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The Devolution of Competence in Equalities Law

Document Cited authorities 6 Cited in Related
Vincent
Date01 September 2016
Pages372-376
Author
DOI10.3366/elr.2016.0370
Published date01 September 2016
<p>The transfer of legislative competence to the Scottish Parliament in the field of equalities law was never intended to be particularly radical in scope. Having made it clear that the ability to legislate on equal opportunities – such as the <a href="https://vlex.co.uk/vid/equality-act-2010-808434777">Equality Act 2010</a> – would continue to be reserved to Westminster, clause 60 of the Smith Commission Report (“Smith”)<xref ref-type="fn" rid="fn1"><sup>1</sup></xref> went on to craft some exceptions in rather cryptic terms. Smith provided that these exceptions would apply in the case of “the introduction of gender quotas in respect of public bodies in Scotland … [and the power to] legislate in relation to socio-economic rights in devolved areas”. The purpose of this short article is to reflect on how <span class="vid_spn">section 37 of the Scotland Act 2016</span> operationalises the intention of Smith, including the implications of the conferral of power in favour of the Scottish Parliament to introduce legislation which encourages the appointment of under-represented groups to non-executive posts on the boards of public bodies.</p> THE SMITH COMMISSION RECOMMENDATION

At present, equal opportunities policy in the UK, as enshrined in the Equality Acts of 2006 and 2010, protects persons with any one of nine prescribed protected characteristics, namely sex, race, disability, age, religion or philosophical belief, sexual orientation, marital/civil partnership status, pregnancy and maternity, and gender reassignment.2 Individuals with any one of these protected characteristics are protected from the commission of statutory delicts – namely direct and indirect discrimination, harassment, and victimisation3 – in connection with their employment, education, access to goods, facilities and services, the management of premises, and in the exercise of public functions. By specifically reserving the power of the UK Parliament to pass legislation repealing or modifying the terms of the Equality Act 2010 and subordinate legislation passed pursuant to that statute, Smith clearly intended to ensure that a level playing field was maintained across the UK in the field of equal opportunities. However, Smith recognised that there was a case for devolved competence in connection with the application of gender quotas in respect of the appointment of individuals onto the boards of public bodies in Scotland, as well as in the context of socio-economic rights in fields that are in the gift of the Scottish Parliament. Nonetheless, the rationale for such limited devolution of competence in the field of gender quotas and socio-economic rights was left unspecified. Seen from this perspective, it was understood that a modest level of divergence in the field of equal opportunities law would be permissible...

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