Scottish Government

Equality Issues Research ProgrammeResearch Findings No. 1

Equality proofing procedures in drafting legislation: International Comparisons

Fiona Mackay and Kate Bilton - The University of Edinburgh

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Main Findings

• Most work on equality proofing legislation appeared to be concentrated at the preparatory stages.
• Equality proofing legislation was most likely to be effective when it was integrated early into the policy design and development stage, and where it formed part of an on-going series of checks and interventions.
• Whilst formal requirements to include statements about 'equality impact assessments' in Memoranda for Cabinet were seen as desirable, they were often deemed insufficient in terms of ensuring the effective integration of such considerations in legislative proposals.
• The development of formal equality proofing procedures varied amongst the countries studied. For example, some countries produced guidelines for implementing equality proofing, whilst others noted a requirement that this should be done. A lack of monitoring and evaluation was evident in all the countries studied.
• Different actors were involved in 'proofing' legislation, including departmental policy-makers, equality experts based in departments, specialist equality units, legal experts, statutory equality agencies, external experts, parliamentarians and social partners.
• Equality units performed differing roles in the countries studied. In some cases they supported departments in 'proofing legislation'. In other cases they were responsible for carrying out equality proofing of all proposals and legislation.
• Impact analysis tools varied in scope and complexity. However, most consisted of a set of questions intended to trigger thinking activity and the use of statistical data and research to promote an analysis of how policy or legislation might differentially impact upon specific groups in society.
• Formal mechanisms to check that proofing had been undertaken included Cabinet Memoranda attached to policy and legislative proposals.
• Equality proofing processes were enabled by programmes of generic awareness raising and training for civil servants, which enabled them to start asking the relevant questions and assess the possible implications of policy.

Background and Methods

With the opening of the Scottish Parliament came a commitment to the principle of Equal Opportunities, particularly in relation to policy making and draft legislation.

Thus, the following comparative study was commissioned by the Central Research Unit and the Equality Unit and undertaken by Academics at the University of Edinburgh, to identify international models of guidance on equality proofing, which might serve as a basis for the formulation of Scottish Executive guidance.

Case study research on the legislative systems of Canada, The Republic of Ireland and Sweden was conducted using printed and Internet sources. Information was gathered via an email questionnaire to academics and government contacts, and supplemented by telephone briefings with equality specialists and persons responsible for drafting the legislation in the above countries. Developments in the UK and the devolved administrations of Wales and Northern Ireland were also considered. This fieldwork period lasted approximately three months.

Equality Proofing in the Scottish Executive

The Parliament's commitment to Equal Opportunities saw the setting up of the Equal Opportunities Committee, tasked with scrutinising bills and proposing amendments, and the Equality Unit, tasked with mainstreaming equality in the Scottish Executive, particularly in relation to legislation and policy making. Initial criticisms suggested a need to improve the equality proofing of bills prior to submission. Thus, the Equality Unit was tasked with developing guidance on how to equality proof legislation, as part of the Scottish Executive's mainstreaming strategy.

The International Experience

Surprisingly, and contrary to expectations, the case studies revealed that, although mainstreaming of Equal Opportunities was further advanced in Canada, the Republic of Ireland and Sweden than in the UK, only in a small number of cases were there specific guidelines in place to inform administrations of how to equality proof legislation.

The following equality proofing models were identified in the three case study countries examined.

Canada

Canada provided the clearest example of specific procedures in place to be implemented during the drafting stages of bills. Clear duties were laid out for members of Bill teams, to ensure that gender equality considerations were taken into account throughout the drafting process. Gender equality experts, from the Justice Department but based in other government departments, produced further gender analysis of issues if these had not been adequately addressed in memoranda to bills or in drafting instructions.

The above method employed by Canada highlights the importance of recruiting staff who are able to provide legal and equality expertise to support the equality proofing process. It also underlines the importance of civil servant training on mainstreaming equality in policy development and the drafting of legislation.

The Republic of Ireland

The Republic of Ireland had no specific guidelines for use in assessing the impact of legislative proposals on gender or other equalities. However, there was a formal requirement that all Memoranda for Government should consider the impact of policy on women and those in, or at risk of, poverty. In addition, the Equality Division in the Department of Justice was available to comment on the equality implications of proposed legislation and policy. However, this was not mandatory and therefore, had not been applied systematically.

A commitment to further mainstreaming equality issues, particularly in relation to legislation and policy making, was evident, with pilot projects planned, which would include equality proofing legislative proposals

Sweden

Like Canada, Sweden appeared advanced in terms of developing an integrated approach to equality issues. At a national level, the Equality Affairs Division was responsible for reviewing proposals from other Ministries regarding bills and written communications to Parliament, and for reviewing terms of reference for the committees (made up of experts, public officials and politicians), which were set up to develop legislative proposals.

There were no formal written guidelines to aid Ministry staff integrating equality considerations into the drafting process. However, an 'impact assessment tool' had been developed, which was used by the Equality Affairs Division to review whether all draft bills had taken sufficient account of gender equality.

Despite the comprehensive nature of the above approach, the research highlighted variability in its effectiveness, which was dependent upon the relationship that existed between the Equality Affairs Division and departments. The volume of draft bills also made it increasingly difficult for the division to scrutinise all bills consistently and to a high standard.

The UK Experience

The research also investigated the development of mainstreaming equality approaches in the UK Government and devolved administrations of Wales and Northern Ireland. However, similar to Scotland, such approaches were still in their infancy. Thus, despite offering both interesting and parallel contrasts, they did not offer specific models of guidance on equality proofing legislation, which could be adopted by the Scottish Executive.

Potential lessons

The research suggested a number of potential lessons that should be considered when developing Scottish Executive guidance on equality proofing legislation procedures.

First, it was emphasised that equality proofing of legislation should be viewed as an 'on-going process' of analysis, rather than a 'stand-alone procedure', and thus should commence at the policy development stage.

Second, despite the temptation to conduct an in-depth review or analysis of all impending legislation, similar to the model adopted by Sweden, resource constraints were likely to render this approach impractical. Thus, the possibility of introducing 'screening tools', which enable civil servants to identify those legislative proposals which require more detailed attention and analysis, may be more effective and worth consideration.

Third, although Equality Units provide key support, there is a need for equality experts and legal specialists, with expertise in gender and diversity analysis, to be accessible and operational in departments, in order to support the equality proofing process; similar to the model adopted by Canada.

Lastly, several of the countries studied adopted a phased approach to mainstreaming equality issues, which involved an initial 'learning phase'. For example, pilot studies of proposals for equality proofing legislation, the development of good practice guidelines for use by policy makers and Bill teams and training events for civil servants were all conducted, to facilitate the transition.

Conclusions

This research summary brings together comparative models of equality proofing procedures in drafting legislation in the international administrations of Canada, The Republic of Ireland and Sweden, as well as the UK government and the devolved administrations.

Contrary to initial expectations, the case studies found little evidence of written guidance on equality proofing legislation procedures, especially guidance that distinguished between procedures for equality proofing legislation and procedures for equality proofing policy making in general.

Overall, there did appear to be similarities in the procedures identified, which ensured minimum equality proofing, i.e. a system of checking legislation to ensure that it was competent and in compliance with existing equality and/or discrimination legislation and human rights legislation, etc.

However, differences in the procedures, models and structures adopted, which were designed to mainstream equality and carry out equality proofing, were apparent. For example, the responsibilities and location of staff involved in equality proofing varied and different mechanisms were applied to move equality proofing forward, e.g. through a process of prioritisation screening or phased pilot projects.

Thus, while the research identified no clear blueprint that could be adopted in the Scottish context, the key findings of the research suggest a number of potential lessons that may be applied to the development of equality proofing of legislation within the Scottish Executive.