A blog series By Barbara Bolton, Legal Director and Partner
All Scottish Parliament (“SP”) legislation must be within competence, as set by the Scotland Act, which reserves to the UK Parliament a number of whole policy areas. The SP cannot pass legislation that relates to those reserved areas,  or modify specified Acts of the UK Parliament, including the Human Rights Act 1998.  The UK Secretary of State can also prevent Scottish legislation from becoming law if (i) it modifies the law as it applies to reserved matters, and (ii) they have reasonable grounds to believe it would have an adverse effect on the operation of the law as it applies to reserved matters. 
The Consultation confirms that the main concern in relation to incorporation of CERD, CEDAW and CRPD is the reservation of “equal opportunities.”  In the Scotland Act:
“Equal opportunities” means the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions.
The Explanatory Notes to the Scotland Act  explain that:
“Current legislation makes provision in relation to the prevention or elimination of discrimination on grounds of sex, marital status, race or disability. There is no current domestic legislation dealing with discrimination on grounds such as age or sexual orientation. All these matters are, however, reserved.” 
This confirms that what is reserved is the whole policy area of equal opportunities, not only what is covered by the Equality Act.
However, there are important exceptions to the reservation of equal opportunities, including two that were added in 2016. As Professor Nicole Busby pointed out in a paper for the National Taskforce,  the second additional exception may present an opportunity for greater incorporation than would have been possible before the Scotland Act 2016.
The second additional exception covers:
“Equal Opportunities in relation to the Scottish functions of any Scottish public authority or cross-border public authority….
The provision falling within this exception does not include any modification of the Equality Act 2010, or of any subordinate legislation made under that Act, but does include:
(a) provision that supplements or is otherwise additional to provision made by that Act;
(b) in particular, provision imposing a requirement to take action that that Act does not prohibit.” 
This provision has yet to be interpreted by the courts. However, applying the rules of statutory interpretation, taking the ordinary meaning of the words within the context of the Scotland Act, it appears to mean: the SP can legislate on equal opportunities in relation to Scottish public authorities, and Scottish functions of cross-border public authorities, in ways that add to or supplement the existing provisions of the EA, provided they do not modify the EA and do not impose a requirement to take action prohibited by the EA.
It is acknowledged that the precise parameters of what would be permitted, supplementing but not modifying and avoiding any requirement to act in a way prohibited by the EA, require careful consideration in relation to each provision that is being considered for incorporation. However, that detailed legal analysis can and should be done.
Preliminary analysis suggests that a number of standalone substantive rights from CRPD, CERD and CEDAW could come within this exception and so be incorporated with a duty to comply, within competence.
In considering the CRPD rights referred to above (including the right to independent living, living in the community etc), the following points should be taken into consideration:
- it is not clear that CRPD rights must be framed in terms of “the prevention, elimination or regulation of discrimination between persons on account of disability.” They would only be caught by the equal opportunities reservation if framed in those terms;
- even if framed in terms of preventing, eliminating or regulating discrimination, the EA permits direct discrimination in favour of disabled people. Incorporating CRPD rights, and fulfilling those rights, may not be additional to or supplementing the EA, it may simply be action to support disabled people that is expressly permitted under the EA;
- even if seen as going beyond the EA, supplementing or adding to the EA’s requirements is permitted, provided it does not modify the EA or require anything prohibited by the EA.
The EA permits discrimination in favour of disabled people.  This is a departure from the usual position under EA, whereby discrimination in either direction is usually prohibited. However, in the case of disability, non-disabled people are not a protected group, for obvious reasons, and measures that support disabled people do not disadvantage non-disabled people. Therefore, it is difficult to follow the SG’s stated concern that incorporation of CRPD rights with a duty to comply could result in unlawful discrimination in breach of the EA, and therefor put that section of the Bill outwith devolved competence. As the SG has not explained its position on this, it is not possible to engage with it beyond setting out our analysis. It appears to us that at least the following provisions could be incorporated with a duty to comply, in whole or in part, within competence: Art 5 equality and non-discrimination; Art 8 awareness raising; Art 9 accessibility; Art 17 integrity of the person; Art 19 independent living etc; Art 29 participation in political and public life; Art 30 participation in cultural life; Art 31 statistics and data collection.
CERD and CEDAW
There are aspects of these Treaties that cannot be incorporated within devolved competence, because the international human rights approach to equality is to promote substantive equality, or equality of outcome, whereas the EA (based on EU law) focuses only on formal equality, or equality of treatment. Requiring the taking of steps to achieve equality of outcome based on sex or race/ethnicity would likely come into conflict with the EA prohibition on positive discrimination (other than for disability) and constitute unlawful discrimination against others.
However, the EA allows positive action in relation to all protected characteristics, including race and sex.
Section 158 of the EA provides:
“(1) If a person (P) reasonably thinks that:
(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic,
(b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or
(c) participation in an activity by persons who share a protected characteristic is disproportionately low.
(2) This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of—
(a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage,
(b) meeting those needs, or
(c) enabling or encouraging persons who share the protected characteristic to participate in that activity.”
The explanatory notes explain:
“This section provides that the Act does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim.
The extent to which it is proportionate to take positive action measures which may result in people not having the relevant characteristic being treated less favourably will depend, among other things, on the seriousness of the relevant disadvantage, the extremity of need or under-representation and the availability of other means of countering them. This provision will need to be interpreted in accordance with European law which limits the extent to which the kind of action it permits will be allowed.
To provide greater legal certainty about what action is proportionate in particular circumstances, the section contains a power to make regulations setting out action which is not permitted under it.”
Having identified that its white male pupils are underperforming at maths, a school could run supplementary maths classes exclusively for them.
An NHS Primary Care Trust identifies that lesbians are less likely to be aware that they are at risk of cervical cancer and less likely to access health services such as national screening programmes. It is also aware that those who do not have children do not know that they are at an increased risk of breast cancer. Knowing this it could decide to establish local awareness campaigns for lesbians on the importance of cancer screening. 
Although we cannot locate any regulations providing greater certainty around the distinction between permitted positive action and prohibited positive discrimination (other than for disability), we do have guidance from the UK Government Equalities Office for voluntary and community service providers, and for the employment context in relation to Section 159 (which allows positive action specifically in recruitment and promotion), which can be used to further clarify what is permitted under Section 158.  The guidance explains:
“You can take positive action when three conditions are met:
- You must reasonably think that a group of people who share a protected characteristic and who are, or who could be, using your services:
- suffer a disadvantage linked to that characteristic
- have a disproportionately low level of participation in this type of service or activity, or
- need different things from this service from other groups.
‘Reasonably think’ means that you can see the disadvantage, low level of participation or different needs, but you do not have to show any detailed statistical or other evidence.
2. The action you take is intended to:
- meet the group’s different needs
- enable or encourage the group to overcome or minimise that disadvantage, or
- enable or encourage the group to participate in that activity.
3. The action you take is a proportionate way to increase participation, meet different needs or overcome disadvantage. This means that the action is appropriate to that aim and that other action would be less effective in achieving this aim or likely to cause greater disadvantage to other groups.”
On that basis it appears that at least some elements of the following rights could be incorporated and fulfilled without modifying or conflicting with the EA:
CEDAW: Art 2 elimination of discrimination; Art 3 development and advancement; Art 5 elimination of prejudice etc; Art 6 trafficking; Art 7 political and public life; Art 10 education; Art 12 health; Art 14 women in rural areas; Art 15 equality before the law; Art 16 marriage and family relations.
CERD: Art 2 elimination of discrimination; Art 4 incitement to racial hatred; Art 7 combatting prejudice.
The same analysis may apply to rights for older and LGBTI people. There is no Treaty to incorporate for these groups, but other international human rights sources can be drawn from and a number of the CERD and CEDAW rights referred to above may also be relevant to these groups.
As the SG has not explained its position on this, it is not possible to engage with it beyond setting out our analysis.
* Please note that this blog will be updated periodically during the consultation period and thereafter during the legislative process for the Scottish Human Rights Bill.