Supplementary Legislative Consent Memorandum
Equality Bill
Draft Legislative Consent Motion
1. The draft motion, which will be lodged by the Cabinet Secretary for Health and Wellbeing, is:
"That the Parliament agrees that the relevant provisions of the Equality Bill, introduced in the House of Commons on 24 April 2009, to make provision within the legislative competence of the Parliament and to alter the executive competence of Scottish Ministers in respect of the public sector duty to promote equality; the hearing of disability discrimination school education cases by the Additional Support Needs Tribunals for Scotland; the arrangements for educational endowments; the power to prescribe qualification authorities in relation to equality, transitional arrangements for single sex educational establishments; a duty on relevant public authorities in Scotland, when making decisions of a strategic nature about how to exercise their functions, to have due regard to socio-economic disadvantage; and reasonable adjustments to common parts of buildings to suit the needs of disabled people who live in those buildings, should be considered by the UK Parliament."
Content of the Equality Bill
2. The overarching aim of the Bill is to consolidate, simplify and, where appropriate, harmonise the different pieces of equality legislation that have been produced over the last forty years. There are 7 areas where the Bill currently triggers the need for legislative consent - the public sector duty to promote equality; the hearing of disability discrimination school education cases by the Additional Support Needs Tribunals for Scotland; the arrangements for educational endowments; qualification authorities; and transitional arrangements for single sex educational establishments to become co-educational; a duty on relevant public authorities in Scotland, when making decisions of a strategic nature about how to exercise their functions, to have due regard to socio-economic disadvantage; and reasonable adjustments to common parts of buildings to suit the needs of disabled people who live in those buildings.
3 A Legislative Consent Motion was submitted to the Scottish Parliament in May 2009 which covered the public sector duty to promote equality, the hearing of disability discrimination school education cases by the Additional Support Needs Tribunals for Scotland, the arrangements for educational endowments, qualification authorities, and transitional arrangements for single sex educational establishments to become co-educational. That LCM was considered by the Subordinate Legislation Committee, which reported on 4 June, and by the Equal Opportunities Committee, which reported on 12 June. The original LCM and Committee reports can be found here: http://www.scottish.parliament.uk/business/legConMem/LCM-2009-2010/EqualityBill.htm
4. The Equal Opportunities Committee recommended that the Scottish Government consult on the public sector duty regarding socio-economic inequality. A written consultation exercise on the duty was subsequently undertaken by the Scottish Government along with discussions with key stakeholders such as the Equality and Human Rights Commission. The consultation closed on the 28 October 2009 and received 69 responses. The majority of respondents to the consultation, including the Equality and Human Rights Commission, NHS Boards, and third sector organisations were broadly in favour of legislating. However, there was a lack of support for the duty among local government respondents, including COSLA and SOLACE. On balance, the Scottish Government has taken the view that placing socio-economic issues on a statutory footing would add weight to existing mechanisms such as Single Outcome Agreements.
5. The Bill introduced on 24 April contained provisions that dealt with consent for alterations to common parts of buildings, but they were designed around English law and practice for property holding, where a single freeholder or a commonhold association has control over the building as a whole. The Scottish Government has worked with Westminster to achieve an equivalent for the multiple ownership arrangements in Scotland.
6. The Bill was subsequently amended at Westminster, inserting new provisions which require the consent of the Scottish Parliament - a duty on relevant public authorities in Scotland, when making decisions of a strategic nature about how to exercise their functions, to have due regard to socio-economic disadvantage; and reasonable adjustments to common parts of buildings to suit the needs of disabled people who live in those buildings. These new provisions required that the draft Motion be revised and that this supplementary Memorandum be lodged. The new provisions are discussed in detail below.
Public Sector Duty Regarding Socio-Economic Inequalities
Background
7. The duty will apply to specified public authorities in Scotland and will complement and reinforce the existing work that is being undertaken to tackle inequality. The duty is high level and non-prescriptive in nature. The implementation of the duty will be supported by a provision which allows Scottish Ministers to take powers to issue guidance which would be drafted to ensure that it supports and enhances the arrangements already established through the Concordat and Single Outcome Arrangements rather than cutting across them.
Legislative Consent
8. These proposals will amend Part 1 of the Bill to provide for the socio-economic duty in the UK Equality Bill to apply to Scottish public authorities.
9. Scottish Ministers will have the power to list Scottish public authorities whose functions are broadly the same as those listed in s1(3) to whom this duty will apply, in conducting functions exercisable in or as regards Scotland and that relate to devolved matters to be subject to the duty. They will also be able to remove bodies from the list or specify that the body is only subject to the duty in relation to some of its functions and add or remove specified functions. There will be a requirement for the Scottish Ministers to consult a Minister of the Crown before making the Regulations.
10. The duty on Scottish public authorities may be made subject to the obligation to take into account guidance issued by Scottish Ministers. There will be a requirement for the Scottish Ministers to consult a Minister of the Crown before producing guidance.
11. These proposals make provision within the legislative competence of the Scottish Parliament and alter the executive competence of the Scottish Ministers, engaging the need for a Legislative Consent Motion. Legislative competence is involved because the socio-economic duty does not come within the reserved area of equal opportunities, as set out in Section L2 of Part 2 to Schedule 5 to the Scotland Act 1998.
Financial Implications
12. It is not anticipated that there will any significant financial implications. Should the Parliament agree to extension of the duty outlined in the UK Bill, the Westminster Government Equalities Office have estimated there will be a one off familiarisation and implementation cost of less than £1,000 per public authority. The Scottish Government is in discussions with COSLA regarding the implementation of the duty.
Adjustments to Common Parts of Buildings
Background
13. The Housing (Scotland) Act 2006 gives tenants a 'right to adapt' to suit the needs of a disabled occupant. The landlord cannot unreasonably refuse an application to alter the house (including common parts) to suit the needs of a disabled resident. This is considered to be within devolved competence because, as an issue between landlord and tenant, it can be dealt with as a matter of housing law.
14. This existing right for tenants does not extend to consents required from other joint owners of the common parts (such as stairs, access paths etc.). Nor does it help a disabled owner-occupier who needs to alter the common parts. The making of such provision between individuals who have no housing contractual relationship with each other is considered to be within reserved competence as it relates to equal opportunities, specifically the prohibition of discrimination on grounds of disability.
Legislative consent
15. The Bill (clause 37(1)) gives Scottish Ministers power to make regulations that will entitle a person to make alterations or additions to the common parts of a building where the person's only or main home is in that building and the alterations or additions are likely to avoid a substantial disadvantage in the use of the common parts for a disabled person. The powers provide, in particular, for the regulations to require that owners of the common parts do not refuse consent unreasonably, and where this happens, for the sheriff to be able to make an order authorising works.
16. These proposals to confer on Scottish Ministers a power to make regulations alter the executive competence of the Scottish Ministers, engaging the need for a Legislative Consent Motion.
Financial Implications
17. The proposal has no direct financial implications for the Scottish Government. By making it possible for some disabled people to do works when they otherwise would not have the necessary consent from owners of the common parts, there is likely to be a small increase in the number of applications to local authorities for grant for adaptation works essential to the needs of a disabled person that would otherwise have been blocked. Analysis of the available data suggests that the total cost of grant for works made possible by this legislation would be of the order of £37,000 - £75,000 per year for the first three years. If local government considers that their extra costs as a result of this legislation are significant then this will be discussed with COSLA as part of the continuing arrangements under the Concordat.
SCOTTISH GOVERNMENT
December 2009