Equalities and Human Rights Committee

Meeting date: Thursday, November 30, 2017

Official Report 590KB pdf

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Departure of the United Kingdom from the European Union

Welcome back to the meeting. Agenda item 2 is on the implications for equalities and human rights of the departure of the UK from the European Union. This is one of a series of evidence sessions that we are undertaking on the potential impact of Brexit on equalities and human rights in Scotland. I welcome—she is no stranger to the committee—Lynn Welsh, the head of legal in Scotland at the Equality and Human Rights Commission, and David Cabrelli, a senior lecturer in commercial law at the University of Edinburgh. I thank you both for taking the time to come and see us today.

Human rights is a changeable landscape, but I ask you to address, in your opening remarks, where you think we are right now with human rights in Scotland and what potential changes and implications Brexit might bring as we move towards departure.

That is a broad question.

Yes. I am full of them.

You will have to excuse me, but I am a bit croaky this morning.

We all are.

We will spread our coughs.

The commission has concerns about the effects of the European Union (Withdrawal) Bill and Brexit generally on equality and human rights across Great Britain. There is an undertaking that neither the Equality Act 2010 nor the Human Rights Act 1998 will be changed as a direct result of the European Union (Withdrawal) Bill, but we are concerned about what will happen after that and what protections can be built in at this early stage to ensure that equality and human rights generally across Britain are at least preserved—if not enhanced, which would be the ideal position.

The briefing paper that you have before you sets out the five different areas where we think the bill should be amended to ensure that those protections are built into the legislation. I can take you through those individually, if you would like me to do that.

That would be helpful.

Grand. We have been looking at rolling out the use of delegated powers to amend equality and human rights law; including a principle of non-regression in the bill; retaining the EU charter of fundamental rights; introducing a new constitutional right to equality; and looking at how the courts can continue to take account of EU case law. All those areas have some element of devolution relating to them, and we must look at how the Scottish Government and the Scottish Parliament will use the powers that they will receive or how they will interact with the bill more generally.

The use of delegated powers to amend equality and human rights law has been talked about a lot in a general sense in the context of the Henry VIII clause that allows amendment without the need to return to Parliament. We think that that is not the way to go, especially around equality and human rights legislation, so we are drafting amendments to ensure that those delegated powers cannot be used. That will include—we hope—preventing those delegated powers from being used in the Scottish Parliament as well as at Westminster. Delegated powers will be given to the Scottish Parliament, and we want to ensure that they are not used inappropriately to cut back on the protections that are currently in place.

The principle of non-regression in effect means the introduction of a duty on ministers at Westminster to certify that new legislation that they bring in specifically as a result of Brexit does not diminish human rights or equality law. Obviously, the UK Government has said that those rights will come directly from EU law, but the question is what will happen as we move forward. A no-regression requirement would ensure that, at the very least, as a direct result of Brexit, those rights cannot be reduced as we progress.

Like a lot of organisations, we would also like to retain the protections in the EU charter of fundamental rights. The Westminster Government has indicated that it believes that most of those rights are somewhere in UK law or come in through United Nations treaties, but we believe that neither of those is entirely the case. The EU brought in the charter because it recognised that all of the law that it was passing required underpinning fundamental principles of non-discrimination, rights for children and rights to an effective remedy for people when they take EU law cases. The EU created the charter to ensure that that underpinning existed.

If the charter does not come in to UK law along with the rest of EU law, a lot of that underpinning will be gone and some direct and useful citizens’ rights will disappear. Obviously, it is true that the UK state has signed up to various international treaties, but generally those cannot be enforced directly in the courts here, whereas at the moment the EU charter can be. Therefore, it will be a huge loss if the charter is not brought over along with the rest of EU law.

To help with that, we would like a constitutional right to equality to be introduced, which would work similarly to the Human Rights Act 1998. There would be a right to equality and, through that lens of equality, Parliament and all public authorities would have to consider whether what they do, including any legislation, takes forward that right to equality. In the Scottish Parliament, that would mean that, when Government ministers gave a statement that proposed legislation was compatible with human rights, added to that would be a statement that the proposed legislation did not breach the right to equality.

If legislation was challenged, the courts down south could find that it was incompatible with that right to equality. In Scotland, it is likely that that would lead to an ability to say that the legislation was not law, as happens with human rights challenges. That would build in a direct right to equality, which would underpin a lot of the EU law that is being brought over.

The final area is the interaction between UK courts and the European Court of Justice, which has been a sensitive subject in many ways. There is a general recognition that there needs to be some way for courts to look at what is happening in Europe and at where they can use the case law that is going through in Europe for the benefit of citizens. We would therefore like a clause to be included in the bill that allows courts in Britain to look to decisions of the European Court of Justice where there might be doubt as to what the legislation in Britain means for us.

Thank you.

Before I bring in David Cabrelli, I want to pick up on that last issue. It is fair to say that international court judgments and case law, particularly on issues such as prisoner voting, were something of a catalyst to the anti-EU feeling in this country. How confident are you that we can mitigate that and still find a mechanism that allows us to look to international case law to ensure that we do not fall far behind?

It is partly about educating citizens and governments, in that we are talking about EU rights, rather than human rights more generally. It tends to be European Court of Human Rights decisions, such as the prisoner voting decision, that make headlines in certain places. We are looking at something slightly different in that it is about legislation that is already in place in Britain, coming from EU law. We are not saying that the UK courts have to follow what is said in the European Court of Justice in relation to legislation; rather, it is about UK courts considering what is said there and whether they might find it helpful. The final decisions in relation to all that would always lie with the UK courts.

David Cabrelli, what are your views on how Brexit will affect our human rights landscape?

Thank you for the opportunity to come and give evidence to the committee.

Before I say a little bit about the potential impacts of Brexit on equality law in the UK, I want to set the scene in relation to the current legal position. I apologise if I am insulting your intelligence—it is fairly basic law.

There are two angles. One is the devolution of competence from Westminster to Scotland, which I will cover in a moment; and the other concerns how the interaction between the Westminster Parliament and the European Union is currently framed, which I will deal with first. Competence to create policy and pass legislation in equality law is shared between the Westminster Government and Parliament on the one hand and the EU on the other. The relevant articles on equality law in the Treaty on the Functioning of the European Union are articles 19 and 157. Both those articles have direct legal effect between horizontal parties—basically between private citizens. That means that the articles can be invoked by a citizen against an employer, for example, in a local court.

Article 19 enables the EU to pass European legislation in relation to equalities law and the nine protected characteristics, of which I am sure that the committee is aware. The EU does that using European directives, rather than regulations. That is because rather than seeking maximum harmonisation of equality laws in the EU, the EU is seeking minimum harmonisation, by giving each country scope to make decisions about how it implements the directives.

Article 157 is the equal pay measure, which enables primarily female employee claimants to claim that they have been paid less than a comparator male. That is the basis of equal pay. Those are constitutional rights. Essentially, Westminster lends sovereignty to the EU. When we leave the European Union, that sovereignty will be repatriated to Westminster. The question is whether that is retained at Westminster or whether part of it is devolved to Scotland. That is an open question.

That takes me to the second scene-setting point, which relates to the current devolution settlement. I am sure that the committee is aware that one of the main areas of equality law that is devolved under the Scotland Act 2016 is the power to legislate in relation to gender representation on public boards. The power is actually wider than that because it covers each of the nine protected characteristics. It would be possible for the Scottish Government to create policy in respect of the other eight protected characteristics. For example, if the Scottish Government wanted to promote disabled participation in non-executive appointments to public boards, that would be perfectly legal under the current devolution settlement.

The second area where power is devolved from Westminster to the Scottish Parliament is a little tricky given the wording of the legislation, which says that the Scottish Parliament has the competence to pass legislation on equal opportunities in relation to the Scottish functions of any Scottish public authority—a local authority or some other public body—or a cross-border public authority that is UK-wide but has a specific Scottish remit. There is an exception to that in the 2016 act, which is where it gets a bit tricky, because competence to amend the Equality Act 2010 is reserved in relation to the Scottish functions of any public authority or cross-border public authority, so the Scottish Government does not have power in that regard. However, there is another exception to that, which says that the Scottish Parliament has power to pass legislation that proposes to improve on the rights that are provided by the Equality Act 2010. What that actually means is a bit difficult to figure out. It seems to be saying that where a Scottish public authority is exercising a public function—that is, a public sector organisation is exercising a devolved competence in relation to Scottish public power—it can improve upon the rights that are granted by the Equality Act 2010. In other words, it can ratchet up the protection. That is the current position.

10:45  

There are a lot of potential downsides to Brexit but, ironically, one of its effects would be to make it possible, with the consent of Westminster, for the Scottish Parliament to introduce positive discrimination measures. At the moment those are specifically precluded; there is no power in that regard because of EU law, and positive action is the extent of what is possible. However, if we leave the EU, it could be possible for the Scottish Parliament to pass legislation that promotes persons with the nine protected characteristics to the extent that people without those characteristics are discriminated against—in other words, to introduce positive discrimination. Of course, that depends on what the settlement is with regard to how we take account of European Court of Justice decisions—whether we need to take them into account at all or whether they will simply be persuasive—because the EU will continue the embargo or prohibition on positive discrimination measures. However, in theory, it would be within the gift of the Scottish Parliament to pass legislation or create policy that would enable positive discrimination in favour of persons with disabilities or various other characteristics on public boards.

As regards the general impact of Brexit, as I have said in my written submission, I suspect that, if there are no protections in the withdrawal bill in the terms that Lynn Welsh has mentioned, it is likely that, over a period of years, some of the current incarnations of the equalities regime will be diluted. For example, there was a specific provision in the Disability Discrimination Act 1995 that said that small employers did not need to comply if they had 15 employees or fewer. That exemption was in place until 2004. I suspect that, over a period of time, legislation might be passed to introduce those small-employer exemptions in relation to protected characteristics across the board and not just to disability.

Secondly, under the current EU law settlement, it is impossible for compensation or remedies to be diluted or reduced in their power. I suspect that that will also be diluted over the course of the next two decades. We have caps on compensation under the domestic unfair dismissal regime, and there is a potential for that to be introduced in the area of equality law as well.

Also, a perennial issue in equality law is that of which individuals are protected. On the face of it, lots of people are protected, but in reality, when you dig deep and look at the law, there are quite a few people who you would think would be protected but are actually excluded. In EU law, the concept of the individual who is protected is very broad. Again, there is a potential for that to be narrowed down, and there are a number of ways in which it would be possible to do that.

In this committee, we focus on future proofing the processes and the policies of this Parliament. Those become part of the fabric, so we lock in any future regimes that are potentially less progressive. I gather that a negative outcome of Brexit is that that future proofing is unravelled and successor regimes in the UK, irrespective their political hue, will be unencumbered with regard to rolling back some of the provisions and protections that our citizens enjoy. Is that right?

Yes. The European Union (Withdrawal) Bill does not have a preamble that entrenches the current incarnation of the equality regime, there is no non-regression clause and no constitutional right to equality has been inserted.

There is an argument that even having those elements would not be legally sufficient to protect citizens’ rights in those areas. However, let us imagine that they are not there. In that case, there is absolutely nothing to prevent future Governments or Parliaments from removing, or diluting, equality rights.

That is very troubling.

Good morning to you both. I also sit on the Justice Committee. Earlier this week, the committee was down in Westminster, where we met our counterparts across a number of different committees to talk about the impact of Brexit on, for example, access to justice and information sharing. Those are human rights-related topics. The people who we met and the views that were expressed were fascinating.

There is huge concern among the people who we talked to about citizens’ rights. I am interested to hear your opinion on that. Concerns were also raised about information sharing on human trafficking for forced labour or sex.

A concern was raised about the references to the EU in the Scotland Act 2012. No indication is coming from Westminster, or from the EU, of what the references to the EU will be replaced with. Will they just be removed? Will something else be put in? Will some other protection be put in?

I am interested in everyone’s views on those issues. I know that I am asking a lot of you—that was a lot of questions in one go.

I am also interested in Mr Cabrelli’s submission and his comment that the prohibition of associative discrimination may be affected. For 12 years, I was a tribunal lay member, and we grappled with the issue of associative discrimination. I am interested in his view on that matter.

Who wants to start on my round-up of the issues?

On your comments about the Justice Committee’s experiences, as I have said, if we lose the charter, the withdrawal bill will certainly have an effect on human rights across Britain in a way that we would not like to see.

The Human Rights Act 1998 remains. As yet, there is no change in that legislation, or what it means for citizens of the UK. We need to be firm—now and going forward—that the rights should not be diluted in any way. That may be a separate argument to come at a different time.

People think that, because we are withdrawing from Europe, all those rights will be lost. The perception is that they will all go, even though we know that they will not.

That is absolutely true. My organisation and others have a job to do to be clear about the rights that are still in place for individuals. We have looked at the issue to some extent, but we could consider it again as we go forward.

What will replace the references to EU law in the Scotland Act 2012? I do not think that we have looked in detail at that issue. I am not aware that the UK Government has suggested anything in that regard. I presume that the wording may simply be removed, but I am not sure. That is the short, and unhelpful, answer.

I will respond to the first question and then, obviously, the final one.

On the first question, it strikes me that this is an issue about access to justice and the extent to which citizens can access and enforce their equality rights. What is often overlooked is that tucked away right at the end of each of the European directives is a little article or sub-article that says that, when a member state implements that particular equality law in its jurisdiction, it must ensure that the enforcement mechanisms are effective and dissuasive—and there is a third word that I cannot remember. Effectively, it means that citizens in those countries must have an effective means of enforcement.

You might recall that some reports were issued around the time of the establishment of the coalition Government. There was the Beecroft report, which made various recommendations on limiting the compensation available in equality claims; at the moment, there is no maximum cap. However, the proposal was a non-starter, because of the clauses tucked away in the directives that state that there has to be absolute access to justice. Once we leave the EU, those clauses will no longer be effective, which means that, in theory, it would be possible for a future Government to place limitations on the compensation that can be claimed and perhaps limit the remedies and so forth.

Having said that, I should add a caveat. If you had asked me this question before 26 July, I would have said that, without the protections in the directives, the Government would have the power to make access to justice difficult. However, since 26 July, my belief in the judiciary and the common law has been restored; the decision in the Unison case with regard to the abolition of employment tribunal fees reminded us of the common law’s power to ensure that every citizen enjoys access to justice. Therefore, the caveat is that, although things look bad, there might be a silver lining in the guise—ironically—of the common law and the judiciary. It is interesting, but the decision that I have mentioned reminds us of the liberties that every citizen has and the importance of access to justice.

Finally, on the impact of leaving the EU on associative and perceptive discrimination, the current wording of the Equality Act 2010 makes it abundantly clear that associative and perceptive discrimination claims are perfectly legal. However, they are supported and buttressed by underlying EU law, which specifically says that the legislation of each member state must recognise associative and perceptive discrimination.

Once we leave the EU, decisions such as that on the Coleman case, which concerned discrimination against a care worker with a disabled son—the case was successful because the discrimination related to the disabled son—and other EU and European Court of Justice decisions such as that on the CHEZ case, the Romanian case relating to electricity meters, will no longer be part of our law. They ensure that associative discrimination and perceptive discrimination are protected, but once they go, a future Government could amend the 2010 act to remove associative and perceptive discrimination. These are controversial issues, and there is no underlying theory about how you determine that someone is associated with another person with a protected characteristic or how you determine whether and why someone who is perceived to have a protected characteristic should be protected.

However, there would have to be an amendment to the legislation, because the court decisions obviously stand as they are, including court decisions in the UK that have followed on from Coleman and similar decisions.

Yes, but, given how controversial the issues are, the chances are that nothing will be done. Is that not a possibility?

It certainly is.

11:00  

Good morning, panel. I want to explore Ms Welsh’s comments on the proposal for a constitutional right to equality. In principle, it is an admirable ambition, but I want to discuss its practical application, its implications and, in particular, whether parity is achievable for everyone. In the Islands (Scotland) Bill, for example, there is an understanding that parity or equality is not always achievable; someone living on an island might not have access to, say, the same social care as someone who lives on the mainland. Would a constitutional right to equality create issues for local authorities, public bodies and Government bodies if they produced policy that was contrary to it? Implementing that could become difficult and rather expensive. Do you have any views on that?

It is certainly not the intention for a constitutional right to equality to have that outcome. I suppose that it would be mitigated by having a non-discrimination clause that contained a right to give justification, as happens with indirect discrimination at the moment. There would always be a balance between ensuring equality and non-discrimination and recognising that a difference in treatment can be justified on some occasions.

Following up on that—and I should put the committee on notice that I am about to say something that sounds very controversial but which is actually legally true—there is no such thing in this country as a right to equality. There is only a right to equality for people who are perceived to have one of nine protected characteristics. It is not possible for me to go to an employment tribunal or court and say that I have been treated less favourably than, say, Lynn Welsh if I have no particular reason and I just feel that I have been treated in that way; I always have to show that the less favourable treatment or the disparate impact that I have suffered relate to one of nine protected characteristics. If there were a constitutional right to equality, I would imagine that it would follow the same scheme, meaning that it would be a constitutional right to equality for those who possess one of the nine protected characteristics. I assume that that is the intention.

That is potentially true. However, there has been discussion about the constitutional right to equality being wider and following the system in the Human Rights Act 1998 and the ECHR, which covers any other personal characteristic. In theory, people can use human rights law to argue for discrimination in human rights terms under article 14 of the ECHR, but there are justifications built into that in relation to state action. A constitutional right might not just relate to the nine protected characteristics, but there would still be the justification issue.

In our previous evidence session, we talked a bit about budget scrutiny and scrutiny of Government. I was intrigued by the Scottish Human Rights Commission’s submission; indeed, I found your comments helpful and insightful. In paragraph 6.3, you state:

“Budget analysis is a critical tool for monitoring gaps between policies and action”.

However, you go on to say in paragraph 6.4:

“in monitoring Scottish Government spending, the Parliament can, if necessary, hold the Government accountable for inadequate performance in the area of human rights.”

Will you enlighten the committee as to how you think the committee can and should hold the Government to account for inadequate performance? In my short time in this Parliament, I have seen that happen very rarely in practice, so I am intrigued to hear your views on how we can do that much better.

I am afraid that that is not in our submission—it is in the Scottish Human Rights Commission’s submission.

I apologise. However, if you have any views on that matter, I would welcome them.

The Equality and Human Rights Commission and the Scottish Human Rights Commission are regularly confused. It is our sister organisation, and it is responsible for that submission.

Pardon me. It is an interesting paper, though.

I am sure that the people in the SHRC will come and explain it to you if you ask them.

I would still welcome your views on how you think the committee and, indeed, the Parliament can ensure that the Government is held to account. The Scottish Human Rights Commission states:

“the Parliament can, if necessary, hold the Government accountable for inadequate performance in the area of human rights.”

What practical steps can we as a committee take to hold the Government to account?

I am sorry, but that is not an issue that I have put my mind to for today’s meeting.

I imagine that you could construct human rights key performance targets and assess the impact of policy against them but, like Lynn Welsh, I have given no time to thinking about that.

What is the panel’s view on the potential impact of Brexit on the working time directive? The directive was hugely beneficial but also hugely controversial. A number of organisations, one of which I previously worked for, jumped through hoops to get people to sign opt-outs and thought up all sorts of intriguing ways to ensure that they did not sign up to it.

The working time regulations, which were introduced in 1998, have two elements: limits and rights or entitlements. The main limit is the 48-hour working week. The difficulty with it is that it is more or less ineffective, because there is an opt-out, which is built into an employment contract when someone first enters employment. They sign the contract and by doing so they effectively opt out of the 48-hour working week, and, even if they do not opt out, there are still various derogations and exceptions. For example, professionals are exempted because they are what are known as unmeasured working time workers, and there are other exceptions.

Secondly, there are entitlements to things such as daily and weekly rest breaks. That is fairly uncontroversial, but the most controversial right is on annual leave and holiday pay. There have been many cases over the past seven years relating to holiday pay and annual leave, some of which have been extraordinary in the scope of protection offered to workers. For example, there is no right for an employer to pay rolled-up holiday pay. Rolled-up pay means that, if someone is employed for six months, they do not get holidays; instead, the holiday pay is added to their wage and then smoothed out across the six months. Also, people on annual leave are entitled to receive their ordinary remuneration, including commission as well as voluntary and compulsory overtime. People can claim that as part of their holiday pay.

Once we leave the EU, the position regarding the authority of the ECJ in the settlement and the withdrawal bill will largely determine how we treat those recent quite controversial cases, which are far-reaching in respect of their protective capacity for workers. If we no longer have to have regard to the ECJ’s decisions, we will not have the future decisions to take into account. We have to honour the past decisions but, in reality, as soon as a case comes before the Supreme Court, it can easily depart from the previous jurisprudence of the ECJ, its own decisions and the decisions of the lower courts. It would be possible to strip back holiday leave and holiday pay rights.

We would have concerns about changing that relatively quickly. Those regulations and rights are not contained in the Equality Act 2010, but are equality law in its broadest sense. There is no suggestion at present that the withdrawal bill will protect those rights unless we can build in some of the other protections.

Thank you—that is helpful.

In respect of the 111 powers that are coming back as a result of Brexit and that should technically be devolved to the Scottish Parliament—although that is still the subject of debate at Westminster—number 46 is equal treatment legislation. That is quite an opaque term and I have not got to the bottom of what it means, although it sounds like something that the committee should be interested in. Can you give us a quick summary of what equal treatment legislation means?

We have looked at it to an extent. You are right that equal treatment legislation can mean a variety of things, depending on where you start from. Scottish legislation currently contains some equality legislation. The equal opportunities opt-out relates to discrimination but not all equality law relates to discrimination. For example, there are provisions in housing legislation that allow tenants to ask for reasonable adjustments and there are provisions on taxis having to take guide dogs that do not relate to discrimination but were brought in separately in Scottish legislation. There are also separate specific duties. There are currently pieces of equality law in Scottish legislation that would certainly come under equal treatment legislation.

The committee briefing paper notes that there are also other pieces of EU legislation on rights to accessibility for disabled people in transport and other areas that do not relate to discrimination and that would be introduced through Scottish legislation and action, because transport is devolved. It would be the responsibility of the Scottish Parliament to ensure that those obligations were met.

Equal treatment legislation would cover all those equality areas in the broadest sense that do not directly relate to discrimination legislation that can be found in the Equality Act 2010. However, as David Cabrelli said, there is now a right to pass discrimination law in Scotland, so I presume that the broad term would include those powers.

Just so that I am clear, convener, when you refer to item 46, are you are referring to powers being repatriated to Westminster from the EU?

Item 46 is one of the 111 powers that the Scottish Government currently contends should be devolved directly to the Scottish Parliament under the principles of the constitutional convention of 1997. However, it is still a matter of debate at Westminster.

If we start at the beginning and ask ourselves what happened in 1972—or whenever it was—we see that the UK lent some of its sovereignty to the EU and one of the areas in which it did so was in equality law. The UK said that it had the power to pass legislation related to equalities and so did the EU. That is now article 19 of the Treaty on the Functioning of the European Union. We can then say that what is being repatriated to Westminster is what was passed under article 19, which is the equality directive, the racial equality directive of 2000, the recast equality directive of 2006 on equal pay and sex discrimination and the framework directive of 2000 on discrimination in respect of sexual orientation, disability, age and religion. There have been other directives as well, such as social security directives and directives in relation to access to services. Those are the bits of legislation that have been passed under article 19 and that will come back to Westminster.

Under item 46, the Scottish Government is saying that, when that comes back to Westminster, it should then be devolved to the Scottish Parliament. The argument for that would be that some elements of equal opportunities law have been devolved to the Scottish Parliament. However, the powers that the Scottish Parliament has in that respect are very limited. It is true that equalities law is devolved, but it is only a minute element.

I can see the argument but, at the moment, most of the legislative competence is with Westminster. When the EU competence comes back, it will probably be split 99 per cent to Westminster and only 1 per cent to the Scottish Parliament. Those are just ballpark figures.

It is an important 1 per cent, even if it is only that.

Absolutely. That was helpful. If it is okay with the committee, I will ask the clerks to write to the Scottish Government to ascertain what it understands equal treatment legislation to mean, what it hopes to get out of the repatriation of that power and, if the issue really is just about equalities, which is largely reserved, what its case is for having the whole of item 46 returned to Scotland.

11:15  

Mr Cabrelli, is this paper that I am holding up your submission?

Yes.

The labelling of items is sometimes confusing, so I apologise.

Your submission contains an interesting point about section 37 of the Scotland Act 2016. You conclude:

“On balance, the terms of section 37 of SA 2016 appear to go beyond the recommendations in Smith. As such, it casts the net of the Scottish Parliament much wider in relation to legislative competence.”

Is that a positive statement or a criticism of section 37?

It is just a statement of fact. I am not really expressing any opinion on the desirability of the legal position under section 37. Smith was clear that competence in equal opportunities law should be devolved but only as regards sex discrimination on the boards of public sector organisations, and only in relation to non-executive appointments. However, section 37 goes beyond that.

I am not sure that we would completely agree with that. From memory—I do not have it in front of me—Smith talked about devolving gender representation on boards as a minimum. In fact, the act applies to not just gender but all protected characteristics. There was something in Smith that suggested that it could go further, which is why the Westminster Government put in the extended delegation. I cannot remember the exact wording.

Yes—it was a bit cryptic.

That was what led the Westminster Government to go further.

Paragraph 60 of the Smith commission says that equal opportunities would be reserved to Westminster, with the exception of

“gender quotas in respect of public bodies in Scotland”

and the power to legislate

“in relation to socio-economic rights in devolved areas.”

As Lynn Welsh says, there are probably other relevant parts of the Smith commission report. I may have overlooked those, but I just saw paragraph 60. On the face of it, section 37 goes beyond that. There is no doubt about that.

I asked because, in your opening comments, you said that there is already devolved competence to legislate across all protected characteristics and not just on the issue of gender balance or sex, and I was not sure where that competence came from. I was trying to dig deeper as to its source.

Yes. That is basically section 37 of the Scotland Act 2016, which goes on to set out all this elaborate architecture about Scottish public functions and Scottish public authorities and when they can and cannot pass legislation. It is a little bit cryptic, to be perfectly honest.

It is, but we would encourage the Scottish Government to look at what it can positively do with section 37. There are possibilities there. We know that it can do things such as add protected characteristics. For example, there has been discussion around covering care experienced young people, who we know are discriminated against. Although section 37 is restricted to public authorities and discrimination, I hope that protection from discrimination in that area could have huge implications and improve people’s lives. We would certainly encourage thought and enthusiasm about that.

I thank you both for coming. It has, as ever, been an illuminating session. We clearly have a lot of work to do on the issue. If you think of anything that you would have liked to have said but did not get the chance, please contact us. I am sure that we will see a lot more of you both as the months go by.

We received notification from Annie Wells during the meeting that she was unable to make it, so we record her apologies.

11:19 Meeting continued in private until 11:35.