It’s good to see that Ofcom has published the results of their consultation on the process of Impact Assessments, and that they have made considerable changes to the methodology by which they account for their processes and decisions. Working with Better Media to respond to the consultation, I’m pleased we’ve been able to engage with Ofcom and that several significant changes have now been applied to the policy development process, though other areas, such as the presumption of non-intervention and the lack of a hierarchy of needs, require further lobbying.
The main issues addressed by Ofcom in its updated Impact Assessment guidance following its public consultation are:
Updated Approach to Impact Assessments: Ofcom has updated its approach to impact assessments to reflect its legal obligations, best practice, and experience. The updated guidance will apply to Ofcom projects starting on or after 19 July 2023 (Page 3).
Changes to Proposed Guidance: Ofcom has made some changes to its proposed guidance based on responses to its consultation. In particular, it has more explicitly recognized its duty to promote equality of opportunity and integrated discussion of its public sector equality duties into the main body of the guidance rather than in a separate section dedicated to ‘other statutory duties’ (Page 3).
Recognition of Expanded Legal Responsibilities: Ofcom’s legal responsibilities have expanded, and it now regulates a wider range of sectors, each with their own characteristics and challenges. The Equality Act 2010 and Welsh Language (Wales) Measure 2011 have also been introduced, alongside other legislative changes, which are not currently reflected in its 2005 guidance (Page 4).
Use of New Tools and Guidance: New tools and guidance are now available, such as theories of change and new analytic perspectives, including using behavioural insights to consider consumer behaviour, and using large data sets to make predictions (Page 4).
Key Changes Proposed in the Consultation: The key changes proposed in the consultation include recognizing how Ofcom’s duties range across an increasingly wide range of sectors, maintaining its bias against intervention while clarifying that the law may require it to intervene, updating how it presents its impact assessments to stakeholders, increased recognition that qualitative impacts are an important part of policy decisions, recognizing that impact assessments are an important input for ex-post evaluations, and updating the guidance to reference its current public sector equality duties and obligations in relation to the Welsh language (Page 5).
Responses to the Consultation: Ofcom received responses from various stakeholders, who generally welcomed the proposal to update its impact assessment guidance and provided specific comments on how the proposed updated guidance could be improved (Page 6).
Decisions Based on Consultation Responses: Ofcom has decided to maintain its bias against intervention and that any intervention is made in the least intrusive way possible to achieve its objectives. It has also decided to amend its guidance to clearly identify its duties to consider impacts on specific groups of persons (including its equality duties) up-front in the guidance (Pages 7-9).
Ofcom states that they have now incorporated the following changes:
4.2 Raising the prominence of our discussion of our equality duties: We have made clearer reference to our public sector equality duties earlier in the guidance. We have more explicitly recognised our duty to promote equality of opportunity, and integrated discussion of our public sector equality duties into the main body of the guidance rather than in a separate section dedicated to ‘other statutory duties’. We have also identified a wider range of specific groups of persons (including persons with protected characteristics; vulnerable persons including children; people of different socio-economic groups; people in different nations, regions and communities; and people in urban and rural areas) in our discussion of relevant sub-groups to consider as part of an impact assessment.
4.3 Emphasising our commitment to inclusive consultations: We have placed greater emphasis on the variety of experiences our stakeholders may have both in how we consider potential impacts and in presenting our thinking. We have made new references to considering different geographies where appropriate (including the nations, regions and communities across the UK), and to using market research to understand impacts on particular persons or communities most likely to be affected by our decisions.
4.4 Emphasising impacts on investment, competition and innovation: We have amended our guidance to make our obligations under the 2003 Act on investment, competition and innovation clearer, and to draw these issues out more explicitly when discussing example areas to consider when conducting an impact assessment. We have added considering investment, competition and innovation, where appropriate, as one of the key principles in our assessments. We have also clarified our legal obligation to review our regulation to ensure it is not unnecessarily burdensome.
4.5 When we will not carry out an impact assessment / equality impact assessment: We have clarified that whether we need to carry out an impact assessment will depend on the nature of the proposal we are putting forward, in particular (i) whether Ofcom is required to act in a particular way; and (ii) whether an individual proposal implements a policy or process on which an impact assessment has already been carried out. We have included some additional examples of when we will not, as a general rule, carry out an impact assessment and clarified that where we do not carry out an impact assessment as part of a consultation process, we will explain why. We have similarly explained when we will generally carry out an equality impact assessment.
4.6 Developing the counterfactual: We have included new text to explain that work to understand the current state of the world is important at the ‘understanding and scoping’ stage to help develop a later counterfactual, and that we may use sensitivity analysis to test the robustness of our assumptions where the counterfactual is uncertain.
4.7 Presenting our reasoning: We have emphasised the importance of clearly presenting our evidence and reasoning, including approaches we decided not to take, and evidence for qualitative impacts.
While Ofcom can clearly go further as an independent regulator, these changes will make a significant difference when consultations and policy changes are proposed, and should enable a broader range of considerations, as they affect people in minority communities, to have their views incorporated. The incorporation of the Equality Act 2010 explicitly into the consultation and impact assessment process is therefore welcome, and can be monitored because Ofcom will be publishing their impact assessments as a matter of course.
The updated Impact Assessment guidance by Ofcom has several implications for the development and use of Equality Impact Assessments:
Prominence of Equality Duties: Ofcom has emphasised that its public sector equality obligations will be given more prominence. These duties will be considered in the early stages of a project when deciding whether and how to intervene (Page 17, 24).
Integration of Equality Assessments: The assessment of impacts on specific groups of individuals has been integrated into the overall assessment of the impact of a project. This addresses concerns that it may be perceived as a secondary assessment (Page 17).
Assessing Impacts on Specific Groups: Ofcom will consider intersectionality and how a proposal may have a cumulative or different impact on people belonging to one or more specific groups. Both direct and indirect impacts will be considered (Page 17).
Fostering Good Relations: In light of its duty to foster good relations between people sharing protected characteristics and those that do not, Ofcom will consider the way in which a proposal may affect the interaction between different groups (Page 18).
Positive Equality Impacts: The updated guidance is expected to have positive equality impacts by giving public sector equality duties more prominence, clarifying that these obligations will be considered in the early stages of a project, and more explicitly recognising Ofcom’s duty to promote equality of opportunity (Page 24).
Transparency and Inclusivity: The updated guidance should provide additional transparency and allow people to be informed on Ofcom’s current approach to assessing equality impacts. This should in turn allow them to fully engage in Ofcom’s decision-making process and respond with their own informed views and evidence. This should ultimately help Ofcom’s consultation processes be more inclusive and improve its decision-making processes (Page 24).
Annual Updates and Reporting: Ofcom provides annual updates on the work it is doing to improve the way it assesses the equality implications of its work. It is considering how it may want to provide further reporting on equality impact assessments (Page 21).