It has been an arduous and sometimes fractious journey from the milestone set by the Equality Act 2010 to this latest crossroads, the second attempt in Scotland to adopt a set of specific equality duties with which to make equality a reality for all people across Scotland’s diverse communities.
While the draft regulations being put by government to the Parliamentary Equal Opportunities Committee [on 17th April] for approval are unlikely to attain the magical score of 11 out of 10, they are a considerable improvement on what was put before the Committee over a year ago. The Committee kindly invited some of the dissenters from last year's failed attempt by government to introduce specific equality duties to provide evidence on this latest attempt. What follows is the evidence I have submitted.
This latest draft of the regulations on specific equality duties is to be welcomed as offering clear evidence of government’s willingness to listen and, having done so, to amend previous positions and accept reasoned rationale for improving how these can deliver measurable, person-centred improvements in the experiences Scotland’s diverse citizens have when accessing and making use of public services.
That said, the debate continues on just how much needs to be made explicit in the regulations, and just how much can be implied or hosted in guidance, if we are to make a fresh start on delivering real, person-centred and measureable equality. This should not be viewed as being simply some kind of academic debate. Discrimination, prejudice, bigotry, hate and the denial of fairness and dignity remain an everyday reality for too many people living in Scotland.
There comes a time when the debate on how to build a Scotland free from discrimination needs to close, in order for the focus and energy of all to switch to using the new powers in the shape of the specific duties to identify and eliminate discrimination from the design and delivery of Scotland’s public services, and from the daily lived experience of people who access and use those services. That point has arrived and the Parliamentary Equal Opportunities Committee is commended to approve the draft regulations.
There remains, even at this very late stage, an opportunity for the Committee to encourage government to ensure guidance and action to support the specific equality duties is developed in particular areas in order to achieve the overarching goal – a Scotland free from discrimination. The remainder of this paper suggests what these areas might be.
Overview
The consultation process and practice around this draft has improved on what was used to construct the previous draft regulations, and credit to government for undertaking and publishing a more balanced analysis of the responses. There remain critical areas for major improvement in the consultation process and practice which, if adopted, could in turn lead to significant qualitative improvements in the formulation of government policy in future.
Reviewing the effectiveness of the specific equality duties is a firm commitment set out by government in the 2011 consultation paper. In order to obtain the quality of learning we will need 5 years hence, we need to start work now in creating the monitoring framework required to capture the range of information and data we will need.
Equally important, the limited arrangements and capacity for enforcement of the general and specific equality duties appear to be fading in direct correlation with the sharply declining resources government is to make available to the EHRC.
Areas for further guidance and action
The Consultation Culture
There are three aspects to this which, if lessons are to be learned from the considerable experience gained from forming the draft specific equality duties, can be improved. It is stressed the aim is not simply to improve the consultation culture itself, rather it is to improve the whole continuum of government policy development of which the consultation culture is just one, albeit critical, part.
The first aspect is one which goes to the heart of discrimination itself and is to be found in the core standard practice of how government consults. Too many features of the standard practices in consultation represent barriers to all but the usual suspects in having their views and experiences heard, recognised and, where appropriate, acted on by government. In brief, government currently requires the same ability to negotiate the bureaucracy of forms, papers, language, and the implicit constraints and opportunities which are commonly found in any government consultation, from any public sector body as it does from any individual citizen or as is commonly termed any ‘hard to reach group’. This ‘one size fits all’ approach to the practice of routine consultation and engagement is a barrier to all being given real opportunity to be heard.
Recommendation 1 – that the PEOC, in addition to approving the draft regulations, encourages government and the Equality Unit to offer a lead by innovating in consultation and engagement practices [such as those used recently by the PEOC] to ensure that marginalised communities experiencing discrimination have their views and experiences heard and acted on in the development of government policy and legislation.
The second aspect is that of how to achieve a balance between and across any analysis of responses to consultation and so build a case for change or for the status quo. In brief, and using the latest consultation on the draft specific duties to illustrate, I submitted a response to the consultation as a citizen. COSLA submitted a response, as the ‘voice’ of local government. To all intents and purposes, the analysis commissioned by the Equality Unit from Reid Howie treated my yes/no response to questions on a par with the answers from COSLA. While I may consider my response to offer as much if not more value to government as that from COSLA, it is I believe dangerous to conduct an analysis without some attempt to ‘weight’ those pro- and anti- views received.
Recommendation 2 – that the PEOC invites government to ensure that analysis of responses received to future consultations is weighted to reflect relevant factors. These factors and other changes to the consultation culture of government should themselves be the subject of a radical/innovative consultation themselves.
The third aspect is to do with establishing a clear provenance of responses received, before any analysis takes place and which is then used to draw conclusions and influence possible change. By way of illustration, I undertook a simple comparative analysis of the COSLA response alongside a random sample of 4 other responses submitted directly by individual local authorities .
As can be quickly discerned, there appears to be a considerable dislocation between what COSLA has submitted, on behalf of Councils, and what Councils themselves have said individually. In addition, I conducted a simple analysis of what 22 Councils submitted directly to government. One strong pattern which emerged was that generally speaking Councils are in favour of using a template for reporting on employment data so that comparison and benchmarking can take place. COSLA counsels against comparisons being made.
In broad terms there appears to be a dislocation between what COSLA is saying on behalf of Councils and what Councils themselves are saying direct to government. In a wider context this dislocation does, I believe, reveal the need for some modification and modernisation of the government’s routine approach to consultations.
Recommendation 3 – that the PEOC encourages government to consider the profiling of respondents to future consultation being expanded slightly beyond its present form to capture some measureable sense of the provenance of the responses being submitted.
Review of regulations
The government’s consultation paper from late-2011 set out a commitment :
Review
3.7 We are committed to monitoring how the Regulations work in practice. We will explore our approach to this in partnership with the EHRC, with equality groups and with public authorities. If necessary, Scottish Ministers can amend the Regulations if particular elements are not having the intended effect.
This was and remains a very welcome commitment. Time has however passed since then and we are within sight of the point at which the specific duties will come into effect. It is suggested that in order to carry out a review of the regulations for their effectiveness, there is a need to put in place now some elements of a monitoring framework – such as monitoring approaches used by public bodies currently to show how services have changed as a result of meeting the general duty and how they have evidenced that change in person-centred terms, and tracking changes introduced by bodies as a result of the new specific duties and what person-centred difference that makes, again with evidence linked to the general duty.
The review should include work commissioned to retrospectively research what worked and what didn’t work in relation to the general and specific duties previously covering race, disability and gender. It should also include examination of the performance of public authorities in meeting those 3 general and specific duties, as was done by EHRC in 2011 in regard to the performance of the NHS in England.
Recommendation 4 – that the PEOC commends government to introduce robust monitoring arrangements on the effectiveness of the impact of the specific duties as a matter of urgency, and calls for any project board established to devise, implement and oversee the monitoring to be a real partnership [between government, public sector and voluntary sector] and that it operate in a transparent and accountable manner, with the PEOC being part of the accountability arrangements.
Enforcement
Committee members will be aware that the Westminster government has signalled a sharp decline in resources to be allocated to the Equality & Human Rights Commission [EHRC] between now and 2015. It is expected that staffing numbers will collapse from 420 to between 150-180.
The EHRC has very recently published its three strategic priorities for the next three years. All three of these priorities are prefaced with the words ‘To promote …..’ and the word ‘enforcement’ is significant by its absence.
In summary, there will be little if any capacity to enforce the observance by public bodies of the general and specific equality duties.
This is not to say that public bodies in Scotland wilfully ignore those duties unless there is the threat of court action or of being ‘named and shamed’. History does however remind us that as recently as 2007, the former Commission for Race Equality did issue formal ‘minded’ letters to all of Scotland’s NHS Health Boards in relation to a widespread failure to observe the then race equality specific duties on employment data gathering and reporting.
In Scotland, we can simply stand back and observe the embattled public sector drift backwards in its performance on equalities. We can decide to defer action until the outcomes from a review of the impact of the specific duties are available.
Or we can learn lessons from incidents such as the recent uncovering in NHS Lothian of manipulation of waiting time data. This recent failure reveals, I believe, an over reliance on self-reporting and self-monitoring by public bodies in relation to critical performance issues, including performance on equality duties. This risk will always be present and requires a more imaginative mitigation approach.
Given the NHS in Scotland already has significant resource in the shape of the Directorate of Equality, Performance and People [hosted in NHS Health Scotland] and that local government has the Improvement Service, it is suggested that government should look to use both these organisations to take on a pro-active performance monitoring role on observance of the equality duties. In addition and to strengthen the independence and integrity of a refreshed monitoring and enforcement culture and practice, the resources, staff and functions of both organisations should be merged and transferred into the voluntary sector and operate under service level agreements with government and the public sector.
This would provide government with a modern, coherent approach to light touch enforcement, as well as pro-active access to performance data and so mitigate risks to Scotland’s reputation on equalities. Other areas of the public sector could be performance monitored in similar style by a modest expansion of the government’s own Equality Unit. Over time this could then be transferred into the new organisation hosted in the voluntary sector as well.
Recommendation 5 – that the PEOC commends government to introduce innovative light-touch enforcement and performance monitoring on compliance with the general and specific duties within the existing resources available to it, that the function be transferred into the voluntary sector, and that these arrangements be exemplary in their transparency and accountability to both government and to the people of Scotland.
