The Scottish Parliament - Equal Opportunities Committee Report

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
Christina McKelvie
Margaret Mitchell (Convener)
Hugh O'Donnell
Elaine Smith

1. The Equality Bill (the Bill) introduced in the House of Commons on 24 April 2009, is currently under consideration in the UK Parliament.

2. The Equal Opportunities Committee considered a legislative consent memorandum (LCM) (S3) 20.1¹ on the Bill on 9 June 2009. The LCM focused on the following provisions:

3. The Equal Opportunities Committee’s report² on that LCM recommended that the Scottish Government consult on the public sector duty regarding socio-economic inequalities.

4. The Scottish Government held a consultation on the socio-economic duty between 3 August – 27 October 2009 and received 69 written responses. Overall, there was a majority of respondents in favour of the application of the socio-economic duty to public authorities in Scotland.

5. The Bill did not complete its passage through the UK Parliament by the end of the 2008/9 session. It was re-introduced on 19 November 2009 and is currently in the House of Lords. Two new clauses have been added to the Bill which require a further LCM. A supplementary legislative consent memorandum (LCM (S3) 20.2)³ was lodged on 16 December 2009. The LCM focuses on two additional provisions:

6. At its meeting on 12 January 2010, the Committee considered the supplementary LCM and took evidence from Alex Neil MSP, Minister for Housing and Communities.⁴

7. The Committee also considered written evidence received from a number of stakeholders.⁵

8. During the evidence session the Committee sought clarification on a range of issues including: the use of an LCM rather than primary legislation to introduce the public sector duty regarding socio-economic inequalities; concerns the duty will lead to legal challenges and judicial reviews for local authorities and the powers of Scottish Ministers to amend the Equality Act to add/remove a relevant authority subject to the duty in consultation with the Minister of the Crown.

9. The Committee also sought further information from the Scottish Government on the provisions relating to adjustments to common parts of buildings, including how the consultation with the Minister of the Crown on the regulations will operate and how the Parliament will feed into the regulations.

10. The Committee raised concerns with the Scottish Government that the proposals on adjustments to common parts in buildings might not establish parity of protection between Scotland and other parts of the United Kingdom. In Scotland the onus would fall on the disabled person to secure the necessary funding, planning consent etc. to carry out adjustments whereas in England and Wales the onus would fall on “the responsible person” (which is most likely to be local authorities, housing associations and commercial factors).

11. The Scottish Government explained that it would use the regulations it brings forward on the adjustments to common parts in Scotland to ensure that disabled people would not be put at a disadvantage compared to their counterparts in England and Wales. The Committee was unsure that the current wording of the relevant clause in the Bill would enable the Scottish Ministers to draft regulations as it proposes. The Scottish Government agreed to examine the matter and discuss it with the relevant UK Parliament ministers.

12. The Committee asked the Scottish Government why the provision on the adjustments to common parts of buildings was not being made as an amendment to the Housing (Scotland) Act 2006 but as part of the UK Equality Bill, as housing is a devolved issue. The Minister explained that legal advice from the Scottish Government lawyers and UK Government lawyers had agreed that if a housing contract exists between the various owners or tenants of a property, it is a devolved matter, but if a contract does not exist, it is an equalities matter and therefore reserved. The Committee invited the Minister to consider further whether the parliament has the powers to amend existing legislation, as well as going ahead with the provision on adjustments to common parts.

13. The LCM provision on the socio-economic duty will apply to cross-border organisations such as British Waterways, BBC and the Forestry Commission. The Committee wishes to point out that issues may arise in the application of the public sector duty to organisations which are transferred into private ownership in the future.

14. The Equal Opportunities Committee recommends that the draft motion set out in the legislative consent memorandum (LCM (S3) 20.2) be agreed to by the Parliament.

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
[Accessed 15 January 2010].

² Scottish Parliament Equal Opportunities Committee. 2nd Report, 2009 (Session 3). Report on the Legislative Consent Memorandum on the Equality Bill (LCM (S3) 20.1) (SPP 290). Available at: http://www.scottish.parliament.uk/s3/committees/equal/reports-09/eor09-02.htm [Accessed 15 January 2010].

³ Scottish Government. Legislative Consent Memorandum Equality Bill 16 December 2009. Available at: http://www.scottish.parliament.uk/business/legConMem/LCM-2009-2010/EqualityBillsupplcm.pdf [Accessed 14 January 2010].

⁴ Scottish Parliament Equal Opportunities Committee. Official Report, 12 January 2010. Available at: http://www.scottish.parliament.uk/s3/committees/equal/or-10/eo10-0102.htm#Col1387 [Accessed 14 January 2010].

⁵ Written submissions to the Equal Opportunities Committee on the Legislative Consent Memorandum Equality Bill. Available at: http://www.scottish.parliament.uk/s3/committees/equal/papers-10/eop10-01.pdf [Accessed 14 January 2010].