Public Sector Equality Duty - operation review: consultation analysis

9 Proposal 6

Improving duties relating to Scottish Ministers

9.1 Context

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 based on their protected characteristics.

The Scottish Government intends to take more of a leadership role in relation to the equality outcome setting process. This would 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.

9.2 Question 6.1 – Simplify Regulation 6A Process

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

A majority of respondents answered Question 6.1 (77%).

9.2.1 Respondents who support the proposal

The main themes to emerge from respondents who express support the proposal to simplify the regulation 6A process are summarised below.

Theme 1: Support for Government to have a greater leadership role

Most of the comments provided by respondents are broadly supportive of the proposal and 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.

Theme 2: Data suppression

The only other theme which attracted a significant number of comments (e.g. mainly listed authorities) is that these respondents agree with the proposal to suppress data so that individuals cannot be identified based on their protected characteristics. Due to the small number of members usually on boards, these respondents agree that some form of data suppression would be necessary.

9.2.2 Respondents who do not support the proposal

Few respondents do not support the proposal to simplify the regulation 6A process, and no common themes are identified across these responses. The individual points noted include:

• There may be limited use in gathering such data if it cannot be published due to data protection issues.
• It may prevent a national overview of board membership if reporting is subsumed within the reporting of individual listed authorities.
• If leadership rests with the Scottish Government, this may not accurately reflect the local picture/context.

9.2.3 Further clarification on the proposal requested

There are a few requests from respondents for greater clarity from the Scottish Government on the proposal to simplify the regulation 6A process, including:

• Further clarification on what constitutes good or poor performance in terms of board membership.
• That clear guidance should be provided on how data should be gathered and on data protection requirements.

9.3 Question 6.2 – Regulations 11 and 12

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

A majority of respondents answered Question 6.2 (72%).

9.3.1 Respondents who support the proposal

The main themes to emerge from respondents who support the proposal in relation to regulations 11 and 12 are summarised below.

Theme 1: Broad support with the proposal

Most respondents are broadly supportive of the proposal without providing any further detail or explanation. For example, common words or phrases used in consultation responses include: "we agree these should be retained", "we support the current regulations" or "correct for Scottish Government to have a leadership role".

Theme 2: Scottish Government leadership is necessary to drive improvement

A common theme, mainly from equality advocacy groups, but also from 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.

Some of these respondents' express concern that regulations 11 and 12 have been underused to date, and that the Scottish Government could be more robust in future by using these regulations to drive improvement among listed authorities.

"Close the Gap notes that regulations 11 and 12 have not been used to their fullest extent to date. These regulations have significant potential to address many of the problems identified with public bodies' performance of the duties. We support the retention of these duties for this purpose."

Close the Gap

9.3.2 Respondents who identify issues or concerns

Some respondents (mainly listed authorities and two equality advocacy groups) feel that the Scottish Government proposal relating to regulations 11 and 12 outlined in the Consultation Paper is "vague", and that more detail and clarification from the Scottish Government may be required before an informed view on the proposal can be provided.

9.3.3 Respondents who do not support the proposal

A few respondents call into 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.

9.3.4 Further clarification on the proposal requested

Where further clarification is requested by respondents, this includes, for example:

• What constitutes 'other matters' in the context of regulation 11.
• In what circumstances would the Scottish Government use regulations 11 and 12.

9.4 Question 6.3 – Gender Policy Coherence

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 three-quarters of respondents answered Question 6.2 (73%).

9.4.1 Respondents who support the proposal

The main themes to emerge from respondents who support the proposal to align the delivery of an annual statement Gender Policy Coherence with the existing duty to publish a report of progress of the Public Sector Equality Duty (PSED) are considered below.

Theme 1: Broad support with the proposal

Most respondents express support for the proposal without necessarily providing further detail or explanation. Examples of responses include "we are very supportive", "agree they should be aligned" or "welcome this suggestion".

Theme 2: Awareness raising

A common theme among listed authorities and equality advocacy groups, is that the proposal could help raise awareness about diversity and inclusion issues, as well as demonstrate the progress that listed authorities are making through the PSED.

9.4.2 Respondents who identify issues or concerns

A small number of respondents, whilst not necessarily disagreeing with the proposal, identify some issues or points for further consideration.

Theme 1: The proposal should cover all protected characteristics

Some listed authorities feel that the annual statement should cover all protected characteristics rather than a sole focus on gender. A concern raised by these respondents is that a statement that solely focusses on one protected characteristic could create a "hierarchy". Support is expressed by these respondents for all protected characteristics to be treated equally.

Some respondents also note that a sole focus on gender fails to take an "intersectional mindset" – the point made is that individual protected characteristics cannot be considered in isolation when individuals can belong to several marginalised groups.

9.4.3 Respondents who do not support the proposal

Few respondents do not support the proposal, with the main theme outlined below.

Theme 1: The proposal should only cover gender

A few respondents, including some listed authorities and equality advocacy groups, feel that there is a risk that the inclusion of a statement on the PSED in the annual statement on gender could dilute the focus of the statement and debate away from gender. Some suggest that a better approach could be to facilitate separate debates for each equality group.

9.4.4 Further clarification on the proposal requested

Some respondents (mainly listed authorities) feel that the proposal outlined in the Consultation Paper is "vague", and that they would find it difficult to provide an informed view until further detail and clarification is provided by the Scottish Government.