My Lords, I echo what the noble and learned Lord opposite and the noble Lord, Lord Stephen, said. The Government are committed to safeguarding equality, tackling discrimination where it arises and promoting transparency; for example, in pay. That is not to say that supplementary initiatives and protections in addition to those offered by the Equality Act do not have a part to play, as the Smith commission saw.
The equality provisions in the Bill relate to public sector bodies in Scotland and will enable the Scottish Parliament to make provision for the promotion and enhancement of equality in the public sector without any extension to the private sector. That is an important point to make; I know that that issue was raised by the House of Lords Constitution Committee. It is important to remember that the Smith commission was explicit that the Equality Act 2010 as a whole is to remain reserved. The Government are confident that the Bill ensures that the benefits of a cohesive framework of discrimination law remains across Great Britain.
In delivering Smith, the equal opportunities clause strikes the right balance between conferring greater competence on the Scottish Parliament for safeguarding and promoting equalities in public bodies and the importance of preserving a GB-wide legal framework. The Government’s delivery of paragraph 60 of the commission agreement ensures that we continue to reserve the 2010 Act while providing the Scottish Parliament with the ability to legislate for specific provisions such as gender quotas. Through the general exception that we are providing, the Scottish Parliament will be able only to add to and supplement the 2010 Act. It will not be able to reduce protections but, instead, will be limited to increasing and promoting protections in relation to public bodies.
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On the specific issue of board appointments, the Scottish Parliament will be able to modify the 2010 Act if necessary—for example, to introduce gender quotas. The Government are confident that this is the right approach and that it delivers the benefits of devolution while, as I said, retaining the GB-wide equality framework.
Amendments 52 and 52A to 52E, tabled by the parties opposite, would have a number of effects. First, the public sector equality duty would be fully devolved. The Smith commission did not call for further devolution of the public sector equality duty and indeed specified, as I said, that the Equality Act 2010 should remain reserved. This does not mean that the Scottish
Government are unable to act in this area. While the PSED as a whole is reserved, there is already some devolved executive competence.
Scottish Ministers already have wide-ranging devolved powers, for example, under the PSED, which enable them, through the setting of specific duties, to require Scottish public authorities to update and publish equality statements, report on their performance in relation to equalities and add bodies that are subject to the devolved duties. Scottish Ministers can, for example, require gender pay gap information to be published by Scottish public authorities—something the Government are also planning to implement for larger private employers across Great Britain. These provisions, which have undergone revision as a result of wide-ranging engagement with stakeholders and the Scottish Government, build upon these existing powers and will give the Scottish Government new freedom in setting equality and diversity requirements for public bodies.
The removal in Clause 35 of the statutory obligation for Scottish Ministers to secure the consent of the Secretary of State before they can specify Scottish public authorities is in keeping with the Smith commission’s agreement on the devolution of further equalities powers in respect of public bodies. However, devolving the duty itself is a step too far and risks creating additional burdens for private and voluntary sector bodies that provide services to the public sector. This could occur through the imposition of excessive contractual requirements. For example, requiring Scottish public bodies to ensure that private service providers report on their gender pay gaps as a contractual condition would be burdensome, especially to smaller employers. I remind the Committee that the review in 2013 of the operation of the public sector equality duty by my noble friend Lord Hayward highlighted the risk of creating barriers for smaller charities or companies tendering for public contracts.
The Smith commission did not agree to devolve PSED and the Government are committed to continuing the benefits of nationwide equality coherence, with scope for national differentiation through specific duties where appropriate and workable. Full devolution of the PSED would alter this careful balance.
Secondly, Amendment 52 would enable the Scottish Parliament to confer new functions on the Equality and Human Rights Commission. The commission, which was established through the Equality Act 2006, is a reserved body under the Scotland Act 1998, with no legislative competence resting with the Scottish Parliament. The commission is independent of, but funded by, the Government. At this point, I acknowledge the important work of the EHRC in Scotland as in the rest of Great Britain. The Government are committed to retaining the EHRC’s status and its key role of promoting consistency across the country in the enforcement of anti-discrimination laws.
The Smith commission did not call for further powers to be devolved to the Scottish Parliament in respect of the EHRC, which is, and will continue to be, a reserved body. The Government do not think that it would be appropriate to impose, or permit the Scottish Parliament to impose, new enforcement requirements or duties on the EHRC when the nature and application
of any new Scottish legislation remains unknown. The EHRC already has a significant role in providing advice to the Scottish Parliament. It has a Scotland commissioner and a Scotland committee, which has the delegated powers of the commission to advise the Scottish Government on the effect of legislation or a proposed change in the law. Officers of the EHRC and the commissioner already appear before the Scottish Parliament, and the commission sends its annual report to the Parliament. We believe that this is an appropriate level of involvement and engagement.
It might be convenient for the House if I introduce at this point government Amendments 52AA to 52AF and 52CA. These are technical amendments that remove unnecessary references to the 2006 Equality Act, which have no effect on the current drafting. The Equality Act 2006 has partly been superseded by the Equality Act 2010, and it now mainly contains provisions relating to the operation of the Equality and Human Rights Commission. As set out in the Scotland Act 1998, the EHRC is, as I have already said, a reserved body and will remain so. The Scottish Parliament is not able, therefore, to replicate or supplement the provisions of the 2006 Act, so we are proposing to remove the reference to it in Clause 35. I appreciate that noble Lords have queried the misleading reference to the 2006 Act in the clause. The Government’s proposed amendment will ensure that there is no misunderstanding going forward.
Thirdly, I turn to Amendments 52 and 52A, which would enable the Scottish Parliament to introduce equality requirements to elections to political office. Shortlisting electoral candidates on the basis of sex and diversity reporting on candidates are provisions in the Equality Act 2010, which will remain reserved. If the intention of the Smith commission was to devolve equal opportunities in that regard, this would have been made clearer in its conclusions. In fact, it made the opposite position clear, stating that,
“the Scottish Parliament will have no powers over the regulation of political parties”.
Section 104 of the Equality Act 2010 allows registered political parties to make arrangements in relation to the selection of election candidates to address the underrepresentation of people with particular protected characteristics in elected bodies. Section 106 of the Act gives a Minister of the Crown power to make regulations requiring registered political parties to publish diversity data for candidates. Although Section 106 has not been commenced, there is nothing to prevent political parties in Scotland, or elsewhere in Great Britain, reporting on the diversity of their candidates on a voluntary basis. Indeed, this may be an area for lively political competition.
Fourthly, Amendment 52 would allow the Scottish Parliament to create new protected characteristics for board appointments and quotas. The Government believe that the equality provisions in the Bill deliver the intent of the Smith commission agreement in what is a complex area of law. The clause is the result of careful consideration and reflection on comments of stakeholders, including the Scottish Government, and we are confident that it strikes the right balance. The Smith commission stated that devolution of equal opportunities relating to public bodies should not be limited to provision for gender quotas. The Government
took notice of that and we are giving the Scottish Parliament the ability to go further. An example is the ability of the Scottish Parliament to introduce new protected characteristics on top of the nine already in the Equality Act 2010, which include sex, race and disability. This would give the Scottish Parliament greater flexibility when imposing new equality requirements on public and cross-border bodies in Scotland that exercise devolved functions.
The drafting of Clause 35 does not limit the more specific exception for board appointments on public bodies to those protected characteristics already listed in the Equality Act. This does, however, include eight other characteristics, over and above the specific requirement of Smith. The two exceptions in Clause 35 call on some variation in their detail but still provide the Scottish Parliament with devolved competence, as detailed in Smith, and more. This is to ensure that the provisions do not become a barrier to recruitment, an issue that the noble Lord, Lord Stephen, raised; one might argue that having more than two or three concurrent quotas would make it more difficult to satisfy them and recruit suitable candidates for board appointments.
I hope that I have been able to clarify the position, and I ask that the parties opposite withdraw their amendment.