Equality and Human Rights Mainstreaming strategy: consultation analysis

5. Ensuring an Effective Regulatory and Policy Environment

This chapter examines the third driver mentioned in the consultation paper: ensuring an effective regulatory and policy environment. The aim is to create regulations and policies that meet the Public Sector Equality Duty and to create tools to support these policy developments. The consultation notes that in order to create these assurances, the Scottish Government needs to create: specific legislation that directly supports equality and human rights; formal processes to ensure equality and human rights are a consideration in the drafting of legislation and policy; and a cohesive approach to regulation and policy delivery.

The paper notes the importance of Equality Impact Assessments (EQIAs) in developing policy and legislation. It mentions that they will help ensure equality and human rights are properly considered.

Q10. Do you agree that ensuring an effective regulatory and policy environment is a key driver of mainstreaming equality and human rights?

Among those answering Q10, 90% agreed that ensuring an effective regulatory and policy environment is a key driver; 8% disagreed, and 2% were unsure. Almost all organisations (97%) agreed, compared to 69% of individuals.

Reasons for agreement

Just under two thirds of respondents left an open comment at Q10. Most commonly, several respondents agreed that this is a key driver, stating that the regulatory and policy environment is a critical aspect of achieving systemic change. Some respondents noted that not only would an effective regulatory and policy environment ensure that services are compliant with existing legislation, but it would also ensure that equality and human rights are considered during the creation of any new legislation and policy.

The importance of clear, cohesive and aligned guidance was emphasised by some respondents as a reason for their agreement. Respondents felt the tools and processes mentioned in the consultation paper would help public bodies know how to implement the mainstreaming Strategy. Some respondents expressed the view that a legislative framework would allow for the monitoring and assessment of impacts and improvements over time. Others felt it could help public bodies monitor compliance and provide greater accountability. Chapter 4 addresses this in greater detail. A small number of respondents highlighted their belief that a regulatory and policy environment could help to build public trust, embed equality and human rights in society and instigate a cultural shift.

Suggestions and concerns

Several respondents, most of whom agreed at the closed question, caveated their agreement with suggestions or raised concerns. Some respondents, almost all of whom agreed and a few who were unsure at the closed question, highlighted concerns about implementing an effective regulatory and policy environment and questioned whether the Strategy was actionable. A few also highlighted existing equality duties and questioned whether the Strategy would duplicate work or deliver different or greater results than existing regulations.

A few respondents reiterated their concerns that this driver's aims are undermined by a lack of action to address existing problems with PSED regulations and other policies related to equality and human rights. One organisation suggested policies that clearly align with the UNCRC and include lived experience in the drafting of policies. Another two organisations suggested that any changes to legislation, policy, practice, and process be aware of the wider policy landscape and considered in tandem to ensure that they are effective and have considered potential impacts.

Reasons for disagreement

Some respondents left comments expressing disagreement with this driver but did not provide more details. However, a small number noted that they believed an effective regulatory and policy environment was only one of many drivers needed to mainstream equality and human rights successfully; they did not describe the others in further detail.

Q11. Have we captured the core elements of ensuring an effective regulatory and policy environment within the context of mainstreaming?

Just under half (45%) of those answering Q11 felt that the core elements of ensuring an effective regulatory and policy environment in the context of mainstreaming had been captured in the consultation paper. While relatively similar levels of agreement were recorded by individuals (40%) and organisations (46%), individuals were more likely to disagree (48% compared to 33% of organisations). Opinions varied by organisation type, with 89% of health organisations agreeing, compared to 25% of professional/membership bodies and 23% of equality advocacy organisations.

Strengthen existing policies and processes

Just over half of respondents commented at Q11. Among those who agreed with the prompt and those who disagreed, several provided considerations that would help make the mainstreaming regulatory and policy environment more effective. Some respondents highlighted existing policies and legislation, such as the PSED and EQIAs, and questioned whether the Strategy would create entirely new processes or integrate new processes into existing approaches. A few respondents asked for more detail about how the Strategy might improve these existing processes.

Some believed more should be done to strengthen the existing environment, and a few others provided specific examples of criticism of the current uptake of PSED.

Streamlining and collaboration

Respondents suggested streamlining elements of policy, such as improving collaboration between public bodies and ensuring the use of EQIAs and tools are consistently implemented. Respondents felt this could lead to improved monitoring and assessment and help minimise any burden of implementing change on the existing workforce.

One organisation also recommended ensuring any updates to impact assessments are made centrally, as other organisations around Scotland use them. This would assist with streamlining and integrating the data they gather. A few respondents noted the importance of including other organisations in changes to the regulatory and policy environment, such as community planning partnerships, third-sector organisations, trade unions, and advocacy groups working on human rights and equality.

Enforcement and Accountability

Concerns about the enforcement and accountability of the regulatory and policy environment were mentioned by some respondents, regardless of their answer to the closed question. Suggestions included increasing the budget and workforce, an additional duty to collect discrimination data, and piloting and monitoring the success of new or existing EQIAs.

Q12. What actions would you recommend to ensure that an effective regulatory and policy environment will contribute to the achievement of mainstreaming?

Make the EQIA process more effective

Three quarters of respondents commented at Q12. Many respondents highlighted the importance of the EQIA process and supported its continued use. However, as noted in Q11, some called for a critical analysis of the use of EQIAs under the PSED to understand how they could be used more effectively in the future. A few organisations acknowledged that the EQIA was already being reviewed to assess weaknesses, and they supported this work to improve it. A few respondents reiterated the importance of ensuring that EQIAs are made available for external review.

Other respondents recommended introducing supporting impact assessments alongside an EQIA to make the assessment as intersectional and inclusive as possible. There were also requests for data about discrimination to be collected.

Some respondents called for better training in the use of processes, frameworks, and EQIAs and to build a deeper understanding of equality and human rights issues. For example, one organisation stated that they felt EQIAs were currently ineffective as they were considered a tickbox exercise or a hurdle to overcome rather than an opportunity to create change.

Collaboration and sharing best practice

Several respondents mentioned this theme at Q12, with their responses included in the analysis of Q11 above.