Dear Convener,
Subject: Disability Commissioner (Scotland) Bill
The Equality and Human Rights Commission (the Commission) welcomes the opportunity to respond to the Scottish Government’s consultation on the Disability Commissioner (Scotland) Bill.
The Commission is Britain’s equality and human rights regulator. We are also an accredited National Human Rights Institution (NHRI) and our human rights responsibilities in Scotland extend to reserved matters. Our sister NHRI, the Scottish Human Rights Commission, has a mandate to promote and protect human rights in Scotland that fall within the competence of the Scottish Parliament.
We responded at length to the initial consultation on the proposed Disability Commissioner (Scotland) Bill. We also recently responded to the Scottish Government’s call for views on Scotland’s Commissioner Landscape and have attached that response to our submission.
We encourage the Committee to reflect on these responses in their consideration of the Bill as drafted.
‘Is Scotland Fairer’
Our recent ‘Is Scotland Fairer’ state of the nation report on equality and human rights in Scotland outlined that, while experiences have improved in some areas, there remain stark inequalities in many areas of disabled people’s lives in Scotland. Some of these inequalities are also referenced in the Bill’s policy memorandum. For example, despite increasing levels of employment, disabled people in Scotland are more likely to earn a lower hourly wage and/or be in low-paid employment than non-disabled people, with the gap widening.
‘Is Scotland Fairer’ also found that disabled people are more likely to experience worse living standards than non-disabled people, and that disabled people also continue to be under-represented in public appointments.
In this context, it is clear that greater commitment and action is needed from local and national governments to tackle the inequalities faced by disabled people in Scotland. We made a series of recommendations in ‘Is Scotland Fairer’ on this basis, and regard these as being potentially more impactful in terms of addressing inequalities than the establishment of a new Commissioner.
The existing legal framework
In Scotland, along with the rest of Great Britain, disabled people are protected against discrimination, harassment and victimisation by the Equality Act 2010. Section 6 of the Equality Act defines disability as a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.
As we have made clear previously, it is essential that any new Commissioner complements, and does not duplicate, existing roles and functions of other bodies. Together, the 2006 and 2010 Equality Acts set out a robust legal framework with the Equality and Human Rights Commission as the independent regulator to address discrimination and promote equality of opportunity. The Scottish Parliament should consider the overlap of remits, the potential confusion that this can cause and what unique role a new Commissioner can play, particularly when their remit is related to protected characteristics as defined in the Equality Act 2010.
The investigatory power in the legislation also appears both to overlap with our powers and at the same time be significantly weaker. There is a risk that this proposed power strays into consideration of conduct prohibited by the Equality Act 2010 and therefore outwith devolved competence.
Indeed, it is not immediately clear to us which of the powers or functions proposed for the new Commissioner in this legislation are not already held or covered by one or more existing organisations. As such, we are not persuaded that this legislation would be uniquely impactful in tackling the inequalities disabled people face, given the existing legal framework and associated institutions.
It also must be noted that the Commissioner landscape in Scotland has evolved since devolution. The current proposals for a Learning Disability, Autism and Neurodivergence (Scotland) Bill, currently at Stage One, also include proposals for a new ‘Learning Disability, Autism and Neurodivergence Commissioner’. If introduced, there must be consideration about how these remits will overlap and interact with each other and the value each add to disabled people’s lives more widely.
Inclusive Communication
Section 20 of the Equality Act 2010 already places a duty on service providers (including public bodies) to make reasonable adjustments to remove or reduce barriers faced by disabled people. This is an anticipatory duty.
The Committee should consider the overlap between the inclusive communication proposal in the Bill, the existing reasonable adjustment duty and the perceived legislative gap intended to be filled. Legislation should be carefully drafted to ensure clarity and avoid confusion, both for those implementing the provisions of the legislation, and for those accessing services.
We are aware the Scottish Government intends to introduce a new Scottish specific duty on inclusive communication, and it may be helpful to await the associated legislation and guidance to inform this Bill.
Public Sector Equality Duty
If a Disability Commissioner is established, we would expect that a Commissioner of this type would be listed for the purposes of the PSED, which we enforce. This is already the case with the Children and Young People’s Commissioner for Scotland.
Involving disabled people meaningfully in its work would be essential to its role. As well as being good practice for any such Commissioner, this would support compliance with the Public Sector Equality Duty, helping ensure the role achieves its stated aims.
While we recognise the Bill contains provisions for involving disabled people in the work of the Commissioner, there is a need to consider intersectional issues and impacts, including the unique experiences of disabled people with other protected characteristics, for example LGBTQ+ disabled people.
We would be happy to discuss this or our previous related responses further with the Committee at any time.
Yours sincerely,
John Wilkes
Head of Scotland
