Section 1 – Defining the key terms of the duty
General positive comments on the definitions were that:
- they are clear, comprehensive, reasonable, and pragmatic
- they are consistent with other frameworks/strategies e.g. the child poverty framework regarding the '3 Ps' (Pockets, Prospects and Places)
- the "easy read" version is particularly helpful
It was suggested that, where pre-existing definitions for these terms exist (for example within the Equality Act) it would be helpful if there was consistency with these.
Suggestions for improvement included changing the language to make it more user-friendly, and more positive – for example, re-naming it the 'Flourishing Duty', that aims to 'tackle social and economic disadvantage by removing barriers to people fulfilling their full potential', and avoiding terms such as 'service users' and 'deprived areas'.
There was concern that not everyone recognises that differences in income and wealth are unfair, and are the fundamental cause of inequalities of outcome. It was suggested that there is a need to ensure consensus across partners, politicians (local and national) and senior decision makers on the definitions.
There was confusion about whether a single definition will be used by all public bodies, or whether individual public bodies will devise their own. And there was no consensus on which of these would be more desirable. The argument for flexibility was that this would "enable public bodies to consider the impact of policies in their area of benefit and with respect to those affected by it". One respondent felt that this would work for staff with extensive knowledge of equalities, but may lead to others adopting too narrow a definition.
Some respondents highlighted that socioeconomic disadvantage is very complex, and that this complexity must be reflected in the definition. For example:
- Health outcomes get progressively poorer across the socio-economic gradient – actions to help those in poverty might increase the risk to groups just above the poverty line.
- A major and lasting reduction in inequality requires addressing what happens at the top of the income/wealth distribution, as well as the bottom. This implies a need to consider how decisions impact on or reinforce socio-economic advantage as well as contribute to reducing disadvantage.
- Socio-economic disadvantage is not necessarily a fixed state – for example, people can move in and out of poverty as their circumstances change e.g. after the birth of a child. This means there is a need to prevent socio-economic disadvantage as well as tackling it.
However, others felt that the ultimate aim of the duty was being obscured by too many terms being used to describe the problems that should be addressed. These respondents wished to see a stronger focus on tackling the causes of poverty and wealth inequality, rather than ameliorating the consequences.
Being 'socio-economically disadvantaged' means living in less favourable social and economic circumstances than others in the same society. Features of socio-economic disadvantage can include low income and living in a deprived area.
Specific re-wording suggestions:
- Use the word "includes" rather than the word "means", which suggests a closed definition.
- Change to: "…than the majority of others in the same society".
There was some concern that the term society is unclear, as this could mean the whole of Scottish society, a local authority area, or a ward within that area. Residents who are more affluent than others in their local authority area may still have poorer outcomes than comparable populations in other parts of Scotland.
Socio-economic disadvantage is not always experienced in neat concentrations of people in recognisable communities - it may apply to particular communities of place, communities of interest or even individual households. We would therefore expect public authorities to focus on communities within particular disadvantaged places; but also within particular disadvantaged communities of interest - such as young people leaving care; disabled people; or people from minority ethnic communities. We would also expect public authorities to focus on the specific nature of socio-economic disadvantage for people in rural, remote and island areas.
Specific re-wording suggestions:
- "…or even individual households" is unnecessary
A number of additions were suggested by other respondents, including:
- Living in less favourable environmental circumstances
- People with mental ill health
- People with addictions
- People who have been bereaved
However, it was noted that the definition of socio-economic disadvantage is significantly wider than the UK Government's original definition, and concerns were raised that it may be too wide, which could dilute its focus and make it more difficult to establish its impact.
Some respondents welcomed the focus on both disadvantaged places and disadvantaged communities of interest. However, there was an impression that the document placed more of an emphasis on the former. There was also concern that 'communities of interest' is less well defined, and perhaps not the most appropriate term, given that experiencing a similar type of inequality does not automatically bring people into a 'community of interest'. It was also noted that most of the examples in the guidance refer to less favourable economic circumstances, and few relate to disadvantaged social circumstances e.g. lack of opportunities to engage in community-led development, regeneration and decision making, and lack of access to community facilities and open spaces.
The need for a consistent definition of disadvantaged places was raised. For example, would this be the 15% most deprived Scottish Index of Multiple Deprivation areas? And which bands of the 6 bands of the Urban Rural Classification would be included in the definition of 'rural'? Limitations of relying solely on the Scottish Index of Multiple Deprivation were also described, particularly for rural areas.
The consultation document's recognition that socio-economic disadvantage and inequalities of outcome are mutually reinforcing was welcomed, and one respondent suggested that it may be helpful to reference the cycle of inequality (setting out, for example, that the educational attainment gap is both a cause and effect of inequality), and the work needed to break this cycle.
One respondent queried whether the diagram on page 11 of the consultation document implies that deprived areas do not have low income/low expectation, and that everyone in a deprived area is deprived. Others highlighted that people's aspirations are often realistic in terms of the opportunities likely to be available to them, and that even those with high expectations may not be able to achieve them because they lack the networks and connections that others can draw on.
It was suggested that 'remote, rural Scotland' should be added under 'Places', and 'unlawful discrimination' added as a fourth aspect that leads to inequality of outcome.
Inequalities of outcome
Some respondents thought that an exhaustive list of inequalities of outcome would be helpful, and various additions were proposed. It was also suggested that it would be better if the term outcome was used in the definition, and that it should be 'significant measureable differences', not 'any', given the need for proportionality.
Outcomes for individuals are complex and derived from a range of interlinked factors. First, they can relate to the existing institutional, cultural and market structural factors that affect wider life chances (for example, levels of educational attainment; levels of unemployment; nature of employment, experiences of crime, life expectancy, levels of poverty and income inequality). Second, they can relate to decisions made nationally or locally about the availability of goods and services - for example, how money is spent locally, whether good quality affordable housing is available locally, the number of police allocated to a particular area, or the range of career progression opportunities in the local area. And, third, of course, particular equality considerations (age, disability, gender reassignment, race, religion, sex, sexual orientation) can lead to inequalities of outcome being widened further in some cases.
Comments were that this outline appears deficit based, and top down, and seems to imply that educational attainment is a cause of inequality but not the result of it. It was also suggested that 'particular equality considerations' should include those experiencing socio- economic disadvantage, and intersectional or multiple equality considerations. In relation to age, some respondents felt that, as the focus of existing related duties is on childhood and early life experiences, there needs to be similar consideration of addressing socio-economic inequalities in later life stages.
In some cases, an effective way to do this will mean tackling socio-economic disadvantage directly by, for example, reducing poverty.
Some respondents felt that there needs to be a stronger emphasis on public bodies tackling the causes of poverty ( e.g. employment and social security), as opposed to its mitigating consequences ( e.g. health inequalities and the educational attainment gap). But there was also a strong view that local authorities lack the powers and financial capacity to tackle the causes of poverty.
Decisions of a strategic nature
Some respondents welcomed the focus on 'high-level decisions of a strategic nature', as these would have the greatest impact on outcomes. Others felt that this risked reducing the impact, were concerned about the mismatch between the scope of the socioeconomic duty and the equality duty, and gave examples of operational decisions that could have significant impacts on socio-economic disadvantage. It was also suggested that public bodies should monitor strategic decisions with regard to their impact on day to day decisions, and that the duty could focus on strategic decisions initially, and be extended to operational decisions in the future.
Some respondents were of the view that at least some of the decisions in the three case studies were operational rather than strategic. Various specific changes to the case studies were suggested.
Some respondents welcomed leaving it as a public authority's choice about what the Duty is applied to, so they can direct their resources to where they are most needed. However, others were of the view that a more prescriptive approach was needed, to ensure consistency across authorities of the same type. Proposed additions to the list set out in the consultation document included:
- Local Outcome Improvement Plans
- Workforce planning, pay and conditions
- Master planning for significant developments where there is a requirement to demonstrate that community engagement, sustainability and environmental factors are taken into account
- Local Housing Strategies
- Regional Transport Strategy
- Children and Young People's Services Plans
- Bills and policies being considered in the Scottish Parliament
Another suggested option is to set out well-defined screening criteria for determining whether a full assessment is required.
There was a strong view that the definition of due regard should be the same as that for the equality duty, as this is already used by public authorities, and is supported by case law and technical guidance. There was also support for an approach that is not prescriptive, and that recognises, in line with the Explanatory Note published alongside the 2010 Equalities Act in relation to the socio-economic duty, that "It will be for public authorities subject to the duty to determine which socio-economic inequalities they are in a position to influence".
However, some respondents expressed concern about the high degree of variation in the way that due regard is applied in relation to the equality duty, and the risks of the socioeconomic duty becoming a tick box exercise. There was a request to elaborate on under what circumstances the duty could be overruled by other interests.
It requires that public authorities explore how they might reduce inequalities in outcome for those who experience socio-economic disadvantage.
There was concern that the wording 'explore how they might reduce' is too weak, is less ambitious than the language in the Fairer Scotland Action Plan commitment, and also fails to emphasise the need to address the causes of poverty.
They will need to balance the requirements of the duty - that they consider the desirability of reducing the unequal outcomes that result from socio-economic disadvantage - with their other objectives.
It was suggested that no public authority would find the objective of reducing unequal outcomes 'undesirable', and that this should be changed to 'viability of reducing' or 'opportunities for reducing'.
Scottish Government response
Ministers wish to respond positively to comments on the name of the duty, which some respondents found unhelpful and complex. With that in mind, aside from references in legal documents, the socio-economic duty will be renamed the 'Fairer Scotland duty' and this name used in future documentation, including guidance.
The comments made in response to the draft definitions are very helpful in their detail and will enable appropriate guidance to be developed over coming months. We will look to consult with individual stakeholders where we can to make sure final definitions are as clear and as useful as they can be, while recognising that there are some differences of view and so it won't be possible to meet every respondent's expectations. The key aim of the guidance is to help public bodies make better decisions that help tackle inequality – and that will be the priority consideration when developing the guidance.
Useful comments were made about the concept of due regard – our intention is to streamline the socio-economic duty processes and principles with those of the equality duties as makes sense to do so. There were also some helpful thoughts about strategic decision-making.
The Scottish Government intends to consider the effectiveness of the duty over an implementation period of three years – to enable public bodies to develop best practice and ensure they are fully compliant with the duty. 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.