The Fairer Scotland Duty

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When the First Minister set out the priorities for the next five years of government, she said that the Scottish Government would commence the socio-economic duty in the Equality Act 2010. This pledge was then confirmed in the Fairer Scotland Action Plan.

The Fairer Scotland duty came into force on 1 April 2018.

It requires certain public authorities to actively consider how they can reduce inequalities of outcome caused by socio-economic disadvantage, when they make strategic decisions.

The duty is set out under Part 1 of the Equality Act 2010, as the ‘public sector duty regarding socio-economic inequalities’. It has been commonly referred to as the socio-economic duty. The Scottish Government has renamed it the Fairer Scotland Duty following feedback about the clarity of the original name.

The Equality and Human Rights Commission will be the regulator of the new duty.

Guidance on how the duty should be implemented

Interim Guidance for Public Bodies on the Fairer Scotland Duty has been published. This draws on comments from over 120 respondents to the Scottish Government’s consultation.

The guidance explains the key terms of the duty, including:

  • Socio-economic disadvantage – this means living on a low income compared to others, with little or no accumulated wealth, leading to greater material deprivation and restricting the ability to access basic goods and services. As well as considering areas of deprivation, the guidance refers to ‘communities of place’ and ‘communities of interest’:
    • Communities of place describe people who are bound together because of where they live or work. Examples would be people in rural, remote and island areas.
    • Communities of interest refers to groups of people who share an experience such as homelessness, or those who share one more protected characteristics.
  • Inequalities of outcome – this means measureable differences between those who have experienced socio-economic disadvantage and the rest of the population. Examples include life expectancy and educational attainment.
  • Strategic level – these are key high-level decisions that affect how the public body fulfils its intended purpose, over a significant period of time. These would normally include strategy documents and decisions about setting priorities, allocating resources, and commissioning services.

Meeting the duty

The guidance also sets out an approach for public bodies to meet the duty. It says there is an expectation that public bodies will:

  • actively consider what more they can do to reduce the inequalities of outcome in any major strategic decision they make, and
  • publish a written assessment, showing how they have done this.

A five stage process is set out to help public bodies meet the duty. It is similar to the steps used by public bodies when undertaking an Equality Impact Assessment.

FSD planning

The guidance also provides three case study examples.

Three-year timescale for implementation

The Fairer Scotland Duty is subject to a three-year implementation phase. The idea is that this will allow time for public bodies to develop best practice and become fully compliant with the duty. The Scottish Government said:

“If public bodies are not compliant, or if the duty is not having the effect Ministers wish to see, the Scottish Government will consider how the duty can be strengthened, which may include new primary legislation”

National Coordinator

The Scottish Government is funding a National Coordinator post at the Improvement Service over the implementation phase to deliver training and best practice.

Public bodies covered by the duty

The Fairer Scotland duty applies to the public authorities listed in The Equality Act 2010 (Authorities subject to the Socio-economic Inequality Duty) (Scotland) Regulations 2018. These include:

  • Scottish Ministers (this covers the Scottish Government, Accountant in Bankruptcy, Disclosure Scotland, Education Scotland, Scottish Prison Service, Scottish Public Pensions Agency, Student Awards Agency for Scotland, Transport Scotland, the new Scottish Social Security Agency once established)
  • local authorities
  • regional health boards
  • special health boards
  • Integration Joint Boards
  • the Scottish Police Authority
  • Highlands and Islands Enterprise
  • Scottish Enterprise
  • Revenue Scotland
  • Food Standards Scotland
  • Keeper of the Records of Scotland
  • Keeper of the Registers of Scotland
  • the Scottish Courts and Tribunals Service

The list of public authorities is more limited than those listed under the public sector equality duty. The list is restricted by the provisions set out in Part 1 of the Equality Act 2010. A three point test requires that public authorities subject to the duty have functions that:

  • are exercisable only in or as regards Scotland
  • are wholly or mainly devolved Scottish functions, and
  • correspond or are similar to the UK/English public authorities listed.

The Scottish Government plans to add any future public bodies that meet the test. The new Social Security Agency will automatically be added as it will come under the Scottish Minister category. Any other new public bodies that meet the test may require to be brought under the duty through regulations.

The history of the duty’s development

The Scottish Government first considered the socio-economic duty in 2009. It consulted on extending the duty to Scotland when the provision in the Equality Bill only extended to England and Wales.

Most of the Equality Act 2010 came into force in October 2010. However the UK Government announced that the socio-economic duty would not be brought into force.

Section 38 of the Scotland Act 2016 provides the mechanism for the Scottish Government to commence the socio-economic duty. This follows a recommendation from the Smith Commission.

The Equalities and Human Rights Committee approved the regulations on 1 March 2018.

Is it the same as the public sector equality duty?

No. The Fairer Scotland duty is not the same as the public sector equality duty. The new duty falls on a smaller number of public authorities and only applies to decisions of a strategic nature. However, there will be some overlap because people who share particular protected characteristics are often at higher risk of socio-economic disadvantage.

The Equality and Human Rights Commission is currently reviewing the equality duty process. The outcome of that review may feed into future versions of the Fairer Scotland duty guidance.

Does it create a new protected characteristic?

No. Protected characteristics describe the characteristics people have, that are protected from discrimination under the Equality Act 2010. They are: age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, sexual orientation, pregnancy and maternity.

An individual would not be able to make a claim of discrimination on grounds of socio-economic disadvantage.

Nicki Georghiou, Senior Research, Justice, Health and Social Affairs