The Scottish Parliament - Equal Opportunities Committee Report

Report on the legislative consent memorandum on the Equality Bill (LCM(S3) 20.1 )

The remit of the Equal Opportunities Committee is to consider and report on matters relating to equal opportunities and upon the observance of equal opportunities within the Parliament.

Malcolm Chisholm
Willie Coffey
Marlyn Glen (Deputy Convener)
Bill Kidd
Margaret Mitchell (Convener)
Hugh O'Donnell
Elaine Smith
Bill Wilson

Report on the legislative consent memorandum on the Equality Bill (LCM(S3) 20.1 )

1. The Equality Bill (“the Bill”) is currently under consideration in the UK Parliament. It was introduced in the House of Commons on 24 April 2009. In accordance with Standing Orders, Rule 9B.3.1.(a), a legislative consent memorandum (LCM) in relation to the Bill was lodged by the Scottish Government on 7 May 2009. The LCM can be found on the Parliament’s website¹. On12May2009, the Parliamentary Bureau referred the LCM to the Equal Opportunities Committee.

3. There are five areas where the Bill currently triggers the need for the legislative consent of the Scottish Parliament:

4. To inform the Committee’s consideration of the LCM, it sought written comments from stakeholders. This written evidence is reproduced at Annexe A.

5. At its meeting on 9 June 2009, the Committee considered the LCM and took evidence from Alex Neil MSP, Minister for Housing and Communities, Kay Blaikie, Principal Legal Officer, Colin Brown, Senior Solicitor, Mike Gibson, Head of Support for Learning Division and Yvonne Strachan, Head of Equality Unit, Scottish Government.

6. At its meeting on 2 June 2009, the Subordinate Legislation Committee considered the provisions in the Equality Bill that confer on the Scottish Ministers powers to make subordinate legislation.

7. In its report on the LCM the Subordinate Legislation Committee drew to the attention of the Equal Opportunities Committee—

8. The Subordinate Legislation Committee’s report is available on the Parliament’s website³.

9. The Equal Opportunities Committee draws to the attention of the Parliament the written and oral evidence received on the LCM. During the evidence session the Committee sought clarification on a range of issues including: the application of the general public sector duty and the specific duties to Scottish public authorities; clarification of the respective duties of the Scottish Qualifications Authority as regulator and qualification body; and the hearing of disability discrimination school education cases by the ASNTS. The official report of the meeting can be found on the Committee’s webpage⁴.

11. The LCM contains a draft motion. The draft motion says that the Bill would make provision within the legislative competence of the Parliament and alter the executive competence of Scottish Ministers. However, the LCM does not explain how the Bill would make provision within the legislative competence of the Scottish Parliament. At the Equal Opportunities Committee meeting members sought clarification on this point. The Scottish Government explained how the Bill would make provision within the legislative competence of the Scottish Parliament and the Committee draws this explanation to the attention of the Parliament⁵.

12. The Equality Bill would place a new duty on certain public authorities to consider socio-economic disadvantage when taking strategic decisions about how to exercise their functions. The duty is not considered in the LCM as it would not apply to strategic decisions taken in relation to functions carried out in, or in relation to Scotland, except where such matters were reserved to the United Kingdom Parliament.

13. The Committee recommends that the Scottish Government consult on the public sector duty regarding socio-economic inequalities. The consultation should be concluded in time for a decision on the issue to be made in advance of the final consideration of the Bill in the UK Parliament.

1. Since the overarching aim of the Equality Bill is to consolidate, simplify and, where appropriate, harmonise the different pieces of equality legislation, it is appropriate that the jurisdiction provided under the Disability Discrimination Act in respect of school education passes to the Additional Support Needs Tribunals for Scotland (ASNTS) since this is the broadly equivalent jurisdiction to the now First-tier Tribunal in the Health Education and Social Care Chamber in respect of the law relating to Special Educational Needs and Disability (SEND) in England and its directly equivalent Tribunal in Wales (SENTW).

2. In terms of the justification for this transfer of jurisdiction from the Sheriff Court to the ASNTS, it is confirmed that the Tribunal does provide an expert body to hear these appeals; it espouses a less confrontational ethos; supports more workable remedies and provides for quicker more accessible access to hearings.

3. The ASNTS responded to the Scottish consultation process in 2007 supporting the proposal.

4. There are no additional comments on the information contained in paragraph 33 in respect of the financial implications. The ASNTS continues to have, within its current staffing and membership, the capacity to take on additional cases without the allocation of further resources. The projected numbers are likely to be very modest even with a more accessible appeal route since the law is becoming increasingly settled in this field.

Jessica M Burns
President
Additional Support Needs Tribunals for Scotland
2 June 2009

1. Engender welcomes this opportunity to provide comments to the Equal Opportunities Committee on the Legislative Consent Memorandum lodged by the Scottish Government in respect of the UK Equality Bill.

2. Our main area of concern is the fact that Scotland is not covered by the Socio-Economic Duty as outlined in the Bill.

3. While we acknowledge that this is viewed as a devolved matter we do have some concern that there needs to be a way of ensuring that there is legislative underpinning for a duty or something similar in Scotland.

4. Engender absolutely holds to the principle of reducing socio-economic disadvantage and is aware of and whole-heartedly in support of the work currently being done to address poverty and inequality in Scotland.

5. We are keen to hear from the Scottish Government as to how it proposes to address this issue whether it be through specific duties or Scottish Ministerial duties or some other option.

1. The Equality and Human Rights Commission was established by the Equality Act 2006 and came into being on 1 October 2007. We are the independent advocate for equality and human rights across the three nations of Great Britain, and we work to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights. We enforce equality legislation on age, disability, gender, gender reassignment, race, religion or belief, and sexual orientation and encourage compliance with the Human Rights Act. In Scotland, we co-locate and work in partnership with the Scottish Human Rights Commission.

2. The Commission welcomes the publication of the Equality Bill. We believe it will help unblock some of the systemic problems that get in the way of equality and achievement for everyone in Scotland. By simplifying legislation, it will improve public service delivery and business performance whilst extending equality protection to the wide range of groups that still face discrimination today. In Scotland, we particularly welcome the powers which, with the consent of the Scottish Parliament, will be conferred on Scottish Government Ministers to design specific duties on devolved public bodies (see below).

3. Public Sector Equality Duty in Scotland: The Commission’s recent report on the impact of the existing public service duties covering race disability and gender, Capturing the Gains⁶ showed that the equality duties are an effective way to bring about real change, and that there is already a lot of work underway in Scotland. The Bill now proposes extending these duties to cover all the equality strands⁷. The Commission very much welcomes this.

4. The Bill will place a general equality duty on Scottish public bodies as set out in Part 11 . The general duty will require public authorities, and bodies which carry out public functions, to have due regard to:

5. In addition, the Bill will give powers to Scottish Ministers to impose specific duties on named devolved public authorities, selected from a list set down in Schedule 19 of the Bill, which currently includes bodies such as councils, health boards, and education authorities. The specific duties will set out the steps listed public authorities are obliged to take to help them meet the general duty. Importantly, it will be for Scottish Ministers to determine the nature and scope of the specific duties for devolved public authorities. This may include, for example the need to produce equality schemes, to report on progress and to undertake equality impact assessments as part of strategic decisions on policy and spending.

6. The Commission believes that this represents a very important opportunity to strengthen provisions to ensure that public bodies do all that they can to ensure that equality is taken into account in all the decisions they make. This means designing a duty for Scotland which, in taking account of, for example, the changes in the funding arrangements between devolved and local government, ensures that there are clearly understood duties on councils to make sure decisions on spending do not disproportionately affect particular groups, or that across-the-board cuts to services do not disproportionately affect some members of the community. For example, cuts to social and day care services should anticipate the disproportionate impact that changes to services may have for people with learning disabilities and their families in terms of access to respite care and increased social isolation.

7. The new specific duty should therefore be rigorous in the processes expected of public authorities in making strategic decisions, but should be focused on delivering better outcomes for all sections of the community. We believe that this makes not just for fairer use of finite public resources, but, at a time of fiscal tightening, will ensure more effective decisions on how and where to spend public money.

8. A particular issue for Scotland, as mentioned above, is that the specific duties can be placed only on bodies listed in Schedule 19. In relation to the bodies which will be covered by the general duty, the Bill adopts a combination of the current approaches taken in relation to the Race Duty, where the bodies covered are listed, and the Gender and Disability Duties, where there is a "test" to establish whether a public body is covered. This does away with the need to update the list and removes any ambiguity as to whether a public body is covered by the duty. Scottish Ministers are given the power to amend the list by adding existing or new public bodies; however, Scottish Ministers will require endorsement from Westminster which could make for an unnecessarily cumbersome process. This is particularly significant because arrangements should not be subject to the reasonable adjustments duty by balancing the ‘desirability’ of making adjustments with the maintenance of public confidence in the qualification.

9. Whilst maintaining public confidence is an important objective of the exam regulators, the Commission will wish to be satisfied that this Clause will not lead to an erosion of disabled children's rights to adjustments in exam arrangements or the independence and objectivity with which the exam regulators are able to make such judgements. In Scotland, this poses a particular problem because the Scottish Qualifications Authority is both the exam body and the regulator.

10. Housing: the Bill contains provisions relating to housing and adaptations for disabled people. Currently, there is provision in devolved housing law for disabled tenants to make adaptations to their homes (Section 52 of the Housing (Scotland) Act 2005). The Commission would welcome further comment from Ministers on how these provisions will work alongside the new provisions in the Bill.

11. Another provision which, while not cause specific duties can only be placed on bodies listed in the Schedule, and the current list is very much shorter than the list of bodies currently subject to the Race Duty, and the lists of bodies currently subject to the Gender and Disability specific duties.

12. Transferring powers to hear DDA education cases to the Additional Support Needs Tribunal for Scotland: this has been a long-held goal since the introduction of the Education (Additional Support for Learning) (Scotland) Act 2004. Unlike England and Wales, in Scotland, matters relating to additional support needs are heard at tribunal, but discrimination cases must be heard at the Sheriff Court. This can create an arbitrary distinction in cases where there may be relevant ASN and discrimination aspects to a child’s case, and require parents to take the costly and daunting Sheriff Court route when seeking redress.

13. The Commission therefore welcomes this change. However, as matters currently stand, those seeking to take discrimination cases to tribunal will not have access to Legal Aid: we believe that this is likely to deter many disabled children and their families who have experienced discrimination in education from seeking and securing redress.

14. General qualifications bodies: The Bill proposes that exam regulators in England, Scotland and Wales should have powers to determine the circumstances in which exam covered by the Legislative Consent Memorandum, has attracted some debate in Scotland is the Socio-Economic Duty: The Commission in Scotland endorses the principle of an effective mechanism to ensure that public bodies secure more equitable socio-economic outcomes. However, as the Explanatory Notes for the Bill make clear, the duty on public bodies to have due regard to the socio-economic inequalities when making strategic decisions (Clause 1) will only apply to reserved functions in Scotland.

15. In view of the complexity of the devolved landscape in Scotland, where the three existing statutory equality duties sit alongside equality duties placed on public bodies through devolved legislation, we will need time to discuss with our stakeholders in Scotland, including the Scottish Parliament and Scottish Government, how a socio-economic duty might operate in Scotland; the Commission hopes to have more to report on this very soon.

1. The Equality Network is a network of around a thousand lesbian, gay, bisexual and transgender (LGBT) individuals and organisations in Scotland, working for LGBT equality. Thank you for asking our views on the Legislative Consent Memorandum (LCM) for the UK Equality Bill.

3. We think that paragraph 9 of the LCM is slightly misleading. Under clause 143(1) of the Equality Bill, public authorities are subject to the general public sector equality duty, and public authorities for that purpose are defined by the list in schedule 19 to the bill. However, under clause 143(2), any other person who exercises public functions is also subject to the general duty. The scope of the general duty is therefore wider than implied by the first sentence of paragraph 9 of the LCM, and is similar to, for example, the scope of the existing public sector gender equality duty in section 76A of the Sex Discrimination Act 1975.

4. However, only the authorities listed in schedule 19 to the Equality Bill can have specific duties imposed on them. Scottish Ministers can by order amend the list of Scottish authorities potentially subject to specific duties, in part 3 of schedule 19, but any such order requires the consent of a Minister of the Crown (clause 146(3)(a)). This is more restrictive than the arrangements for, for example, the existing gender equality duty. There, Scottish Ministers may impose specific duties on any Scotland-only public body with devolved functions, without reference to UK Ministers (section 76C(3), Sex Discrimination Act 1975).

5. We are concerned that making changes to the Scottish public authorities listed in part 3 of schedule 19 may be a relatively slower process because of the need to obtain the consent of a UK Minister. In effect, a small amount of devolved competence is being taken back to Westminster by this provision of the Equality Bill, compared to the existing public sector gender equality duty. Devolved public bodies are fairly regularly created, abolished or restructured by the Scottish administration, and it would seem to make sense to allow the Scottish Ministers to amend part 3 of schedule 19, which relates only to Scotland-only bodies with devolved functions, without needing the consent of a UK Minister.

6. The bill proposes to transfer disability discrimination cases in school education, from the Sheriff Court to the Additional Support Needs Tribunals for Scotland (ASNTS). We understand that a side effect of this will be that there will no longer be Legal Aid available for these cases. The LCM states (paragraph 33) that there may be a saving to the public purse from this change. We believe that legal aid entitlement should be extended to apply to these cases at the ASNTS. Any costs of this would be offset, in terms of the total public purse, by the potential savings identified in the LCM.

For Scotland’s Disabled Children (FSDC) is a campaign coalition of nearly 30 Scottish disability organisations and has support from parents and families with a disabled child from all over Scotland: our membership and supporter base is growing daily. The coalition was established in 2007 to secure rights and justice for disabled children, young people and their families in Scotland. Our aim is to turn good intentions into better lives.

The coalition has established a liaison project to address four key issues impacting on disabled children’s lives (short breaks, transition, childcare and education). As well as monitoring the impact of Scottish Government action on these issues, the project willmap and evaluate local service design and delivery, whileengaging with parents and families, and disabled children and youngpeople themselves, to establish their experiences in these key areas. The project is funded by the Scottish Government.

Our interest in the Equality Bill and especially in this LCM is in how the proposals will impact on the lives of disabled children and young people in Scotland, directly and indirectly.

Public sector duty
FSDC echoes the concerns of other organisations that requiring the consent of a UK Minister to make changes to the list of Scottish public authorities is an unnecessary and potentially inefficient measure. In fact, it would reverse the current position: Scottish Ministers currently have powers to make such changes without reference to Westminster for the public sector duty contained in current race relations legislation.

Power for Additional Support Needs Tribunal Scotland (ASNTS) to hear disability discrimination cases
FSDC welcomes this much overdue move and notes the small cost savings to local authorities. We would encourage members to discuss with Ministers how these cost savings can be transferred from local authorities to be awarded to organisations that can provide free legal advice for parents involved in such cases eg through Education Law Unit at Govan Law Centre. We would also hope members will explore with Ministers which legislative vehicles and opportunities might be used to create an entitlement to legal aid for parents invoking the tribunal process.

Qualification authorities
The Scottish Parliament has recently considered and passed the Education (Additional Support for Learning) (Scotland) Bill. Repeatedly, members heard of the lack of parental confidence in the application and implementation of key parts of the framework on the ground. Similarly, in England and Wales, the UK Government has established the Lamb Inquiry to investigate a range of ways in which parental confidence in the Special Educational Needs assessment process might be proved.

If parents do not have confidence in the legislative frameworks and in the measures and bodies implementing those frameworks to support their children’s education, then those frameworks are considered with suspicion and are effectively undermined. Parental confidence is a key factor in making the legislative frameworks that aim to eliminate discrimination against disabled children and young people in education and support such children to fulfil their educational potential, work.

Giving the Scottish Qualifications Authority (SQA) duties and responsibilities to set the standards, deliver on those standards and then determine whether or not those standards are reasonable or have been met, is likely to diminish parental confidence. In the interests of fairness and transparency – and to maintain the perception of these – there has to be a separation of these roles. FSDC would hope that given the number of organisations expressing concern on this proposal, members will explore with Ministers why the status quo of Scottish courts having the power to hear appeals on reasonable adjustments to exam arrangements was not considered. If the status quo must change, we would welcome the creation of an alternative regulatory route, such as giving the regulatory role over the application of the DDA to exam arrangements and the right to hear appeal on reasonable adjustments to the ASNTS.

1. Please see below comment from NDCS Scotland on the Qualifications Authorities section (paras 20-25) of the LCM:

2. Under the LCM (para. 24), Scottish Ministers will have the power to prescribe the regulator in Scotland in relation to obligations of qualification authorities under the UK Equality Bill. Clauses 91-92 of the Equality Bill propose new powers for the regulator to decide what adjustments should NOT be considered reasonable and what parts of the qualification are NOT subject to any reasonable adjustments – which has the effect of removing such decisions about competence standards and reasonable adjustments from the courts and placing it with the regulator. In England and Wales, there are a number of different awarding bodies, and a separate regulator (Ofqual and DCELLS respectively). In Scotland, the Scottish Qualifications Authority (SQA) is both the regulator and qualification body, as noted in para. 22 of the LCM. At present, as in England and Wales, we understand that where a disabled student in Scotland wishes to appeal a decision of the SQA on reasonable adjustments, they can do so via the courts. Under clause 91-92 of the Equality Bill, whereas disabled students in England and Wales will continue to have access to a separate regulator with increased powers in order to challenge decisions about reasonable adjustments made by the qualifications authority instead of doing so via the courts, will the effect of para. 24 of the LCM therefore be to completely remove an independent route of redress for disabled students in Scotland?

Jan Savage
Acting Policy and Campaigns Manager, Scotland
The National Deaf Children's Society
1 June 2009

1. Thank you for offering us the opportunity to input questions with regard to the LCM for the UK Equality Bill.

2. Our main concern that we would like raised, if possible, is with regard to the Public Sector Equality Duty (PSD):

3. Under the LCM (para 7), Scottish Ministers will have the power to specify public authorities that are subject to the General Duty (of the PSD). Currently ALL public authorities (in the meaning of the Human Rights Act) are covered by the General Duty, with listed authorities covered by the Specific Duties (involving disabled people, producing Disability Equality Scheme, gathering evidence, etc). The UK Government’s proposal to apply the General Duty to public authorities only will, therefore, be a regressive step, and potentially restrict the ability of Scottish Ministers to retain the current approach. Will this power mean that Scottish Ministers cannot make all Scottish public authorities subject to the General Duty?

Shabnum Mustapha
Communications and Campaigns Manager
RNID Scotland
29 May 2009

1. The STUC is Scotland’s Trade Union Centre. Its purpose is to coordinate, develop and articulate the views and policies of the Trade Union Movement in Scotland; reflecting the aspirations of trade unionists as workers and citizens.

2. STUC represents over 655,000 working people and their families throughout Scotland. It speaks for trade union members in and out of work, in the community and in the workplace. Our affiliated organisations have interests in all sectors of the economy. The STUC’s representative structures are constructed to take account of the specific views of women members, young members, black/minority ethnic members, LGBT members, and members with a disability, as well as retired and unemployed workers.

3. STUC is pleased to provide comments on the Legislative Consent Memorandum for the Equality Bill.

4. The STUC supports the proposals to confer on Scottish Ministers powers to make regulations to impose specific duties on Scottish public authorities and bodies carrying out public functions. The STUC believes it is appropriate, and within the spirit of devolution, that Scottish Ministers consult upon and develop the specific duties in Scotland. It is right that Scottish Ministers develop the specific duties, in consultation with Scottish stakeholders, to ensure the specific duties are appropriate for the Scottish context and enable Scottish public authorities to better meet the general duty.

5. We are very clear that the specific duties are for public bodies, and for those that are not public bodies but are exercising public functions, and it is important that this should be made clear in the Regulations and subsequent guidance.

6. The STUC supports the inclusion of public procurement functions within the specific duty.

7. The STUC notes the aims of the Public Sector Equality Duty as set out in the Single Equality Bill:

We believe it is important that the Scottish specific duties take cognisance of the definitions used in the Equality Bill particularly in terms of “advancing” equality of opportunity and “fostering” good relations.

8. The Scottish Government should be required to consult with the Equality and Human Rights Commission, trade unions, and other stakeholders when developing the specific duties.

9. Disability Discrimination Act (DDA) Cases in School Education – Proposed transfer to the Additional Support Needs Tribunals for Scotland (ASNTS).

10. The STUC supports the proposed transfer of DDA cases to the Additional Support Needs Tribunals for Scotland, and we recognise that this brings the Scottish legislation in line with current practice in England and Wales. A number of our affiliates have been concerned about the possible lengthy and bureaucratic nature of ASN cases and the different routes these cases can take. The principles underpinning the Additional Support for Learning Act are important; offering child centred solutions, and a provision for mediation. Often the adversarial nature of tribunals, regardless of their origin, is not helpful to the individual child and may not bring the desired resolution. Therefore, the STUC supports the proposals on this issue within the Legislative Consent Memorandum.

¹ Scottish Government. Legislative Consent Memorandum Equality Bill 7 May 2009. Available at: http://www.scottish.parliament.uk/business/legConMem/LCM-2008-2009/pdf/EqualityBill-LCM.pdf

² Scottish Government. Legislative Consent Memorandum Equality Bill 7 May 2009. Available at: http://www.scottish.parliament.uk/business/legConMem/LCM-2008-2009/pdf/EqualityBill-LCM.pdf

³ Subordinate Legislation Committee, 30th Report 2009, Legislative Consent Memorandum on the Equality Bill. Available at: http://www.scottish.parliament.uk/s3/committees/subleg/reports-09/sur09-30.htm [Accessed 9 June 2009]

⁴ Scottish Parliament Equal Opportunities Committee. Official Report, 9 June 2009. Available at: http://www.scottish.parliament.uk/s3/committees/equal/meetings.htm

⁵ Scottish Parliament Equal Opportunities Committee. Official Report, 9 June 2009, Col 1138. Available at: http://www.scottish.parliament.uk/s3/committees/equal/meetings.htm

⁶ EHRC Scotland, Capturing the Gains of the Public Sector Duties, March 2009, www.equalityhumanrights.com/en/publicationsandresources/Documents/Equalities/CapturingthegainsPSDLP.doc

⁷ The Bill lists the protected characteristics as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.