Scotland Bill — House of Lords, 2016-02-24
Topic: Civil Rights
Nicol Ross Stephen (Liberal Democrats, Centre to centre-left): 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.