Current status: Answered by Kaukab Stewart on 29 October 2024
To ask the Scottish Government, further to the answer to question S6W-29171 by Kaukab Stewart on 3 September 2024, whether it will provide further details of the “restrictions related to legislative competence” that led to the decision to stop work on the proposed, and reportedly widely supported, new public sector equality duty on inclusive communication.
The content of any legal advice is confidential. By long-standing convention, successive Scottish and Westminster Governments have not disclosed the source or content of legal advice other than in the most exceptional circumstances.
However, we have sought to provide some further details of the relevant legal background. There are multiple constraints on the ability to legislate in relation to this matter. Firstly, the Scottish Parliament cannot make laws which relate to a reserved matter. The relevant reserved matter is Section L2 of Schedule 5 of the Scotland Act 1998 which reserves the subject matter of “Equal opportunities”. A proposed new duty relating to inclusive communications relates to this reserved matter and therefore falls within one of the limited exceptions to this reservation.
Further, in terms of section 29(2)(c) and schedule 4 of the Scotland Act 1998, the Scottish Parliament cannot make laws which modify the law on reserved matters. The Equality Act 2010 is a law on reserved matters and as such a new duty related to inclusive communications cannot modify any provision of it. Lastly, the enabling power for a new duty was limited to the following (as per section 153 of the Equality Act 2010): regulations which have the purpose of enabling the better performance of listed authorities of their public sector equality duty.