Socio-economic Duty: an overview

Although the Deputy Minister and Chief Whip indicated that the duty was to be commenced on the 29 September 2020, the Welsh Government has reprioritised its business to reflect the unprecedented nature of the Coronavirus (COVID 19) crisis. Therefore, a revised date for the duty has been agreed. The duty will now come into force on the 31 March 2021.

The duty will be a key mechanism in supporting the most vulnerable in our society and something which will be extremely important when we recover from the current crisis.

The overall aim of the duty is to deliver better outcomes for those who experience socio-economic disadvantage.

The Socio-economic Duty will support this through ensuring that those taking strategic decisions:

• take account of evidence and potential impact
• through consultation and engagement
• understand the views and needs of those impacted by the decision, particularly those who suffer socio-economic disadvantage
• welcome challenge and scrutiny
• drive a change in the way that decisions are made and the way that decision makers operate

The duty does not require public bodies to consider how to reduce inequalities experienced by a person as a result of being a person subject to immigration control.

A key theme arising from the consultation A More Equal Wales – Commencing the Socio-economic Duty, was for all public bodies, including those who are not listed within the Regulations, to act in the spirit of the duty.

Therefore, whilst only those public bodies specified in the regulations will be under a statutory duty to comply with it and take account of any guidance issued, we would encourage all other public bodies to consider the resources made available to support them in their decision-making.

This includes the guidance which has already been issued, to help prepare relevant public bodies for the commencement of the duty.

The Welsh Ministers have powers under the Equality Act 2010 to introduce the Socio-economic Duty for specified public bodies in Wales.

It would be unnecessary and inappropriate to seek to enact it by passing further primary legislation.

It is for specified bodies to evidence how they are meeting the statutory requirement. However, it is recommended that relevant public bodies should evidence a clear audit trail for all decisions made under the Act, using existing processes, such as impact assessment processes and systems for engagement.

Examples of how a public body may demonstrate due regard is contained within the guidance to help relevant public bodies prepare for the commencement of the duty.

To support relevant public bodies, in its role as the regulator of the 2010 Equality Act, the EHRC has powers to promote and provide advice and guidance, and publish research, on implementing the Socio-economic Duty. It does not have use of its full enforcement powers in relation to the duty as the  2010 Act does not establish ‘socio-economic discrimination’ – socio-economic status – as a protected characteristic in the Act, and therefore the EHRC will not undertake enforcement on the basis of an ‘unlawful act’.

Once the duty is commenced, if a relevant public body fails to perform the duty, an individual or group whose interests are adversely affected by that public body’s decision, may be able to bring a judicial review claim against that authority.

The EHRC may support an individual or group with regard to any such challenge, or take such a challenge itself.

Welsh Government recognises that relevant public bodies operate differently and therefore wants to encourage  innovation in meeting the duty, welcoming different approaches. When the Regulations imposing the duty on the relevant bodies are laid in the Senedd, an Explanatory Memorandum, including a Regulatory Impact Assessment (RIA) will also be published.

The RIA will outline the estimated costs and benefits associated with the duty, this will include revenue, capital
and opportunity costs.

These costs will be developed in partnership with key stakeholders to ensure a best estimate.

As referred to under ‘due regard’ in section 4 of the guidance ‘Defining the key terms’ to help public bodies prepare for the commencement of the duty, relevant public bodies should consider how they integrate the duty into existing processes; opportunity for this could be considered through the following:

• taking an integrated approach to impact assessment
• taking a broader approach to engagement and involvement to include socio-economic disadvantage
• developing scrutiny frameworks to include scrutiny of impact with respect to inequality of outcome that results from socio-economic disadvantage
• taking an integrated approach to planning and reporting
• developing Integrated performance measures
• considering prevention of inequalities of outcome caused by socio-economic disadvantage through  application of the Well-being of Future Generations Act’s five ways of working.

Section 9 of guidance ‘Meeting the duty on a day-to-day basis’ includes an example of how relevant public bodies may meet the duty on a day-to-day basis, this is set out in a five stage approach.

The duty applies to all decisions of specified public bodies made after the date of commencement.

As only specified public bodies are subject to the duty, the duty remains with that body. Therefore, the requirement to meet the duty does not pass to a third party through procurement, commissioning or outsourcing.

However, in circumstances where the procurement activity itself is considered by a specified public body to engage the duty, the relevant public body must consider how such arrangements reduce inequalities of outcome caused by socio-economic disadvantage.

When a specified body works in partnership with bodies not covered by the duty, the duty only applies to the specified body. For example, local well-being plans under Part 4 of the Well-being of Future Generations (Wales) Act 2015 are developed and owned by a range of partners, however those public bodies subject to the duty should ensure that they are discharging their duty though consideration of how the  elements of the plan they have responsibility for will reduce inequalities of outcome caused by socioeconomic
disadvantage.

All public bodies in Wales are encouraged to support the spirit of the duty.

The duty will not apply to schools. School Governing Bodies are created by section 19 of the Education Act 2002 and are statutory corporations. They therefore have a distinct legal identity from Local Authorities.