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.
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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.