Equalities and Human Rights Committee

Meeting date: Thursday, March 1, 2018

Official Report 585KB pdf

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Subordinate Legislation

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Equality Act 2010 (Authorities subject to the Socio-economic Inequality Duty) (Scotland) Regulations 2018 [Draft]

Under agenda item 2 we will consider an affirmative Scottish statutory instrument. This session will allow us to question the Cabinet Secretary for Communities, Social Security and Equalities on the content of the draft regulations and on plans for their implementation. We will then proceed to consideration of the formal motion. Cabinet secretary, we are grateful that you are here this morning to speak to the draft SSI.

Members have a paper from the clerks and the Scottish Parliament information centre. Annex B covers the purpose of the draft instrument, and annex A provides further details. Members may wish to note that the Delegated Powers and Law Reform Committee has drawn our attention to comments that it has made on the draft instrument, which are included in annex C. There is also a letter from the cabinet secretary, at annex D, on the Government’s plans to implement the socioeconomic duty.

Good morning, cabinet secretary.

Good morning.

We also have Colin Brown, from the Scottish Government.

Cabinet Secretary, I invite you to give us some opening remarks on the purpose and detail of the draft SSI.

Good morning to you, convener, and to committee colleagues. I am always grateful for the invitation to come to committee to give evidence. I am particularly pleased to give evidence on the fairer Scotland duty ahead of the committee’s consideration of the draft regulations.

The duty is an important one. The draft instrument introduces a new requirement on ministers and public bodies through the Equality Act 2010, whereby all strategic decisions made by the public sector must, from April this year, include careful consideration of how inequalities of outcome caused by disadvantage can be narrowed.

It is a duty with a purpose. It helps to ensure that public sector bodies, including Scottish ministers, carefully consider inequalities of outcome in decision making. It makes it easier to hold public authorities to account for those decisions, and it encourages better decisions. Ultimately, it should deliver better outcomes for people facing poverty and disadvantage.

The duty finally completes for Scotland a set of duties that was originally planned at a UK level in 2010: duties on equality, on child poverty and, now, on socioeconomic inequality. Together, they provide a strong basis on which to build the fairer Scotland that we all want to work towards, and I am keen to ensure that the duties will work well together over the coming years.

To ensure that the new duty works well in practice, the Scottish Government will be delivering a range of support. Non-statutory guidance will be published shortly, having been informed by our consultation last year and developed in consultation with a wide range of stakeholders, including the Equality and Human Rights Commission and the Convention of Scottish Local Authorities.

In addition, we are funding a new national co-ordinator post at the Improvement Service to deliver training and share best practice. We are considering how to build on the support that we have already provided to three local authorities to set up their own poverty truth commission-style bodies.

On the draft regulations themselves, as you know, the Scottish Government can name public authorities to be listed under the duty if they meet the three-point test under the Equality Act 2010. We consulted on an initial list of authorities based on our own assessment, and we were able to add a number of further bodies that were suggested by consultees. Newly established statutory bodies that meet the three-point test can be made subject to the duty through future regulations.

The committee will have seen the letter that I sent to the convener, which sets out some additional information and, I hope, addresses the matter that was raised by the Delegated Powers and Law Reform Committee.

I am more than happy to answer any questions.

Thank you, cabinet secretary. I will move straight to questions from committee colleagues.

Good morning, cabinet secretary. There is something that I would like to probe in a little bit more detail with you. I am referring to the letter that you sent to the convener, in which you gave the background to the measures. You describe how you would go about ensuring the compliance of

“future bodies (i.e. those that meet the three point test in the Equality Act but are not yet established)”.

You go on to say:

“This might mean, for example, introducing new regulations covering a range of new bodies, every two or three years.”

I am fully supportive of everything that is being done to take this piece of work forward. We obviously want to get to a place where the equality duties are completely incorporated and embedded into every public sector organisation, which would lead to better outcomes. Have you had any more thought about how you would do that?

It is important to make a distinction, and I invite you to look at the examples that I gave in my letter. For new public bodies and the legislation that establishes them, we can think about the example of the new social security agency. Because the legislation sets up such public bodies by reference to the Scottish ministers, they will automatically become subject to the duty. That is because of that link with the Scottish ministers—it is straightforward. That applies to new bodies such as the social security agency from the start. It should be in their DNA to implement the duty as part of their big strategic decision making, particularly as they grow as organisations. It is a particularly powerful tool and a particularly powerful duty.

Regarding other types of organisations that have yet to be established, as I say in my letter, although we know that there are new bodies to be established, such as the new public health authority and the south of Scotland skills body, because they are not designated in the context of the Scottish ministers under legislation, we will have to make regulations for them. My initial thinking is just to do that at regular intervals, and certainly to review the situation at regular intervals. I am open to discussion and suggestion if people have other preferences. For the bodies that would not automatically be subject to the duty, I am not sure what the options are, other than our making regulations every two to three years. It would not be particularly burdensome to do that. The Government would be more than happy to do that, given the importance of the duty.

You are more or less saying that, as we go forward, you will be taking a belt-and-braces approach to ensure that everyone is included.

Yes. We are keen to apply the duty where it can be applied. The great thing about the consultation was that we were able to extend the list of bodies that are subject to the duty. That was the result of suggestions from people who responded to the consultation. The suggestions regarding Food Standards Scotland and Revenue Scotland came forward through the consultation responses. We therefore consulted with those bodies, and they were more than happy to be included. There is broad support for this measure across the public sector.

Would introducing regulations every two or three years, say, give you an opportunity to update any guidance that goes to all organisations?

Yes. That is a really important point. We are introducing interim guidance for April.

On your point about embedding duties, I emphasise that they really make a difference on the ground. That is partly to do with cultures and attitudes.

We are issuing interim guidance, which is of course based on consultation. By having a three-year implementation phase, we will be able to work very closely with public bodies, carefully examining what works and what is helpful in practice—and perhaps what is less than helpful—so that, when we issue the final guidance at the end of the implementation period, it will be based on practice and on what supports good practice. That was the other reason for funding the national co-ordinator’s post with the Improvement Service.

We want to work with people at a practical level, sharing best practice, so that the duty is not something that people feel is being imposed upon them. We do not want people to feel that it is another burden, and that certainly has not been the response that we have received—people have been welcoming. We want to help people work with the duty so that it has the maximum impact.

That is helpful—thank you.

Good morning, cabinet secretary, and thank you for coming to see us today. I would like to ask you about the three-year implementation period. That seems quite a long time. I do not have a problem with that, but I wondered whether you could explain the reasoning for it. Will some bodies have particular hurdles to clear before they can be compatible with the duty?

That is an interesting point about how long the implementation period should be. The duty puts tackling poverty and inequality at the heart of the big, strategic decisions that organisations make. That is right at the core of it. I am conscious that some organisations are not making big, strategic decisions week in, week out, however. There is a cycle to their business. They might make such decisions in an annual budget or in a three-year corporate plan. They might make bigger decisions around infrastructure investment. On balance, we felt that a period of about three years was right.

The other consideration, which came back through the consultation, was about how to ensure that the duty is well knitted with public sector equality outcomes and the duties of local authorities and health boards on child poverty targets and reporting.

You will be aware that the public sector equality duties will be subject to review. That will happen later this year. That is another area where the Equality and Human Rights Commission is very active. From some of the questions that I have had from the committee and from some of the views that I have heard committee members express, either in committee or in the chamber, I am conscious of the feeling that the public sector equality duties could be working better. With the review of the equality duties that needs to be done and the life-cycle of decision making for bigger strategic decisions in mind, three years felt about right.

One of our shared interests in the committee and, I am sure, across the Parliament is the idea that new policy or directives such as this, which are aimed at improving the work that all bodies in the public domain do on equalities, should do more than just sit on the shelf. I am obviously very supportive of the duty, as it brings us closer to that aim, but I think there will still be a variance in how different bodies apply the duty. You have spoken a bit about best practice, but what engagement have you had with the public bodies to which the duty will apply, and what has their feedback been? Are some elements of them resistant to it? Do they think that it is just another Government diktat for which they will have to find a way to tick a box?

09:30  

No. People were very clear in the consultation responses that what we did not want, and what the public sector most certainly does not want, is a tick-box exercise.

The other thing that struck me from the consultation feedback was that people wanted to be able to use the duty as a way to prevent or deal with the causes of poverty and inequality, as opposed to always mitigating their consequences. It is fair to say that there is good, broad support for the duty in principle.

Inevitably, people will always have concerns about how the socioeconomic duty interacts with other duties. We need to work with people to ensure that we get it right, and that is why we are having an implementation period. People will be subject to the duty from April but, over the next three years, we will be actively considering how things are working on the ground. We will be trying to help the public sector proactively, through the funding of the national post and through the work that we will do to constantly review and appraise the interim guidance.

The work that is being done with poverty truth-type commissions will enable us to have a continuing dialogue before we issue final guidance. We have an open mind as to whether, at the end of the implementation period, I will need to come back and make further regulations or indeed consider a piece of primary legislation to ensure that the various duties are aligned.

I felt that this was really important, given that the relevant part of the 2010 act had lain dormant for so long and that the measures were something that we could implement. I am of the view that, when you can do something, you should get on and do it. You can always tweak and refine as you go on.

It is really important, given the scale of the challenge that we face in modern Scotland, to get on and do things. We can, of course, review, refine and improve how we work in practice—but we have to get on and do it.

Can the cabinet secretary furnish me with any practical examples of how, in her view, the duty in the draft SSI may affect the relevant agencies on a day-to-day level? We often talk about wording such as “giving due regard to” in policy notes when it comes to making decisions, but what does that mean in real terms for the way in which bodies or organisations will make decisions or alter their decision-making processes?

On the types of decisions that bodies could be making, we would expect them to give due regard to how they are going to narrow socioeconomic disadvantage, and when we as Scottish ministers are making significant announcements about significant investments, about big new policy developments or about legislation, the duty has to be at the heart of all that.

As you know, Food Standards Scotland has responsibilities around healthy eating, so there is an obvious connection there. For local authorities, it could involve their budget-setting process, and we would expect that process to have the fairer Scotland duty very much at its heart.

For big, strategic corporate plans, if a public body was developing a new estate or leisure facility, we would expect the duty to be at the heart of its decisions.

The interim guidance that we have prepared helpfully lays out, in a plain-English manner, details addressing some of the points that you have made about definitions. It is important that we all have the same understanding of what we mean by inequalities of outcome or socioeconomic disadvantage. We define socioeconomic disadvantage as living on a below-average income, with little accumulated wealth, leading to greater material deprivation, and restricting the ability to access basic goods and services. Socioeconomic disadvantage can be experienced both in places and in communities of interest, leading to further negative outcomes such as social exclusion.

On the process, I have already spoken about what we mean by “strategic decisions” or “at a strategic level”. That could include local development plans, major investment plans, city deals, legislation, budgets, the shape, size or location of an estate, a local outcome improvement plan under a community planning partnership, locality plans or corporate plans. The commissioning of services is particularly important, too.

On the point about having due regard, the guidance covers the need for active consideration in the strategic decision-making process. It also involves participation. It may be easier to demonstrate that due regard has been paid if an assessment involves those who may be affected by the decision. That is an important point regarding the scale of the challenge in understanding inequality and the inequality gap in a particular community or area. Understanding the scale of the issue in a particular community interest group or community is important.

The interim guidance outlines a very clear process, which I have touched on, for authorities to work through.

I appreciate that comprehensive response. Could I probe a little bit further on that? This strikes me as quite similar to some of the language that is used in other bills that the Parliament is scrutinising, such as the Islands (Scotland) Bill, where local authorities, public bodies and Government agencies must have due regard to island communities when making decisions with a specific outcome.

One of the things that we identified throughout our analysis of that bill was the “what if” scenario—if a decision is made that will have a negative effect or outcome, there is often very little ability to mitigate such decisions, generally as a result of financial constraints.

If I give an example, it may help. I by no means want to pick on any specific local authority but, in my own area, Inverclyde Council made a decision to close an alcohol day centre, which I think had a very negative effect on socioeconomic outcomes in that part of the world. That policy decision was made for financial reasons, because of limitations in the council’s budgets. I dare say the possible negative outcome resulting from that closure was identified.

What would the SSI before us and the additional duty have changed in that situation? That centre would probably still have closed. Is the duty actually giving us a way to ensure that such decisions might not happen in the first place? I do not want to be specific or to pick on anyone in particular, but that is a practical example.

I am not familiar with that example so, as you will appreciate, I would prefer to speak in broader terms.

It is imperative that, when people are making decisions about the provision of a service, whether it is an alcohol-related service or a community care service—and there is a particular issue around the commissioning of services—they are able to demonstrate publicly, with a public record, how they are applying the fairer Scotland duty to big, strategic decisions.

Of course, specific decisions can always be challenged. They can be challenged politically, and members will not need me to tell them how to go about that. People can also explore judicial review regarding the fairer Scotland duty. It is the law—it is in legislation, and people are meant to do it. They are meant to be demonstrating how they are doing it, with a public record. Ultimately, people have political avenues to pursue, and the duty could be subject to judicial review.

That is very interesting and very helpful.

Finally, I have a technical question about the definitions. The Scottish ministers are listed as a public authority. The accompanying policy note says that that includes the Scottish Government, and there is a list of agencies. I would like to check, on a factual level, that that includes all publicly owned organisations, companies and subsidiaries. Examples include companies such as David MacBrayne, which is a publicly owned organisation. If it was to make a policy decision—for example, timetable changes on a ferry route that would have a negative outcome on a certain community—would that be subject to the duty as a result of the company’s relationship with the Government, its ownership by the Government or its reporting lines to ministers? The set of things covered under the definition of “Scottish Ministers” is wide and varied, so I wondered how far that goes when it comes to who is accountable.

I will ask Colin Brown to respond on that point in a moment, but the definition of “Scottish Ministers”, in terms of core and main government, is as listed in the guidance. As the policy note says,

“‘Scottish Ministers’ includes the following: The Scottish Government, Accountant in Bankruptcy; Disclosure Scotland; Education Scotland; Scottish Prison Service; Scottish Public Pensions Agency; Student Awards Agency for Scotland; Transport Scotland”

and

“The new Scottish Social Security Agency, once established”.

The organisation that you mention is not listed. It is important to remember that a three-point test has to be applied here. This is where we are bound by the architecture of the original 2010 act.

There are three important points. For organisations to be listed for the duty, they need either to be based in Scotland or to have a function that is in Scotland. They need to be devolved. The more challenging bit is that they need to be equivalent to the English bodies. The 2010 act lists a whole range of bodies south of the border, and we had to see where our equivalent bodies were—hence the importance of our consultation. It took a bit of exploring. Organisations could be broadly comparable but not exactly the same, given the devolved settlement.

The “Scottish Ministers” definition would refer to bodies that are within the umbrella of Scottish ministers in statute. It would not directly apply to a private company, because it is not set up that way.

To clarify, it was a publicly owned company that I mentioned.

If the company is publicly owned—if Scottish ministers are directing that company—Scottish ministers are exercising functions of a strategic nature, and they are of course subject to the duty. Some of those bodies may come into it through the back door. That would have to be looked at with regard to the structure of a particular body, rather than in the abstract. They are not entirely outwith the ambit of the duty. Of course, bodies can voluntarily follow the principles of the duty without technically being subject to it.

I understand. The Gender Representation on Public Boards (Scotland) Bill, for example, included a schedule with a list of agencies, and there was therefore no ambiguity whatever around who would have to work under the duty covered by that bill and which organisations it would apply to, whereas the provisions before us are perhaps more open. If you have to indirectly go down the chain to work out whether an organisation is a public body or not, it may leave some ambiguity as to whether or not it is covered.

I am not sure that there is ambiguity. We will take the opportunity to double-check, but the question is whether and how a public body is set up by its founding legislation and whether it is established or designated via the Scottish ministers. I would disagree that there is ambiguity.

To an extent, the design of the list affects the powers, and the existence of the three-point test affects what can be listed. As the cabinet secretary has already said, there is a constraint from the architecture.

There are differences here. The bodies that are subject to the public sector equality duty are different. There is an overlap. Not all the bodies that are subject to the public sector equality duty, which is wider, are subject to the fairer Scotland duty, but the primary legislation was not ours—it is not our architecture. We are working within the constraints of that—we are getting on with it and making the best of it.

09:45  

I have a supplementary question linked to the definitions. I still bear the scars—as do many people who were involved in the passage of the Children and Young People (Scotland) Act 2014—because of the confusion about such things as the difference between the definitions of “wellbeing” and “welfare” and the triggers for information sharing. It is often in the interpretation of what we mean by legislation where things fall apart.

On definitions, are there issues around language and interpretation—which have clearly been raised in the consultation and which go beyond the question of to whom the duty applies—that we should be worried about?

People were calling for clarity around definitions and approach. In my view, the interim guidance is clear on what is meant by socioeconomic disadvantage. It is clear on the definition of “due regard”. For the sake of brevity, I will not read out the guidance, but it is fairly succinct.

The proof of the pudding is always in the implementation—in how people are able to actually use the duty to good effect on the ground. That is why we have an implementation period, so that, if there are issues with definitions and how they help or indeed hinder, we can revisit the matter, either in the final guidance or through revising regulations. If we need to consider some form of primary legislation, we will do so.

Your letter covers the three-year implementation plan and the national co-ordinator post. The fourth aspect of your letter, which caught my eye, was

“the development of a new funding stream, offering small sums of money to help bring the diverse voices of people with direct experience of poverty and disadvantage more directly into strategic decision-making at local level.”

You will know about the work that the committee did during our destitution inquiry on the voices of Gypsy Travellers, of young people with disabilities and of people in our asylum and refugee community. Are those the types of people’s voices that you would like to hear in this regard, as well as wider community voices? I know that a huge part of the work that will be done concerns community input into the fairer Scotland action plan. Will those two things work together, and what types of voices are you hoping to hear?

Helpfully, we have made the connection between socioeconomic disadvantage, or income poverty, and particular groups. We know that particular groups of people are more at risk of poverty.

In our work we have supported the poverty truth commission, and we have invested in three local versions of that commission in Dundee, Shetland and North Ayrshire. We are happy to continue to support that type of activity, and I have engaged with the new Dundee body. People will be beholden to reach into all communities, but that is something that we will keep a close eye on.

That is work that we support, not work that we lead. It is important that people locally and those with lived experience are leading and guiding the work. It is important that we are always sense-checking with one another, given what we know about the high risks of exclusion and poverty for particular groups. We know that 37 per cent of children in black and minority ethnic households are growing up in poverty, which compares with about 20 per cent of their white peers. We know that children growing up in a house where there is a disabled child or a disabled adult are at elevated risk. The same applies to children growing up in houses where there is unemployment, and so forth.

The interim guidance helpfully makes the connection. When we are talking about socioeconomic disadvantage, it is rather burdensome. Legally, it is the socioeconomic duty, but we are calling it the fairer Scotland duty, because that resonates more with our stakeholders. In the interim guidance, we recognise that the issues are about income, lack of wealth, people’s background, communities and areas of deprivation. They are about place and about whether someone is from a particular community that is at an elevated risk of poverty.

Is that one of the reasons why the Scottish Government is keen to share the rich data and information that it has as a community resource? That can also apply to public bodies. How do you ensure that you do not just deal with the usual suspects? Some of the voices that we have heard are from people who might not ordinarily engage in community projects, and who might be sitting outside them. How do we ensure that their lived experiences are included in the process?

That is where we are all beholden to consider this. It really irritates me when people say that folk get sick of being consulted. That is a demonstration that we are going about consultation in the wrong shape and manner. People do want to be engaged and to influence the resources, decisions and spend that affect their lives on a daily basis. If Government or other organisations are not successful in their engagement, that tells us that we are going about it in the wrong way.

The many different organisations in different communities do not need to be doing the same thing. The work that the poverty truth commission has done has been highly successful, and the local groups that I have referred to in Dundee, Shetland and North Ayrshire are going about their work in a successful manner. The experience panels offer another example. If we are not reaching communities, we are doing it wrong, and that means that we need to try something else.

That is reassuring. Thank you so much, cabinet secretary.

There are no final questions from members. We now move on to agenda item 3, which is a debate on the motion to approve the draft SSI on which we have just taken evidence from the Cabinet Secretary for Communities, Social Security and Equalities. I ask the cabinet secretary to speak to and move motion S5M-10560.

I do not have anything to add to my opening remarks and the answers that I have given to the committee this morning.

I move,

That the Equalities and Human Rights Committee recommends that the Equality Act 2010 (Authorities subject to the Socio-economic Inequality Duty) (Scotland) Regulations 2018 [draft] be approved.

I now offer colleagues the opportunity to make comments. Nobody wishes to contribute to the debate, so you must have answered all the questions, cabinet secretary—thank you. We are very grateful to you.

Motion agreed to.

09:53 Meeting suspended.  

10:00 On resuming—