Schools - addressing racism and racist incidents: guidance

Annex A - Legislative and policy context

Legislation

This guidance builds on several key pieces of legislation, including:

Equality Act 2010

The Equality Act 2010 (“the 2010 Act”) provides the legal framework for protection from discrimination, victimisation and harassment on the grounds of protected characteristics.^[3] Listed authorities, including education authorities and some schools, have legal obligations under the PSED as service providers and employers.

The Act’s requirements of schools in relation to provision of education and access to benefits, facilities or services is set out in Chapter 1 of Part 6 of the Act. Under the Act, it is unlawful for a school to discriminate against an applicant or pupil in relation to:

• admissions
• the provision of education
• access to any benefit, facility or service
• exclusions
• any other detriment.

It is also unlawful for a school to harass or victimise an applicant or pupil.

The Equality and Human Rights Commission has published technical guidance for schools in Scotland on the Equality Act 2010. Section 149 of the 2010 Act sets out the legal duty on public authorities, including education authorities and the managers of grant-aided schools, to have due regard to the need to do the following in the exercise of their functions.^[4]

• 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; and
• Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

Of note when developing and implementing policies to address racism is the specific duty requirement to assess the equality impact of proposed and revised policies and practices (regulation 5 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012). Not ensuring consideration of equality can lead to unlawful discrimination, greater inequality and worse outcomes for particular groups of people in our communities. The duties require equality considerations be built into the design of policies and practices and the delivery of services, and for these to be kept under review.

Chapter 6 of the technical guidance on the PSED for Scottish public bodies describes what’s required from public bodies in carrying out an equality impact assessment. It sets out a number of steps including assessing the potential impact by considering whether the equality evidence indicates potential differential impact on each protected characteristic group or provides an opportunity to improve equality in an area; taking account of results in developing proposals and ensuring due regard when making decisions about the policy and its implementation, documenting decisions, publishing results and monitoring the actual impact of the policy.

Hate Crime

Hate crime is the term used to describe behaviour which is both criminal and rooted in prejudice or which is intended (or can be reasonably considered) to stir up hatred. In Scotland, the Hate Crime and Public Order (Scotland) Act 2021 criminalises certain behaviour based on prejudice towards those with the following characteristics: age, disability, race, religion, sexual orientation, transgender identity, and variations in sex characteristics.

Where an incident occurs that is also linked to prejudice towards one of the above groups, this could also constitute a hate crime, under certain circumstances based on conduct and motivation.

The Lord Advocate has issued guidelines about which category of offence will be reported to the Procurator Fiscal for consideration of prosecution. Children who do not come within these guidelines may be referred to the Children’s Reporter or made subject to Police direct measures, depending on the circumstances. The Procurator Fiscal and the Children’s Reporter discuss cases which are subject to joint referral and the Procurator Fiscal will decide where the case is best dealt with.

Further key pieces of legislation for this guidance:

• The United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (the “UNCRC Act”)
• The Standards in Scotland’s Schools etc. Act 2000
• The Scottish Schools (Parental Involvement) Act 2006
• The Health and Safety at Work etc Act 1974
• The Management of Health and Safety at Work Regulations 1999

Please refer to Appendix 1 of Respect for all for more information.

Policy

This guidance takes account of the wider policy context that supports children and young people’s health and wellbeing. Some of the other key drivers for the current guidance are:

• Respect for all: the national approach to anti-bullying for Scotland’s children and young people
• Getting it Right for Every Child
• National Child Protection Guidance for Scotland 2021 – Updated 2023
• Adverse Childhood Experiences (ACEs) and Trauma.
• Race Equality Framework and Action Plan
• Hate Crime Strategy.
• Preventing and Responding to Gender Based Violence: A Whole School Framework