Public Sector Equality Duty - operation review: consultation analysis

2 Introduction

2.1 Background

This report presents the independent analysis of consultation responses to the Scottish Government Public Sector Equality Duty (PSED) – Section 149 of the Equality Act 2010) Review^[3]. The consultation ran on the Citizen Space website from 13^th December 2021 to 11^th April 2022.

The PSED is a duty on public bodies, and those carrying out public functions (e.g. local government, NHS, educational bodies). The PSED 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 people from different groups.
• Foster good relations between people from different groups

Scottish Ministers used their powers in 2012 to support compliance with the PSED by placing specific duties on listed Scottish public authorities i.e. The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012). This provides a supporting framework to enable listed public authorities to better perform their PSED and to mainstream equality and good relations in their everyday work, through enhanced data collection and evaluation, and greater transparency and accountability. In doing so this should reduce inequality and lead to better outcomes for all, including those who experience disadvantage (e.g. by designing and delivering services that meet the diverse needs of users).

2.2 A Phased Approach

Scottish Ministers have committed to undertaking a review of the effectiveness of the PSED in Scotland including: the effectiveness of the SSDs, for which Scottish Ministers have legislative competence; and the implementation environment for the PSED in Scotland, recognising that regulations alone do not deliver equality - factors such as leadership and capacity are also critical.

The review does not consider the scope of the general PSED as set out in section 149 of the Act or the role of the EHRC as the enforcement body. These are matters reserved to the UK Parliament.

A staged approach to the PSED Review was undertaken. Stage One involved engagement between Scottish Government and equality stakeholders and listed authorities in 2021 to understand which aspects of the PSED were working well and to identify areas for improvement. The Stage One Report(March 2021)^[4] set out the main lessons learned, reflections of equality mainstreaming over the last two years of the coronavirus pandemic (COVID-19) and key improvement proposals. The Stage One Report identified eight cross-cutting themes and other areas where more could be done, Table 2.1.

Source: The Scottish Government, Review of the operation of the Public Sector Equality Duty in Scotland: Consultation Paper.

Stage Two aimed to build on the findings and cross-cutting issues identified in the Stage One Report. The public consultation sought to further explore the key findings and presented proposals both for legislative changes to the SSDs and changes to the wider implementation environment to help improve and strengthen the regime.

A questionnaire was also sent to listed authorities and some equality advocacy groups.

2.3 Public Consultation

The Stage Two public consultation was undertaken to explore issues and themes identified in the Stage One Report, and to further build the evidence base. More specifically, the consultation sought views on specific and detailed proposals to improve the current regime, including:

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

Due to the technical nature of the SSD regime and the purpose and effect of the regulations, the consultation was mainly targeted to the Scottish public sector and equality advocacy groups. Scottish Ministers also welcomed responses from members of the public and the private sector.

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 undertake continued stakeholder engagement as part of this process.

Changes to the SSDs will be legislated for to the extent possible within the powers of Scottish Ministers. Subject to the Parliamentary timetable, regulations will be introduced to the Scottish Parliament which will be subject to the affirmative Scottish Statutory Instrument (SSI) procedure to give effect to any proposals that require regulatory changes. This means that they will be scrutinised by the Equality, Human Rights and Civil Justice Committee and must be approved by a resolution of the Scottish Parliament.

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

Any regulatory change will need to be accompanied by implementation steps, and the Scottish Government will take forward this work, including through the development of a wider mainstreaming strategy to ensure that new regulations are underpinned by an effective plan for implementation. This will be developed with public bodies and key stakeholders including the EHRC and equality advocacy organisations.

2.4 Report Structure

Alongside a brief section on the consultation methodology, the remainder of the consultation analysis report has been structured in line with the Consultation Paper, Table 2.2.

Several appendices have also been attached.