Legal context

Overview

As a public body, Transport Scotland has a legal responsibility when creating new plans and policies to pay due regard to the PSED (Government Equalities Office et al, 2023), included within the Equality Act 2010. Transport Scotland also has a legal responsibility to consider the supplementary legislation of The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 as amended, and to pay due regard to the FSD (Scottish Government, 2022a).

Equality Act 2010

The Equality Act 2010 legally protects people, in the workplace and wider society, from direct and indirect discrimination, harassment and victimisation. The Act sets out protections for people with the following nine ‘protected characteristics’:

  • age;
  • disability;
  • gender reassignment;
  • marriage and civil partnership;
  • pregnancy and maternity;
  • race;
  • religion or belief;
  • sex; and
  • sexual orientation.

Public Sector Equality Duty

Section 149 of the Act sets out the PSED aims, which requires public bodies, such as Transport Scotland to have due regard to three specific needs:

  • eliminate unlawful discrimination, harassment, victimisation and any other unlawful conduct prohibited by the Act
  • advance equality of opportunity between people who share and people who do not share a relevant protected characteristic
  • foster good relations between people who share and people who do not share a relevant protected characteristic"
    (Government Equalities Office et al, 2023)

The three aims of the duty apply to all the above protected characteristics, with the exception of marriage and civil partnership because the parts of the Act covering services and public functions, premises and education do not apply to that protected characteristic. Therefore, the marriage and civil partnership protected characteristic is not considered as part of this assessment. 

Scottish Specific Duties

In addition, Scotland has introduced specific duties set out in the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012, commonly referred to as the 'Scottish Specific Duties'. These provide a framework to enable public authorities to better perform their PSED, through enhanced data collection and evaluation, and greater transparency and accountability.

Fairer Scotland Duty

Part 1 of the Equality Act 2010 sets out the FSD which came into force in April 2018. The FSD aims to reduce inequalities of outcomes caused by socio-economic disadvantage when making strategic decisions or developing policy. The FSD looks at socio-economic disadvantage, which can broadly be defined as:

“living on a low income compared to others in Scotland, with little or no accumulated wealth, leading to greater material deprivation, restricting the ability to access basic goods and services. Socioeconomic disadvantage can be experienced in both places and communities of interest, leading to further negative outcomes such as social exclusion.” (Scottish Government, 2022a)

This differs from the PSED which considers only reducing inequalities of opportunity. The FSD identifies a need to consider both ‘communities of place’ and ‘communities of interest’ in terms of people who share an experience and are particularly impacted by socio-economic disadvantage (Scottish Government, 2022a). ‘Communities of place’ refers to people bound together because of where they reside, work, visit or otherwise spend a continuous amount of time. ‘Communities of interest’ are groups of people who share an experience. For example, demographic groups who share one or more of the protected characteristics listed in Section 4 of the Equality Act 2010 can be considered ‘communities of interest’. Those who share particular protected characteristics are often at higher risk of socio-economic disadvantage, meaning there is a direct link between the FSD and the PSED.