Public Sector Equality Duty - operation review: consultation analysis

13 Coverage

13.1 Context

This section relates to which public bodies are covered by the Public Sector Equality Duty (PSED) and the Scottish Specific Duties (SSDs). 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.

Equality and Human Rights Commission (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.

Following 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, the Scottish Government is seeking 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.

13.2 Question 10.1a – Which Bodies should be covered by the PSED and SSDs

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

Around half of respondents answered this question.

Almost-one third of these respondents consider that there are Scottish public authorities who are not subject to the PSED or the SSDs that should be, Table 13.1. Equality advocacy groups are more likely to report that there are some other Scottish public authorities who should be subject to the PSED or the SSDs.

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

13.3 Question 10.1b – If Yes, Provide Details

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 commonly identified by these respondents are listed below:

• Scottish 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.
• Other health organisations, GPs, dentists, etc.

The following public authorities are specified by a single respondent in each case (i.e. absolute numbers are small):

• Association of Directors of Education in Scotland (ADES).
• Caledonian MacBrayne (CalMac).
• Convention of Scottish Local Authorities (COSLA).
• NHS Education for Scotland (NES).
• ScotRail.
• Scottish Canals.
• Scottish Housing Regulator.
• Scottish Human Rights Commission.
• Scottish Water.
• Scottish Environment Protection Agency (SEPA).
• Scottish Qualifications Authority (SQA).
• The Commission for Ethical Standards in Public Life in Scotland (CESPLS).

13.4 Question 10.2 – Improving PSED Performance

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?

Around three-quarters of respondents provided a response to Question 10.2 (74%).

13.4.1 Respondents who support the proposal

Most respondents support the view expressed by EHRC 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. Respondent feedback can be grouped into the following themes.

Some respondents simply express support for the proposal. Common words or phrases used in consultation responses include: "we agree that regulatory bodies should be doing more", "we are supportive of this approach", or "we would welcome regulatory bodies in advancing equality and rights."

Theme 1: Regulatory bodies are well-placed to improve PSED performance within their sector

Some respondents (e.g. all organisation sub-categories) support the EHRC view as they consider regulatory bodies to be well-placed to help improve PSED performance within their sector. Regulatory bodies are said to have the necessary knowledge and expertise of PSED compliance within their sector and could play a stronger leadership role to encourage improved PSED performance within their sector (i.e. given their influence and reach). Further, these respondents suggest that regulatory bodies could do more in terms of sharing best practice, signposting, training, and providing guidance.

"This would be a valuable step, with regulatory bodies well placed to act as a key contact point, and share sector-specific information and best practice that will be of relevance to listed authorities."

Age Scotland

Theme 2: Collaborative approach

A prevalent view among listed authorities is that any proposal to encourage a joint or collaborative approach to help improve PSED performance within different sectors are to be welcomed. These respondents feel that regulatory bodies can play an important role in encouraging this to happen within their sector.

13.4.2 Respondents who have issues or concerns

Theme 1: Capacity building and guidance

Some listed authorities, while generally supportive of the proposal, do raise issues or concerns:

• The proposal places an additional expectation on regulatory bodies to encourage improved PSED performance within their sector, and this would require additional resources/support for effective implementation (e.g. capacity building, guidance, and additional resources).
• As EHRC has an existing regulatory system in place, these respondents consider it important that the Scottish Government clearly defines and communicates the roles and responsibilities of EHRC and regulatory bodies in relation to this proposal to avoid any duplication of effort or confusion.

"If regulatory bodies adopted a supportive approach to help guide and assist authorities to understand and meet the duties where relevant to their own area of regulation this would be welcomed. It is good that Audit Scotland include best value audits on how well local authorities perform in equality and rights. However, the EHRC is the regulatory body for the PSED and the Scottish Government is the regulatory body for the SSDs and these two organisations should remain the regulatory bodies. There is a danger of conflicting understanding or instruction from different agencies. There is also a danger that the EHRC loses its credibility as the regulatory body. If regulatory bodies, as part of their own compliance with the SSDs do more to improve PSED performance within their sector, this should be in strong collaboration with the EHRC and Scottish Government and resource may need to be considered in order to do this well."

City of Edinburgh Council

Theme 2: Terminology used

There are mixed views among respondents on the use of the word 'encouraged' in the proposal specified at Question 10.2. On the one hand, a few respondents note in their submission that the proposal could be framed as "advice" to regulatory bodies. On the other hand, a minority view is that "encouraged" is too weak and may result in some regulatory bodies not taking action to encourage the sector to improve PSED performance. A related point is a request from respondents for further guidance, advice, and information from the Scottish Government/EHRC to understand what 'encouraged' means in the context of the proposal.

13.4.3 Respondents who do not support the proposal

A few respondents (e.g. some listed authority and equality advocacy groups) state that they disagree with the proposal 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. The points raised by respondents who hold this view include:

• Significant capacity building support would be required within regulatory bodies given constrained public sector finance and resources.
• The proposal may lead to added bureaucracy and complexity for regulatory bodies, and a sense that it may risk confusion (i.e. with the existing EHRC regulatory system).

"Whilst we think there should perhaps be a greater emphasis on assessing / evaluating outcome in relations to PSED performance we are not clear that this approach is the one we should take. There is a clear regulatory system in relation to PSED and we have some concern that this would be diluted if regulatory bodies also took on some enhancement / enforcement responsibility. In addition, the public sector is regulated in different ways – and the impact of a different approaches through the regulatory bodies could be felt in different ways in different sectors and we think this could be contrary to the intention of the proposal."

The Scottish Children's Reporter Administration

13.4.4 Further clarification on the proposal requested

As noted above, there is a request from some respondents for further detail on this proposal. This includes those who suggest that further information/detail would be necessary for their organisation to provide an informed view on the proposal.