Public Sector Equality Duty review

The Scottish Government have been considering improvements to the Public Sector Equality Duty (PSED) in Scotland. The public consultation ran on the Citizen Space website from 13^th December 2021 to 11^th April 2022.

The consultation sought views on specific and detailed and ambitious 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 regime and the purpose and effect of the regulations, the consultation was mainly targeted to the Scottish public sector and equality advocacy groups. Widespread engagement with stakeholders across protected characteristic groups, as well as public sector organisations, was undertaken to gather their views.

128 consultation responses were received. Most responses were from organisations, including listed authorities and equality advocacy groups (123 responses received from organisations, 5 responses received from individuals).

Of the organisations which responded, around one-quarter were from equality advocacy groups while the remainder were primarily public bodies listed under the current duties.

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;
• A call for the Scottish Government to provide financial resources, training, and capacity building support to aid listed authorities implement the proposed changes; and
• 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.

Officials received positive feedback from most stakeholder organisations about the proposals set out in the consultation paper, however some organisations also constructively highlighted areas where their detail and practicalities can be explored further.

Where permission to publish consultation responses has been provided, the responses are now available to be viewed on Citizen Space alongside independent analysis of these responses.

Additionally, in April 2023, we also commissioned independent research on international best practice in relation to equality duties to help inform policy development. This research is now complete and will be published on the Scottish Government website in due course. This will inform our thinking about further changes to the PSED regime in Scotland over the longer-term.

The Minister for Equalities, Migration and Refugees issued stakeholder communications in October 2023 to outline the next steps of the improvements.

This letter outlined that the Scottish Government will be taking a phased approach to improving the PSED regime, within the limits of devolved competence, making them binding and justiciable to the extent we are able.  

Initially, these phased improvements will include delivering on two key prioritised regulatory changes, which we believe will be highly impactful in terms of advancing equality in Scotland for some of the most disadvantaged groups, with the aim of implementing these changes in 2025. These are revising the current pay gap reporting duty to include reporting on ethnicity and disability pay gaps and drive a more action-focused approach within listed authorities; and introducing a new duty on public bodies in relation to their use of inclusive communication.

Creating a new inclusive communications

As part of our public consultation, we proposed to create a new Scottish Specific Duty that seeks to ensure inclusive communication is embedded proportionately across the work of listed authorities.

Stakeholder feedback on that proposal was overwhelmingly positive, both from equality advocacy groups and listed authorities.

We believe this is an important step towards a larger cultural change around the way we communicate and will make a real difference to the lives of the people of Scotland.

The new duty will sit alongside the Scottish Government’s other work to embed inclusive communication across the public sector, such as developing national standards, best practice, and monitoring systems.

Revising the pay gap reporting   

Pay gap reporting is an important means of driving action to spotlight and reduce the pay inequalities affecting certain disadvantaged groups in our society.

Following consultation, we found stakeholders are largely in agreement (93%) that listed authorities should publish ethnicity and disability pay gap information. It was also evident that several listed authorities already voluntarily publish this information.  

While pay gap reporting is vital, stakeholders have suggested that it does have some limitations. Therefore, we are considering feedback regarding the need for wider reform of pay gap reporting duties.

For the above proposals we are in the process of developing coherent policy instructions for our solicitors based on your consultation responses, previous engagement, and engagement ahead of the implementation.  

Making use of Regulation 11 powers to highlight key emerging issues

Regulation 11 of the Scottish Specific Duties says that “In carrying out its duties under these Regulations, a listed authority may be required to consider such matters as may be specified from time to time by the Scottish Ministers.”  

We are exploring how we might use this power to highlight issues which would have an immediate impact on public bodies’ progress in equality mainstreaming, such as making more effective use of intersectional equality data in policy making and increasing consideration of equality in budget process.

Repeal of Regulation 6A 

Regulation 6A relates to the collection of data on listed authorities’ members’ characteristics. Officials have taken steps over many years to seek to set up a workable process to comply with this regulation, however it has never been achieved due to barriers and challenges around how the data collection requirement of the regulation is framed.  

Following careful consideration of all elements of the regime, which including aspects which are not working well. Steps are being taken to repeal Regulation 6A of the Scottish Specific Duties. Officials to continue to explore possible future means of achieving the intended policy outcomes when that regulation was created as part of the ongoing programme of PSED improvement activity and through dialogue with the Public Appointments Team. 

Guidance

We will ensure sufficient time is provided to listed authorities to allow preparation for their new expectations under new or revised Regulations. We will work with the Equality and Human Rights Commission to ensure that listed authorities are fully prepared for any new duties.

It is our belief that these proposals would represent realistic incremental change, while also having a significant impact on the advancement of equality.

Further changes

Further legislative changes will be considered from the next reporting period; this includes how we create a more cohesive regime. This phased approach enables us to very deliberately work towards increasing alignment with other changes which are currently proposed regarding the mainstreaming of equality and human rights – such as the introduction of the Human Rights Bill.

The Scottish Government is extremely grateful for your input into the Public Sector Equality Duty improvement activity in Scotland to date.