Standards in Scotland's Schools etc Bill
Item 4 on the agenda is a report from Malcolm Chisholm on amendment 140 to the Standards in Scotland's Schools etc Bill.
This is an interesting and an important matter, both because of the process of the bill itself and because it leads us into the whole question of what schedule 5 to the Scotland Act 1998 says the Scottish Parliament, as opposed to the Westminster Parliament, can do about equal opportunities.
Members have a copy of the amendment that we lodged. It was slightly changed from the original and, after I lodged it, it was changed again by the clerks on the ground that my wording was out of order. I included the words
"shall promote equality of opportunity"
in accordance with schedule 5 to the Scotland Act 1998, because I wanted to anchor the provisions in what was allowed by legislation. I was told that that was out of order, which is no doubt true, for some reason. I was happy to withdraw the amendment on a technicality, because it should have said "equal opportunities" rather than "equality of opportunity". Equality of opportunity was in the draft that we were given but, in terms of schedule 5 to the Scotland Act 1998, the wording should be "equal opportunities".
I was happy to withdraw the amendment on a technicality only on the understanding that the matter would be revisited at stage 3. I did not commit myself to supporting what the Executive was offering, because it is up to this committee to make a decision on that. However, I will describe what the Executive seems to have offered at stage 2. Before I do so, members should look at schedule 5 to the Scotland Act 1998. It is an important schedule for this committee, because it tells us that the legislation on equal opportunities is, as we know, reserved to Westminster. Therefore, we cannot bring forward amendments to the Sex Discrimination Act 1975 or the Race Relations Act 1976. The Parliament will debate the Race Relations (Amendment) Bill on Thursday morning, but that is being dealt with by Westminster—although the Scottish Parliament can express views on it, we cannot amend it.
An interesting part of the schedule from our point of view can be found under the heading "Exceptions", which talks about the encouragement of equal opportunities and imposing duties on certain people. My understanding of an exception is that it means that we have the power to take action in those areas.
One of the most interesting aspects is the meaning of these terms in the Scotland Act 1998. One of the difficulties that has arisen is that equal opportunities is defined more broadly in the Scotland Act 1998 than in UK legislation. The phrase with which we are most familiar in connection to other debates at the moment is that:
"‘Equal opportunities' means the prevention, elimination or regulation of discrimination . . . on grounds of . . . sexual orientation".
The term also includes age, for example, which is not embodied in UK legislation, so the definition of equal opportunities is broad. In accordance with the Scotland Act 1998, we are allowed to encourage equal opportunities, which seems to me to mean the same as promote, unless anybody can tell me different.
The act also mentions the "Equal opportunity requirements", which means the observance of the UK legislation. That is an important anchor for these discussions. At stage 2, I thought that Peter Peacock made quite a good offer. Members have copies of the Official Report. In column 1022, he said:
"The new text would require councils in their annual statement of education improvement objectives to include an account of the ways in which they will, in providing school education, encourage equal opportunities, and in particular the observance of the equal opportunity requirements."
That is something that local authorities would have to do. When I questioned the minister about schools, he said that the reference to local authorities includes schools, because they come under local authorities. He said that local authorities would have to give an account of what they were doing to encourage equal opportunities on the broad definition and in relation to the narrower legislative definition of equal opportunities requirements. I was quite pleased with that and I said so.
I was slightly concerned—although I did not pick this up until I read the Official Report after the meeting—about the minister's response to Lewis Macdonald's question. In column 1023, he says:
"On Lewis Macdonald's first point, the provision requires local authorities, in this context, to report on the observance of the equal opportunity requirements; it is a fairly strong provision."
Those comments were slightly narrower than his previous remarks, so I am concerned about that. However, on the basis of what the minister said in his first statement, I am encouraged that the Executive has moved quite a lot in response to our comments.
The minister also said many other interesting things. For example, he said:
"We do not think that it is right to require ministers to do something that they are already required to do in law".—[Official Report, Education, Culture and Sport Committee, 15 May 2000; c 1022-23.]
When I asked him what objection he had to our proposal of having a duty to promote equal opportunities, he seemed to say that there was no point in imposing such a duty, as ministers were already required to promote equal opportunities. I am glad to hear that, but that is not my understanding of the Scotland Act 1998. It is an exception—we can encourage equal opportunities, but I do not think that that means that ministers automatically promote equal opportunities. Therefore, I still have questions about the Executive's position.
I am afraid that this is—inherently—an incredibly confusing and complex area. Lurking in the background are a lot of disputes between law officers about what exactly the Scotland Act 1998 allows us to do in the area of equal opportunities. There could be an interesting debate at stage 3, but the problem is that we do not have the wording of the Executive's amendment at this stage and so it is slightly difficult for us to know what we are dealing with.
I would be reasonably happy should Peter Peacock offer what he said at column 1022 of the Official Report, although I would still want to ask why our proposal of imposing a duty to promote equal opportunities was not allowable. In practice, requiring schools to report on those issues probably meets our objectives.
On the other hand, I would be concerned if the Executive were to lodge an amendment that included the narrower wording that the minister refers to in column 1023 of the Official Report, as that would cover only the equal opportunities requirements and would not include the broader definition of equal opportunities in the Scotland Act 1998. I am sorry that this is a bit complicated, but it is not just my muddled thinking—the situation is inherently complicated.
We will have to wait and see the wording of Peter Peacock's amendment, as it is still within the power of the committee to reword Malcolm's amendment to make it acceptable.
Although that is fine in the context this debate about the Standards in Scotland's Schools etc Bill, a principle is at stake—there appears to be an issue about having a duty to promote equal opportunities. The Parliament has established an Equal Opportunities Committee and it has been stated that equality of opportunity is at the core of the Parliament's work. It seems to me to be strange—if not a little bizarre—that it is a problem for the Parliament to impose a duty on authorities to promote equal opportunities in the context of the Scotland Act 1998. The principle must be established that this Parliament should be able to, and must, impose such duties. I have received helpful correspondence from the Scottish Parliament information centre about the matter, which it refers to as being very tricky. In the area for which the Parliament has responsibility, the issue is really one of language.
I was interested in Malcolm's comment at the Education, Culture and Sport Committee about intention. From the debates on schedule 5 to the Scotland Act 1998 at Westminster, it seems that the intention of the legislation, in terms of encouragement, was that, although the Scottish Parliament could not amend equal opportunities legislation, it would be able to promote equal opportunities. That is the key distinction; I am sure that, during the passage of the Scotland Act 1998, the intention of Westminster MPs was as Malcolm interpreted it. It would be helpful to seek clarification on that point. Although we could find a resolution in the context of Malcolm's amendment to the Standards in Scotland's Schools etc Bill, this issue will come up time and again when the Parliament seeks to impose a duty to promote equal opportunities in other bills. If that means questioning the law officers here, I am open to suggestions about how we can do that, but this committee should pursue the matter.
Are there any other comments or questions?
We have to decide on the way forward. The timing is a bit unfortunate, because my understanding is that stage 3 will most likely take place two weeks on Wednesday. I imagine that we will be meeting two weeks on Tuesday, so that creates a problem. Ideally, we would come to the meeting, consider the amendment and then decide what we want to do, but that probably will not be possible. Some people have to meet, at least informally, when the amendment is drafted.
Immediately after this meeting, we could write to Peter Peacock expressing the committee's view on the acceptable wording of the amendment, in the hope that that would inform the people who are doing the drafting. We could then arrange to have an ad hoc meeting when the wording is made available, especially if our wording is deemed not acceptable.
My worry is that there is some uncertainty even—dare I say it—among the law officers and that this matter may be a moving target. I am not sure what the final wording will be, which is why it is difficult for us to make a final decision. My view is that what Peter Peacock offers in column 1022 is significant. Having consulted the equality organisations, I know that they are also quite pleased with what was offered in column 1022.
What are members' views on that? What is said in column 1022 is what we want and would be the basis on which we contacted Peter Peacock.
I would still have questions, but I would vote for what is on offer in column 1022. There would still be other options. We could lodge a probing amendment or another amendment without voting against Peter Peacock's amendment. There are lots of options. I would happy if he brought forward what he said, but I am not absolutely confident that what is brought forward will be in the form that we wish.
As the Equal Opportunities Committee, we could lodge the amendment anyway and then see what Peter Peacock comes up with at stage 3. If we were satisfied with his proposals, we could withdraw our amendment. Our amendment might help to focus minds.
That is an alternative way forward. If we did that, the words "equality of opportunity" would have to be changed to "equal opportunities". The next part of the amendment that I lodged was inserted by the clerks and is not required. We would just be including the words "shall promote equal opportunities". We would probably also add the words from the earlier version of the amendment to the effect "and have due regard to the need to eliminate unlawful discrimination". That is an option as well.
Is everybody happy with that? Are you happy to do that, Malcolm?
This is a new idea, and I have not taken it in completely. I will listen to other views.
There is more than one way in which to concentrate minds. We could give some credit for the shift that has taken place. It strikes me that, if we simply lodged an amendment, we would be saying, "You have moved on this and you have promised us something else, but we are going to go ahead anyway." As long as we are not blocking off options, we may want to see whether what comes back is what we are looking for; at that stage, we may wish to do something further. However, it might be helpful to pursue the negotiations first, with the proviso that we organise an ad hoc meeting or that we give powers to Malcolm plus the convener and the deputy convener to pursue what they think would be in line with what the Equal Opportunities Committee wants.
That is kind of what I was suggesting—that we contact the minister to find out what will be put forward.
I favour Johann's way forward—it is less in your face. Shona referred to seeking clarity. Could we invite somebody to talk to the committee about the legal niceties of the matter in a fortnight, or is that too short notice?
I think that it would be too short. Like Shona Robison, I am not sure from whom we would seek clarification or whether using the Parliament's law officers would necessarily clarify the matter.
The broader questions of interpretation and so on can be pursued by the committee. There is an issue about what will be contained in the bill and a broader question about how such matters are generally viewed. We are not time limited—we can examine the matter regardless of what happens to the amendment to the bill. We can revisit the issue if we are unhappy because we are not cutting options off from the committee. We do not have to push too hard regarding a timetable, but I would be interested in finding out whether the law officers are allowed to come before the committee to give evidence and whether they have ever been asked such questions. I have a list of things that I would like to ask them.
It has been pointed out to me that—as a result of a question that was raised at the committee's previous meeting—the clerks have asked the Executive to provide evidence to the committee on the current interpretation of section L2 of schedule 5 to the Scotland Act 1998. So far nothing has been returned to them.
It would be useful to see that evidence and to air the issue before having to argue a case in committee. That would give us confidence and ammunition.
It would be useful to have that at the next meeting.
I did not think that we would resolve the matter within the time that has been allocated to the bill. My point was that we should seek to examine the matter for future reference. We must take advice beyond that which we receive from the Executive because the Executive's interpretation will be only one of a number of differing interpretations—which is not necessarily a problem.
The committee could, however, discuss differing interpretations to come to a conclusion about which interpretation it considered to be the most reasonable. We could perhaps leave it to you, convener, and the clerks to establish the sources of other interpretations. I know that the Commission for Racial Equality, for example, has an idea of how broad any interpretation of section L2 should be.
We are trying to achieve an end with the bill, which is fair enough because we are all reasonable people. The amendment would have tested Parliament's ability to promote equal opportunities. Peter Peacock might come to the committee with a proposal that is acceptable, but we must ensure that the committee is not sending out a signal that it accepts that Parliament is unable to promote equal opportunities. The committee would not want to sanction that.
Nobody is suggesting that we should.
I know, but we must be careful about the message that we send out. That could be communicated to Peter Peacock. I am sure that you have had on-going discussions on that with the minister, Malcolm.
No, I have not.
I have no problem with what is being suggested. My main concern is that he should table an amendment in accordance with what is in column 1022. I would vote for such an amendment, which would not preclude discussion of those other matters. I can see why people would still argue in favour of another amendment, but the problem with that is that—if there was a legal wrangle—we might end up with no amendment being made.
The reality is that most members will not vote against legal advice, although some might. I accept that we must explore the legalities of the matter. I am minded to wait until we see the amendment that is lodged and then to have another informal discussion about it.
Would you like the committee to write to the minister in advance?
We could do that, but I think that the minister will know how the committee feels. We should, however, ask him to provide the wording of the amendment as soon as possible. I am encouraged by what he has said, but we should to some extent reserve our position on the matter.
We need time to lodge an amendment, so we would need to see the wording of an Executive amendment while there was still time for the committee to meet and decide on an alternative amendment.
I would be very concerned if the minister retreated to the narrower definition that is in column 1023.
We will press the minister for that wording.
That is all that we will say about the matter just now. It might be necessary to call a meeting at short notice. Parliament might still be meeting in Glasgow when we find out the wording of the amendment, in which case we will try to get as many members of the committee together as possible.
Item 5 will be taken in private.
Meeting continued in private until 15:00.