Scotland Bill

Lord Stephen Excerpts

Wednesday 24th February 2016 Lords Chamber

Moved by

[Lord Stephen]

29: Clause 35, page 37, leave out lines 17 to 33 and insert—
“Equal opportunities in relation to the Scottish functions of any Scottish public authority or cross-border public authority, including appointments to non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions. The provision falling within this exception includes provision that reproduces or applies an enactment made in or under the Equality Act 2010, with or without modification, without affecting the enactment as it applies for the purposes of that Act. It does not include any modification of that Act, or of any subordinate legislation made under it, except—
(a) provision that supplements or is otherwise additional to provision made by that Act that enhances, but does not diminish, the protection and promotion of equal opportunities afforded by the provision made by that Act;(b) in particular, provision imposing a requirement to take action that the Act does not prohibit.”

[Lord Stephen (LD)]

My Lords, I spoke to Clause 35 in Committee. Protection from discrimination and the promotion of equality of opportunity are fundamental markers of any fair and decent society. As Clause 35 sets out how these issues will be dealt with in the context of the Scotland Bill, it is essential that the meaning of the clause is clear. Despite the Minister’s assurances in Committee, the Equality and Human Rights Commission and other key stakeholders remain concerned that this is still not the case. I am therefore moving Amendment 29, which is intended to make absolutely clear the extent of the Scottish Parliament’s legislative competence in relation to changes to the Equality Act 2010. I very much welcome the support of the noble Lord, Lord McAvoy, and the noble and learned Lord, Lord Davidson, and look forward to their support on this amendment in the Division Lobby shortly. We shall see.

As drafted, Clause 35 prohibits modification of the Equality Act 2010 but allows some limited addition. Whether a change to the Act is a modification or an addition will be difficult to assess. This lack of clarity will lead to confusion and potential legal challenge. However, Amendment 29 would make it clear that the important protections in the Equality Act will be maintained and can be enhanced. It would clarify that limited modification is permitted by the Scottish Parliament only where it is additional to and an enhancement of the present legislation. It would therefore become clear that the Scottish Parliament had powers to increase protection from discrimination, harassment and victimisation in the functions of Scottish public bodies by, for example, adding new protected characteristics prohibiting dual or multiple discrimination or enhancing remedies. In doing so, the amendment would ensure that the fundamental right to be free from discrimination and harassment is protected across Great Britain, but it also enables the Scottish Parliament to provide greater protections in relation to the Scottish functions of devolved public services. It would provide clarity that this could be done and ensure that the Smith commission commitment to devolve,

“the introduction of gender quotas in respect of Scottish public bodies”,

is delivered, while providing clarity that any such provision made by the Scottish Parliament could not go beyond the positive action permitted by EU law and reflected in the Equality Act 2010. In supporting greater efforts to ensure that women have fair representation on public boards, we want to ensure that this is not achieved through unlawfully discriminating against men or at the expense of other under-represented groups such as those from ethnic minorities and the disabled.

Amendment 33 relates specifically to diversity on public boards. As drafted, Clause 35 would limit the ability of the Scottish Parliament to encourage diversity on public boards in relation to any protected characteristics not within the present meaning of “protected characteristic” in the Equality Act 2010. This means that the Scottish Parliament would not be able to legislate to encourage diversity on public boards in respect of any new protected characteristics for which it might otherwise introduce protection. It would, for example, restrict moves to address under-representation on public boards of people who are intersex, should the Scottish Parliament decide to introduce this as a new protected characteristic.

Amendment 32 relates to the public sector equality duty, which is a potentially powerful tool contained in the Equality Act 2010. It requires public authorities and those exercising public functions to give proper consideration to proactively eliminating discrimination and advancing equality of opportunity. It is known as the general duty. The amendment, by devolving legislative competence for the general PSED, would enable the Scottish Parliament to impose stronger requirements on Scottish public bodies to eliminate discrimination, advance equality of opportunity and foster good relations between different groups. Scottish Ministers already have legislative competence in respect of the specific equality duties, which are duties in secondary legislation that tell public authorities how to implement the general duty. We have already seen how the stronger specific duties in Scotland under the existing devolved power have driven more transparency in relation, for example, to the gender pay gap in Scottish public authorities. Devolving legislative competence for the general equality duty would give the Scottish Parliament greater freedom to require its public services to do even more.

Amendments 31 and 34 relate to equality in political representation and therefore will be of great interest to all Members of the Committee. They would enable the Scottish Parliament to permit political parties to take stronger action in their arrangements for selecting candidates in order to reduce the under-representation of people with certain protected characteristics in the Scottish Parliament and Scottish local government, extend the period in which all-women candidate shortlists are permitted, and require political parties to publish diversity information in relation to candidate selection. I note that the Minister’s response in Committee referred to the Smith commission’s position that the Scottish Parliament will have no powers over the regulation of political parties. However, I argue that the provisions that could and should be devolved under these amendments relate to equality of opportunity for election candidates, not to issues of political party regulation.

--- Later in debate ---

Turning finally to the public sector equality duty, the Smith commission did not call for further devolution of the duty and indeed was specific that the Equality Act 2010 should remain reserved. Scottish Ministers already have wide-ranging devolved powers under the PSED, which enable them, through the setting of specific duties for enabling the better performance of their obligations under the general equality duty, to require Scottish public authorities to update and publish equality statements, and report on their performance in relation to equalities, among other requirements.

[Lord Stephen]

I very much welcome the information that the Minister has had consultation with the Scottish Government on these issues but I wonder what consultation and discussion have taken place with the Equality and Human Rights Commission on all these matters.

[Lord Dunlop]

The Government consult the Equality and Human Rights Commission on an ongoing basis and I am happy to write to the noble Lord to address the specific point about what consultation there has been on this.

Scottish Ministers may specify Scottish public authorities which are to be subject to the PSED; for example, under their devolved powers in relation to the PSED they can require gender pay gap information to be published by Scottish public authorities, something that the Government are now also planning to implement for larger private employers across Great Britain. To devolve the duty risks the creation of additional burdens for private and voluntary sector bodies that provide some public services, through excessive contractual requirements imposed by Scottish public bodies on their suppliers; for example, requiring Scottish public bodies to ensure that private sector providers report on their gender pay gaps or carry out gender pay audits as a contractual condition would be burdensome, especially to smaller employers. It would also alter the careful balance we have struck between delivering a package of measures to implement the Smith commission and maintaining a coherent, GB-wide framework for the duty as a whole. I therefore urge noble Lords to withdraw their amendments.

[Lord Stephen]

My Lords, I thank the Minister for his response and the Labour Party for supporting these amendments. I welcome the support of the noble Lord, Lord McFall, alongside his colleagues, the noble Lord, Lord McAvoy, and the noble and learned Lord, Lord Davidson. The important point here is that these are good, detailed and well-argued amendments that were submitted with the advice and support of the Equality and Human Rights Commission. They were notified in Committee and it seems disappointing that there has not been consultation between the Government and the commission, which is the body given statutory responsibility for these matters. The idea here is not to be controversial or difficult but to be entirely constructive on matters of detail. These good amendments are very much in keeping with the spirit of the Smith commission. I am not minded to divide the House on the matter this evening. I do not think that much divides us and what the Minister said has been extremely helpful. However, on balance, the Equality and Human Rights Commission has indicated that there was a need for greater clarity in these areas. These amendments would have strengthened the Bill and it is disappointing that they will, it seems, not now appear on its face. I beg leave to withdraw Amendment 29.

[The Deputy Speaker (Lord Geddes) (Con)]

My Lords, this is a slight technicality but we are in fact discussing Amendment 30 and not Amendment 29. The noble Lord, Lord McFall, may wish to press or withdraw his amendment.