Will Scotland’s equality duties review go far enough?

First published on the CRER website, republished with permission here.

CRER’s Deputy Director, Carol Young, reflects on the Scottish Government’s call for views on the Public Sector Equality Duty Review.

Scottish Government has a long standing commitment to review the operation of the Public Sector Equality Duties in Scotland. These duties, applying to a wide range of public bodies, set out the practical measures that organisations must take to show how they’re meeting their obligations on eliminating discrimination, harassment and victimisation; advancing equality of opportunity; and fostering good relations. The review is taking a staged approach, with publication of a stage one report earlier this year.

Efforts to involve stakeholders in the process began as far back as 2018, and following a necessary pause due to the Covid-19 pandemic, are underway again. Equality stakeholders were recently contacted with a call for views in the form of a questionnaire, billed as stage two of the review process.

CRER naturally welcomed the opportunity to get involved. You can read our full response with recommendations and additional comments here.

At stage two, questions remain about how far Scottish Government has come in its thinking since the initial meetings in 2018. We’ve raised concerns that this stage two questionnaire isn’t designed in a way that reflects the full scope of the duties. In particular, it overlooks the most potentially valuable aspects of the duties are those aimed at prevention – equality impact assessment and mainstreaming. In 2018, we urged Scottish Government to undertake or commission research into the effectiveness of the duties regarding mainstreaming, equality impact assessment and procurement. Lack of information on these aspects remains a serious evidence gap that needs to be addressed; our recommendation was not taken forward.

The scattergun approach of the questionnaire seems to be primarily influenced by the stage one report, with tenuous connections to engagement with equality stakeholders. The stage one report missed a number of important factors, possibly due to a relatively narrow and selective evidence base. In particular, the work that we undertook on behalf of the Equality and Human Rights Commission to review performance of a selection of the duties over the 2013-2017 cycle (perhaps the most detailed piece of research undertaken on the duties to date) was poorly reflected.

The PSED review sits in the midst of a messy policy environment, perhaps especially regarding race. The forthcoming immediate priorities plan to bridge the time between the Race Equality Action Plan and its successor, work to implement the Race Retention and Recruitment Action Plan and the extensive Race Equality and Anti-Racism in Education Programme sit alongside generic equality policy work such as the development of a new Equality and Human Rights Mainstreaming Strategy, incorporation of human rights treaties including ICERD and the new Equality Data Improvement Project. The danger is that, in the clamour to do better, insufficient time to put together a solid, evidence based theory of change could lead once again to poor policy making.

Whilst it’s great to see so many policy areas picking up the pace and acknowledging the need for anti-racist approaches, experience has shown that simply having a policy or strategy won’t create change in the lives of people from Black and minority ethnic communities. The PSED duties regulations go further than policies and strategies by setting out concrete legal obligations. In theory, they should be driving that change.

In reality, the duties as they stand haven’t created meaningful progress after eight years of implementation. We would argue that they require fundamental revision.

We need a set of duties that are robust, progressive and perhaps above all, enforceable. While Scottish Government isn’t strictly responsible for the last point, there surely must be more they can do to support it.

Our colleagues across the equality sector have extensive expertise to offer, but the PSED review process through stages one and two hasn’t been designed in a way that makes best use of that expertise.

We’re therefore calling for Scottish Government to develop a revised set of duties in co-production with equality stakeholders. The question is, will we see this recommendation reflected at stage three?