Public Sector Equality Duty - operation review: consultation analysis

1 Executive Summary

This Executive Summary provides an overview of the consultation responses received to the Scottish Government Public Sector Equality Duty (PSED) Review^[1]. The PSED (Section 149 of the Equality Act 2010^[2]) obliges public authorities, and those carrying out public functions, to have due regard, when exercising their functions, to the need to:

• Eliminate discrimination, harassment, victimisation, and any other conduct that is prohibited by or under the Equality Act 2010.
• Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it.
• Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

While the subject matter of the PSED is largely reserved to the UK Government, Scottish Ministers have used their powers to support compliance with the PSED by placing specific duties on Scottish public authorities. Scottish Ministers used these powers to make The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012.

The findings of the consultation will help inform Scottish Ministers regarding any suggested improvements to the SSDs and implementation environment, and the Scottish Government has committed to continued engagement with stakeholders as part of this process.

The consultation ran on the Citizen Space website from 13^th December 2021 to 11^th April 2022, and 128 validated responses were received. Most responses were from organisations, including listed authorities and equality advocacy groups. A common set of themes emerged from responses to many of the consultation questions. This included:

• A request for further clarification or detail on specific aspects of the Scottish Government proposals.
• A request for clear and comprehensive guidance for listed authorities, including clear definitions and terminology and plain English used throughout.
• A call for the Scottish Government to provide financial resources, training, and capacity building support to aid listed authorities implement the proposed changes.
• A request for continued dialogue and collaboration between the Scottish Government and all key stakeholder groups as part of the next step in the process.

For brevity, we have not touched on or repeated these points in the summaries provided below.

Part 1: Proposals to Improve the SSD Regime

Question 1.1 – What are your views on the proposal outlined in the Consultation Paper in relation to the substance of reporting?

Almost all respondents express support in principle for the Scottish Government proposal in relation to the substance of reporting. The main point raised by those respondents in support of the proposal are that: it would lead to a more prescriptive, cohesive, and streamlined approach, and that it would strengthen the contribution of lived experience. Whilst generally supportive of the proposal, several respondents highlighted concerns. The main concerns are that: the four-year reporting cycle is considered too long, with some expressing a preference for the current reporting timetable; there would need to be a cultural shift among listed authorities to embed the PSED regime, and that there may be difficulties implementing the proposals related to lived experience.

Question 1.2 – What are your views on the proposal outlined above in relation to the reporting process?

Respondent views are more mixed on the Scottish Government proposal in relation to the reporting process, however, the majority appear to support the proposal in principle. The points raised by respondents who support the proposal echo those raised to Question 1.1. Additional points raised include that: streamlining reporting arrangements is welcomed; the four-year reporting period would allow for longer-term planning; and workloads could be more evenly distributed throughout the year. A considerable minority of respondents raise concerns with the proposal or do not support it. The main feedback from these respondents is that the four-year reporting cycle is considered too long and could lead to a reduction in activity in non-reporting years. Slightly more respondents appear to not support the proposed four-year reporting cycle.

Question 1.3 – What are your views on consolidating the previous sets of amending regulations?

Almost all respondents express support for consolidating the previous sets of amending regulations. The main points raised by all respondents in support of the proposal include that it would: improve clarity and cohesiveness of the regime; simplify processes and make regulations more accessible to all interested parties; and provide an opportunity to highlight the interconnectedness of the SSDs and to recognise the importance of intersectionality.

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?

Most respondents express support in principle for the proposal to place a duty on listed authorities to embed inclusive communication proportionately across their work. These respondents highlight the wide range of benefits that result from inclusive communication. An additional prevalent view among these respondents includes support for a co-production approach in finalising the proposal that involves the Scottish Government, people with lived experience, subject matter experts, and third sector organisations. Among the wider issues or points of concern raised by respondents, this includes the following: there are mixed views on the proposed inclusion of the term 'proportionality' within the Scottish Government proposal; and concerns are raised about the availability and capacity of specialist service providers to support implementation of the proposal. While supportive of improving inclusive communication and the solutions proposed by the Scottish Government a few listed authorities are of the view that increased guidance and access to required resources to implement inclusive communication could be a more effective approach.

Question 3.1 – What are your views on our proposal to require listed authorities to publish ethnicity and disability pay gap information?

There is wide support across consultation responses for the proposal to require listed authorities to publish ethnicity and disability pay gap information. These respondents view the proposal as a positive step for advancing disability and race equality. The main points raised by all respondents in support of the proposal include that it would: increase transparency and accountability; and lead to greater standardisation and comparability in reporting. Many respondents highlight issues or concerns they have with the proposal, including data quality. Some equality advocacy groups feel that the focus should be on prioritising measures to tackle under-representation of these groups in the workforce and consider the proposal insufficient to create change for people with these protected characteristics.

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)?

It appears more respondents support the proposal than those who do not. This includes respondents who indicate support for the reporting threshold but who caveat their response in some way. Prevalent views among respondents in support of the proposal include that it would: help ensure consistency of approach and reporting across listed authorities; improve comparability of reporting; and that a lower threshold could risk identification of individuals.

Concerns raised about the proposal include: data confidentiality and data protection issues; and that a low threshold could make the provision of meaningful, reliable and disaggregated levels of reporting more difficult. Some respondents therefore hold a view that a higher reporting threshold could help overcome these issues. A few respondents (e.g. equality advocacy groups and other organisations) feel that the proposal should either: have a lower reporting threshold than that proposed by the Scottish Government (e.g 10 employees is suggested) or that the proposal should cover all organisations, regardless of the number of 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?

Most respondents to the consultation agree with the Scottish Government proposal to improve standardisation by prescribing the formulas listed authorities should use to calculate each of their pay gaps. The main points raised by all respondents in support of the proposal include that it would support: consistency in reporting; trend analysis; ease of comparability; benchmarking of national performance; the sharing of good practice. A template for reporting is welcomed by these respondents. An additional theme includes support for alignment with recognised good practice/ existing approaches. Many respondents raise similar concerns to those raised at Question 3.2 (i.e. data issues - disclosure, availability, completeness, etc), and note that careful consideration of the formula used would be essential. Further, some respondents consider it important that the information is used to inform action planning.

Question 4.1 - What are your views on the proposal in relation to regulation 5?

Most respondents agree with the Scottish Government proposal regarding Regulation 5: Duty to assess and review policies and practices. These respondents are in strong agreement that Equality Impact Assessments (EqIA) must be undertaken as early as possible in the policy development or review process. Further, there was equally strong support expressed by these respondents for strengthening the duty by requiring the involvement of people with lived experience, or organisations who represent them, in certain circumstances, and that it would be important for the Scottish Government to lead by example.

Some equalities advocacy groups and others highlight concerns the current approach/system is not working, and that implementation of this duty has been weak to date. These respondents request that the Scottish Government ensures the wording used for this proposal is as strong as possible to avoid it being open to interpretation. Where additional issues are raised by respondents these centre on: the importance of not overburdening people or organisations; whether there is scope for integrated impact assessments and associated guidance; and some respondents feel that the proposal is not sufficient to drive the desired change.

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?

The main points raised by respondents are a repeat of views raised to Question 4.1. Additional themes relate to culture change being an important factor in ensuring greater compliance with reviewing policies and practices, and the need for resources and support to build knowledge and capacity within listed authorities.

Question 4.3 - What are your views on the current scope of policies that should be assessed and reviewed under regulation 5?

Respondent feedback is relatively mixed on the current scope of policies that should be assessed and reviewed under regulation 5. On the one hand there is respondent feedback that the current scope is appropriate and reasonable. Others consider it to be too broad or too wide, while some respondents consider there to be a lack of clarity and uncertainty surrounding the current scope. Support, however, is expressed by most respondents for retaining flexible, pragmatic, and proportionate arrangements. Many respondents ask for clear definitions for terms used in the proposal (e.g. 'policy', 'practice', 'relevant and proportionate', 'reasonable adjustment').

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?

Respondents are generally supportive of the proposals for the Scottish Government to set national equalities outcomes. These respondents welcome the flexibility provided in the proposals for listed authorities to set their own outcomes (e.g. if they find the nationally set outcomes are not appropriate). Prevalent views among respondents who support the proposal include that it would: provide opportunities for comparing and benchmarking performance; and encourage partnership working between listed authorities.

Some equalities advocacy groups feel that new nationally set outcomes would need to be accompanied by improved monitoring and enforcement mechanisms, whilst some listed authorities note that national outcomes should be SMART to monitor progress and drive improvement.

A small number of larger listed authorities do not support the proposal and would prefer that listed authorities set their own equalities outcomes.

Question 6.1 - What are your views on the Scottish Government's proposal to simplify the regulation 6A process?

Most respondents are broadly supportive of the proposal to simplify the regulation 6A process. The main point raised by all respondents in support of the proposal is that they welcome the Scottish Government taking a greater leadership role in ensuring that greater emphasis is placed by listed authorities on equalities considerations during board recruitment. Support is also expressed by these respondents for data suppression where required. Few respondents do not support the proposal and there are no common themes across these responses.

Question 6.2 - What are your views on the proposal in relation to regulations 11 and 12?

Most respondents are broadly supportive of the proposals with most in agreement that regulations 11 and 12 should be retained and supported. A common theme, mainly from equalities advocacy groups and a small number of listed authorities, is that Scottish Government leadership, and the use of regulations 11 and 12 are necessary to drive improvement in equalities outcomes. A few respondents do not support the proposal and question whether regulations 11 and 12 should be retained. These respondents note in their response that regulation 11 has never been used, and that when regulation 12 has been used there have been delays.

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?

Almost all respondents support the Scottish Government proposal. A prevalent view among these respondents is that the proposal could help to raise awareness of diversity and inclusion related issues. A small number of respondents raise concerns or do not support the proposal. Points raised by these respondents include either support for the proposal to cover all protected characteristics or support for the proposal to only cover gender. Further, some respondents feel that the Scottish Government proposal is vague and do not feel able to provide comment until further detail/clarification is provided.

Question 7.1 - What are your views on our proposal and call for views in relation to procurement?

Respondents to the consultation are generally in favour of the Scottish Government proposal relating to procurement. The main themes from those in support of the proposal include that: procurement is an important lever to influence equality; and these respondents welcome Scottish Government recognition that proportionality is an important consideration with regards to the proposal in relation to procurement. Some respondents identify issues or do not support the proposals. The main feedback from these respondents include that: equality is already embedded within their organisation's procurement procedures; and that additional resources will be required to support implementation.

Part 2: Exploring Other Areas

Question 8.1a - 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". What are your views on this?

Most respondents support this Scottish Government proposal. The main themes to emerge from those respondents who express support for the proposal relate to: the importance of intersectional data in helping to better understand the multi-dimensional issues faced by those with more than one protected characteristic; and a requirement for support from the Scottish Government to support implementation of the proposal.

A significant minority of respondents do not support the proposal or identify issues or concerns. The prevalent views among these respondents related to: data protection issues; other challenges relating to in data collection and reporting; and an increased administrative burden placed on listed authorities.

Question 8.1b - How could listed authorities be supported to meet this requirement?

The two main themes which emerge from respondents on how listed authorities could be supported to gather and use intersectional data are: the provision of clear and comprehensive guidance; and the provision of additional resources and capacity building support, including finance and training.

Question 8.2a - 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?

Table 1: Confident that organisation could meet the requirement

	Number	Percentage
Yes	16	22.9%
No	54	77.1%

N=70. Excludes blank, not answered responses, and any responses not from a listed authority.

Question 8.2b – If yes, why?

The main reason provided by those listed authorities who report that they are confident their organisation would be able to comply with the proposal is that they already have a system and process in place or that it would be relatively easy to make modifications to it.

Question 8.2c – If no, what would you need to ensure you could comply by 2025?

Listed authorities who report that they are not confident their organisation would be able to comply with the proposal raised similar points to those raised at Question 8.1b.

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?

Most respondents agree in principle with an intersectional approach to gender budget analysis. The main themes from those who support the proposal are that the proposal would help advance equality and human rights, and that the Scottish Government would be demonstrating effective leadership in this area. A variety of concerns are raised by respondents around data collection, analysis and reporting, and some hold a view that the proposal may risk creating a hierarchy of protected characteristics.

A few listed authorities are not supportive of the proposal and feel that it is unnecessary to place this additional duty on a statutory footing. These respondents note that information on intersectionality is already captured or could be gathered through existing methods (e.g. EqIA) and that the proposal could increase the administrative burden placed on listed authorities.

Question 9.2a - 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. What are your views on this?

Much of the respondent feedback to Question 9.2a echo points raised to Question 8.1a and Question 9.1 and have not been repeated here.

Question 9.2b - How could listed authorities be supported to meet this requirement?

The main points raised by respondents chime with responses to previous questions, namely requests for: improved guidance to be provided by the Scottish Government; financial support; training/ upskilling for staff; and investment for IT equipment/updating processes.

Question 9.3a - 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?

Table 2: Confident that organisation could meet the requirement

	Number	Percentage
Yes	13	20.6%
No	50	79.4%

N=63. Excludes blank, not answered responses, and any responses not from a listed authority.

Question 9.3b – If yes, why?

Listed authority confidence to meet the requirement mainly stems from their organisational ability to amend or modify existing processes and procedures, such as impact assessments. Like other questions there is a request for improved guidance, training, and support. Others suggest that their organisation's ability to meet the requirement may depend on the level of detail required.

Question 9.3c – If not, why

As outlined elsewhere, the main respondent feedback calls for the provision of improved guidance, financial resources, and training to support implementation.

Question 10.1a - In your view, are there any Scottish public authorities who are not subject to the PSED or the SSDs that you think should be?

Table 3: Are there any Scottish public authorities who are not subject to the PSED or the SSDs that you think should be?

Respondents	Yes	No
Individual	33.3%	66.7%
Organisation	29.0%	71.0%
Total	29.2%	70.8%
Organisation Breakdown
Listed authority	19.6%	80.4%
Equality advocacy groups	71.4%	28.6%
Other public bodies	25.0%	75.0%
Other organisations	60.0%	40.0%

N=65 (3 individuals and 62 organisations). Excludes blank and not answered responses.

Question 10.1b - If yes, please give detail on which Scottish public authorities you think should be subject to the PSED or SSDs.

The Scottish public authorities most identified by respondents are: Social Services Council (SSSC); The General Teaching Council for Scotland (GTCS); The Scottish Parliament; The Care Inspectorate; HM Inspectorate of Education (HMIE); Registered Social Landlords (RSLs); Education authorities (e.g. Education Scotland); Other regulatory bodies, ombudsmen and inspectorates; and Other health organisations, GPs, dentists, etc.

Question 10.2 - Equality and Human Rights Commission (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?

Most respondents are supportive of the view expressed by EHRC. These respondents agree that regulatory bodies are well-placed to improve PSED performance within their sector and that a collaborative approach could help improve the situation.

A few respondents do not support the proposal and feel that significant capacity building support would be required and a concern that the proposal could lead to added bureaucracy and complexity for regulatory bodies.

Question 11.1 - The Scottish Government will consult on the issues in this section further through the mainstreaming strategy (e.g. funding, protected bugeting, training, etc). However, if you think any of these matters could be addressed through the PSED review, please give details here.

Many respondents, in particular listed authorities, agree that it would be more appropriate to consider the issues outlined in the Consultation Paper as part of the consultation process for the mainstreaming strategy. There is wide support across consultation responses with the proposed actions, however, it is recognised that listed authorities would require capacity building support, and additional resources and funding to support effective implementation.

Question 12 - What would you like to see in improved revised guidance for the SSDs?

The respondents to the consultation acknowledge limitations of the current guidance and are supportive of proposals to produce updated and improved guidance and to establish a more cohesive regime. A prevalent view among respondents is that the guidance should be: clear, concise and consolidated; written in plain English; and developed and informed by people with lived experience. Some equality advocacy groups suggest that the guidance should be aligned to the Equality Act 2010.

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?

Most respondents express support with the EHRC view, with many noting that the proposal is reasonable and sensible. Additional points raised include the need for a clear definition of 'positive action' to be provided as well as updated guidance including good practice and case studies. Some respondents raise concerns relating to the disclosure of data. A handful of respondents (e.g. listed authorities) state that they do not support the proposal. These respondents in the main feel that positive action should not be a reporting obligation and suggest that a more appropriate approach may be through research.

Part 3: Overall Reflections

Question 14.1 - Overall, what are your reflections on the proposals set out by the Scottish Government and the further areas explored?

The majority of responses to this consultation question are broadly supportive of the proposals outlined in the Consultation Document. A prevalent view among these respondents is that the proposals will help to strengthen equality and diversity in Scotland, albeit some note that further detail/clarification may be required on some of the proposals.

A small number of respondents indicate that they do not support the Scottish Government proposals. A few listed authorities feel that the proposals may lead to a disproportionate administrative burden for their organisations, while a few equalities advocacy groups feel that the proposals are not ambitious enough or sufficient to drive change.

Question 14.2 - Please use this box to provide any further information that you think would be useful, which is not already covered in your response.

The points raised by respondents to Question 14.2 are largely a repeat of the themes outlined earlier in Question 14.1.