Public Sector Equality Duty - Consultation on Public Sector Equality Duty Revised Draft Regulations

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2 - Introduction

Context

2.1 The promotion of equality and tackling of prejudice, discrimination and disadvantage are key to building a fairer and more inclusive Scotland. Equality underpins our National Purpose and economic targets and the promotion of equality helps us to deliver improved outcomes for the people of Scotland. In this period of constrained public spending it is particularly important that due regard is given to equality.

2.2 Similar messages have been articulated by the Commission on the future Delivery of Public Service's [1]. It confirmed that there is a need for reform of public service delivery and maps out a way forward founded on objectives including:

  • building services around people and communities
  • more effective work between delivery organisations to integrate services
  • prioritising prevention and tackling inequalities
  • improved accountability and transparency, leading to improved performance and lower cost.

2.3 The public sector equality duty and the proposed specific duties will support these objectives.

Legislative Background

2.4 The new public sector equality duty is part of the UK Government's Equality Act 2010 [2]. The new duty brings together the previous three duties on race, gender and disability and extends coverage to sexual orientation, age, religion or belief, pregnancy and maternity, and gender reassignment. Like the previous duties, this new duty has two parts - a public sector duty in the Act itself (section 149(1)), often referred to as the general duty, and provision for specific duties to be made through Regulations.

2.5 The general duty came into force on 5 April 2011 (see Annex A). In summary, the general duty requires public authorities to have due regard to the need to:

  • eliminate unlawful conduct, which is prohibited under the Equality Act 2010
  • advance equality of opportunity across relevant protected characteristics
  • foster good relations across relevant protected characteristics

2.6 Specific duties are intended to offer a clear framework to public authorities to help them deliver the general duty. The Act provides powers to Scottish Ministers to impose specific public sector equality duties on Scottish public authorities. Enforcement of the public sector equality duty is by judicial review or through the Equality and Human Rights Commission ( EHRC).

Consultation on Draft Regulations

2.7 Two consultations have already been undertaken on proposals for specific duties. The first [3], between September 2009 and January 2010, considered the broad scope of what specific duties might look like. The second [4], from September to November 2010, was on draft Regulations.

2.8 Regulations are made under the affirmative procedure which means that they need to be approved by the Scottish Parliament. Draft Regulations were introduced to the Scottish Parliament in January 2011 and considered by the Parliament's Equal Opportunities Committee [5] in March 2011. The Committee did not support them. Scottish Ministers subsequently withdrew those draft Regulations and agreed to look at them again.

Next steps

2.9 This consultation document sets out Scottish Ministers proposals for revised Regulations, building on the outcome of previous consultation and reflecting on the points made by the Equal Opportunities Committee and others. We are consulting only on changes to the previous draft Regulations.

2.10 This consultation will last until 25 November 2011. We expect that the outcome of the consultation will be published and draft Regulations laid before the Scottish Parliament early in 2012.

Guidance

2.11 We recognise that guidance will help public authorities to understand and to deliver both the general duty and the specific duties. In April 2011, the Equality and Human Rights Commission published 3 volumes of guidance to assist delivery of the general duty [6]. Further guidance is planned covering elements of the specific duties. In addition, there will be a statutory Code of Practice covering both the general and specific duties.