Mobility and Access Committee for Scotland (MACS) response to the Review of the Public Sector Equality Duty (PSED)

• Read the Review of the Public Sector Equality Duty (PSED)

Background: The Mobility and Access Committee for Scotland (MACS) is a non-departmental advisory public body. Within the founding legislation the Scottish Ministers have defined the overall aim for MACS as follows: 

MACS will consider such matters relating to the needs of disabled persons in connection with transport as the Committee think appropriate and give advice to Scottish Ministers.

MACS Strategic Remit is: 

• To give Scottish Ministers advice on aspects of policy, legislation and practice affecting the travel needs of disabled people.
• To take account of the broad views and lived experiences of disabled people when giving advice.
• To encourage awareness amongst disabled people in Scotland of developments which affects their mobility, choices and opportunities.
• To work closely with SG and ensure our work programme complements the work being undertaken by the Inclusive Mobility and Transport Committee (IMTAC), the Disabled Persons Transport Advisory Committee (DPTAC), the Scottish Human Rights Commission, the Equality and Human Rights Commission (EHRC) and other organisations, voluntary and statutory.
• To promote the travel needs of disabled people with designers including transport planners and operators so that these are fully taken into account in the development of vehicles and infrastructure and delivery of services.
• To monitor and evaluate the effectiveness of our work against the above aims and objectives in improving travel opportunities for disabled people in Scotland. 

MACS annual work plans set out an overview of the work that we plan to do from April through to end March each year in pursuit of our five high level objectives. Part of this work ensures we:

• Engage with disabled people (listening, learning and advocacy), and
• Engage and collaborate with key stakeholders (providing advice, challenge and scrutiny)

Engaging with disabled people (listening, learning and advocacy)

MACS members reach out and use their existing networks to listen and understand the challenges and needs of disabled people in relation to accessing and using public transport.  We take account of these broad views and lived experiences when giving advice and encourage awareness amongst disabled people in Scotland of developments affecting their mobility, choices and opportunities. 

Where we feel an area needs a deeper level of engagement we undertake this through polls/surveys to gather evidence, roundtable discussions, conferences or themed webinars and this helps define our high level objectives as well as underpin the advice we give to Scottish Ministers. 

MACS welcome the opportunity to respond to the “review of the operation of the Public Sector Equality Duty in Scotland”. 

As well as providing this response from the basis of lived experience and listening to the voices of experts by experience - as part of our high level objective three, we also “key message” on the need: 

• To ensure that the Scottish Government makes it clear that public bodies and local authorities have a duty to respect the legislation regulating improvements of the accessibility of public transport service provision and the surrounding infrastructures.  

This includes holding the Scottish Government to account, as an exemplar, in mainstreaming the PSED, specifically the Equality Impact Assessment (EqIAs) in their own work and engaging with local authorities, public bodies and transport service providers to advocate compliance with their PSED and the need to conduct meaningful EqIAs before any services changes, developments or withdrawals.  

For the purpose of this consultation we will respond to the areas (proposals) most relevant to out remit. 

General Observations: Overall MACS welcome the proposals. It is encouraging to see a genuine desire to make the process easier for organisations without minimising or diluting the importance and impact of a positive equalities culture. We agree that the full potential of the PSED and the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (as amended) have not yet realised their full ability or intent. 

Reaching the full potential of these legislative instruments is key to a fair and inclusive nation that leaves no one behind, reduces inequalities, delivers on the democracy matters agenda and facilitates a just transition. 

We feel that making better use of evidence and data while strengthening participatory policy making and hearing lived experiences is at the heart of the success of the PSED and SSD and delivering on the intent of these legislative instruments. 

MACS would cite the observations of the Office of National Statistics (ONS) report of Feb 2022: Systemic Review Programme - Review of Transport Accessibility Statistics - February 2022 in stating that we don’t currently gather data in a way that understand disabled people’s journeys, needs and how they would like to travel. This includes not knowing or understanding what stops them from using public transport because we are measuring the wrong things. We believe this goes further than just transport and seeps into every aspect of policy development. 

This report continues to give reason that many organisations have some Qualitative data, which provides rich insights into specific experiences, enabling researchers to gain an understanding of the lived experience of individuals; and Quantitative data that can give insight into the extent of the issues, how much they affect different groups and how these are changing over time. However we are not at the stage of using these 2 data sets i.e. when qualitative and quantitative data are brought together, they help to paint an insightful and engaging picture. 

This combined approach/assessment and better collection and use of data needs  to be central if we are to improve our understanding of and approach to mainstreaming equality outcomes and designing new approaches that will strengthen  policies and enhance the requirements of the PSED and SSD intents. If we don’t fully understand the problem, we can’t design the solution. 

Proposal 1: Creating a more cohesive regime and reducing perceived bureaucracy

Questions - 1.1, 1.2 and 1.3

MACS support the move to strengthen and make the interconnectedness of the duties clearer. We believe this would address areas where it is difficult to find the data collected and published by listed authorities and in particular this approach should evidence what relevant inequalities have been identified and the decisions and actions being taken to address these. 

This includes the decisions and actions to reduce or eliminate the inequality, harassment, victimisation, advance equality of opportunity and foster good relationships between persons who share a relevant protected characteristic and persons who don’t share it. 

MACS feel there would be benefits in learning from the Welsh Government where it found that public bodies were positive about a requirement to develop a strategic equality plan to assist authorities in thinking about their duties in a more joined up way. We believe this would bring the necessary focus, improve coherence and compliance with the duties. 

MACS believe the cohesiveness and more prescriptive approach to the SSD and perceived feeling of bureaucracy could be minimised by putting a stronger focus on how each duty is implemented to help meet the PSED.  

We would support the 4 year reporting period with the caveat that this should be the maximum time between reports and stress that best practice of more regular reports would be beneficial and that compliance with PSED/SSD needs to be embedded in everyday business. 

Proposal 2: Embedding Inclusive Communications 

Question – 2.1

MACS strongly welcome and support this requirement as it complements work we are already undertaking in our practices and our raising of awareness of the need for inclusive communication with those we work with. We welcome the direction especially around best practice, which represents a shift away from compliance. In particular we see benefit in pooling resources across public sector, which may help with this. MACS would also welcome a move to strategies and policy documents being written in plain English, more succinctly and a move away from government/organisational styles of reports. Easy Read versions of documents should be available at the same time i.e. with no time lag.

We believe that the timeframe (2025) is not challenging enough and could lead to another 3-4 years of exclusion for many people who require inclusive communication to be informed and involved in policy development.  We would suggest that this timeframe is brought forward as inclusive communications is not a new concept and should have been developed as part of the existing PSED measures i.e. “by 2025, inclusive communication will be embedded in the approached of all public bodies, with an increased proportion of people in Scotland reporting that their communication needs are being met when accessing public services” 

Proposal 4: Assessing and reviewing policies and practice

Questions 4.1, 4.2 and 4.3

MACS strongly support the requirement for involvement of those with lived experience (experts by experience), or their representative organisations, in the assessment and review of policies. We would like to see more Disabled People Organisations, Access Panels and local organisations developed and supported to ensure people who share protected characteristics under the Equality Act 2010 are representing the “real life” challenges of local communities to inform local, regional and nationally developing policies and good practice to promote equality and reduce inequalities. 

As above, this requirement could be facilitated by increased engagement with DPOs and local Access Panel and progressing the previous calls for Access Panels to have statutory consultee status.

We suggest that the increased focus on the EqIA process needs to be more robust in the elements around advancing equality of opportunity as the current focus is skewed towards identifying and eliminating discrimination. This focus doesn’t necessarily reduce the inequality gap.

We also suggest that EqIAs need a more robust sign off for the areas that have been determined to have a negative impact on groups of people with protected characteristics. This must include what action will be taken to eradicate the negative impact and that these will be complete before any strategy/policy is signed off or project commenced. Without this “bowtie” assurance strategies, policies and project could progress knowing they will discriminate and/or widen inequalities. Taking this mitigation approach would also assist with delivering on the equality outcomes.  

We would suggest there is a need to add a requirement that a robust and meaningful EqIA, involving people who share protected characteristics, needs to be completed before strategies and policies reach version final and before any project is designed. 

MACS would suggest that we need an evidenced move to ensuring EqIAs are meaningful, including being undertaken with engagement with individuals and groups who share protected characteristics under the Equality Act 2010. 

It needs to be acknowledged that this may take extra time and resources, including finances and that this lies at the heart of the democracy matters agenda and improvements in delivering on the PSED and SSDs. 

Proposal 5: A new equality outcome setting process

MACS supports the idea of Scottish Government setting national equality outcomes, which could then be adopted by listed authorities, whilst still giving scope to them to set their own outcomes, and to involve those with lived experience in setting these outcomes.

However, these outcomes must be developed and agreed with user groups such as people sharing protected characteristics under the Equality Act 2010. 

We agree that not all outcomes should have to impact on all minority groups – as this could dilute both the outcome and impact. Listed authorities should be able to focus on one or two minority groups, linking this to local need and demographic if appropriate. 

However, we would question if the suggested approach within the consultation will be enough to ensure we reduce inequalities and don’t widen inequalities for some groups and if this would be sufficiently robust to look at intersectionality?

MACS suggest that setting outcomes is not limited to public sector organisations and extended to the private sector, but appreciate the challenges of doing this.  

However we believe it is critical that any grant that is provided to the private sector, via public sector funds, must comply with the agreed equality outcomes and that the listed authorities maintains accountability for the compliance of the PSED and SSDs, including audits in this area to ensure and give confidence on compliance and manage their organisations governance remit. 

Proposal 6: Improving duties relating to Scottish Ministers

Question – 6.1 and 6.2

6.1 - MACS are supportive of this approach and believe it may strengthen ownership of the requirement and setting out details to mainstream their equality duties. 

6.2 – MACS are supportive and see benefits in the Scottish Government taking more of a leadership role in relation to the outcome setting process. We also agree that the Scottish Government should retain key elements of the current regulations 11 and 12 as the accountability holders and to provide the leadership role that would drive continuous improvements. 

Proposal 8: Intersectional and disaggregated data analysis

8.1.a – MACS would welcome this approach to gather and use intersectional data to advance opportunities between protected groups including men and women. Please also see the comments on data in our general observations – page 3.

8.1.b – MACS believe that consideration should be given to additional funding for listed authorities to allow for dedicated resources to progress this requirement.  

11 - Further Area: Leadership

In the same way that the Lead/CEO is the accountable officer for legal compliance across a variety of areas e.g. organisational governance and risk management, they should also be the accountable officer for delivery of equalities. 

MACS would see benefit to and welcome protected funding to advance equality and human rights work across public sector.  There needs to be an acknowledgement that this is likely to need additional funding and resources and for this to be protected (ring fenced). If the assumption is that this will come from existing, stretched budgets, this is likely to dilute the equality impacts due to lack of funding and as such resources to dedicate to this key area of work 

12: Guidance

MACS would welcome the EHRC providing guidance to assist listed authorities in complying with the PSED/SSDs. We would support the calls for: 

• More prescriptive step-by-step guidance
• Consolidated guidance and increased use of clearer language throughout all documents (including documents being framed/produced in plain English and Easy Read), and
• Strategic guidance, which reaffirms how compliance with the duties relates to the general PSED 

13: Positive Action

MACS would support the EHRC’s call that listed authorities should report on how they have used positive action under section 158 of the Equality Act 2010 as part of their reporting obligations. 

In closing our submission we would return to the issue that currently the PSED and SSDs are failing those who need to benefit from the intent of the duty, where underlying practices and procedures are commonly undertaken as a tick box exercise, with impact assessments etcetera being conducted without the voices and knowledge of experts by experience to inform the process and build confidence in policy development and ensure we get it right for everyone. This needs to change. 

There needs to be a strengthened focus and greater accountability around these duties and this needs to include people who share protected characteristics, or their representative organisations being meaningful involved in developing the equality outcomes and in any activities that measure the success or actions needed to deliver a more equal society and eliminate inequalities. 

Where policies are identified as having a potential negative impact on individuals or groups then appropriate actions must be agreed and undertaken to eradicate this impact before the policy reaches version final or before any project commences the design stage. Failure to do so would mean progressing in the knowledge that the policy or project will be discriminatory and would widen the inequality gap, running counter to the purpose of the PSED and the SSDs.