Public Sector Equality Duty - operation review: consultation analysis

Independent analysis of consultation responses to the Scottish Government Public Sector Equality Duty (PSED) Review. The consultation ran from 13 December 2021 to 11 April 2022.

15 Guidance

15.1 Context

As the relevant enforcement body, Equality and Human Rights Commission (EHRC) provides guidance to assist listed authorities in complying with the Scottish Specific Duties (SSDs). With revised duties, there will be a requirement for refreshed guidance which EHRC will produce. Through engagement to date, there have been calls for updated and improved guidance. These calls included:

  • More prescriptive step-by-step technical guidance.
  • Consolidating guidance and increased use of clearer language throughout all supporting documents.
  • Strategic guidance which reaffirms how compliance with the duties relates to the general PSED.

Throughout the Consultation Paper, the Scottish Government consider that they have put forward proposals for more prescriptive regulations and a more cohesive regime; they hope that this, in turn, will make it easier for improved guidance to be created.

Furthermore, some listed authorities have also highlighted that they would find it useful to receive feedback on the mainstreaming reports and equality outcomes that listed authorities produce to strengthen their understanding.

However, the Scottish Government are aware that more than revised guidance will be required to enable an improved PSED regime, and therefore the coverage section should be read along with the strengthening leadership and accountability, and enhancing capability, capacity, and culture section above. The Scottish Government are also considering how toolkits, case-studies and other resources can be developed and used alongside the formal guidance produced by the EHRC.

15.2 Question 12 – Improved Guidance

What would you like to see in improved revised guidance for the SSDs?

Four in five respondents provided a response to Question 12 (80%).

15.2.1 Respondents who support the proposal

A vast majority of respondents support the Scottish Government proposal for improved revised guidance for the SSDs.

Theme 1: Limitations of current guidance

Many respondents acknowledge the limitations of current guidance and support proposals to produce updated and improved guidance, and to establish a more cohesive regime.

Some of these respondents go on to highlight the potential benefits associated with updated and improved revised guidance for the SSDs. These are commonly framed as: strengthening leadership, accountability, and transparency; increasing confidence to be able to comply with requirements; and greater consistency in reporting across listed authorities.

Theme 2: Guidance

Some respondents provide comment on the proposals or provide additional suggestions that the Scottish Government could consider to ensure revised/updated guidance is helpful and east to understand.

The points raised by these respondents have been summarised below:

  • Clear, concise, consolidated, and consistent guidance which uses accessible and plain English language is considered essential.
  • That guidance is informed and shaped by people with lived experience through a collaborative approach - more guidance may also be required on how to include people with lived experience in decision-making processes.
  • Some listed authorities ask whether they could be involved in the development process for the guidance (e.g. through a working group or by providing feedback).
  • Some equality advocacy groups, such as Fair Play for Women, suggest that the guidance should be aligned to the Equality Act 2010 (e.g. Fair Play for Women suggest aligning to definition of sex as in the Equality Act 2010).

"Incorporating a feedback mechanism would also be vital for authorities to feel valued and part of the guidance process. This would allow for shared experiences, empowerment and a sense of contribution that will encourage authorities to engage with PSED activities through a holistic approach."

Council of Ethnic Minority Voluntary Organisations (CEMVO) Scotland

A few respondents identify specific aspects which they feel could be considered by the Scottish Government as the updated guidance is designed:

  • Equality advocacy groups would welcome improved guidance on embedding inclusive communication.
  • Listed authorities call for improved guidance across all of the protected characteristics so that their organisations can meet and report on their duties more effectively.
  • Listed authorities call for improved guidance on mainstreaming equality, diversity, and inclusion into organisations.

Theme 3: Resources and support

Many respondents, particularly listed authorities, note the need for resources and support in order to help their organisations meet the proposed requirements:

  • Access to and sharing of case studies, toolkits, and best practice (e.g. scoring matrix) would be valuable to listed authorities – it is suggested that this could be made available through a central resource hub.
  • Many listed authorities suggest that step-by-step technical guidance could be supported through the delivery of workshops and training and/or through a lead contact to ensure that guidance is fully understood. A lead contact is considered valuable by these respondents as a mechanism to help mainstream equality, diversity, and inclusion throughout their organisations.

"Specifically, we would welcome the EHRC taking on greater leadership to help unearth and understand the issues, challenges and barriers which prevent public bodies from exercising their duties effectively and the subsequent development of EHRC led strategies, resources, and tools to alleviate these such as training, facilitated events, networking opportunities, improved guidance etc. This could include influencing and upskilling public authority leaders at Board, executive and senior management level, reviewing the benefits of having accountable equality officers and promoting a move to co-production/co-design approaches which would provide people with lived experience real opportunities to inform decision making."


15.2.2 Respondents who do not support the proposal

A handful of respondents, mostly equality advocacy groups, do not support the Scottish Government's proposed approach to improve revised guidance for the SSDs.

These respondents feel that there is currently a lack of compliance among listed authorities with the existing guidance, and therefore question whether the solution rests with improved guidance. Current guidance is considered sufficient, and these respondents suggest that a better approach may be for the Scottish Government to place greater focus and effort on increasing compliance by listed authorities.

The EHRC also note in their response that "guidance which involves toolkits and templates should be avoided, as this may make the duties even more process driven than at present."



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