In the heady days of 1998, when the social and political mood gave out enough oxygen to form significant clouds of optimism, the then Blair-led Labour government introduced legislation which paved the way for Scotland’s current package of devolution, all to be made physically manifest some years later in an architectural solution built at Holyrood and which remains to these oh-so-different days the constant subject of debate as to whether it is good or bad architecture.
Some people might now, looking back as we must do, take a similar view on the
architecture of the Scotland Act 1998, at least in relation to how it has
impacted on the daily lives of people who routinely encounter discrimination as
they engage with what is commonly termed ‘the public sector’. Hidden away by Donald Dewar in the
Act’s dry legalese equivalent of the dull concrete used to form Holyrood
itself, is a dusty and yet powerful statement of how equality was to be framed
in the work of Scotland’s parliament and government. Some 12 years before the Equality Act
2010, the Scotland Act 1998 required that Parliament, government and all public
authorities must ensure that discrimination in its widest sense should be
eliminated.
What has followed since those tender green shoots of equality were first
encouraged to take root in devolved Scotland has not matched that initial
almost euphoric sense of ushering in a time of major and lasting change.
Indeed as the issue of deeper devolution increases and the political and
discourse focuses obsessively on what more powers Scotland’s Parliament needs
or on what the First Minister is wearing today, the oxygen needed to allow
those green shoots of equality to flourish and be harvested by those
encountering discrimination each day is being squandered.
How best to judge what has happened since then than to ask some of Scotland’s biggest public bodies, Scotland's 22 NHS Boards, what they have done since 1998 to meet the distinctly Scottish duty to eliminate discrimination ? A particularly focused question around the Scotland Act 1998 was put to the 22 chief executives in what passed for the summer of 2015.
It is a measure of and mirror to the model of accountability which has developed in the public sector that the most common method of gaining access to information from public bodies which are supposed to serve the public is to frame the request as a Freedom of Information request. This has the immediate effect of ‘chilling’ the dialogue with public bodies and triggers, almost universally, what can only be described as classic, ‘Yes, Minister’ civil service mind-sets which turns an apparently simple request for information into an elaborate game where the public body finds increasingly convoluted constructs with which to apparently answer the question without in fact providing any meaningful information.
 |
The replies would have caused Donald Dewar to try and crawl into and hideaway in the traffic cone so often used to adorn his statue in Glasgow, such is the hideous embarrassment revealed by the universal failure of the NHS as employers |
So embedded has this mind-set become, it is as if an informal Olympics across the public sector is in play and drives a competition on who can produce a gold-medal response which best avoids answering the question while appearing to do so. If just a fraction of the nervous and intellectual energy required to achieve the gold-medals for not answering questions were put into work aimed at eliminating racism, it is possible that people such as Simon San would be alive today.
The question asked what NHS Boards were doing to ensure that the political opinions of the workforce and those who applied for jobs were not being discriminated against, as required by the Scotland Act 1998.
The replies would have caused Donald Dewar to try and crawl into and hideaway in the traffic cone so often used to adorn his statue in Glasgow, such is the hideous embarrassment revealed by the universal failure of the NHS as employers.
Confusion
So many
Boards seem to think that the Equality Act 2010 has overtaken the Scotland Act
1998 when it comes to equality. As more
than one Board put it, in their view the Equality Act 2010 mirrors the Scotland
Act 1998 in relation to equal opportunities.
No evidence was offered to back up this view, just the bald
statement.
This
confirms the finding of research
published in 2009 by the Equality and Human Rights Commission [EHRC] [see page
19] :
Understanding of what powers are conveyed
under the Scotland Act with respect to equal opportunities is quite limited.
There is confusion as to what additional powers are held on top of those
conferred by Westminster legislation.
A number of Boards in their response to the
question referred to government guidance issued to the public sector in the run
up to elections and reinforcing the need for political neutrality by their
staff as being somehow evidence that they were complying as employers with the
duty on discrimination and political opinion.
Others advised that any instances of their employees discriminating
against other people on the grounds of political opinion would be dealt with
using disciplinary codes and standards at work.
It is as if Boards were incapable of seeing themselves as capable of
discrimination. One of the early and
abiding signs of institutional discrimination ?
Excuses
A number of Boards cited the lack of guidance on
what they should be doing as the reason for not doing anything. Again, the EHRC research report from 2009 recommended that guidance was
required :
The Commission, the Scottish Parliament and
the Scottish Government should explain what the devolved equal opportunities
powers mean in practice, setting out exactly what requirements public
authorities must meet in respect of Scotland Act equal opportunities powers and
how this fits with the requirements of Westminster equality legislation.
Interestingly, amongst all the Boards who were eager
to cite a lack of guidance or clarity as to why they were not doing anything,
none indicated that they would formally request government or the EHRC to provide
guidance. As a robust intellectual and
corporate position on not meeting a legal duty, it is as effective as that apocryphal
childhood excuse – a big boy did it and ran away.
Inaction
Not one of Scotland’s 22 Health Boards has systems
in place to evidence that it is not, as an employer, discriminating on the
grounds of political opinion against current staff and against those who apply
for jobs. One Board even offered the
clear and unequivocal statement that it had no plan to change the current lack
of action on complying with the Scotland Act 1998.
This research demonstrates that people from the various equality
communities and from across the spectrum of political opinion and affiliation
continue to be at risk at work from discrimination as the umbrella of supposed
legal protection from discrimination is neither being observed nor enforced.
