Commentary

The business case

Public authorities that attempt to undertake the same detailed assessment process for all their policies and practices will become overwhelmed by the task and will not be able to produce robust and meaningful assessments. Authorities should therefore develop mechanisms for 'screening out' policies that have minimal or no human rights or equalities impact and therefore do not require a full assessment. This allows authorities to put the majority of their time and resources behind those issues where there are potentially the most serious human rights and equality issues arising.

The legal case

The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 requires listed authorities, where and to the extent necessary to fulfil the equality duty, to assess the impact of applying a proposed new or revised policy or practice against the need to eliminate discrimination, advance equality of opportunity and foster good relations.

A listed authority must make appropriate arrangements to review and, where necessary, revise any policy or practice that it applies in the exercise of its functions to ensure that, in exercising its functions, it complies with the equality duty.

Any consideration by a listed authority as to whether or not it is necessary to assess the impact of applying a proposed new or revised policy or practice is not to be treated as an assessment of its impact.

 

What are the practical considerations?

1. Screening

A screening process should be developed which ensures decisions on whether or not to undertake an assessment are rational and informed by appropriate evidence. Screening is not to be considered as assessment of impact. Rather it allows organisations to screen out policies that have minimal or no human rights or equalities impact and therefore do not require a full assessment.

You will be best placed to use the evidence you have in order to identify what implications there may be, but you may find the following questions helpful as part of a screening exercise. This is not an exhaustive list. Individual authorities should develop their own questions that are most appropriate to identify where assessments are most needed in relation to their own policy contexts:

• Does the policy in question relate to an area where important equality issues are likely to be raised? (e.g. disabled people's access to public transport; the gender pay gap; racist or homophobic bullying in schools, etc.)

• Does it relate to an area where there are significant human rights issues raised (e.g. funding for services to assist people women who are victims of rape and sexual violence or individuals with particular care needs)

• Does it relate to a policy where there is significant potential for reducing inequalities, or improving human rights outcomes? (For example, improving access to health services for transsexual people, or increasing take-up of apprenticeships by female students.)

• To what extent does the policy affect service users, employees or the wider community? Remember that the relevance of a policy will depend not only on the number of people affected, but also the significance of the effect on them.

• Is it a major policy, significantly affecting how functions are delivered?

• Will it have a significant effect on how other organisations operate (for example, a national strategy, an inspection framework or criteria for funding)?

• To what extent is there evidence that the policy in question is important to particular groups?

• Does it relate to an area where your organisation has set equality outcomes?

Scope

Where an EQHRIA is deemed appropriate, then organisations need to consider carefully the resources and time that are required in order to ensure that the assessment is properly carried out.

There should always be an identifiable lead for any EQHRIA, responsible for undertaking and recording the EQHRIA. Senior managers should consider the size and complexity of the EQHRIA and as a result identify the most appropriate person to undertake this lead role, the time needed by that person to undertake the assessment and to what extent there is a need for other staff to play a supporting role.

Decisions on what degree of e.g. evidence gathering, consultation etc. is reasonable and proportionate in any given assessment should also include consideration of the severity of the equality and human rights impact of a policy or practice.

Where EQHRIAs are undertaken of complex policy areas (e.g. changing a hospital's appointments policy), it will be very helpful to bring together subject-specific expertise from a number of different groups at an early stage (e.g. doctors, nurses, patients, administrators etc.) in order to identify what all the possible impacts of a particular policy might be. It is also vital to engage affected communities at the earliest possible stage of the assessment, since these communities will provide invaluable evidence of the impact of policies and practices on groups and individuals, and will help assessors to better understand the scale of the assessment needed, how the assessment should be carried out, and what possible impacts need to be looked at (see Building Block 7 for more details on consultation processes).