Digital Government (Scottish Bodies) Regulations 2022: equality impact assessment

Equality Impact Assessment Results

Title of Policy:

The Digital Government (Scottish Bodies) Regulations 2022

Summary of aims and desired outcomes of Policy:

The Regulations add certain Scottish public authorities with devolved functions ("Scottish Bodies") (and bodies which provide services to Scottish Bodies) to those already set out in schedule 7 of the Digital Economy Act 2017 for the purposes of taking action in connection with debt owed to the public sector, and schedule 8 for the purposes of taking action in connection with fraud against the public sector, so supporting more efficient and effective digital public services.

Directorate: Digital Directorate

Division: Data Division

Team: Data Policy Team

Executive Summary

These are technical Regulations which do not discriminate on the basis of age, disability, sex, gender reassignment, sexual orientation, race or religion and belief, pregnancy and maternity.

Background

Part 5 of the Digital Economy Act 2017^[1] ("the Act") introduces new information sharing powers to reduce debt owed to, or fraud against, the public sector. To be able to use the information sharing powers, public authorities (and bodies which provide services to public authorities) must be listed in schedule 7 of the Act for the debt powers and schedule 8 for the fraud powers. A listed public authority can only share data under these powers with other persons who are also listed in the relevant schedule. The Act regulates what data can be shared and for what purposes. The Act does not compel public authorities to share data. The information sharing powers in the Act are permissive. It is for the public authorities listed to decide to make use of the powers and to seek to enter into information sharing agreements with other listed bodies.

The Scottish Bodies listed in the Regulations are in the Annex.

The National Performance Framework^[2] (NPF) measures and keeps track of how Scotland is performing against the Framework's National Outcomes which describe the kind of Scotland it aims to create. The NPF aims to reduce inequalities and give equal importance to economic, environmental and social progress.

The Regulations:

• Contribute to the Human Rights National Outcome – We respect, protect and fulfil human rights and live free from discrimination. Progress towards this includes assessing views on "Public services treat people with dignity and respect".
• Contribute to the International National Outcome - We are open, connected and make a positive contribution internationally". Progress towards this includes assessing views on "Trust in public organisations".
• Reflect the NPF values of openness, transparency and rule of law.

The Scope of the EQIA

This Equality Impact Assessment will be kept under review. This will ensure that any potential impact on the protected characteristics that emerge, as pilots on the use of the powers are developed, can be addressed.

The "Key Findings" section below provides information on the safeguards in place as bodies enter into data sharing agreements and develop proposals to pilot agreements.

Consultation

There have been two public consultations seeking views on Scottish Bodies to be included in the schedules. Amongst those invited to respond to the consultations were Scottish public bodies, poverty groups and the Information Commissioner.

There was broad support for the proposals. The only concern raised about the impact of the Regulations was by an individual in relation to section 22 of the Gender Recognition Act 2004 which provides that it is an offence for a person who has acquired protected information in an official capacity to disclose the information to another person. Protected information is information relating to an application for a gender recognition certificate. These arrangements are not affected by the Regulations.

The consultations, answers from respondents who gave permission for them to be published and analysis of responses, can be found here:

Scottish public authorities sharing data: consultation https://consult.gov.scot/digital-directorate/public-authorities-sharing-data/

Scottish public authorities sharing data: further consultation https://consult.gov.scot/digital-directorate/public-authorities-sharing-data-2/

Key Findings

These are technical Regulations. Public authorities listed in schedules 7 and 8 of the Act must have regard to the Code of Practice^[3] for public authorities disclosing information under Chapters 1, 3 and 4 (Public Service Delivery, Debt and Fraud) of Part 5 of the Digital Economy Act 2017) (the Code). The Code provides details on how the debt and fraud information sharing powers should operate. It provides that in the first instance, all information sharing under the debt and fraud powers is run as a pilot. The impact of Scottish Bodies using the debt and fraud powers will not be apparent until proposals to pilot the use of the powers are in development.

The Code sets out the guidance on the process which bodies will need to follow to establish a new pilot. The purpose of such pilots is to allow for the benefit of the data share to be explored and to identify any potential impacts and ethical issues.

Pilots will determine whether and how there is value in sharing personal information for the purposes of taking action in connection with debt owed to, or fraud against the public sector.

Public bodies wishing to establish a pilot submit a business case, information sharing agreement, data protection impact assessment and security plan to the secretariat of a review board. The UK Government has established a review board^[4] to oversee reserved and England-only data sharing under the fraud and debt powers. The board assesses and makes recommendations to UK Ministers on each pilot proposal. The Scottish Government will similarly establish its own structures for the oversight of data sharing arrangements for Scotland.

The Code also includes Fairness Principles which provide a set of best practice guidelines to help ensure a common approach to fairness is considered when sharing information under the debt power. The UK Government worked in partnership with non-fee paying debt advice providers to develop these Principles. Where a vulnerable customer is identified, the Fairness Principles provide set out that they should be given appropriate support and advice. This is particularly relevant in the wake of Covid-19 where individuals may be experiencing hardship.

The Code sets out that information about information sharing agreements should be published in a searchable electronic public register. The UK Government has established a register^[5] for reserved and England-only information sharing agreements. A similar register will be established for devolved information sharing agreements.

Failure to have regard to the Code may result in a public authority or organisation losing the ability to disclose, receive and use data under the powers in the Act.

Other safeguards are in place as bodies will have to comply with equality, data protection and Human Rights legislation and some the Fairer Scotland Duty.

Recommendations and Conclusions

In making these Regulations the Scottish Government is mindful of the three needs of the Public Sector Equality Duty – to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation, to advance equality of opportunity between people who share a protected characteristic and those who do not, and to foster good relations between people who share a protected characteristic and those who do not. The Equality Impact Assessment will be kept under review to ensure that we continue to give due regard to the needs of this Duty.

The Equality Impact Assessment identified no significant negative impacts associated with this policy. Therefore, the Scottish Government has concluded that no changes to the policy or associated Regulations are necessary.