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.
4 Proposal 1
Creating a more cohesive regime and reducing perceived bureaucracy
The Scottish Government believes it can improve the cohesiveness of the Scottish Specific Duties (SSDs) and minimise the perceived feeling of bureaucracy, by putting a stronger focus on how each of the duties are implemented to help meet the Public Sector Equality Duty (PSED) and assist listed authorities' efforts to mainstream equality.
4.1 Question 1.1 – Substance of Reporting
In terms of the substance of reporting, the Scottish Government proposes to make the mainstreaming reporting duty more prescriptive, including requiring listed authorities to produce a report every four years. Details of the proposals include:
- Publishing a strategic plan that sets out how the listed authority intends to meet all SSDs.
- Publishing all of the information required by other SSDs.
- Reporting on listed authorities' implementation of the SSDs, over the previous four years.
- Reporting on how listed authorities have used lived experience, or the organisations representing people with lived experience, throughout their implementation of the duties.
The intention would be to assist listed authorities in seeing the SSDs in an interconnected way, and to encourage listed authorities to explore and publish how they have implemented their duties to better meet the needs of the PSED. This would include duties that previously did not have a publication element to them. The revised mainstreaming reporting duty would also cover any new or revised duties introduced as a result of the PSED review.
What are your views on the proposal outlined in the Consultation Paper in relation to the substance of reporting?
A vast majority of respondents provided a response to Question 1.1 (89%).
4.1.1 Respondents who support the proposal
Almost all respondents (i.e. all groups) support the Scottish Government proposal in relation to the substance of reporting in principle. The main themes to emerge from the consultation responses are outlined below.
Theme 1: A more prescriptive, cohesive, and streamlined approach
There are many comments from respondents that express support for the proposal outlined in the Consultation Paper in relation to the substance of reporting. Common words or phrases used across consultation responses includes "we welcome the proposal", "good idea", "sensible", "seems reasonable", and "happy with the proposals".
These respondents consider the proposal would have several benefits, including that it would:
- Lead to a more cohesive, consolidated, joined-up and/or holistic approach to reporting.
- Assist listed authorities' efforts to more effectively mainstream equality.
- Increase transparency and accountability.
- Reduce bureaucracy.
- Clarify, simplify, and streamline reporting arrangements.
- Make the approach easier to understand for listed authorities and for service users.
- Encourage the sharing of lessons learned and best practice among listed authorities.
- Improve benchmarking across listed authorities.
Theme 2: Strengthening the contribution of lived experience
There are many comments from respondents in relation to the proposal around reporting on how listed authorities have used lived experience, or the organisations representing people with lived experience, throughout their implementation of the duties.
Similarly, these respondents often note in their consultation response that they "welcome" or are "happy" with the proposal. Enhancing and strengthening the contribution of lived experience is viewed by many respondents to the consultation as a positive step. Further, some of these respondents provide examples of how they "already use lived experience as part of their evidence base for equality work" or note that the proposals may "support a change in focus towards more considered activity that will impact positively to increase equality for individuals, groups and communities".
These respondents also consider it "imperative that engagement with those with lived experience is meaningful", and raise several points for the Scottish Government to consider further as it finalises the proposal, including:
- The level of the expectation around how listed authorities will gather and use such information.
- The capacity of different protected characteristic groups to engage in the process.
- The support listed authorities may need to meet this duty effectively, and in a way that does not lead to stakeholder burnout (i.e. people with lived experience themselves, and the organisations that represent them). As well as how implementation may be appropriately resourced appropriately.
Theme 3: Guidance
Many respondents (including listed authorities) call for clear and strong guidance to support implementation of the Scottish Government proposal in relation to the substance of reporting.
4.1.2 Respondents who highlight issues or concerns
While almost all respondents are broadly supportive of the proposal in relation to the substance of reporting, many highlight issues or raise some concerns.
Theme 1: Four-year reporting cycle
Some respondents (e.g. both listed authorities and equality advocacy groups), express concern with the proposed change to submitting a report every four years and advocate for the current reports and reporting timescales to remain in place. A point made by these respondents is that some listed authorities may take little or no action in the first three years and focus activity/work in year four. Others note that reporting timescales "may be too long and create the risk of losing momentum".
Theme 2: A need for a cultural shift
A concern raised (e.g. primarily by equality advocacy groups) is the perceived feeling of bureaucracy in the PSED regime among listed authorities. These respondents note that the current regime is often viewed by listed authorities as an "addition to day-to-day work rather than a core part of performing their roles effectively". Further, these respondents suggest that listed authorities may require additional support to help ensure the cultural shift/change required is achieved, and for equality to be more effectively mainstreamed into the routine operational activities of listed authorities.
Theme 3: Implementation of the lived experience proposal
Some listed authorities and other organisations raise concerns about the practicalities of implementing the proposal relating to lived experience, namely:
- There may be a risk of consultation and engagement fatigue – among those with lived experience and those organisations who represent them.
- There may be specific challenges in implementation for smaller organisations and those based in remote/rural geographies. Both from a capacity perspective and the potential over-reliance on the views/input from a smaller number of people and organisations.
4.1.3 Respondents who do not support the proposal
Few respondents (e.g. a small number of listed authorities and an equalities advocacy group) do not support the proposal at all. These respondents raise similar points to those outlined at Section 4.1.2.
4.1.4 Further clarification on the proposal required
Many respondents request further clarity from the Scottish Government on various elements of the proposal outlined in the Consultation Paper in relation to the substance of reporting. This includes:
- Clarification on what is meant by 'strategic plan'.
- More detail on the expected format of the strategic plan and what it may look like in practice.
- Whether the strategic plan negates the current requirement to produce and publish a separate Education Authority Mainstreaming Report.
4.2 Question 1.2 – Reporting Process
In relation to the reporting process, the Scottish Government proposes to: simplify the regime so that there is only one reporting cycle for all of the duties; allow listed authorities to satisfy all of their reporting duties in one report, reinforce the flexibility of reporting requirements and encourage listed authorities to report on their duties as part of their own operational reporting cycles; ensure that reporting deadlines do not align with the end of the financial year; and require reports to be published at a minimum of every four years.
What are your views on the proposal outlined above in relation to the reporting process?
A vast majority of respondents provided a response to Question 1.2 (88%). The main themes to emerge from the feedback of respondents are summarised below.
Many of the consultation responses to this question are very similar to those provided to Question 1.1. We highlight the main points of agreement and difference rather than repeating every theme again here.
4.2.1 Respondents who support the proposal
Most respondents appear to support the Scottish Government proposal (in principle) in relation to the reporting process.
Theme 1: Streamlined approach and improved planning
Those respondents who express support for the proposal welcome the the streamlining of reporting into a single report. Some, but not all of these respondents, feel that the reporting period of every four years could improve focus and allow for longer-term and improved planning. Further, these respondents consider the proposal to ensure that reporting deadlines do not align with the end of the financial year could allow workloads to be more evenly distributed throughout the year.
4.2.2 Respondents who highlight issues or concerns
While there is a broadly similar proportion of respondents who highlight issues or concerns as in Question 1.1, many of these respondents' express concerns and less supportive views on the Scottish Government proposal in relation to the reporting process (e.g. in particular equality advocacy groups).
Theme 1: Four-year reporting cycle is considered too long
As noted earlier at Question 1.1, concern is again expressed by both equality advocacy groups and some listed authorities that the proposed four-year reporting cycle is too long. For example, some responses describe the proposal as a "terrible mistake", that "equality work would be severely deprioritised", or feel it is "overly long and could limit meaningful action".
From a review of the responses it appears that slightly more respondents do not support the proposed four-year reporting cycle than those who do support it. The main concern expressed by these respondents is that moving to a four-year reporting cycle could lead to a lack of activity throughout the first three years, with activity only taking place in year four. Further, it is suggested that more regular/frequent reporting could bring a greater level of discipline to the process and assist listed authorities' efforts to mainstream equality.
4.2.3 Respondents who do not support the proposal
A considerable minority of respondents (e.g. both listed authorities and equalities advocacy groups) do not support the proposal in relation to the reporting process. The proposed four-year reporting cycle is considered by these respondents to be too long.
4.2.4 Further clarification of the proposal requested
A few respondents request further clarity from the Scottish Government on several aspects of the proposals, including:
- Clarity on the new deadline for reporting.
- Clarity on what information is required for reporting and how it should be presented.
4.3 Question 1.3 – Consolidating Regulations
The Scottish Government proposes to consolidate all previous sets of regulations relating to the SSDs, in one new all-encompassing and clear set of regulations.
What are your views on consolidating the previous sets of amending regulations?
Around 85% of respondents provide a response to Question 1.3.
4.3.1 Respondents who support the proposal
Almost all respondents (i.e. individuals and all organisation sub-groups) express support for consolidating the previous sets of amending regulations. The main themes to emerge from these consultation responses are outlined below.
Theme 1: Improved clarity, cohesiveness and understanding
Common feedback from respondents in support of the proposal to consolidate all previous sets of regulations relating to the SSDs, in one new all-encompassing and clear set of regulations is that this would:
- Improve clarity and cohesiveness of the regime.
- Ensure listed authorities have a shared understanding of what is expected of them.
- Make the regulations easier to navigate and ensure more consistent application.
- Reduce the risk of misunderstanding which can arise from amending regulations, rather than repealing and passing new ones.
- Maximise the effectiveness of the regulations and close any perceived loopholes.
Theme 2: Simplify processes and make regulations more accessible
Another common theme from respondents who are in favour of the proposal is that it would:
- Simplify processes and arrangements, reduce existing levels of bureaucracy and complexity, and streamline expectations on listed authorities.
- Make the regulations more accessible to everyone, including to the wider public.
Theme 3: Interconnectedness and intersectionality
Some respondents note in their response that the proposal offers an opportunity to highlight the interconnectedness of the SSDs as well as to recognise the importance of intersectionality.
Theme 4: Collaboration and continued dialogue
Some respondents ask that the consolidation of regulations should be "widely consulted on" and should evidence how equality is considered within various strategic frameworks and reporting processes. There is also feedback, including from equality advocacy groups, that any amendments to regulations should be undertaken in collaboration with "those who are living under these regulations and are directly affected by them".
Theme 5: Clear guidance
There is a request from respondents for clear supporting guidance, including examples and case studies, to aid implementation of the proposal and ensure consistency of approach/application. Further, a few respondents highlight that there may be a role for the Equality and Human Rights Commission (EHRC) to play in helping to develop and shape the guidance.
"We would support the consolidation of previous sets of amending regulations into a cohesive, overarching set. We would suggest clear guidance is provided to ensure listed authorities are aware of the changes. The EHRC in Scotland should have a clear leadership role here".
4.3.2 Respondents who do not support the proposal
Few respondents indicate that they do not support the Scottish Government proposal.
While one equality advocacy group (CEMVO Scotland) acknowledges the potential benefits of consolidating the regulations they feel that leaving the regulations as they are, would ensure that each regulation receives adequate consideration.
"Due to the continuous neglect faced by ethnic minorities in Scotland due to the lack of accountability, clarity and action taken by public bodies, CEMVO Scotland are in favour of retaining the current system, as having individual regulations allows individual importance to be given to each Duty".
4.3.3 Further clarification of the proposal requested
Some respondents request more detail and/or further clarity from the Scottish Government on the proposal to consolidate all previous sets of regulations relating to the SSDs, in one new all-encompassing and clear set of regulations, including:
- Clarification on the proposed timescales for any changes to be made, with some respondents highlighting the importance of sufficient notice and lead-in time.
- Clarification is requested on what any National Outcomes would look like.
- That wider factors may need to be considered by the Scottish Government when consolidating all previous sets of regulations relating to the SSDs, including that listed authorities vary in size, culture, and geographic location.
- Reference is made by an equality advocacy group to the sentence in the Consultation Paper - "It was developed in order to consolidate specific duties in respect of race, gender and disability". A point made by Fair Play for Women is that gender is not a protected characteristic, and that wording in the Consultation Paper conflates gender and sex - this is felt by the organisation to have the potential to undermine the credibility of the PSED Review.
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