Scotland Bill

Lord Stephen Excerpts

Tuesday 19th January 2016 Lords Chamber

[Lord Davidson of Glen Clova]

I rise to speak to the amendment standing in my name and that of my noble friend Lord McAvoy. This amendment has a variety of different effects, but the overall intent is to ensure that the Scottish Parliament has the capacity to—I use the term my noble friend would have used had he been here—smash the glass ceiling of equality in public and political life.

The amendment makes provision for the Scottish Parliament to have legislative competence in respect of the public sector equality duty. It also makes provisions for equality of opportunity in relation to the functions of Scottish and cross-border public authorities. It clarifies that the Scottish Parliament can make modifications to the Equality Acts 2006 and 2010, but only in so far as they enhance the protection and promotion of equal opportunities. It makes provision for the powers of the Equality and Human Rights Commission to be applied in relation to any modifications to the aforementioned Acts as well as increasing the accountability of the commission to the Scottish Parliament. Crucially, it would also allow the Scottish Parliament to bring forward the necessary competence for gender quotas in relation to candidates standing for the Scottish Parliament and at local government elections.

The Bill before us already includes the ability to legislate for women’s representation on public boards, which of course is welcome, but we want to see that go further. We want to ensure that there is a commitment to bring about equality in every walk of Scottish life, including in politics itself. We are now in a position where the economic case for women’s equality in public life has been made and won. It could not be clearer. One of the contributors to this change in attitude is found in the work of my noble friend Lord Davies of Abersoch. His contribution to the debate should not be understated. In his final report he stated:

“It is a sign of our evolution ... that few British business leaders now ask why we need more women at the top, the business case is raised less and less as energies are now focused on how to achieve women in leadership positions and how to sustain the change”.

He also says:

“The business case is even stronger today as Chairs report on the positive impact women are having at the top table, the changing nature of the discussion, level of challenge and improved all round performance of the Board”.

However these successes should not be limited to one particular field. Scotland has come a long way on equality, with women leading the majority of the political parties in the Scottish Parliament, a female First Minister and a female Presiding Officer. But we say that that is still not good enough. In the Scottish Parliament only 36% of MSPs are women, while local government is falling way behind, with apparently only around 20% of women elected councillors. It is this discontinuity that lies behind the notion of candidate quotas in parliamentary and local elections.

I stress that this is not a party-political point, nor should it be. For us to bring about a change in culture and attitudes, we need support from all political parties and buy-in from a cross-section of our society. This is why the tireless work of campaigns such as Women 50:50 is so important. I pay tribute to its contributions in this field and thank it for its assistance in advance of Committee.

At present there are too many barriers preventing women reaching their full potential, in Scotland and indeed across the UK. The low number of women studying STEM subjects and the prevalence of low pay among women in Scotland fortify this point. One is seeking with this amendment to address this particular obstacle. Kezia Dugdale, the Labour leader in Scotland, is doing just that, along with Members across the Scottish Parliament, with her commitment to ensuring that at least half of Scottish Labour’s new candidates for this year’s Holyrood elections will be women. It is a crucial commitment, but we now need the tools to get on and deliver on a wider scale. We believe that this amendment is the mechanism for doing that. I beg to move.

[Lord Stephen (LD)]

My Lords, I shall speak to the amendments in my name and that of my colleague, my noble and learned friend Lord Wallace of Tankerness. As has been stated, Clause 35 relates to the important issue of protection from discrimination and the promotion of equality of opportunity. These are fundamental markers of a fair and decent society. The protections in the law should be strong, and the meaning and effect of Clause 35 must be clear. I believe that we have not yet achieved the parity that is both important and required.

The Equality Act 2010 is widely held to be perhaps the best anti-discrimination law in the world. Thanks to the Act, wherever you live or work in Great Britain, you have a right to fair treatment regardless of your sex, race, age or sexual orientation or if you are disabled. Clause 35 needs to be explicit that the important protections in the Equality Act will be maintained right across Great Britain, and that modifications should be permitted by the Scottish Parliament only where they enhance the protections in the present legislation. As currently drafted, Clause 35 does not yet achieve that. While there is an attempt to differentiate between modifications to the Equality Act 2010, which are not permissible, and additions, which are, these provisions lack the required clarity. I thank the Equality and Human Rights Commission for its support and advice in framing these amendments.

Amendment 52A would make it absolutely clear that the Scottish Parliament had powers to increase protection from discrimination, harassment and victimisation by Scottish public bodies by, for example, adding new protected characteristics, prohibiting dual or multiple discrimination or enhancing remedies. It would also ensure that existing productions could not be eroded in Scotland.

The public sector equality duty is a positive duty, requiring public authorities and those delivering public functions to have regard to how they can promote equality of opportunity. It has great potential to play a transformative role for those experiencing disadvantage and discrimination. Amendment 52A would give the Scottish Parliament greater freedom to require Scottish and cross-border bodies that deliver public services in Scotland to do more to tackle entrenched inequality. We have already seen how the stronger specific equality duties in Scotland have driven greater transparency on the pay gap, for example, which means that it is clearer where action now needs to be taken. To devolve legislative competence for the general equality duty would give the Scottish Parliament far greater freedom to require its public service providers in Scotland to do even more positively to promote equality of opportunity.

The amendment would also ensure that the Smith commission commitment on gender quotas is delivered, while ensuring that the Scottish Parliament could not go beyond the extent to which positive action is permitted by EU law. We want to increase the efforts made to ensure that women have fair representation on public boards, in Scotland and elsewhere in Great Britain, but this must not be achieved through disproportionate barriers to participation by men.

On political representation, Amendment 52A, taken together with Amendment 52E, would enable the Scottish Parliament to allow political parties to take stronger action to ensure greater diversity in their selection of candidates for the Scottish Parliament and Scottish local government elections. However, the Scottish Parliament would not be able to legislate to extend the use of shortlists restricted to those sharing other protected characteristics. While this approach may be appropriate for women, who make up over 50% of the population, it would be disproportionate if it were to be used for far smaller groups, as it would thereby exclude very large sections of the population from such shortlists. These amendments reflect the position in the Equality Act 2010, which was widely debated and agreed by all parties at the time to be a proportionate, fair and appropriate position.

Amendment 52B relates to diversity on public boards. It would remove an interpretation of the term “protected characteristic” which would limit the ability of the Scottish Parliament to encourage diversity on public boards with regard to any characteristics not currently protected by the Equality Act 2010, such as marital status. The Scottish Parliament should have the power to go further than the current protections, should it wish, on this important issue. Amendment 52C may be covered by the government amendments, and I look forward to the Minister’s clarification on this and his response to the other issues that I have raised.

[Lord Dunlop]

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.