Equal Opportunities Committee, 09 Jun 2009

Meeting date: Tuesday, June 9, 2009

Official Report 238KB pdf

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Equality Bill

Agenda item 3 is evidence on the legislative consent memorandum on the United Kingdom Government's Equality Bill, for which the Equal Opportunities Committee has been designated lead committee.

To help inform the committee's consideration, I am pleased to welcome from the Scottish Government Alex Neil MSP, the Minister for Housing and Communities; Kay Blaikie, a principal legal officer; Colin Brown, a senior solicitor; Mike Gibson, head of the support for learning division; and Yvonne Strachan, head of the equality unit, who is certainly no stranger to the committee. I invite the minister to make an opening statement on the LCM.

I thank the committee for giving me the opportunity to explain the provisions of the Equality Bill for which we seek legislative consent.

We very much welcome the Equality Bill and the important message that it will send out about tackling prejudice and discrimination across our communities. The overarching aim of the bill is to consolidate, simplify and—where appropriate—harmonise the different pieces of equality legislation that have been introduced over the past 40 years. The bill will also create a new single equality duty on public bodies to eliminate discrimination, to advance equality of opportunity and to foster good relations. I am very pleased that we will have the single equality duty.

The bill currently triggers the need for legislative consent in five areas: the public sector duty to promote equality; the hearing of disability discrimination school education cases by the Additional Support Needs Tribunal for Scotland; the arrangements for educational endowments; qualification authorities; and transitional arrangements for single-sex educational establishments to become co-educational.

The new public sector duty to promote equality will replace the current race, disability and gender duties with one duty that extends across all equality strands. Public bodies that will be made subject to the general duty will be listed in a schedule to the bill. I make it clear that the general duty will also apply to public functions, so any organisation that is carrying out functions of a public nature will be subject to the general duty in relation to those functions.

The bill will give Scottish ministers the power to make an order to amend the schedule to ensure that Scottish public bodies are covered by the general duty. In our view, the list of Scottish public bodies that is contained in the schedule to the bill as introduced at Westminster is not adequate, so I shall take steps to make an order at the earliest opportunity to amend the schedule to ensure comprehensive coverage of Scottish public bodies.

We plan to consult during the autumn on the specific duties and how they will operate in Scotland. I am keen to involve stakeholders in our discussions about the specific duties. I am pleased to say that the equality unit has already had a number of meetings with equality groups and public bodies to discuss the questions and issues that should be covered by the consultation.

A legislative consent motion is required for the public sector duty because the provisions will confer new powers on Scottish ministers. The bill also contains a number of education provisions that require the legislative consent of the Scottish Parliament, as they will give Scottish ministers additional powers to make regulations or rules on a range of specific issues.

I understand that the bill is going through its committee stage, which will last until 7 July. The Equality Bill is a carryover bill, which means that it will be carried over into the next session of the Westminster Parliament. I understand that royal assent is anticipated around the spring of 2010.

I invite the committee to support the measures that I have outlined and which are addressed in the legislative consent memorandum. I am more than happy to provide further information and to answer any questions.

Thank you very much for that comprehensive opening statement. The LCM contains a draft motion, which invites the Scottish Parliament to agree that the relevant provisions of the Equality Bill be considered by the United Kingdom Parliament. The draft motion says that the bill will

"make provision within the legislative competence of the Parliament and … alter the executive competence of Scottish Ministers".

The LCM clearly sets out how the bill will alter the executive competence of Scottish ministers but does not explain how it will make provision within the legislative competence of the Scottish Parliament. Will you explain that to ensure that it is on the record?

That involves a very legalistic issue, so I will ask the lawyer to explain it in some detail, because I know that we need to get the explanation on the record and it needs to be precise.

The explanation is fairly dry, I am afraid, but I hope that it will explain the point.

The matter is connected with the public sector equality duty. In general, equal opportunities are a reserved matter but, as members appreciate, there are exceptions to that. There is quite a bit of legal underpinning and some complexity beneath it. Section L2 of schedule 5 to the Scotland Act 1998 provides a definition of equal opportunities. That definition has certain restrictions within it, such as

"the prevention, elimination or regulation of discrimination"

on specific grounds. The public sector equality duty includes a list of protected characteristics that does not coincide exactly with the list that is in the Scotland Act 1998 and refers to various needs that, again, do not coincide exactly with what is in the 1998 act. Therefore, we consider that elements of the duty could be created within devolved competence. It does not really make sense to do that—it clearly makes sense to create everything within one bill as a unit—but, because certain aspects could technically have been created within devolved competence, it is appropriate to recognise that.

So, for the avoidance of doubt, the legislative consent motion will make provision not only for the alteration of Scottish ministers' executive competence, but for the legislative competence of Parliament.

It makes provision that could be seen to be within the Parliament's legislative competence. It does not alter that competence. There is a legal distinction.

Will that be explicit in the motion, or do you take it to be explicit in the draft motion?

That is the thinking that underlies the wording of the draft motion.

I take it that your opinion has not altered on that and that you are content with it.

Yes.

Why does the Equality Bill not simply impose the public sector duty on all Scottish public authorities? That would seem a more sensible approach than listing the relevant authorities.

We are sympathetic to that point, but the bill is a Westminster bill and, therefore, the list of bodies to be covered is determined by Westminster. We have been, and still are, in close consultation with our Westminster colleagues because we want to ensure—and we will ensure—that all Scottish public bodies will be covered. For example, at the moment, the Scottish Parliamentary Corporate Body, VisitScotland and Scottish Natural Heritage would not be covered but all, in our view, should be. It is possible that they could be added during the current committee stage or future stages of the bill in the House of Commons or the House of Lords and we will ensure that they are covered.

Rather than listing the public bodies, a general duty could be imposed on all public bodies throughout the UK, including devolved bodies, but a list of exemptions would then be necessary. For example, certain defence and national security organisations would be exempt from the duty.

Whichever way it is done, a list is necessary. The issue is whether it is a list of the bodies that are covered or of those that are exempted. Obviously, the list of exempted bodies would be a much shorter list. Quite frankly, if the bill had been our bill, I think that we would have gone down that route. However, we are working closely with our Westminster colleagues to ensure that all the relevant bodies will be covered.

One of the stakeholders' submissions says that the approach in the bill would be more restrictive because the arrangements for the existing gender equality duty—under section 76C(3) of the Sex Discrimination Act 1975—are wider. Will you comment on that?

The bill is intended to harmonise and simplify existing legislation, so our view is that all existing guarantees are incorporated in the bill. If there is a legal question about what the bill does, that should be directed to our Westminster colleagues. Our view is that it does what it is intended to do, but, since it deals with a reserved matter, the primary responsibility lies with our Westminster colleagues.

I was pleased to hear you say that the Scottish Government is already trying to identify ways of extending the list. However, is the issue to do with getting the list right or getting the principle right? Some have said that it seems a bit cumbersome to go back and forwards like yo-yos to seek powers that we might wish to have in relation to some body that might emerge from the shadows at some future point. Is there any merit in trying to persuade our Westminster colleagues to alter their thinking slightly so that legislative competence can remain in Scotland with regard to certain matters?

It would need to be transferred here; it could not remain here, as we do not have it at present.

Obviously, I would like the Scottish Parliament to have responsibility for this entire field and, indeed, for all fields that are currently reserved to Westminster—perhaps, at some point, we will be able to persuade Westminster that that should happen.

We do not anticipate a great deal of problems arising from any desire to add to or subtract from the list—I cannot think of why we would subtract a body, apart from when a body is abolished or merged. The process for altering the list is simple and already exists in relation to other pieces of legislation. Scottish ministers would negotiate with our Westminster colleagues in the expectation that they would accede to our request to add a body to the list. The change would require statutory instruments in Westminster and the Scottish Parliament.

Initially, we would consult people in Scotland about the change to the list. We would then consult our Westminster colleagues on what we wanted to do as a result of that consultation. Once agreement had been reached, we would lay a statutory instrument that would lie for 40 days in the Scottish Parliament, and Westminster authorities would initiate a parallel process in London. At that point, we would be in a position to implement any changes.

We do not anticipate that being a cumbersome process. However, as I said, my preferred option is to have total responsibility for this currently reserved area of policy.

The process might not be complicated, but might it be time consuming?

It might be. There would be a period of consultation, which might last a month, then a period of negotiation with Westminster—we do not know how long that might take, as we have no way of knowing who our Westminster colleagues might be at that time or how sympathetic they might be to any suggestion of ours—and then the 40 days for which the statutory instrument must lie. Therefore, the process could take up to five or six months. However, I hope that, with good will on all sides, we could shorten that timescale.

Did you or your predecessor ask at any point whether the general duty could be applied to all Scottish public authorities as opposed to having the listing approach?

Our view is that the general duty will be applied to all Scottish public bodies. From day one, our policy objective in negotiations with our Westminster colleagues has been that it should apply to all public bodies in Scotland. I understand why the likes of defence organisations should be exempt south of the border but, like my predecessor and officials, I cannot think of any public body in Scotland that we would want to exempt.

My question is based much more on practicalities than policy. I understand the overall approach. However, given that your policy intention is as you have set out, did you or your predecessor ask the UK Government to include in the bill a single definition of a Scottish public authority, instead of listing organisations?

We have asked for a general provision, rather than listing, if possible. So far we have been unable to persuade our Westminster colleagues of that approach, but we will continue to ask the question.

That is fine. When was the issue raised in discussions?

I will need to ask Yvonne Strachan, as she has been involved since day one. The process started during my predecessor's time.

I cannot answer without checking the exact timing. The issue of listing will have been raised in discussions that officials have had about the bill, but I will need to check at what point that occurred.

The matter is of interest, as there is merit in the approach that I have described. I wonder whether it was suggested at a point when it could have been reflected in the bill.

I come to the nub of my questions. The bill lists the public authorities to which the duty will apply. You think that more should be listed. Should the bill be passed as it stands, are you intent on using the powers that you have to list more?

Yes. I have already mentioned three public bodies that are excluded—the Scottish Parliamentary Corporate Body, Scottish Natural Heritage and VisitScotland. If that is still the case after the bill has been passed at Westminster, I intend to lay an order to add in every Scottish public body.

Will you impose specific duties on all the Scottish public bodies that you list?

Around September, we will consult on specific duties. We can already envisage circumstances in which we would impose specific duties. We have already laid down specific duties under current legislation—for example, in relation to gender and reporting of equal pay. It is my intention to ensure not just that the bill is passed and that all bodies are subject to a general duty but that the duty is realised in practice and properly implemented.

I welcome the fact that you will consult on the detail of specific duties; I heard your comments on the steps that are being taken. Which stakeholders are you likely to consult?

One statutory stakeholder—the Equality and Human Rights Commission—must be consulted before we make any suggestions or enter into any future negotiations with our Westminster colleagues. We will consult a wide range of people and try to ensure that all stakeholders, as well as the Parliament and the committee, are properly consulted, depending on which organisations are to be covered by a specific duty. When—not if—we come to impose specific duties, we will consult widely and take our time in doing so, because we want to get our approach right and to ensure that the public sector equality duty becomes a reality, not just an aspiration.

What kind of specific duties do you envisage? What duties would you place on the health service, for example?

Some specific duties relating to equal pay already apply to the health service. As far as any future specific duties are concerned, if any sex discrimination, sexual orientation or race issues emerged, we would place a duty on the health service to bring forward a scheme to implement the requirements of the legislation, setting out a timescale, how it would organisationally go about implementation and so on. Indeed, there might be a simple specific duty to report regularly on how it is implementing the general duty.

So do you envisage equality schemes and equality impact assessments of key strategic and spending decisions becoming the norm?

Mainstreaming equality has been an aspiration of the Parliament from day one, and we need to move much closer to what was an original aspiration—indeed, a guiding principle—of the Parliament. The answer to your question is yes, particularly for really crucial public services such as education, health and transport.

You seem to be suggesting that there will be a distinction between general and specific duties and that, although you would like to include more public bodies within the general duty, you are not offering the same commitment with regard to specific duties. However, the Scottish Trades Union Congress feels that such a move would be particularly helpful. Why are you making such a distinction?

The bill makes a distinction between general and specific duties; indeed, that distinction already exists in law. However, I believe that you are highlighting the STUC's recommendation that we place specific duties on all bodies. We have not ruled that out; it will be part of our consultation in September. It might well be that certain specific duties would cover all the bodies that are listed—I do not see why that should not be the case—but now is not the time to make that decision, given that we have not yet consulted properly on the issue and that we need to look at exactly what specific duties we would be talking about in that respect. In principle, we have not ruled that out—in fact, far from it.

Although most people are generally happy with the public sector duties that you have been talking about, you must know that there is considerable concern about the absence of a socioeconomic duty in Scotland. For example, Engender has said:

"Our main area of concern is the fact that Scotland is not covered by the Socio-Economic Duty as outlined in the Bill."

I know that you have been a critic of many things that have emanated from the Westminster Parliament, but I would have thought that you would have commended clause 1 of the bill, which refers to the "desirability" of public bodies exercising their functions

"in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage."

You will understand why many people are concerned that that is not covered in the LCM, and I am sure that they would be interested in hearing your explanation.

It might be useful to make two points. First, with regard to the intention behind and the impact of that provision, it is clearly very central in mainstreaming equality in Scottish Government policy, and our targets on solidarity and the accompanying frameworks are designed to achieve that objective.

Secondly, the provision was added fairly recently to the bill at Westminster and was not widely consulted on before its introduction. We are of course free to introduce the provision at any time, but our view is that, instead of simply inserting it in the current LCM, we should probably consult on it first.

The important point is that we are tackling the issues referred to in that clause. Indeed, that is what our policies on solidarity, reducing inequality in Scotland and so on are all designed to do.

Given your responses to Jackie Baillie's questions and, indeed, everything that we are doing with regard to equalities, you appear to think that duties on public bodies are a good thing. Do you think in principle that the provision in clause 1 is a good idea, and are you objecting mainly to the fact that there was very little consultation on it? In other words, are you guaranteeing that the Scottish Government will bring in this provision in due course, or are you saying that it is not necessary?

I am saying two things. First, we have not had a proper opportunity to consult on the socioeconomic duty; secondly, there is a difference between it and the other duties, in the sense that the others are about legal enforcement.

I suppose that we could pass a law that said that we were going to abolish poverty but, unless we had the resources to do it and applied them, such a law would be meaningless. The issue for us is where the added value is in the provision, and at the moment it is frankly difficult to see where the added value is without a plan to abolish poverty and unemployment in the UK.

We are not ruling out the provision for the future. We will be happy to consult on it at some stage, but we do not think that it adds a great deal because we are already trying to implement the aspirations that are outlined in it through mainstream Government policy.

It is important for us to get some clarity on the issue. I am looking through my papers for something that the cabinet secretary said on the matter, but I cannot find it. My understanding has hitherto been that there was an objection to the absence of consultation, but you seem to be saying something different: that the provision is either unnecessary or not going to add anything. It is important, in terms of clarity, for us to know which is the fundamental reason that you are putting forward.

Those two things are not mutually exclusive. One of the reasons why we would want to consult before we included the duty is to identify whether it brings something to the table in real terms—we would want to consult on that issue.

As you know, consultation—and pre-legislative consultation and scrutiny—is a key part of the process in the Scottish Parliament much more than it is at Westminster. If we build in the provision, it could, if it is properly applied, have—in one interpretation—potentially huge ramifications. In another interpretation, it could sit on the shelf and nothing would happen. Either way, we think that it has to be properly debated and consulted on before we insert it into our own LCM.

I will ask one final question, as I am sure that other members will want to pick up on the issue. Given that the bill will not be finalised at Westminster until several months down the line, and certainly not before October, why can you not issue a three-month consultation during the summer? It would not be too late to include the provision in an LCM before the bill went through Westminster. If you do not do that, we will lose the legislative opportunity to do it—and who knows when that opportunity may arise in the future?

We are considering what to do in relation to the provision, if there is anything that we should be doing. At the moment, we do not see any great benefit in adding the provision, as we are not convinced that it brings anything to the table in real terms, but we have not absolutely ruled out the possibility of doing so.

I am intrigued by your response, minister. It seems to suggest that the problem is not, as the cabinet secretary explained, the issue of consultation but that you are sceptical about whether or not the provision will make a difference.

Do you agree that inequality is grounded not just in gender, race, disability, age and sexual orientation but in class? If you do, why do you think that it is necessary to have a duty for all of those things except the issue of socioeconomic difference and the question of class?

First, let me clarify: there is no contradiction between what I am saying and what the cabinet secretary said. My point is that there has to be consultation beforehand and that one of the issues that we would want to consult on is whether the provision brings anything to the table and adds value to what we are trying to achieve, given all the Government's other policies about improving equality and reducing class divisions in housing policy, education policy and across a wide range of other policies. I would like to hear the consultation before I said absolutely, "Yes, we should have it" or, "No, we shouldn't".

So are you having a consultation on it, and could you do that before October?

We have not said that we are having a consultation. We have said very clearly that we are considering the matter and we will make a decision on whether it is something that we want to consider. If we want to consider it, we will have a consultation.

I have allowed quite a lot of latitude on the matter, considering it is not within the competence of the LCM, so I will allow Johann Lamont one further question.

This is significant because the equality legislation is not just about what people say they are doing; it is about testing that against the public duty and what that reveals. Why should we have an equality impact assessment?

Well—

Let me finish the point. We have an equality impact assessment to establish whether what we think we are doing in relation to equality is actually what we are doing. You are now saying that you are considering consultation; you could make a decision to consult before October so that we do not miss this legislative opportunity. Will you at least agree to that? Then you will know whether the duty is worth while and you will not have missed the opportunity that is provided.

Do not try to put words in my mouth. I have made it absolutely clear that we are considering whether we should consult on including the provision. At the moment, we have not made a final decision. If we go to consultation, one of the key issues to be consulted on is what added value such a provision would bring. There is no point in our building in legislation that is not backed up by resources. We have seen a major increase in inequality in the UK in the past 12 years. The best way to reduce inequality is to apply resources and take people out of poverty.

The point that Johann Lamont is making is: if you do not take this window of opportunity, how can you put the provision in the bill after the period has passed and after the bill has been passed? It is a UK bill.

That is why we are considering whether or not we should do it. At the moment, we have said that there is an issue around consultation. We will make a final decision and we will certainly make it timeously.

Okay. I think that we have explored this as far as we possibly can.

Can I ask one small question on that?

Yes, if it is very small.

Have you consulted your colleagues in Wales, who have agreed to impose the duty and who have had the same level of consultation as we have had in Scotland? Would you consider discussing with them the way in which they have managed the process with the UK Government to ensure that they will take the opportunity of the legislation?

We are happy to talk to everybody, but we do not necessarily follow the crowd. We will do what we think is in the interests of Scotland.

Thank you for that, minister.

I will turn to the qualification authorities. It is clear from the bill that the system of qualification authorities and regulation in England is entirely different from in Scotland. Given that you have nominated the Scottish Qualifications Authority as both the regulator and enforcer in Scotland, is there not a conflict of interest? Does that not create a situation where access to independent arbitration in Scotland is being denied?

No. We do not believe that the bill changes the current position, which is that people can revert to the sheriff court when they require arbitration in relation to a dispute with the SQA. That is the position at the moment, and it will be the position if and when the bill is passed.

You are saying that paragraph 24 of the LCM will not have a negative impact on people's ability to take any dispute through the legal system.

That is our belief.

We have had submissions from the Equality Network and the EHRC regarding the disability discrimination cases in school education, which currently go to the sheriff court but will be transferred to the ASNTS. There are worries that that will result in legal aid no longer being available for those cases. Is that the case, as far as you are aware?

First, the point of taking those cases out of the sheriff court and into the tribunals is that the whole ethos of tribunals is that they are not primarily legalistic bodies; their primary centre of attention is the needs of the child. Having said that, during the passage of the recent Education (Additional Support for Learning) (Scotland) Bill, one issue raised by a number of the advocacy bodies was the fact that local authorities are increasingly hiring Queen's counsel and professional advocates to come to tribunals to argue the case against children and their parents on legal matters. As a result of the passage of the ASL bill, my colleague Adam Ingram is considering what additional advocacy support will be made available by Government to those children and parents who are going to a tribunal, not just in the cases that Bill Kidd mentioned but in any case, particularly when they are up against a professional, highly paid advocate from the local government side. If anything, the situation should be enhanced.

In a constituency case that I dealt with in South Lanarkshire, the case went to the sheriff court and the sheriff made a decision that was based on the law rather than on the needs of the child. The council threatened to sue the parents for the costs of the action in the sheriff court—the council's costs as well as the parents' costs—and then put a gagging order on them as a condition of not charging them the council's legal costs. That is outrageous. That could not happen when the LCM is implemented and the bill goes through.

Paragraph 33 of the LCM suggests that changing the way in which such cases are dealt with so that they go to the ASNTS rather than to court might lead to savings to the public purse. Will it still be possible for parents to seek legal advice and for that to be paid for?

Absolutely. Adam Ingram is considering that at the moment, in relation not just to the kind of cases that we have discussed but, more generally, to whenever a case goes to the tribunal and the child and/or their parents require legal support and representation. The funding regime for that is under consideration, but we are committed in principle to providing advocacy funding for children and parents who are in that situation. It is always much more expensive to go to the sheriff court than to work through the tribunal, and the other benefit, which is the whole point of the ASL legislation, is that the tribunal will make its decisions based on the needs of the child rather than from a purely legalistic point of view.

I was intrigued when you said positively that equality schemes and equality impact assessments will feature in the specific duties. Can we therefore look forward to equality impact assessments of all the single outcome agreements, which are key strategic and resource documents that guide all of local government?

I envisage that the impact assessments will be primarily of public bodies that discharge their duties. The single outcome agreements have underlying assumptions about what local authorities do. Local authorities have a host of requirements above and beyond single outcome agreements. Just as each local authority will be subject to the legislation, each local authority body will be subject to it.

I asked whether that will be a specific duty simply because single outcome agreements are the key strategic documents that measure what matters in local government. The Government has clearly set that out previously. I would have thought that, if you are serious about equality, there should be equality impact assessments of the single outcome agreements so that, in the areas that matter, it is measured appropriately.

That would be a valid point to make during the consultation. We have not made a decision on the matter.

So you have no thinking in principle about that.

The principle is that we want to apply the specific duties, and we will consult on exactly how to apply them. I am not going to prejudge that consultation.

I think you made that plain in your opening statement, minister.

On the specific duties, there is a section on simplifying and standardising the definitions of discrimination, and there is some case law in respect of that. Coleman v Attridge Law clarified that disability discrimination protection extends by association in the case of a mother who cares for her disabled child. Do the specific duties open up the possibility of examining discrimination through less favourable treatment in relation to concessionary fares for the companion of a deafblind person or when an unpaid carer who seeks promotion is considered unfavourably?

Yes, absolutely. You gave the example of a carer, but that issue also touches on non-public bodies that carry out public functions. Kilmarnock prison is a good example. In carrying out a public function, a non-public body will be subject to the specific duties as well as the body that contracts it, which in the case of Kilmarnock prison is the Scottish Prison Service. Specific duties can therefore be applied to any body that carries out a public function, which would include the case of the carer, for example.

Thank you, minister—that was helpful. That concludes our line of questioning, so I thank you for attending today—it was very worth while.

Thank you.

We move to item 4, which is consideration of the content of our report on the legislative consent memorandum. I invite comments from members.

I will follow up the point on which I asked questions. There are other issues, but I think that the public sector socioeconomic duty is the most substantive one. I expect that committee members will have different views on it, but I hope that we can all unite around at least arguing that there ought to be consultation on the issue, which should satisfy both those for and those against the duty. Obviously, I would prefer us to say that we support having the public sector duty, but I think that we could unite around the reasonable recommendation that the Government consult on the issue over the summer so that it does not lose the legislative opportunity. Even if the Government ultimately decides against the duty, it will at least have gone through the proper process before arriving at that decision.

I was going to say exactly what Malcolm Chisholm said. I agree that, while there is a small window of opportunity, it makes sense to consult and then decide whether to include the public sector duty.

I think that we got two separate things from the minister. First, I am not clear what level of consultation would be required to say that it would be a good idea to impose a socioeconomic duty on public bodies. I would have thought that, if they recognised that there is socioeconomic discrimination, most people would think that the duty is a good idea. It would therefore be a question of testing it later on.

Much has been said about the consultation. I tried to get details through freedom of information legislation of what contacts had taken place for the consultation, but interestingly I was told that my request went over the maximum cost threshold. Clearly, there was significant consultation between Westminster and the Scottish Government on the matter.

I think that the consultation question has been overstated, but I agree with Malcolm Chisholm that, even if that is so, there is an opportunity to sort it through consulting over the summer and working with the UK Government in the same way as the Welsh Assembly Government, in order to ensure that Scotland is not the only bit of Great Britain that does not have the socioeconomic duty imposed on its public bodies.

I reject the view that the minister was in any way inconsistent: I thought that his answers were perfectly consistent. It is reasonable to note that the public sector duty would require greater resources. We have had a considerable increase in inequality between socioeconomic classes over the past 11 years. Scotland has limited powers but does not have unlimited resources, so it is reasonable to consult on this issue. I think that the minister was perfectly clear on the requirement to make a decision on the consultation. I do not think that there was any inconsistency at all.

I remind members that we are supposed to be considering the content of the LCM. The issue of the consultation is outwith that consideration. Of course, as Malcolm Chisholm said, we can recommend or suggest that it would be good to consult, but can I get feedback first on whether, given the evidence, members are content with the content of the LCM? Do we want to make any comments about legal aid, for example? Are we content with the explanations about legal aid in relation to the Additional Support Needs Tribunals for Scotland and about the SQA's different roles with regard to qualifications? Is there any comment on those issues? We will return to the socioeconomic strand after this.

Notwithstanding what the minister said, I am personally still not entirely comfortable about the SQA being both poacher and gamekeeper, if I can use that expression. In addition, notwithstanding the minister's observation on access to courts, he seemed to say different things on disability discrimination cases for schools. On the one hand, he said that tribunals are cheaper; on the other hand, he said that the courts remedy would still exist. I am just not convinced that we are clear about how that will work.

Would it be sufficient for us to say that we raised that issue and sought further clarification on it?

Absolutely.

Is there anything else about the actual content of the legislative consent memorandum that we want to highlight?

No.

Finally, we can say that, in taking evidence, we raised the possibility that the consultation might include the issue of the public sector duty regarding socioeconomic inequalities. That will allow the Parliament to take cognisance of the issue when it considers the motion. Is everyone satisfied with that approach?

Sorry—perhaps it is just me—but I just want to be clear. Are we specifically recommending that the Scottish Government consult on the issue now? I take the point that such a duty should not be included in the LCM without consultation, but Malcolm Chisholm's suggestion was that the Scottish Government consult specifically on that issue so that it can take a decision timeously and in advance of the final consideration of the bill in the UK Parliament. I had thought that members were fairly comfortable with that suggestion, which takes on board the need for consultation.

Do members have any other opinions on the issue?

Whether such a consultation takes place immediately is perhaps a wee bit outside the scope of what we came here to discuss.

The convener made the point that we are discussing what is in the LCM, but it is also appropriate to discuss matters that could be included within the LCM. Therefore, we could recommend that the Government consult on the issue so that it can decide whether the provisions should be included within the LCM.

An important procedural point is that an LCM is amendable, so our discussion is not limited to what is in the LCM but can extend to what it potentially could contain after amendment. In that sense, an LCM is unlike a statutory instrument.

Is it the committee's feeling that we should recommend that the Government consult on the socioeconomic provision so that it is possible for it to be included in the LCM? Is anyone otherwise minded?

Is it appropriate to provide a timeframe for that consultation so that it takes place within the window of opportunity to which Jackie Baillie referred?

As I recollect, the convener's formulation of the wording referred to the consultation being concluded in time for the final consideration of the bill.

We clarified with the minister that there would be little point in consulting on the issue after the window of opportunity had closed.

Is everyone content with the suggestion that has been made?

I want to ask what influence we can hope to have in making such a recommendation. The minister said that the process would need to be consulted on and that consideration was being given to what the consultation would contain. Given that the minister said that the prospect of including the socioeconomic provisions in the LCM would need to be considered in the consultation, what influence will we have by making such a recommendation today?

It would just mean that the Parliament could take cognisance of our discussion today and of the views that have been expressed about the inclusion of the socioeconomic strand. The issue is as simple as that. Just as the Subordinate Legislation Committee made a recommendation on the regulator aspect of the bill, we could make a recommendation.

Would our recommendation include a reference to the consultation timescale as well?

We could make it clear that, if the socioeconomic provision is to be included in the LCM, any consultation on that issue would need to conclude before the bill is passed at Westminster; otherwise, that opportunity will no longer exist. However, the issue will be for the Parliament to decide.

If the consultation were held later, would it not be possible to amend either the LCM or the bill at a later date? Are we saying that, if the consultation does not take place now, that will never be possible? I would like to be clear about that.

The provisions could be included in separate legislation, but the opportunity to use the provisions in the bill would be missed.

I apologise—I am not a member of the committee—but I just want to make the point that the cabinet secretary's explanation in correspondence with Westminster was that the Scottish Government could not agree to include the socioeconomic duty provisions in the LCM because they had not been consulted on. However, as Malcolm Chisholm pointed out, it would be possible for the Scottish Government to consult on the issue, given that the timescale for the bill extends to October.

We all agree that, if there needs to be more consultation, it should take place. The minister says that he is considering consulting, but it is reasonable for the committee to say that, if the Government's objection to the socioeconomic duty is a lack of consultation, it should take the opportunity to consult ahead of October. If the Government is saying that it cannot include that duty because there has been no consultation but it now has the opportunity to consult, it is reasonable for the committee to suggest to the minister that it should go ahead and consult.

That seems reasonable, except that the Government has said that it is considering consultation—it is not as though it is avoiding consultation.

Well, in this case it should be easy to recommend that.

Through the chair, please.

It is reasonable to suggest that consultation is a good route to go down. The minister has said that he is considering consultation—not that consultation will not take place. We would, therefore, be advising him to do something that he is already considering doing.

That is absolutely right.

We can do that, but, judging by the answer that the minister gave, I think that we would be pushing at an open door.

Well, that is—

Through the chair, please.

Sorry, convener.

All that we would be recommending is that the minister follow his instincts and ensure that the consultation is done timeously; it would then be for the Parliament to decide. Can we agree that approach to the legislative consent motion?

Members indicated agreement.