Section L2: Equal Opportunities
Purpose and Effect
The Section reserves equal opportunities, subject to certain exceptions.
Parliamentary Consideration
| Stage | Date | Column |
|---|---|---|
| CC | 31-Mar-98 | 1114 |
| LC | 27-Jul-98 | 1322 |
| LC | 27-Jul-98 | 1324 |
| LR | 2-Nov-98 | 11 |
Reservation
There is no current statutory definition of “equal opportunities”. For the purposes of this reservation, the interpretation provision at the end of the Section states that “equal opportunities” means the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions.
Current legislation makes provision in relation to the prevention or elimination of discrimination on grounds of sex, marital status, race or disability. There is no current domestic legislation dealing with discrimination on grounds such as age or sexual orientation. All these matters are, however, reserved.
The reservation refers to equal opportunities, including the subject-matter of:
the Equal Pay Act 1970. This makes provision for the elimination of discrimination on the grounds of sex in relation to the terms and conditions of employment, including pay;
the Sex Discrimination Act 1975. This makes provision for the prevention or elimination of discrimination on the grounds of sex or marital status. It covers sex discrimination against women, sex discrimination against men and also sex discrimination against transsexuals in relation to employment, training, education and the provision of goods, facilities, or services to the public or a sector of the public. The Act established the Equal Opportunities Commission which is charged with working towards the elimination of discrimination, the promotion of equality of opportunity between men and women generally, and the enforcement of its provisions. It is also required to keep under review the workings of the 1970 Act and the 1975 Act;
the Race Relations Act 1976. This makes provision for the elimination of discrimination on racial grounds. It made provision in relation to administration and enforcement similar to that provided in relation to sex discrimination by the 1975 Act. The 1976 Act also established the Commission for Racial Equality which has duties similar to those of the Equal Opportunities Commission; and
the Disability Discrimination Act 1995. This makes provision for the elimination of discrimination against disabled persons in connection with employment and the provision of goods, facilities and services and the disposal or management of premises. Part V of this Act, the subject-matter of which is expressly reserved under Section E5, is about standards for public passenger transport of disabled people. The Act covers persons suffering either physical or mental disability. The 1995 Act also established the National Disability Council which advised the Secretary of State on matters relevant to the elimination of discrimination against disabled persons. The NDC has now been replaced by the Disability Rights Commission, which was established by the Disability Rights Commission Act 1999.
The reservation of the subject matter of these enactments also includes the bodies established by them, namely the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission. However, in view of the existence of the exceptions to the equal opportunities reservation, it may be questionable whether or to what extent the Scottish Parliament might have been able to legislate with respect to them, such a to confer functions upon them, Paragraph 3(2)(c) of Part III of Schedule 5 also provides that these 3 bodies are included among the “reserved bodies” for the purposes of paragraph 3(1) of Part III of Schedule 5. That paragraph makes it clear that the Scottish Parliament cannot legislate about the constitution of such bodies or to confer functions on it or functions which are specifically exercisable in relation to them.
Exceptions
The exceptions from the reservation mean that the Scottish Parliament has competence over:
The encouragement (other than by prohibition or regulation) of equal opportunities, and in particular of the observance of the equal opportunity requirements. “Equal opportunity requirements” are defined in the interpretation section as the requirements of the law for the time being relating to equal opportunities so that it can expand to include any new categories of prohibited anti-discriminatory behaviour. This allows the Parliament to exhort public authorities and others to adopt equal opportunity policies, and to allocate financial and other resources to the encouragement of equal opportunities; and
Imposing duties on:
any office-holder in the Scottish Administration, or any Scottish public authority with mixed functions or no reserved functions, to make arrangements with a view to securing that the functions of the office-holder or authority are carried out with due regard to the need to meet the equal opportunity requirements; or
any cross-border public authority to make arrangements with a view to securing that its Scottish functions are carried out with due regard to the need to meet the equal opportunity requirements.
These exceptions from the reservation will allow the Scottish Parliament for example to develop schemes to secure better provision of services to groups who may be the subject of discrimination or to legislate to require certain public authorities and office-holders to have due regard to equal opportunity requirements. “Scottish functions” are defined in the interpretation paragraph as meaning functions which are exercisable in or as regards Scotland and which do not relate to reserved matters.
Executive Devolution
The following functions have been included in the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).
The Race Relations Act 1976 (c.74), sections 19(5) and 57(5). | Section 19(5) - The function of the Secretary of State to cause a local inquiry to be held under section 67 of the Education (Scotland) Act 1980 into any matter arising form section 19(3) of the 1976 Act. Section 57(5) - Where a person has given notice to the Secretary of State of a claim that he has been discriminated against in contravention of section 17 or 18 of the 1976 Act by a body to which section 19(1) of the Act applies, the function of the Secretary of State to give notice informing the claimant that the does not require further time to consider the matter. |
The Education (Scotland) Act 1980 (c.44), section 70 as applied by the Race Relations Act 1976 (c.74), section 19(3). | Section 70 - The functions of the Secretary of State under section 70 of the Education (Scotland) Act 1980, as applied by section 19(3) of the 1976 Act, to enforce the duties imposed by sections 17, 18 and 19(1) of the 1976 Act on a body to which section 19(1) of the 1976 Act applies. |
The following functions have been made exercisable by a Minister of the Crown subject to a requirement for agreement of or consultation with the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (S.I. 1999/1750).
The Sex Discrimination Act 1975 (c.65), section 53(1), as read with section 53(1A). | The function of the Secretary of State of appointing commissioners of the Equal Opportunities Commission, but only so far as relating to appointment of a commissioner with special knowledge of Scotland. |
The Race Relations Act 1976 (c.74), section 43(1), as read with section 43(1A). | The function of the Secretary of State of appointing commissioners of the Commission for Racial Equality, but only so far as relating to appointment of a commissioner with special knowledge of Scotland. |
The Disability Discrimination Act 1995 (c.50), paragraph 3(3), as read with paragraph 3(3A) of Schedule 5. | The function of the Secretary of State of appointing members of the National Disability Council, but only so far as relating to the appointment of a member with special knowledge of Scotland. |
