In more recent years it has started to consider and reflect human rights analysis.

Analysing budget proposals in this way is important because it helps the Scottish Government to make the best use of public money to deliver positive outcomes and help those who need it most. It also helps us to discharge our legal responsibilities under the PSED and the Fairer Scotland Duty, as set out in the Act.

In August 2019, the Equality Budget Advisory Group and the Scottish Government produced informal guidance for policy makers on equality and human rights budgeting.^[26]

We recognise that in order to improve the integration of equality including gender into budgeting both within the Scottish Government in the wider third sector and public sector, we need to build capacity and understanding of how this can be done in practice. We have awarded funding of £220K over three years (2021-2024) to the Scottish Women’s Budget Group to work with civil society groups and local authorities to raise awareness of, and build capacity in gender budgeting. Using a combination of approaches, including mentoring support, the development of a toolkit, and training sessions, the Scottish Women’s Budget Group aims to improve the quality of equality impact assessments to ensure that decision makers take into account how budget decisions could impact women and men differently and as a result either exacerbate or help to reduce gender inequality.

Stakeholder views

In relation to the call for an additional duty on listed authorities to integrate intersectional gender budget analysis into their budget setting procedures, the concerns raised by some listed authorities in the previous section on intersectional and disaggregated data analysis are relevant here too. This is because, in order to successfully implement an intersectional gender budgeting approach, listed bodies need good intersectional data and evidence to support analysis. As stated, we do not have a strong evidence base of stakeholder views on this specific issue, and therefore we are using this opportunity to gather more views on this issue. We are interested in the steps required to develop the culture and capability for these novel approaches, and on the feasibility and practicalities of placing intersectional gender budgeting on a statutory footing through the SSDs.

Question 9.1:

The First Minister’s National Advisory Council on Women and Girls’ called for the Scottish Government to integrate intersectional gender budget analysis into the Scottish Budget process, and to place this on a statutory footing.

What are your views on this?

Question 9.2:

The First Minister’s National Advisory Council on Women and Girls’ called for the Scottish Government to place an additional duty on listed authorities to integrate intersectional gender budget analysis into their budget setting procedures.

(a) What are your views on this?

(b) How could listed authorities be supported to meet this requirement?

Question 9.3:

[Question directed to listed authorities]

(a) If an additional duty was placed on your organisation to integrate intersectional gender budget analysis into its budget setting procedures, would you be confident your organisation could comply with it?

Yes/No

Routing depending on answer to part (a).

(b) If yes, why?

(b) If no, what would you need to ensure you could comply by 2025?

10. Coverage

This section relates to which public bodies are covered by the PSED and the SSDs.

In relation to the PSED, under section 149 of the Equality Act 2010, the list of Scottish public authorities subject to the Duty is contained at Part 3 of schedule 19 of the Act. However, section 149(2) of the 2010 Act provides that even a body not listed in schedule 19 is subject to the PSED to the extent that it exercises functions of a public nature.

The bodies subject to the SSDs are specified in the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (as amended) – which includes many, but not all of the bodies listed at Part 3 of schedule 19 of the 2010 Act.

Scottish Ministers have competence to add relevant Scottish public authorities to the SSDs who are already subject to the PSED. Further, Scottish Ministers could also add relevant Scottish public authorities to Part 3 of schedule 19 of the 2010 Act (so that they become subject to the general PSED), and could consequently make them subject to the SSDs.

There have been calls from the First Minister’s National Advisory Council on Women and Girls and EHRC to mandate all Scottish regulators, ombudspersons and oversight bodies to advance equality and rights. Additionally, EHRC has also expressed the view that regulatory bodies, as part of their own compliance with the SSDs, should be encouraged to do more to improve PSED performance in their sector. However, this would not mean conferring any of EHRC’s enforcement powers on these bodies.

The Scottish Government would therefore like to seek further views on which bodies should be covered by the PSED and SSDs and on the issues raised by the National Advisory Council on Women and Girls and the EHRC.

Question 10.1:

(a) In your view, are there any Scottish public authorities who are not subject to the PSED or the SSDs that you think should be?

Yes/No

(b) If Yes, please give detail on which Scottish public authorities you think should be subject to the PSED or SSDs.

Question 10.2:

EHRC has expressed the view that regulatory bodies, as part of their own compliance with the SSDs, should be encouraged to do more to improve PSED performance within their sector.

What are your views on this?

11. Strengthening leadership and accountability and enhancing capability, capacity and culture

As stated previously, the Scottish Government views the PSED regime as an important lever to drive change, and sits as part of our wider agenda to mainstream equality and human rights. Strengthening leadership and accountability, and enhancing capability, capacity and culture will form part of the equality and human rights mainstreaming strategy currently being developed.

Throughout the proposals in this consultation paper, we believe we have put forward proposals in order to ensure the Scottish Government and Scottish Ministers are playing an effective leadership role. These include, the revised equality outcome setting process, and the proposed changes to the duties relating to Scottish Ministers. However, there is still more to do to improve leadership and accountability and enhance capability, capacity and culture.

Throughout our engagement to date, stakeholders have put forward the following suggestions which are relevant to this area:

• Funding: Ensuring there is long-term and protected funding for the public and third sectors for equality and human rights;
• Protected budgeting: Requiring the public sector to spend a certain percentage of its budget to advance equality and human rights;
• Training: Ensuring that there is effective and mandatory equality training, particularly for senior leaders and public appointments;
• Equality accountable officers: Requiring public bodies to appoint an accountable officer, who would provide internal advice, guidance and competence building;
• Improved forums or portals to share best practice: Improving existing forums to share best practice across the public sector, or establishing a new online portal to share consolidated guidance, best practice and publications.

The Scottish Government believes that these issues and suggestions need to be explored further, and we do not think a statutory footing is the best approach at this stage or whether the SSDs would be the appropriate vehicle to take them forward. We will consult further on these matters when we consult on the mainstreaming strategy in 2022. However, stakeholders are welcome to share views on how these aspects might be addressed through the PSED review.

Question 11.1:

The Scottish Government will consult on the issues in this section further through the mainstreaming strategy. However, if you think any of these matters could be addressed through the PSED review, please give details here.

12. Guidance

As the relevant enforcement body, EHRC provides guidance to assist listed authorities in complying with the SSDs. With revised duties, there will be a requirement for refreshed guidance which EHRC will produce.

Through our engagement to date, there have been calls for updated and improved guidance. These calls included:

• More prescriptive step-by-step technical guidance;
• Consolidating guidance and increased use of clearer language throughout all supporting documents; and
• Strategic guidance which reaffirms how compliance with the duties relates to the general PSED.

Throughout this consultation paper, we consider we have put forward proposals for more prescriptive regulations and a more cohesive regime; we hope that this, in turn, will make it easier for improved guidance to be created.

Furthermore, some listed authorities have also highlighted that they would find it useful to receive feedback on the mainstreaming reports and equality outcomes that listed authorities produce to strengthen their understanding.

However, we are aware that more than revised guidance will be required to enable an improved PSED regime, and therefore this section should be read along with the strengthening leadership and accountability, and enhancing capability, capacity and culture section above. We are also considering how toolkits, case-studies and other resources can be developed and used alongside the formal guidance produced by the EHRC.

Question 12:

What would you like to see in improved revised guidance for the SSDs?

13. Positive action

Section 158 of the Equality Act 2010 provides general provisions on positive action. This section applies “if a person reasonably thinks that:

• Persons who share a protected characteristic suffer a disadvantage connected to the characteristic;
• Persons who share a protected characteristic have needs that are different from the needs of persons who do not share it; or
• Participation in an activity by persons who share a protected characteristic is disproportionately low.”

Section 158 goes on to state that the Equality Act 2010 does not prohibit that person “from taking any action which is a proportionate means of achieving the aim of:

• Enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage;
• Meeting those needs; or
• Enabling or encouraging persons who share the protected characteristic to participate in that activity.”

This section applies to all fields within the Act, including education, the provision of services, and some aspects of employment. However, it does not apply where section 104 (selection of political candidates) or section 159 (positive action: recruitment and promotion) apply.

EHRC has provided a helpful summary of section 158: “If an employer reasonably thinks that people sharing a certain protected characteristic suffer a disadvantage connected to that characteristic or have different needs, or if their participation in work or other activity is disproportionately low, an employer can take any action (which would otherwise be discrimination against other people) which is a proportionate means of enabling or encouraging those people to overcome or minimise their disadvantage or to participate in work or other activities or meeting their needs. For example, an employer can put on training courses exclusively for workers with a particular protected characteristic.”

EHRC has said that it is not clear the extent to which listed authorities use the positive action provisions in the Equality Act 2010. They advise that they would expect to see this in existing mainstreaming reports or progress reports on outcomes (with the exception of the tie-break provision under section 159, which may risk identification of relevant people) but this is rarely the case. They believe there is a need both to encourage better use of positive action by listed authorities and subsequent reporting.

The Scottish Government would like to use this consultation to seek more views on this issue.

Question 13:

EHRC has expressed the view that listed authorities should report on how they have used positive action under section 158 of the Equality Act 2010, as part of their reporting obligations.

What are your views on this?