Rory Alexander

Now more than ever, the battle to reduce inequalities amongst the most disadvantaged in our society is being recognised as a priority by our key decision makers and, fortunately, in Scotland it is no different.

The introduction of the Fairer Scotland Duty as part of the Equality Act in 2010 and the Scottish government’s decision to enforce the law from April this year shows its commitment in trying to address the issue.  

The duty has placed a legal responsibility on certain public bodies in Scotland, including local authorities and the NHS, to pay due regard to how they can reduce inequalities of outcome caused by socio-economic disadvantage when making strategic decisions.

These strategic decisions can be anything relating to annual budgets and setting out spending priorities to economic development strategies, and organisations such as local authorities need to be able to show that they not only understand the key socio-economic inequality gaps that exist, but that they take them in to account when making strategic decisions that affect people in their local areas.

So far, the Scottish government has received some criticism of the duty, with many calling it ‘wishful thinking’. This was particularly highlighted in a recent report commissioned by The Equality and Human Rights Commission which found that that the lack of accountability by local authorities and the amount of crossover with existing legislation could be what’s stopping the duty from working effectively.

The responsibility to adhere to the duty does lie with local authorities and they should view this as a real opportunity to do things differently, and genuinely put tackling inequality in the heart of their decision making.

However, that doesn’t change the fact that the challenges are great and alongside these challenges lie risks and consequences that could exist if they don’t address and adhere to the duty in the correct way.

First and foremost, the breadth of the audience presents one of the key challenges for local authorities. Socio-economic disadvantage affects a wide group and considers a range of factors including health, poverty, education, mobility and housing, which can make prioritising decisions difficult.

That’s why it’s so important that local authorities take their decision-making process into account when navigating the situation.

Preparing reports which outline the process for making these strategic decisions can be key for local authorities to not only justify those decisions, but to ensure there is an open and transparent account of the ways in which the Fairer Scotland Duty was considered to mitigate the risk of being successfully challenged.

If the decision maker has not paid ‘due regard’ to the Fairer Scotland Duty an individual who is affected by that decision could raise a judicial review arguing that there had been a failure to meet a statutory duty.

When putting together these reports, it’s important that authorities outline whether they think the duty applies. It they think it does, it is also important to do a proper assessment of the issues. The following factors can play a part in this:

• Timing: This is very important. It is likely to be too late after the decision is taken to have regard to the duty. Any later attempts to justify the decision are unlikely to mitigate the risk of judicial challenge.
• Funding decision: If a legitimate expectation that funding would continue has arisen, but the local authority is minded to act contrary to the expectation, the report must set out compelling public interest grounds that justify acting contrary to that expectation.
• Options: Any report should set out the options that are available in connection with the decision and the reasons for rejecting them. For example, Councillors are not deemed to know something that the officers know, but which is not transmitted to them.
• Consultation: the report should set out details:
• what was done in relation to the consultation process;
• who was consulted and when they were consulted;
• the questions and issues that were put to the consultees; and
• the outcome of the consultation.

So, for example, if the report recommends closure of a service but that recommendation is not borne out by the consultation responses received, the report must include reasons justifying a recommendation to proceed with closure.

Making considered decisions and serialising that process is best practice and is key in ensuring that local authorities are adhering to the Fairer Scotland Duty and are playing their part in trying to tackle inequalities.

Rory Alexander is a partner at Morton Fraser. This article first appeared in Local Government Lawyer.