National Advisory Council on Women and Girls report: Scottish Government response

Accountability

The NACWG makes the following recommendation to the Scottish Government under the theme of Accountability:

“We call on the Scottish Government as part of the current review of the Public Sector Equality Duty (PSED) regulations in Scotland to place additional specific duties on listed Public Bodies to:

• Gather and use intersectional data, including employment and service-user data, to advance equality between protected groups, including men and women;
• Integrate intersectional gender budget analysis into their budget setting procedures.”

It goes on to call on the Scottish Government “to mandate Scottish regulators, ombudspersons and oversight bodies to advance equality and rights”.

The NACWG says that these additional duties would enhance the gender-mainstreaming impact of the PSED in Scotland.

Placing additional legislative duties on public bodies

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^[13]. This is also essential in order to undertake intersectional budget analysis, whether specifically in relation to gender, or equality and human rights more widely.

The importance of intersectional data was brought to the fore by the coronavirus pandemic and it was highlighted by the Expert Reference Group on COVID-19 and Ethnicity^[14], and the Social Renewal Advisory Board^[15].

As part of our ongoing review of the operation of the PSED in Scotland, we published a consultation in December 2021 which includes seeking views on the NACWG’s recommendation that additional duties be placed on listed authorities relating to intersectional data collection and usage, and intersectional gender budgeting.

We will also take non-legislative measures to improve the availability and use of intersectional data through our Equality Data Improvement Programme.

How will we take this recommendation forward?

Reviewing the Public Sector Equality Duty

The Scottish Government is currently taking forward a review of the operation of the PSED in Scotland. In March 2021, we completed stage one^[16] of the review which noted the need to make better use of evidence and data. There is widespread recognition of the importance of improving the collection and use of intersectional data from equality advocacy groups and listed authorities, although there are concerns from listed authorities on their capacity and capability to do this effectively in the short term.

We are seeking further views on how the PSED can be utilised to strengthen the collection and use of intersectional equality data, through a public consultation which was published in December 2021. This focuses on potential regulatory changes to strengthen duties on relevant public bodies, and includes consulting on the specific recommendation from the NACWG.

Equality Data Improvement Programme

To complement our work to review the operation of the PSED in Scotland, we established the Equality Data Improvement Programme (EDIP) 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 EDIP is one part of a broader programme of mainstreaming equality and human rights within the public sector.

An EDIP 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 EDIP 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 EDIP 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 equalities dataset through the secure linkage of existing administrative and Census data, to support robust intersectional 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.

Mandating Scottish regulators, ombudspersons and oversight bodies to advance equality and rights

In addition to placing certain additional duties on listed public authorities, the NACWG also calls on the Scottish Government “to mandate all Scottish regulators, ombudspersons and oversight bodies to advance equality and rights”.

The NACWG says that this would help to ensure that gender is a core consideration for these bodies in exercising their scrutiny and accountability functions.

The National Taskforce for Human Rights Leadership has also made a recommendation that the Scottish Government “further consider specific duties being placed upon front-line complaint handling mechanisms and scrutiny bodies in order to enhance access to justice and ensure human rights obligations are given effect by all public authorities.”

The PSED, as set out section 149 of the Equality Act 2010, requires that public authorities, in the exercise of their functions, must have due regard to the need to:

• Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Act;
• 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.

Part 3 of Schedule 19 of the Equality Act 2010 provides a list of Scottish public authorities that are subject to the PSED. The PSED also applies to bodies which are not public authorities when those bodies exercise public functions. The Scottish Specific Duties require relevant public bodies (those specified within the Scottish Specific Duties Regulations to take certain steps to assist in their better performance of the PSED.

As part of our review of the operation of the PSED in Scotland, we are reviewing which bodies are covered by the Scottish Specific Duties and we will seek to ensure that all bodies which should be covered by the Scottish Specific Duties are specified in the regulations, which may include Scottish regulators, ombudspersons and oversight bodies. If additional bodies are included, they would have further duties imposed on them to enable them to better meet their PSED and advance equality. This review of the bodies covered by the Scottish Specific Duties is included in our consultation.

To the extent this recommendation relates to human rights, as part of the overall development of the Human Rights Bill, we will consider specific duties being placed upon front-line complaint handling mechanisms and scrutiny bodies in order to enhance access to justice and ensure human rights obligations are given effect by all public authorities.