About the Duty
What is the Fairer Scotland Duty (the Duty)?
The Fairer Scotland Duty, set out in Part 1 of the Equality Act 2010, came into force in Scotland from 1 April 2018.
It places a legal responsibility on particular public bodies in Scotland to actively consider (‘pay due regard’ to) how they can reduce inequalities of outcome caused by socio-economic disadvantage, when making strategic decisions. This is set out in the pages that follow.
When deciding how to fulfil the Duty, the Equality Act 2010 also requires those public bodies to take into account this statutory guidance issued by Scottish Ministers.
We know that many in the public sector and beyond see this Duty as an opportunity to do things differently and to put tackling inequality genuinely at the heart of key decision-making. People in Scotland still experience significant socio-economic disadvantage and resulting inequalities of outcome. In 2016-19, over a million Scots were living in relative poverty after housing costs, including almost one in four children; and health inequalities and educational attainment gaps are far too wide. This unfairness isn’t inevitable. We can reduce poverty and inequalities of outcome, helping to realise the rights of the people who have experienced them. The economic shocks of, for example, the financial crisis in 2008 and the COVID-19 pandemic have highlighted and further exacerbated the socio-economic disadvantage experienced by people in Scotland. These kinds of profound effects on disadvantage make assessments under the Duty even more important if we are to make the lives of people experiencing socio-economic disadvantage measurably better.
To fulfil their legal obligations under the Duty, public bodies must actively consider how they could reduce inequalities of outcome in any strategic decision they make. In order to demonstrate how they’ve done this, we recommend public bodies should as a matter of good practice publish a written record of their decision-making process. This will be a key way in which public bodies can evidence their compliance with the Duty.
Some other considerations worth bearing in mind are as follows:
- The Duty applied from 1 April 2018 and does not cover decisions made before this date.
- The Duty also does not override other considerations – such as equality or best value.
- The Duty is nevertheless a key consideration, underpinned by statute.
- The Equality and Human Rights Commission (EHRC) is the Regulator for the Fairer Scotland Duty and is closely involved with monitoring and the development of best practice for the Duty.
Socio-economic disadvantage can be described as:
- Low/no wealth
- Low income
- Area deprivation
- Socio-economic background
- Material deprivation
The inequalities of outcome that people can face as a result of socio-economic disadvantage include:
- Poorer skills and attainment
- Lower healthy life expectancy
- Lower quality, less secure and lower paid work
- Greater chance of being a victim of crime
- Less chance of being treated with dignity and respect
Which public bodies are covered by the Duty?
These public bodies are covered by the Duty:
- Scottish Ministers [see opposite]
- Local Authorities
- Territorial Health Boards
- Special Health Boards [see opposite]
- Integration Joint Boards
- The Scottish Police Authority
- Highlands and Islands Enterprise
- Scottish Enterprise
- Scottish National Investment Bank PLC
- South of Scotland Enterprise
- Revenue Scotland
- Food Standards Scotland
- The Keeper of the Records of Scotland
- The Keeper of the Registers of Scotland
- The Scottish Courts and Tribunals Service
“Scottish Ministers” covers the following: The Scottish Government; Accountant in Bankruptcy; Disclosure Scotland; Education Scotland; Scottish Prison Service; Scottish Public Pensions Agency; Student Awards Agency for Scotland; Transport Scotland; Social Security Scotland; Forestry and Land Scotland; and Scottish Forestry.
“Special Health Boards” covers the following: Public Health Scotland; NHS Education for Scotland; National Waiting Times Centre Board (informally known as the Golden Jubilee Hospital); NHS 24; Scottish Ambulance Service Board; and the State Hospitals Board for Scotland.
The public authorities in the list will have somewhat different functions. Some will take strategic decisions on a regular basis, others only occasionally. How often public bodies engage with the Duty could therefore vary year on year.
It’s also worth noting that the functions of public bodies can change – for example, when given new responsibilities by government. This means that a public body’s engagement with the Duty may also need to change over time.
Defining ‘Socio-Economic Disadvantage’
In broad terms, ‘socio-economic disadvantage’ means living on a low income compared to others in Scotland, with little or no accumulated wealth, leading to greater material deprivation, restricting the ability to access basic goods and services. Socio-economic disadvantage can be experienced in both places and communities of interest, leading to further negative outcomes such as social exclusion.
These issues are now considered in more detail, with reference to where data is available to look further at each element.
Low Income Compared to Most Others in Scotland – low income is a key driver of a range of negative outcomes and can be defined in a range of ways. Relative poverty (after housing costs) is a useful headline measure, looking at the number of individuals living in households in Scotland with incomes below 60% of UK median income. Statistics on absolute poverty (which looks at whether households’ living standards are changing over time) and persistent poverty (where households live in poverty for 3 years out of 4) are also available. Poverty statistics can in most cases be broken down by age group, and breakdowns by sex, gender, race, disability, tenure and urban/rural are also available. These show minority ethnic groups and households with a disabled adult or child with much higher poverty rates.
Some key links are provided here.
- National statistics are available
- Breakdowns of poverty statistics are also available via the Scottish Government’s Equalities Evidence Finder
- Local child poverty statistics, down to ward level (using proxy data) are available from the End Child Poverty Coalition here: Child poverty in your area 2014/15–2018/19 – End Child Poverty Joseph Rowntree Foundation (JRF) has published a range of very useful analysis on poverty including on income and benefits and specific reports on Poverty in Scotland: Poverty in Scotland 2019 and Poverty in Scotland 2020
- New Policy Institute has produced useful analysis on disability and poverty for JRF
- What Works Scotland have reviewed evidence on effective ways to prevent and mitigate child poverty at a local level
However, looking at headline statistics in isolation can sometimes offer a limited perspective on low income. Experience of poverty, for example, is gendered, even though official statistics show broadly similar rates of poverty between men and women. Largely, this is a function of looking at household poverty – in which women’s and men’s incomes are considered together as joint incomes. This conceals key differences, not least women’s lower pay, greater likelihood of part-time working and care responsibilities, and the gender pay gap. It also conceals how different groups of men and women fare: lone parents (mostly women) and single adults who live alone (mostly men) are much more likely to live in poverty. Detailed analysis, then, can help form a more useful picture for tackling inequalities of outcome than headline stats alone, and qualitative evidence is an important means to understand why these differences are apparent.
Low Wealth – having access to wealth (including financial products, equity from housing, and a decent pension) provides some protection from socio-economic disadvantage, particularly when the wealth comes in the form of accessible savings. Savings can help households deal with problems that arise on a day-to-day basis. Discussion on inequality often focuses on how unequally income is distributed, but wealth is even more unequally distributed than income.
From the Wealth in Scotland statistics we know that in 2016–2018 the 2% top income households in Scotland had 9% of all income, but the wealthiest 2% of all households in Scotland had 15% of all wealth. On the other end, the bottom 20% of households had 8% of all income, and only 1% of all wealth. Households that are more likely to have above average wealth include pensioner couples, married couples, home-owners, or households with degree-level qualifications. Examples of households that tend to have below average wealth are lone parent households, households in social rented housing, or households where the household reference person is unemployed or economically inactive (but not retired).
- More on wealth inequality can be found here: http://www.wealthandassets.scot/2020report.html
Material Deprivation – refers to households being unable to access basic goods and services and, in data terms, tends to focus on families with children and on pensioner households. Obviously, if households cannot afford to buy items like home contents insurance, a warm winter coat for children or don’t have money to repair/replace broken electrical goods, this could impact on outcomes. For example, disadvantaged children and young people, who lack access to IT hardware and broadband services at home, may find homework more challenging, and this may then impact on the attainment gap. This inequality was thrown into sharp relief with a greater reliance on remote learning during the COVID-19 pandemic.
Material deprivation has complex links with low income. Some households will be on a low income, but still have the basic necessities they need to get by, perhaps because they built them up over time; or perhaps relatives and friends help out; or they may be able to draw on some savings. Other households may be unable to afford many basic goods and services, even though their income is a bit higher – perhaps because they need to pay off debt, or only recently started a new job after a period of unemployment. Again, there are equality dimensions here too. For households with children, women as traditionally the main carers of children (and sometimes other adults too) may go without themselves to provide for those they are looking after. Minority ethnic families tend to be larger, which means more resources are needed to meet basic needs. Similarly, disabled families – with a disabled adult or child – may need additional help and support to meet basic needs and the specialist help they may need (people and equipment) can often be costly.
- More on material deprivation and low income as it affects children in local areas can be found here (experimental statistics): Children in families with limited resources across Scotland 2014-2016 and Additional child poverty analysis 2020
- Public Health Scotland Child Poverty statistics
- Statistics on child poverty, pensioner poverty, poverty for equality groups, and income inequality are available at national level in the annual poverty statistics report.
Area Deprivation – Living in a deprived area can exacerbate negative outcomes for individuals and households already affected by issues of low income. The most deprived areas face significant challenges; and this is particularly the case for deep-rooted deprivation. For example, those areas that have been consistently among the 5% most deprived in Scotland since SIMD 2004.
- The Scottish Index of Multiple Deprivation (SIMD) is the official Scottish Government tool for identifying areas of multiple deprivation in Scotland. But it is not the only tool and in some contexts it will be important to look at other data and/or combine SIMD data with other evidence to get a full picture.
However, socio-economic disadvantage is not always experienced in neat concentrations of people in recognisable communities. Indeed, two out of three people who are income deprived do not live in deprived areas. So while it may be appropriate in many cases to take an approach focused on areas of multiple deprivation, there will also be a need to look at deprivation as it affects particular communities of place or communities of interest.
‘Communities of place’ refers to people who are bound together because of where they reside, work, visit or otherwise spend a continuous portion of their time. For example, people in particular rural, remote and island areas face a particular set of circumstances which exacerbate disadvantage. Poorer people in those areas will have different experiences from better-off residents, but also from poorer people living in cities. Poverty is often hidden in smaller communities; cost of living and accessibility of transport, education and employment impact more negatively on rural populations.
- The work done on minimum income standard for remote, rural Scotland may be useful. Highlands and Islands Enterprise | HIE
‘Communities of interest’ can refer to groups of people who share an experience. For example, consideration of the impact of strategic decisions on people who have experienced homelessness or the care system may help develop a deeper understanding of possible socio-economic impacts. Those who share one or more of the protected characteristics listed in the Equality Act 2010 can also be considered communities of interest. Those who share an identity – for example, lone parents – can similarly be communities of interest too.
Data for small populations is often problematic because of sample sizes or where data does not exist, but these are areas where raising awareness by talking to people with direct experience will be particularly important.
Socio-Economic Background – the structural disadvantage that can arise from parents’ education, employment and income – social class, in other words – is a final key factor in socio-economic disadvantage. For instance, while two freelancers or graduates might start with comparable incomes or qualifications, an individual from a deprived background could be less likely to succeed or progress than one whose middle-class upbringing gives them more extensive networking skills and contacts, greater awareness of opportunities and sources of support, or greater confidence in their abilities. Some health conditions in adult life may be more prevalent or severe among those from a more deprived background. However, socio-economic background can be more difficult to measure since relatively few surveys gather data on parental occupation or income.
In summary, then, socio-economic disadvantage is focused on low income, low wealth, material deprivation and area deprivation – with communities of interest and of place as cross-cutting issues.
Socio-economic background represents a mechanism by which disadvantage can persist across generations.
The Duty is intended to reduce the inequalities of outcome caused by socio-economic disadvantage. The earlier a Duty assessment takes place the more likely it is to reduce inequalities of outcome. By inequalities of outcome, we mean any measurable differences between those who have experienced socio-economic disadvantage and the rest of the population – for example, in relation to health and life expectancy or educational attainment. Socio-economically disadvantaged households have a higher risk of experiencing negative outcomes.
The Duty applies to all strategic decisions irrespective of whether the decision is focused on addressing poverty or inequality. For example, the primary purpose of Scotland’s Census 2022 is “to collect, preserve and produce information about Scotland’s people and history and make it available to inform current and future generations”. However, the Duty assessment on this work identified the potential for high rates of non-response among individuals experiencing socio-economic disadvantage, as well as measures to reduce this inequality including stakeholder engagement, enabling completion of the census questionnaire via smartphone and tailored communications.
By delivering their services, those bodies subject to the Duty can improve outcomes for their clients/service users, and it is important to think about socio-economic circumstances when making strategic decisions which will inform how services are delivered and targeted. It is not simply about how many people receive a service but the impact that the service has on their lives, for example increasing wage levels or job quality thereby increasing income, contributing to better physical and mental health and reducing the risk of homelessness.
The Duty is outcome-focused and examples of inequality of outcome include:
- Connectivity – we want households to have equal access to the internet. But while 99% of households with a net annual income above £40,000 had internet access, this dropped to 65% for households with a net annual income of £10,000 or less. Access differs by area of deprivation with 82% of households in the 20% most deprived areas in Scotland having internet access at home compared with 96% of households in the 20% least deprived areas.
- Income – we ideally want everyone to have enough income to be able to save. In 2016-18 a typical household in Scotland had £5,500 in financial wealth after any non-mortgage debt was deducted and a household in the wealthiest 10% had on average £215,000. But a household in the bottom 20% had negative financial wealth; in other words, they were in debt overall. This means households facing an emergency risk getting into debt trying to resolve it. Evidence on the impacts of the COVID-19 pandemic showed that lower income households were 50% more likely to save less compared to higher income households and twice as likely to have increased their debts.
- Employment – in 2018/19, more than half of all people (and two-thirds of children) in relative poverty in Scotland lived in working households. There are substantial inequalities in income and employment in Scotland, e.g. after adjusting for household size, weekly incomes in 2016-19 varied from £192 in the poorest households to £912 in the richest households. People working in certain jobs (including customer services, the building trades) and certain industries (including food and beverage services, transport and storage) are at greater risk of multiple disadvantage from a constellation of low pay, limited opportunities, lack of control and sometimes risky working conditions. Underemployment, whether it is a result of taking lower paid jobs to accommodate adult/child care, working on zero hour contracts or graduates working in ‘non-graduate’ jobs, is a growing issue leading to widening gaps in outcomes for a range of people, particularly young people, minority ethnic people, disabled people and women.
- Education – we ideally want disadvantaged pupils’ educational outcomes to be the same as for pupils from non-disadvantaged backgrounds. But only 44% of school leavers in the most deprived areas are qualified to Higher level or above, compared with 79% of Scottish school leavers in the most affluent areas. Exclusion rates were higher for Gypsy/Travellers, disabled pupils, those with additional support needs and pupils living in the most deprived areas.
- Health – more than a quarter (26%) of those in living in the poorest fifth of households reported less than good health for their children in the first four years of life, compared to just 12% of those in the richest fifth and between March and September 2020 death rates for COVID-19 in Scotland were twice as high for people living in the 20% most deprived areas compared to the 20% least deprived areas.
- Life Expectancy – we would ideally want this to be the same for men and women no matter where they live. However, men’s life expectancy is less than women’s. Furthermore, men living in the 10% most deprived areas are expected to die 13.1 years earlier than those living in the 10% least deprived areas (69.6 compared to 82.7 years). Similarly, women living in the most deprived areas are expected to die 9.8 years earlier than those living in the least deprived areas (75.6 compared to 85.4 years). Life expectancy has stalled in Scotland since around 2012 and remains the lowest of all the UK countries.
- Mental health – compared with those in the least deprived 20% of areas in Scotland, adults living in the most deprived 20% of areas are much more likely to have common mental health problems and to be prescribed drugs for them (26% vs. 14% in both cases).[14, 15] This inequality means that people living in socio-economic disadvantage are less able to cope with the impact of crises such as the 2008 economic crash or the COVID-19 pandemic.
- Overweight/obesity – obesity in Scotland shows a strong link with inequality. Lower socio-economic status is associated with higher levels of obesity with around 32% of adults living in the most deprived areas being obese, compared with 20% of those living in the least deprived areas. Women and children in the most deprived areas are particularly affected by more extreme obesity.
- Communities – we want people to be satisfied with their neighbourhoods, wherever they are in Scotland. However, in 2017 only 53% of residents with the lowest 20% of incomes in Scotland rated their neighbourhood as a very good place to live, compared to 65% of those with the highest 20% of incomes. We also want no-one to be a victim of crime. However, the likelihood of this is greater for adults in the 15% most deprived areas compared to those living elsewhere in Scotland (16.0% compared to 11.8%).
- Homelessness – this is both a cause and a result of social inequality, health inequality and poverty. Homelessness can be driven by individual vulnerabilities or support needs, for example, mental ill health, learning or physical disability, a medical condition, family/relationship breakdown, drug or alcohol dependency, lack of basic housing management or independent living skills and experience of institutional care. Experience of socio-economic factors of financial hardship, poverty, loss of job, lack of affordable housing, welfare reforms and housing in poor condition can also lead to homelessness. This is a complex area where inequality of outcome is driven by socio-economic disadvantage in combination with other factors, or where the inequality in outcome subsequently further drives socio-economic disadvantage. We want homelessness to be a thing of the past.
In seeking to meet the Duty, we would expect public bodies to tackle the range of inequalities of outcome they observe in their areas or that are specifically relevant to their core functions. In some cases, as shown in the previous diagram, an effective way to do this will mean tackling socio-economic disadvantage directly by, for example, reducing poverty.
Defining ‘Strategic Decisions’
The Duty applies to Strategic Decisions – these are the key, high-level decisions that the public sector takes, such as deciding priorities and setting objectives. Many of these decisions may be made in the context of public service reform and improving outcomes for people and communities. In general, they will be decisions that affect how the public body fulfils its intended purpose, often over a significant period of time. Although, it is recognised that strategic decisions can also be made over the short or mid-term, particularly when responding to urgent emerging circumstances. They may also be coordinated with other strategic decisions as part of an overarching plan. These would normally include strategy documents, decisions about setting priorities, allocating resources, delivery or implementation and commissioning services – all decisions agreed at Board level (or equivalent). The Duty also applies to any changes to, or reviews of, these decisions, not just the development of new strategic documents.
For some organisations, such decisions may only be taken occasionally, perhaps once a year. In other cases, they will come up more often. Strategic decisions will have a major impact on the way in which other tactical and day-to-day operational decisions are taken; but they are not in themselves tactical or operational.
Below, we list a range of areas that are considered to be strategic decisions. This should not be seen as an exhaustive list. Each organisation subject to the Duty must identify for themselves the strategic decisions they make.
- Preparation of the Local Development Plan
- Preparation of a Corporate Plan
- City deals or other major investment plans and associated projects
- Preparing legislation
- Development of new strategic frameworks
- Development of significant new strategies, policies or proposals e.g.:
- Community Engagement Strategies
- Community Learning and Development Strategic Plans
- Integrated Joint Board Strategic Plans
- Community Justice Outcome Improvement Plans
- Children and Young People’s Plans
- Children’s Services Plans
- Child Poverty Action Plans
- Adult Health and Social Care Plans
- Procurement Strategies/Community Benefit Clauses
- Education strategies
- Third Sector Concordat Action Plans
- Poverty Strategies
- Alcohol and Drug Partnership Plans
- Local Transport Strategies
- Local Housing Strategies
- Preparation of an annual budget
- Significant budget proposals including cuts and level of aid given
- Disinvestment – at any level
- Major procurement exercises
- Decisions about the shape, size and location of the estate
- Preparing a Local Outcomes Improvement Plan as part of a Community Planning Partnership (CPP)
- Preparing locality plans
- Commissioning and decommissioning of services
- Funding plans
- Development/implementation of charging policies
- Recruitment, selection and development policies
- Development of equality outcomes
- Making strategic decisions on workforce planning
- During service redesign/transformation
- Plans for housing development
Where there is a hierarchy of related decisions across multiple public bodies, the key responsibility to meet the Duty rests with the body for whom the decision is strategic. For instance, if the Duty applies to a local authority completing their Strategic Development Plan (SDP) the SDP will have implications for subsequent local authority decisions such as those around implementation. If Scottish Ministers are required to sign this off, their decision to do so will not necessarily impact on the way other Scottish Government decisions are taken; instead, they would consider the authority’s Duty assessment when reaching their decision.
If, within a partnership, there is more than one body subject to the Duty, then it would be up to those bodies subject to the Duty to prepare a Duty assessment of the partnership’s strategic decision. Any one of these organisations could prepare the Duty assessment, but the completed assessment must be agreed and approved by all the bodies covered by the Duty to ensure that they are each legally discharging their Duty through consideration of how the elements of the decision for which they have responsibility can reduce inequalities of outcome caused by socio-economic disadvantage. When a partnership includes bodies not covered by the Duty, it would also be good practice to involve those bodies in the approval process.
Of course, consideration of how to reduce socio-economic inequalities can obviously improve any decision-making, whether the decision in question is strategic or not, and whether or not a programme/proposal/decision directly addresses such disadvantage. So, while the statutory focus of the Duty is on strategic decision-making, the ultimate aim of the Duty – as with our equality responsibilities – is for consideration of the inequalities associated with socio-economic disadvantage to be mainstreamed.
Defining ‘Due Regard’
The concept of ‘due regard’ should be well understood by public bodies in relation to the equality duties they already need to meet. Due regard in relation to the Duty should be considered in a similar way. Here are some key considerations to bear in mind:
Active consideration. To ‘have due regard’ means that, in making any strategic decision, a public authority subject to the Duty must actively consider, with an open mind, whether there are opportunities to reduce inequalities of outcome caused by socio-economic disadvantage. This is not a tick-box exercise. Serious consideration must be given – and as early in the decision-making process as possible. That’s why we’ve suggested in this guidance that an
Participation. It may be easier to demonstrate that due regard has been paid if any assessment involves those who may be directly affected by the decision under consideration. The Equality Act 2010 does not set a legal requirement to involve communities in meeting the Duty, but the EHRC recommends it. Participation is also a human rights principle. This is central to good policy making and aligns with the principle of co-production referenced in the Scottish approach to policy making, or the requirement in the Community Empowerment (Scotland) Act 2015 for public bodies to involve communities in planning activities.
Proportionality. How much regard is due will depend on the relevance of the decision to the scale of socio-economic disadvantage and inequalities of outcome in relation to each strategic issue.
Due regard does not mean there is an obligation to achieve a result. Public bodies are not required to reduce inequalities of outcome as part of any decision made under the Duty. There may be a range of good reasons why it’s not possible to seek to do so in any particular case. In this event, it would be prudent for a written assessment to outline why this is the case.
Results are, however, important. If it is possible for public bodies to make changes to a programme/proposal/decision to reduce inequalities of outcome, and there are no compelling reasons for not doing so, due regard would suggest that those changes should be made.
A record of the decision-making process is also important. To ensure that public authorities can demonstrate that they have paid due regard, a record of the assessment process should be written up and made publicly available.
Public bodies can be held to account under the Duty. As with the Public Sector Equality Duty, if a public body fails to give due regard as required, any individual who is affected could bring a Judicial Review arguing that the authority had failed to meet a statutory duty. The EHRC could also bring a Judicial Review against a body who fails to meet the Duty, as its method of enforcement. However, the Equality Act 2010 does not make provision for ‘socio-economic discrimination’ – socio-economic status is not a protected characteristic in terms of the Act – and therefore no claim of that type could be made.
Seven useful questions to consider when seeking to demonstrate ‘due regard’ in relation to the Duty:
1. What evidence has been considered in preparing for the decision, and are there any gaps in the evidence?
2. What are the voices of people and communities telling us, and how has this been determined (particularly those with lived experience of socio-economic disadvantage)?
3. What does the evidence suggest about the actual or likely impacts of different options or measures on inequalities of outcome that are associated with socio-economic disadvantage?
4. Are some communities of interest or communities of place more affected by disadvantage in this case than others?
5. What does our Duty assessment tell us about socio-economic disadvantage experienced disproportionately according to sex, race, disability and other protected characteristics that we may need to factor into our decisions?
6. How has the evidence been weighed up in reaching our final decision?
7. What plans are in place to monitor or evaluate the impact of the proposals on inequalities of outcome that are associated with socio-economic disadvantage?
‘Making Fair Financial Decisions’ (EHRC, 2019) provides useful information about the ‘Brown Principles’ which can be used to determine whether due regard has been given.
When engaging with communities the National Standards for Community Engagement should be followed. Those engaged with should also be advised subsequently on how their contributions were factored into the final decision.
Equality, Human Rights and Child Poverty
The bodies listed under the Fairer Scotland Duty are already covered by the Public Sector Equality Duty and the Human Rights Act 1998. This means there is an opportunity to build on and improve existing practice on equality and human rights when working on the Duty.
Local authorities and health boards also have responsibilities in relation to child poverty – but all of the public sector will be expected to help meet the aims of the Child Poverty (Scotland) Act 2017. This means that there are also opportunities to focus on reducing child and family poverty when considering how to meet the Duty. The types of households that are known to be at higher risk of child poverty include lone parents, minority ethnic families, families with 3+ children, disabled adults or children, children aged under one or parents aged under 25.
Although the Duty is derived from the Equality Act 2010 (the 2010 Act), it is separate from the Public Sector Equality Duty (PSED), which requires public bodies to have due regard to the need to:
- eliminate discrimination, harassment, victimisation and any other conduct prohibited by the 2010 Act;
- advance equality of opportunity between persons who share a relevant protected characteristic (as defined by the 2010 Act) 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.
But while they are separate, there are clear links between the aims of both Duties. As noted earlier in this guidance, those who share particular protected characteristics are often at higher risk of socio-economic disadvantage. So for the most part, it won’t be possible to reduce inequalities of outcome effectively if the problem and its solutions are not considered through an equality lens. For example, the EHRC report ‘Is Scotland Fairer 2018?’ highlights that disabled people, people with mental health conditions and people from minority ethnic groups were more likely to live in poverty. The majority of children living in poverty were from working households. Women and disabled people were more likely to experience severe material deprivation.
It is important therefore, to consider protected characteristics and how socio-economic disadvantage interacts with these in regard to inequality of outcome experienced as a result of discrimination and lack of equality. Understanding the multiple, overlapping inequalities and discriminations a person experiences allows us to better understand that we do not exist in silos. Intersectional approaches to policy and decision-making are important if we are to develop a Fairer Scotland for all.
With the above in mind, equality groups will be important ‘communities of interest’ for any socio-economic assessment public bodies undertake. Sometimes communities of interest may also overlap with communities of place. For example, where a relatively larger proportion of minority ethnic households live in a particular deprived area.
Having said this, managing the two Duties may prove challenging in some cases. Applying the Duty complements the PSED, but it’s important to note that it does not supersede or replace it. Although socio-economic disadvantage may be a differential outcome for protected characteristics groups to be considered under the PSED, it is not a protected characteristic in itself so it is important that it is also fully considered under the Duty as a basis for inequality in its own right. These two parallel processes can work together successfully in practice, ideally with each strengthening the other. For instance, consideration of an employment policy both in terms of how it can lead to greater parity between men and women, but also how it can improve outcomes for women in lower income households as effectively as for women in higher income households. An example of a systematic approach to considering evidence around both protected characteristics and socio-economic disadvantage is the 2020 assessment for Scotland’s Route Map out of the COVID-19 crisis.
It should be ensured that the evidence-gathering required to inform each assessment is not reduced through considering the Duties simultaneously. For instance, views from a consultation with low-income householders may not access the particular experiences of minority ethnic groups experiencing poverty, even if some of those groups took part; on the other hand, consultation with a minority ethnic community may not engage poorer households within that community. To inform both Duties fully, separate strands of evidence gathering should be planned.
Approaching this Duty in the right way will also help public bodies meet their obligations under the Human Rights Act 1998 (HRA) and international human rights law and to deliver their services appropriately. Under the HRA, it is unlawful for public bodies in Scotland to act incompatibly with the Convention rights, and they also have obligations as part of the state to give effect to international human rights treaties signed and ratified by the UK. International treaties with rights regarding economic and social circumstance are as follows:
- International Covenant on Civil and Political Rights
- International Covenant on Economic, Social and Cultural Rights
- Convention on the Elimination of All Forms of Racial Discrimination
- Convention on the Elimination of All Forms of Discrimination against Women
- Convention on the Rights of the Child
- Convention on the Rights of Persons with Disabilities
The United Nations (UN) has been supportive of the introduction of the Duty. The Scottish Government updates the UN on progress towards implementing and observing international human rights standards by including a distinctive Scottish contribution in formal UK reports to the UN Committee on Economic, Social and Cultural Rights. The Scottish Government was also represented as part of the UK delegation in Geneva during a review of the UK under the Covenant in June 2016. Following this review, the UN Committee included the following recommendation in its set of concluding observations:
“The Committee recommends that the State party bring into force the relevant provisions of the Equality Act that refer to the public authorities’ duty with respect to socio-economic disadvantage, as well as with respect to the prohibition of intersectional discrimination, in order to enhance and guarantee full and effective protection against discrimination in the enjoyment of economic, social and cultural rights.”
A National Taskforce for Human Rights was established by the Scottish Government in early 2019, in response to the recommendations made in December 2018 by the First Minister’s Advisory Group on Human Rights. The Taskforce will work to establish a statutory framework for human rights that can bring internationally recognised human rights into domestic law and protect the human rights of every member of Scottish society. In particular it is intended to incorporate the International Covenant on Economic, Social and Cultural Rights into domestic law. This includes the right to protection against poverty and social exclusion which is of particular relevance to the Duty and will give additional impetus to it. Scotland is also set to become the first country in the UK to directly incorporate the UN Convention on the Rights of the Child (UNCRC) into domestic law. The UNCRC (Incorporation) (Scotland) Bill was unanimously passed by the Parliament on 16 March 2021 and was then referred to the Supreme Court. Therefore, it will receive Royal Assent and be brought into force in accordance with the outcome of that reference, once that decision has been received.