Dear Bill Team,
Subject: Learning Disabilities, Autism and Neurodivergence Bill
The Equality and Human Rights Commission (the Commission) welcomes the opportunity to respond to the Scottish Government’s consultation on the proposed Learning Disabilities, Autism and Neurodivergence 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 support the general principles of the legislation and proposals to improve the lives of neurodivergent people and people with learning disabilities. However, the continuation and investment in existing programmes of work such as the development of the National Care Service, a National Transitions Strategy and Mental Health Law reform, and the involvement of people with lived experience in the development of these, will be key to ensuring the aims set out in the consultation succeed.
Existing legal framework and definitions
As the consultation paper recognises, in Scotland, along with the rest of Great Britain, disabled people are protected against discrimination, harassment and victimisation by the Equality Act 2010. The Act sets out legal requirements to protect disabled people from unfair treatment, including a requirement to provide reasonable adjustments for disabled people to equally participate in society alongside non-disabled people.
Section 6 of the Equality Act defines disability as a physical or mental health condition which has a substantial or long-term impact on your ability to do day-to-day activities. Learning disabilities, autism, Down’s Syndrome and ADHD are all conditions which may fall under the Equality Act definition of disability. We recommend that the Equality Act’s definition should therefore be part of the definition in the scope of the Bill. However, we consider that this should be established primarily by working with people with relevant lived experience and their representative organisations.
In our response we will refer to the Equality Act legal framework related to the protected characteristic of disability, and will use this terminology while being aware that some lived experience groups may not support this definition for the Bill.
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 Scottish Government should consider the overlap between some of the inclusive communication proposals in the consultation document and the existing reasonable adjustment duty, and the subsequent legislative gap it intends to fill with this Bill. 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, as part of its review of the Public Sector Equality Duty (PSED) secondary duties, a new Scottish specific duty on inclusive communication. In our role as the equality regulator the Commission is engaging separately with Scottish Government officials leading on this proposed new duty. It may be helpful to await the associated legislation and guidance for the inclusive communications duty to inform this Bill.
Equality impact assessments and statutory strategies
Equality Impact Assessments (EQIAs), as well as being a requirement of the development of the legislation being consulted upon, must also guide the development of new national or local strategies on learning disabilities and neurodivergence produced by public bodies, such as local authorities and health and social care partnerships, in line with existing Public Sector Equality Duty (PSED) requirements.
Indeed, EQIAs should be carried out at the beginning of the development process to ensure that public bodies anticipate the needs of the equality groups when making decisions about projects, policies or services. An EQIA for the development of this legislation has not, as far as we are aware, been published or made readily available. This must be published in good time in order for the Scottish Government to meet their existing PSED requirements.
The meaningful involvement of people with lived experience in the development of any national or local statutory strategy for neurodivergence and learning disabilities is key and may help listed authorities comply with the PSED. For further guidance on involvement and the PSED, please refer to the Commission’s Technical Guidance on the Public Sector Equality Duty in Scotland.
Equality Data
We know that many organisations and public bodies still do not collect adequate equality data on those who access their services or engage with them. The Scottish Government’s Equality Data Improvement Programme (EDIP) undertook an equality data audit in February 2022, finding that only 40% of bodies surveyed collected robust data on disability. Therefore, proposals to improve the collection of equality data across sectors to improve the experience of neurodivergent people and people with learning disabilities are welcome.
The Scottish specific duties already require public bodies to gather and use equality data, as well as publish data in a manner that is accessible to the public, including on disability. Legislating to improve the collection and use of disaggregated equality data specifically on learning disabilities and neurodivergence should be therefore considered carefully in terms of the overlap with existing Scottish specific duties. The Scottish Government should also consider the work of EDIP and whether existing opportunities could be utilised to improve data collection.
New Commission or Commissioner
It is essential that any new Commissioner created in this legislation 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 Government should consider the overlap of remits, the potential confusion that this can cause and what unique role new Commissioners can play, particularly when their remit is related to protected characteristics as defined in the Equality Act 2010.
Mandatory Training in the Public Sector
Any new mandatory training requirement should include effective Equality Act training for staff and organisations within the public sector, to ensure neurodivergent people and people with learning disabilities are able to access support and services equally and without discrimination.
We understand there will be further opportunities for us to scrutinise the legislation and provide advice as part of that process. We look forward to engaging with you and your team in the coming months.
Yours sincerely,
John Wilkes
