I thank noble Lords who have spoken—the noble Lords, Lord Stephen and Lord McFall. These provisions and amendments were also debated in Committee. The Government are committed to safeguarding equality, tackling discrimination where it arises and promoting transparency. However, that is, of course, not to say that 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 purpose of Clause 35 is to devolve greater equal opportunities powers to the Scottish Parliament. The Scottish Parliament can introduce new equality protections and requirements on Scottish public authorities and cross-border authorities exercising devolved functions, provided these do not conflict with or change the existing provisions of the Equality Act 2010.
The Scottish Parliament can, however, amend the 2010 Act in regard to appointments to the boards of Scottish public authorities by, for example, enabling the imposition of quotas on grounds of gender or other protected characteristics, but this does not apply to cross-border bodies.
In delivering Smith, the equal opportunities clauses strike the right balance between the need to confer greater competence on the Scottish Parliament for safeguarding and promoting equalities in public bodies—a key concern of the Scottish Government—and the importance of preserving a GB-wide legal framework.
The Government’s interpretation of paragraph 60 of the commission report ensures that we continue to reserve the subject matter of the 2010 Act, while providing the Scottish Parliament with the ability to legislate for specific provisions such as gender quotas in line with the Smith agreement. Through the general exception we are providing, the Scottish Parliament will be able only to supplement the 2010 Act. The Scottish Parliament will not be able to subtract any protections but will instead be limited to increasing and promoting protections.
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In relation to board appointments, the Scottish Parliament will be able to modify the 2010 Act if necessary; for example, to introduce gender quotas. The Government believe that applying the exceptions only to non-executive directors strikes the right balance between increasing diversity on boards and the need to minimise intervention in the day-to-day management of an authority, which would not be the case if the scope of the exceptions were to include salaried employees, such as CEOs and finance directors, rather than simply those subject to public appointments.
The provisions have undergone revision as a result of wide-ranging engagement and reflection on comments from the Scottish Government on the drafting. The clause as drafted delivers the necessary devolution of powers and the Government are confident that this delivers the Smith agreement. Therefore, the drafting approach in Amendments 29 and 33 does not need to be revised or expanded. To do so would risk the integrity of the provision, which we have worked to ensure gives the Scottish Parliament the scope to introduce gender quotas, for example, while retaining necessary protections.
Turning to the equality requirements on political parties and candidates, shortlisting electoral candidates on the basis of sex and diversity reporting are provisions in the Equality Act 2010. This is remaining reserved, as agreed by the Smith commission. The Smith commission was also explicit in stating that the regulation of political parties would not be devolved. Whichever way you look at it, the agreement clearly points to this aspect of equality remaining reserved. Amendments 30, 31 and 34 would go beyond this and the Government cannot support them. I accept that Section 106 of the Equality Act, requiring the publishing of diversity data on party candidates, has not been commenced. However, 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.
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.