House of Commons portcullis
House of Commons
Session 2005 - 06
Publications on the internet
Standing Committee Debates

Fourth Standing Committee
on Delegated Legislation

Column Number: 1

Fourth Standing Committee
on Delegated Legislation

The Committee consisted of the following Members:


Mr. Martyn Jones

†Connarty, Michael (Linlithgow and East Falkirk) (Lab)
†Devine, Mr. Jim (Livingston) (Lab)
Ellwood, Mr. Tobias (Bournemouth, East) (Con)
†Evennett, Mr. David (Bexleyheath and Crayford) (Con)
†Fraser, Mr. Christopher (South-West Norfolk) (Con)
Hall, Patrick (Bedford) (Lab)
†Harper, Mr. Mark (Forest of Dean) (Con)
†Jones, Helen (Warrington, North) (Lab)
†Lazarowicz, Mark (Edinburgh, North and Leith) (Lab/Co-op)
†MacDougall, Mr. John (Glenrothes) (Lab)
MacNeil, Mr. Angus (Na h-Eileanan an Iar) (SNP)
†McCabe, Steve (Birmingham, Hall Green) (Lab)
†Mundell, David (Dumfriesshire, Clydesdale and Tweeddale) (Con)
†Munn, Meg (Parliamentary Under-Secretary of State for Trade and Industry)
Osborne, Sandra (Ayr, Carrick and Cumnock) (Lab)
†Roy, Mr. Frank (Motherwell and Wishaw) (Lab)
†Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)
†Smith, Sir Robert (West Aberdeenshire and Kincardine) (LD)
Stewart, Ian (Eccles) (Lab)
†Thurso, John (Caithness, Sutherland and Easter Ross) (LD)
†Walker, Mr. Charles (Broxbourne) (Con)
Geoffrey Farrar, Committee Clerk
† attended the Committee

Column Number: 3

Thursday 15 December 2005

[Mr. Martyn Jones in the Chair]

Draft Scotland Act 1998 (Modifications of Schedule 5) Order 2006

8.55 am

The Parliamentary Under-Secretary of State for Trade and Industry (Meg Munn): I beg to move,

    That the Committee has considered the draft Scotland Act 1998 (Modifications of Schedule 5) Order 2006.

The draft Order in Council, which was approved in the other place two days ago, is a constitutional measure that will reserve to the UK Parliament the functions and constitution of the Commission for Equality and Human Rights, which will be created by the Equality Bill currently before Parliament. In broad terms, that means that only the UK Parliament will be able to legislate to change the way in which the body operates, or to confer or remove functions. Before the draft order is made, it must be approved by both the UK and Scottish Parliaments. The order, made under section 30(2) of the Scotland Act 1998, amends the reservation at paragraph 3(2) of part 3 of schedule 5 to that Act to add the Commission for Equality and Human Rights to the list of reserved bodies.

As the commission will take over the work of the existing equality commissions listed as reserved bodies, the order is necessary to ensure that the new body is similarly reserved. The Commission for Equality and Human Rights will be a non-departmental public body, funded by the Secretary of State and responsible, through him, to the UK Parliament. It is therefore appropriate that its constitutional functions are the preserve of this Parliament.

The reference to the existing equality commissions in schedule 5 to the Scotland Act will not be removed by the order as those commissions will continue to exist until the Commission for Equality and Human Rights takes on its full functions in October 2007, albeit later in the case of the Commission for Racial Equality. Those references will be removed by future orders or during a statute law revision exercise once the commissions have been dissolved. There is no need for us to do that now, but we are debating the order because the Commission for Equality and Human Rights will come into existence next year on a transitional basis, subject to parliamentary approval of the Equality Bill.

The Government’s policy intention, agreed with the Scottish Executive, is that on coming into existence, the body should be listed as reserved in the Scotland Act. The order will be commenced on 1 May 2006 so that it takes effect before the commission is established. As I have mentioned, the House of Lords considered it earlier this week, and the Scottish
Column Number: 4
Parliament will do so before the Equality Bill completes its passage in the Commons. I hope that hon. Members will agree that it is a straightforward and sensible use of the powers available under the Scotland Act.

8.57 am

David Mundell (Dumfriesshire, Clydesdale and Tweeddale) (Con): Along with my Conservative colleagues here in Westminster and in the Scottish Parliament, I have always subscribed to the view that devolution is

    “a process, not an event,”

as the late Donald Dewar said. Modifications to the Scotland Act 1998 will therefore always be required, and when they are consistent and sensible, we will support them. My hon. Friend the Member for Epping Forest (Mrs. Laing), who participated in the Committee stage of the Equality Bill, pointed out that the commission would require this modification. We have no difficulty in giving it our support.

I continue, however, to have concerns about how legislative competences straddle the Scottish and Westminster Parliaments. That is why I welcomed the Scottish Parliament’s report on the Sewel motion convention, which is the convention whereby the Scottish Parliament remits legislative competence to this Parliament. I welcome the fact that the Select Committee on Scottish Affairs will have a similar inquiry into how that remittal process is handled here, because that is important in the context of the necessary working relationship between the two Parliaments.

As far as the order is concerned, however, I have no problem in supporting it.

8.59 am

John Thurso (Caithness, Sutherland and Easter Ross) (LD): I have had the honour to serve on a number of Committees concerned with statutory instruments, most of which were concerned with further devolution, but this is my first statutory instrument on Scottish matters which instead relates to reservation. I have therefore looked at the measure with some considerable care because, as I have been wont to say in Committee, what can be devolved should be devolved.

Having looked at the order carefully, I believe that it is appropriate for the Commission for Equality and Human Rights to be included in the reserved schedule, because that effectively preserves the status quo, and therefore I and my hon. Friend the Member for West Aberdeenshire and Kincardine (Sir Robert Smith) are happy to agree to the order. However, I have just a couple of questions for the Minister.

Legislation to set up the position of commissioner is currently passing through the Scottish Parliament, and the Equality Bill has yet to conclude its passage through Westminster. My first question is therefore whether it might have been more appropriate to wait for the outcome of those pieces of legislation. Secondly, and perhaps more importantly, I understand that evidence was given to the relevant
Column Number: 5
Justice Committee of the Scottish Parliament in which mention was made of a memorandum of understanding on the lines of interface between the Scottish commissioner and the CEHR for the UK. How is that progressing, and when, since the way in which the interface works will clearly be important, might that memorandum of understanding be available? Aside from those minor queries, we are happy with the order.

9.1 am

Mark Lazarowicz (Edinburgh, North and Leith) (Lab/Co-op): I agree with the hon. Member for Caithness, Sutherland and Easter Ross (John Thurso) about the importance of getting a memorandum of understanding on the relationship between the two commissions at an early date. That is important not just for the working relationships between the two levels of government but in terms of how things will work on the ground in Scotland. Without my going into the details of the planned legislation, hon. Members will appreciate the possible public confusion if there is a Scottish office of the Commission for Equality and Human Rights to deal with reserved matters, and down the road there will be the separate office of a Scottish human rights commissioner dealing with devolved matters. Clearly there is opportunity for confusion and duplication and for failure to implement the intentions of both Parliaments. It would be helpful to know the provisions of the memorandum soon, and to know how it is envisaged that the two bodies will work together practically, on the ground.

9.3 am

Mr. Charles Walker (Broxbourne) (Con): What discussions has the Minister had with the Scottish Executive about the possibility of devolving this function? Perhaps the Scottish Executive do not want to take responsibility for it, but some of it may sit quite comfortably with the Executive. I should be grateful if the Minister shed some light on that.

9.3 am

Sir Robert Smith (West Aberdeenshire and Kincardine) (LD):Will the Minister flesh out how the commission will operate its functions in Scotland and how it will make sure that it is fully aware of the different legal systems in Scotland and the different ways of operating there?

9.4 am

Meg Munn: I thank the hon. Members for Dumfriesshire, Clydesdale and Tweeddale (David Mundell) and for Caithness, Sutherland and Easter Ross for their overall support for the order.

I will respond to some of the specific issues that have been raised. We are introducing the order now because we want it made before the commission is established so that the constitution and functions are reserved from the outset and so that we can achieve a seamless transition. We aim to set up the Commission for Equality and Human Rights after Royal Assent of the
Column Number: 6
Equality Bill, subject to parliamentary approval, to ensure that the commission’s reserved status is preserved from the beginning.

I will deal with the point raised by the hon. Member for Broxbourne (Mr. Walker), who played an important role in the Committee stage of the Equality Bill. The Equality Bill and the commission do not revisit the devolution settlement, so the decision-making process about which matters are reserved and which are devolved remains the same.

I thank my hon. Friend the Member for Edinburgh, North and Leith (Mark Lazarowicz) for his contribution on the matter of the Scottish commissioner for human rights. We are aware that there is the opportunity for confusion, hence our view that we need to develop the memorandum of understanding. I am unable to respond in detail to the question from the hon. Member for Caithness, Sutherland and Easter Ross about where we are in that development process, but I assure hon. Members that there have been regular discussions and correspondence with hon. Members from Scotland and Members of the Scottish Parliament, and with the Welsh Assembly where the matters are different, but also important.

Video conferencing technology has enabled me to have a conference with the relevant Minister in Scotland about these matters, so an active process is going on. Also, voluntary sector organisations concerned with equality and human rights are particularly active in Scotland and are in place to deal with the range of issues involved, such as age, religion and belief, sexual orientation, gender and race. We have therefore been able to have a great deal of discussion about the issue. I shall write to the hon. Gentleman and to all Committee members about the stage we are at in the process involving the memorandum of understanding, so that they can see clearly how it is progressing. I assure hon. Members that the Government are well aware of the need for clarity.

Mark Lazarowicz: May I suggest that the Minister bear in mind the possibility that the Scotland commissioner might act as the UK commission’s agent in Scotland? That would be a simple way forward.

Meg Munn: I shall certainly take that suggestion away and think about it. Hon. Members are probably aware that one commissioner from the Commission for Equality and Human Rights will focus on Scotland, and that a Scotland committee will ensure that there is liaison between the commission and the Scottish Parliament. We must do further work on the matter, because we do not want people in Scotland to be confused about the roles of the commissioner for human rights in Scotland and the CEHR. That work is ongoing.

Michael Connarty (Linlithgow and East Falkirk) (Lab): Further to the point made by my hon. Friend the Member for Edinburgh, North and Leith, a serious debate took place recently in Glasgow on the gay and transgender community’s worries about the Equality Bill. Any commission in Scotland would have to be
Column Number: 7
quite clear that regulations in that Bill relating to gender and transgender issues would be universally applied in the United Kingdom and that there would be no question of deviation in Scotland from the intention of the Bill.

Meg Munn: The Bill in no way changes the devolution settlement. Issues dealt with by the UK Parliament will continue to be dealt with by the UK Parliament, and provisions in the Bill relating to sexual orientation will of course apply to Scotland. The power in question is an order-making power. Regulations will be made, and the Government will shortly enter into a consultation process. I encourage hon. Members from Scotland to engage in that process and to respond so that we can deal with points such as the one that my hon. Friend made.

Sir Robert Smith: Are any of the functions of the new commission devolved? In other words, will the commission deal with certain functions that will apply only outside Scotland, or will every function taken on by the new commission be reserved?

Column Number: 8

Meg Munn: When the commission comes into force, it will incorporate existing commissions, which already operate across the UK. It will not alter the devolution settlement. How it dealt with a human rights issue would depend on whether that issue was a devolved or a reserved matter. The commission would be responsible for giving guidance on and enforcing the equality enactments, which the hon. Gentleman can check for himself in clause 34 of the Equality Bill and which basically constitute the body of equality law in Great Britain. The equality enactments extend to Scotland as well as to England and Wales; as my hon. Friend the Member for Linlithgow and East Falkirk (Michael Connarty) mentioned, they extend throughout Great Britain, so the Scotland commission will apply the same laws.

I hope that I have answered hon. Members’ questions, but I assure them that the Government welcome further discussion to ensure that the issue is clear for people in Scotland and that they get the help and support that they need.

Question put and agreed to.


    That the Committee has considered the draft Scotland Act 1998 (Modifications of Schedule 5) Order 2006.

Committee rose at twelve minutes past Nine o’clock.


House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2005
Prepared 16 December 2005