Equality and Human Rights Impact Assessment (EqHRIA) Standard Operating Procedure

Transcription

1 Equality and Human Rights Impact Assessment (EqHRIA) Standard Operating Procedure Notice: This document has been made available through the Police Service of Scotland Freedom of Information Publication Scheme. It should not be utilised as guidance or instruction by any police officer or employee as it may have been redacted due to legal exemptions. Owning Department Version Number SCD National Safer Communities 1.00 (Publication Scheme) Date Published 07/06/2016 (Publication Scheme)

2 Compliance Record Equality Impact Assessment: Date Completed / Reviewed: 22/02/2016 Information Management Compliant: Yes Health and Safety Compliant: Yes Publication Scheme Compliant: Yes Version Control Table Version History of Amendments Approval Date 1.00 Initial Approved Version 06/06/2016 (Publication Scheme) 2

3 Contents 1. Purpose 2. Legislative Basis - Public Sector Equality Duty 2.1 General Equality Duty 2.2 Protected Characteristics 2.3 Specific Equality Duties (Scotland) Regulations Legislative Basis Human Rights 3.1 The European Convention on Human Rights 3.2 The Human Rights Act Convention Rights 3.4 Types of Rights 4. Equality and Human Rights Impact Assessment 4.1 What is an Equality and Human Rights Impact Assessment? 4.2 What needs to be assessed for Impact? 4.3 When to Assess Impact 4.4 How to Assess Impact 4.5 Policy / Practice Undergoing a Review 5. Publication of Equality and Human Rights Impact Assessments 5.1 Legal Requirement 5.2 Internal 5.3 External 6. Retention, Storage and Accessibility 7. Roles and Responsibilities 7.1 Equality and Human Rights Impact Assessment Author 7.2 Owning Department 7.3 Policy Support Department (Operational Service Delivery Related Policy / Practice) 7.4 Safer Communities Equality and Diversity Department 7.5 People and Development Department (Publication Scheme) 3

4 Appendices Appendix A Appendix B Appendix C Appendix D Appendix E List of Associated Legislation List of Associated Reference Documents List of Associated Forms Contacts List Glossary of Terms (Publication Scheme) 4

5 1. Purpose 1.1 This Standard Operating Procedure (SOP) supports the Police Service of Scotland (hereinafter referred to as Police Scotland) Equality and Diversity Policy. 1.2 The SOP supports Police Scotland and the Scottish Police Authority (SPA) to meet their commitment and statutory duties imposed under the Equality Act 2010 (Section 149) and the Human Rights Act 1998 (HRA), to help advance equality and to protect individuals rights and freedoms. It also supports the Police Scotland Equality, Diversity and Dignity (Police Officers and Authority/Police Staff) SOP. 1.3 This SOP provides instruction on how an Equality and Human Rights Impact Assessment (EqHRIA) is conducted. This document should always be referred to in the first instance when considering undertaking an EqHRIA. 2. Legislative Basis - Public Sector Equality Duty 2.1 General Equality Duty The Equality Act 2010 s149 (1) sets out a General Equality Duty that requires a public authority, in the exercise of its functions to have due regard of the need to: eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; advance equality of opportunity between persons who share a relevant protected characteristic and those who do not share it; and foster good relations between persons who share a relevant protected characteristic and those who do not share it Having due regard means that a public authority must consciously consider the needs of the general equality duty in carrying out its functions. How much regard is 'due' will depend upon the circumstances. The greater the relevance to the three needs of the General Equality Duty and potential impact on protected characteristics of the policy / practice under development or review, the higher the regard required by the duty The law does not require that these needs are met, only that due regard is afforded in respect of these needs before decisions are made, and that evidence is available to confirm this. (Publication Scheme) 5

6 2.2 Protected Characteristics The Equality Act 2010 provides certain groups of people with legal protection from unfair or unequal treatment. These protected groups are referred to in the Equality Act 2010 as having protected characteristics, these being: Age; Disability (including mobility, sight, hearing and mental health impairments, learning disabilities and terminal illness); Gender reassignment; Marriage or civil partnership status; Pregnancy and maternity; Race (including colour, nationality, citizenship and ethnic or national origins); Religion or belief (including a philosophical belief or no belief); Sex; and Sexual orientation. 2.3 Specific Equality Duties (Scotland) Regulations To help meet the requirements of the General Equality Duty, The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 impose specific duties on public authorities in Scotland Assessment of equality impact is one of those specific duties and it requires Police Scotland / SPA to: Assess the impact of applying a proposed new or revised policy or practice against the needs of the General Equality Duty; Consider relevant evidence relating to the potential impact upon groups with protected characteristics; Take account of the results of any assessment in respect of that policy or practice (i.e. the end decision must be informed by the findings from the assessment); Publish the results of any assessment of equality impact; and Make arrangements to review and monitor (and where necessary revise) the policy or practice The Equality and Human Rights Commission (EHRC) has issued Technical Guidance on the Public Sector Equality Duty, which provides practical information on all aspects of the statutory requirements and case law examples for anyone seeking additional knowledge on the subject. The above information is based on this guidance (Publication Scheme) 6

7 3. Legislative Basis Human Rights 3.1 The European Convention on Human Rights The European Convention on Human Rights (hereinafter referred to as the Convention ) was drafted after World War II by the Council of Europe and came into force in It is a practical legal instrument, with compliance being overseen by the European Court of Human Rights. The Convention is made up of a series of Articles. Each Article is a short statement defining a right or a freedom, together with any permitted exceptions. The rights in the Convention apply to everyone in the states that have signed the Convention. 3.2 The Human Rights Act The Human Rights Act 1998 (HRA) came into effect in Scotland and the rest of the United Kingdom (UK) on 02 October It is protected from amendments within the Scotland Act 1998 which established the then devolved Scottish Executive There are 16 basic rights in the Human Rights Act, all taken from the European Convention on Human Rights. These are referred to as the Convention rights. Not only do they affect matters of life and death like freedom from torture and killing; they also affect people s rights in everyday life: what they can say and do, their beliefs, their right to a fair trial and many other similar basic entitlements The Human Rights Act requires public authorities to act in a way that is compatible with the Convention rights and helps to minimise interference with those rights. It also places a proactive duty on Police Scotland and SPA, as public bodies, to protect human rights (e.g. a human rights violation occurs if the state fails without justification to take appropriate steps to protect human rights). 3.3 Convention Rights These are the Convention rights protected within the Human Rights Act 1998: Article 2 - Right to life Article 3 - Prohibition of torture Article 4 - Prohibition of slavery and forced labour Article 5 - Right to liberty and security Article 6 - Right to a fair trial Article 7 - No punishment without law Article 8 - Right to respect for private and family life Article 9 - Freedom of thought, conscience and religion Article 10 - Freedom of expression Article 11 - Freedom of assembly and association (Publication Scheme) 7

8 Article 12* - Right to marry Article 14 - Prohibition of discrimination Article 1 of The First Protocol - Protection of property Article 2 of The First Protocol*- Right to education Article 3 of The First Protocol* - Right to free elections Article 1 of The Thirteenth Protocol *- Abolition of the death penalty Note: Articles marked with * apply only to the State, not public bodies. See also: Human Rights: Human Lives A Guide to the Human Rights Act for Public Authorities, Equality and Human Rights Commission, 2014 and presentation materials by Scottish Human Rights Commission (SHRC) November Types of rights There are three types of Convention rights which are classified according to whether it is acceptable to place restrictions on them in certain circumstances. These are: Absolute Rights - must be upheld at all times. There is no justification for interference and they cannot be balanced against any public interest. Examples include the prohibition of torture and inhuman or degrading treatment (Article 3), the prohibition of slavery (Article 4); retroactive laws (Article 7); and the right to hold particular beliefs (the first part of Article 9). Limited Rights - can only be limited under explicit and finite circumstances as laid out in the relevant Article. The terms will vary for different rights. For example, there are six instances where the right to liberty and security (Article 5) may be lawfully restricted. Qualified Rights - Rights which require a balance between the rights of the individual and the needs of the wider community. In particular, the rights in Articles 8 to 11 can be restricted where it is lawful, necessary and proportionate to do so in order to achieve a legitimate aim, such as public safety The distinction between absolute, limited and qualified rights can help decide what action to take when making a decision. If the policy / practice under assessment is either known to, or will potentially interfere with a right, then all three of the following conditions must be satisfied: Legal Basis - there must be a legal basis for the interference. The words used in the Articles are either prescribed by law or according to the law ; and Legitimate Aim - the action / interference must seek to achieve a legitimate aim; these are described in Appendix C of the EqHRIA Form Guidance where applicable; and (Publication Scheme) 8

9 Necessary in a Democratic Society this means that the action must be no greater than that necessary to address the social need, i.e. must be proportionate It is acknowledged that in the course of policing there may be occasions where a policy / practice may legitimately and proportionately interfere with a right or freedom. An EqHRIA will help to ensure that a proposed policy / practice is legislatively compliant with the Convention rights and that when interference with a right or freedom is required, that it has a legal basis, a legitimate aim, and is necessary and proportionate. Note: If any of the above conditions are not satisfied or you are not sure, whether a right is engaged or whether it can be refused or restricted, seek legal advice (Legal Services) The Equality and Human Rights Impact Assessment (EqHRIA) Form Guidance document provides further information about the different types of Convention rights, their meaning and the principle of proportionality. This guidance focuses on the rights / freedoms that are relevant to policing and explains what to consider when assessing impact on Human Rights. It also contains some useful case law and good practice examples. 4. Equality and Human Rights Impact Assessment 4.1 What is an Equality and Human Rights Impact Assessment? An Equality and Human Rights Impact Assessment (EqHRIA) is a tool that helps to ensure that a policy / practice proactively considers its potential impact on equality and human rights, using relevant evidence, in a systematic and structured way. A policy / practice so assessed, is likely to be fairer and more responsive to the needs of those affected by it. 4.2 What needs to be assessed for Impact? Policy / practice is a generic term used throughout this document and EqHRIA Form Guidance to refer to all areas of decision-making and police powers. The requirement to conduct an EqHRIA is inclusive of, but not limited to: Policies; Standard Operating Procedures (SOP); Guidance; Functions; Practices; Service Provision; Events and Operations; Employment practice related documents / processes; (Publication Scheme) 9

10 Procurement / Contracts Award Criteria; Strategic Decisions; Financial Decisions; Organisational / Business Change Projects. 4.3 When to Assess Impact For a meaningful EqHRIA, considerations regarding potential impacts must form part of the decision-making process from the outset and continue in tandem with the development of a new policy / practice or revision of an existing one. The results of the assessment must be used to inform the final decision regarding the policy / practice An assessment should not be undertaken in isolation or as an afterthought. 4.4 How to Assess Impact An EqHRIA should be approached with an open mind and be based on current evidence / data that can help determine the likely impact of what is being proposed or reviewed. Best practice suggests that each assessment should be proportionate to the level of relevance the proposed policy / practice has to the requirements of the equality and human rights legislations. The Equality and Human Rights Impact Assessment (EqHRIA) (Form ) should be used to help facilitate a systematic and coherent approach to assessment A detailed guidance for authors on how to complete each of the sections of the form is contained in the Equality and Human Rights Impact Assessment (EqHRIA) Form Guidance. 4.5 Policy / Practice Undergoing a Review Check if it has previously been the subject of an Equality Impact Assessment (EIA) or an EqHRIA If only an EIA was completed previously, include reference to the key findings from that assessment within the new EqHRIA along with assessment of any significant changes that are proposed and likely to impact on Human Rights If an EqHRIA was completed previously, review it in tandem with the relevant policy / practice, and update the existing EqHRIA form by recording any significant changes within the appropriate sections, quality assure and update the Management Log Remember, community / staff profiles / demographics can change over time and new evidence, information and / or research may now be available which has implications for the policy / practice in question. (Publication Scheme) 10

11 5. Publication of Equality and Human Rights Impact Assessments 5.1 Legal Requirement Police Scotland / SPA, as public bodies, have a legal obligation to publish a summary of results in relation to Equality Impact Assessments. An EqHRIA Summary of Results (Form (A)) should be used to summarise the pertinent considerations, outcomes and mitigating actions identified in the completed EqHRIA. 5.2 Internal Policy Support will publish the full EqHRIA s for national Policies and SOPs on the guidance site of the Police Scotland Intranet It will be the responsibility of Divisions / Departments to consider where EqHRIAs in relation to other documents will be published internally. Publication to the Police Scotland Internet site will be facilitated by Corporate Communications. 5.3 External Police Scotland will publish a summary of EqHRIA results for all national Policies and SOPs as part of the Model Publication Scheme on the Police Scotland Internet site EqHRIA authors will be responsible for providing the results using an EqHRIA Summary of Results (Form (A)) to ensure corporate standards are maintained. Policy Support will facilitate publication on the Police Scotland Internet site, via Corporate Communications Owning departments for all other strategies, guidance, manuals, etc. that are published on the Police Scotland website must complete an EqHRIA Summary of Results (Form (A)) and have this published in unison with the associated document. Publication on the Police Scotland Internet site will be facilitated by Corporate Communications. 6. Retention, Storage and Accessibility 6.1 It is essential that an accessible record of an EqHRIA is retained with the core document it refers to. 6.2 Policy Support will retain an EqHRIA for all national Policies and SOPs, however, Owning Departments will be responsible for maintaining all research material and evidence obtained through consultation. (Publication Scheme) 11

12 6.3 Divisions / Departments will be responsible for managing EqHRIAs in relation to all other documents, ensuring all research material and evidence obtained through consultation is maintained. 6.4 The Assessment Form will be subject to the same retention period / rules as the document to which it refers. For specific guidance in relation to record retention and storage, reference should be made to the Record Retention SOP and Storage of Records SOP. 7. Roles and Responsibilities 7.1 Equality and Human Rights Impact Assessment Author The EqHRIA author is the police officer or SPA / police staff member with the task of undertaking the EqHRIA process. The EqHRIA author must have knowledge of, or be the author of the policy / practice under assessment The EqHRIA author must have access to all documentation in relation to the subject under assessment The EqHRIA author will gather all relevant evidence and conduct internal and external consultation, as appropriate, and, on completion of the EqHRIA, will endorse Part 1 of the Management Log of the EqHRIA (Form ). Note: Although the EqHRIA author may identify mitigating actions for inclusion in the EQHRIA Form, responsibility for implementation rests with the owning department The original EqHRIA author is not automatically responsible for subsequent reviews. It will be the responsibility of the Owning Department to allocate this task Where the assessment has discovered any infringements in relation to Convention rights, then the EqHRIA author must ensure that the conditions set out under above are met. If any of these conditions are not satisfied or the author is not sure whether a right is engaged or whether it can be refused or restricted, they should seek legal advice from Legal Services On completion of the assessment, the EqHRIA author will be responsible for providing the results of the assessment using EqHRIA Summary of Results (Form (A)) and arranging publication in accordance with procedures set out under Section 5 above. 7.2 Owning Department The Divisional Commander / Head of Department (or designate) will have responsibility for ensuring that an EqHRIA is conducted. They will review each completed assessment, appending any comments as appropriate to Part 3 of the Management Log of EqHRIA Form. (Publication Scheme) 12

13 7.2.2 The Divisional Commander / Head of Department (or designate) will ensure that all mitigating actions are undertaken and practices amended and implemented as required The Divisional Commander / Head of Department (or designate) will be responsible for ensuring that the EqHRIA is updated if there is a significant change to the policy / practice. 7.3 Policy Support Department (Operational Service Delivery Related Policy / Practice): Policy Support will provide advice, assistance and quality assurance to Owning Departments of all EqHRIA Forms relating to national Policies, SOPs and Guidance. Contact details are provided at Appendix D to this SOP Policy Support will retain an auditable record of completed EqHRIAs in relation to national Policies, SOPs and Guidance documents Policy Support will coordinate with the EqHRIA author to ensure that a summary of results for all national Policies, SOPs and Guidance documents is published on the Police Scotland website. 7.4 Safer Communities Equality and Diversity Department Safer Communities Equality and Diversity (E&D) Advisers will provide general advice, assistance and quality assurance to Owning Departments, and EqHRIA authors, on request, for service related EqHRIAs that would not normally be quality assured by Policy Support. Contact details are provided in Appendix D to this SOP. 7.5 People and Development Department The People and Development Policy Department is the gatekeeper for all employment / staff related policies / practices. They will work closely with Policy Support to ensure corporate governance is applied to all documentation The People and Development s Equality and Diversity Team are responsible for providing advice, assistance and quality assurance in relation to employment / training related policies / practices. Contact details are provided at Appendix D to this SOP. (Publication Scheme) 13

14 Appendix A List of Associated Legislation Equality Act 2010 Human Rights Act 1998 The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (Publication Scheme) 14

15 Appendix B List of Associated Reference Documents Policy Equality and Diversity Policy Standard Operating Procedures Equality, Diversity and Dignity (Police Officers and Authority/Police Staff) SOP Record Retention SOP Storage of Records SOP Guidance Equality and Human Rights Impact Assessment (EqHRIA) Form Guidance Police Scotland, Organisational Support, Equality and Diversity intranet page Technical Guidance on the Public Sector Equality Duty, Equality and Human Rights Commission, Human Rights: Human Lives A Guide to the Human Rights Act for Public Authorities, Equality and Human Right Commission, (06/2014). Police Scotland, Diversity Booklet, A Practical Guide (Publication Scheme) 15

16 Appendix C List of Associated Forms Equality and Human Rights Impact Assessment (EqHRIA) (Form ) Equality and Human Rights Impact Assessment (EqHRIA) - Summary of Results (Form (A)) Equality and Human Rights Impact Assessment (EqHRIA) - Consultation Record (Form ) (Publication Scheme) 16

17 Appendix D Contacts List Information has been removed due to its content being exempt in terms of the Freedom of Information (Scotland) Act 2002, Section 30 (c) Prejudice to effective conduct of public affairs. (Publication Scheme) 17

18 Appendix E Glossary of Terms E&D EHRC EIA EqHRIA Equality and Diversity Equality and Human Rights Commission Equality Impact Assessment Equality and Human Rights Impact Assessment HRA Human Rights Act 1998 P&D Police Scotland SOP SPA The Convention People and Development Police Service of Scotland Standard Operating Procedure Scottish Police Authority The European Convention on Human Rights (Publication Scheme) 18