Dear Lifelong Learning and Skills Directorate,
Subject: Post-school education and skills reform legislation
The Equality and Human Rights Commission (the Commission) welcomes the opportunity to respond to the Scottish Government’s consultation on post-school education and skills reform legislation.
In line with our mandate, we have considered the equality aspects of the proposals for reform. Proper compliance with the equality legal framework will be key in ensuring that further development and implementation of proposals reflects the needs of learners from protected characteristic groups.
The Public Sector Equality Duty (PSED) and Scottish specific equality duties (SSDs) help to drive progress in ensuring non-discrimination, equality of opportunity and good relations is integrated into the day-to-day business of public authorities responsible for post-school education and skills delivery. The Scottish Government, Scottish Funding Council, Skills Development Scotland and Student Awards Agency Scotland are subject to and have obligations under these duties. We will consider the proposals and their interaction with the equality legal framework below.
Simplifying responsibilities for apprenticeships and student support
While the Commission does not have a view on the models suggested in the consultation paper, and recognising that no new bodies are proposed at this stage, we recommend that the Scottish Government ensures that new structures are listed under the PSED and SSDs.
We also consider that the business needs as set out speak to opportunities to address the most significant inequalities across the post-school education and skills landscape.
Coherence in terms of vision and greater clarity in terms of functions and responsibilities can both assist in improving equality outcomes for learners.
In 2019, the Commission published our research reports on modern apprenticeships, which explored the extent to which Government - and industry - pressure and funding could contribute to more equalised outcomes for all. Skills Development Scotland subsequently undertook a significant programme of work to address inequalities relevant to apprenticeships, as set out in a December 2021 Scottish Government case study.
Also in 2019, the EHRC and Scottish Funding Council (SFC) entered into a strategic partnership to explore mutual benefits to the organisations working together and, in the case of SFC, the sector it has oversight of. A joint Memorandum of Understanding and an action plan was developed, agreed and published in March 2020. While progress was impacted by the pandemic, National Equality Outcomes were published in January 2023
We consider that this strategic approach provides the opportunity to make significant improvements both in terms of listed bodies’ compliance with the Scottish specific duties but, most importantly, in tackling the most persistent inequalities in the sector.
Any simplification of existing structures and functions should ensure that the learning and associated approaches of these projects are adopted across the post-school education and skills landscape.
Governance of the SFC
Updating the skills, knowledge and experience requirements for new Board members provides an opportunity for better compliance with the PSED. As the Commission’s Technical Guidance on the Public Sector Equality Duty: Scotland sets out, involvement with persons likely to be affected by their decisions (for example, service users and employees) may assist relevant bodies to comply with the general equality duty. Ensuring representation on the Board of those protected characteristic groups most likely to be affected by the decisions it makes can assist the SFC to demonstrate due regard to the three needs of the general duty, as required by the PSED.
It is also essential that Board Members are sufficiently trained in order to be confident applying the equality legal framework in their roles. This will assist them to make and scrutinise decisions, plan and oversee service provision and employment in a way that ensures the framework adds value and has a positive impact on people’s lives.
Enhanced functions for the SFC
To give proper consideration to the aims set out in the general duty, a relevant body will need to have sufficient evidence of the impact its policies and practices are having, or are likely to have, on people with different protected characteristics. The SSDs also require listed bodies to assess and review policies and practices.
Enhanced data collection functions may help to ensure that SFC and report bodies have the best possible evidence base to meet the requirements of the PSED and SSDs, and also allow SFC to continue its strategic role in identifying and addressing the most persistent inequalities in the sector.
Our work with the SFC to develop a measurement framework which will support SFC and further and higher education bodies to report on progress against National Equality Outcomes may be strengthened by an enhanced data collection function which includes the collection of equality data. Should a model to simplify the responsibilities for apprenticeships and student support be agreed to, the best possible evidence base across the post-school education and skills landscape will be required for potential future National Outcome Setting covering further and higher education, apprenticeships and student support services.
Development of the legislation
As above, Scottish Ministers are subject to the requirements of the PSED and SSDs.
Effective fulfilment of these obligations requires careful and evidence-based consideration of the impact of any future Bill relating to the nine protected characteristics. Scottish Ministers will need to adhere to regulation 5 of the Scottish specific duties in its entirety by initiating an equality impact assessment at the development stage for the proposals, updating the EIA as appropriate over the policy development cycle, and defining a review process so that oversight of the actual impact can be maintained, and arranging to review and, where necessary, revise policies and practices.
Scottish Ministers are also subject to the requirements of the Fairer Scotland Duty. We consider the proposals to constitute strategic reform. As such, a Fairer Scotland Duty assessment should be carried out.
We would be happy to discuss any of these issues with the Scottish Government at any point in the development of this work.
Yours sincerely,
Stephanie Griffin
Scotland Policy Manager