Powers for a purpose: devolving equality
Duncan Hothersall suggests that the devolution of equality law is unfinished business from 1997, and that Labour should now support it.
In 1998 I was a volunteer with the Equality Network, which was at that time a recently-formed LGBT rights group trying to win support for ending anti-gay discrimination in Scots law. This was before the equal age of consent and the scrapping of Section 28, let alone civil partnerships and marriage equality.
1998 was when the Scotland Bill was being put together; the bill that, as an act, would bring into being the devolved Scottish Parliament. The question of what powers should be reserved – and therefore which would be devolved – was exercising the minds of many. We at the Equality Network were clear at the time that Scotland should have powers to promote equal opportunities, and we successfully campaigned to have that provision made part of the final Scotland Act.
But there were, in retrospect legitimate, concerns from the then government that we needed to ensure that anti-discrimination rights under the law were maintained across the UK. There was, sadly, little reason then to consider Scotland as an enlightened place for LGBT people or other minorities. It had taken a decade and a half longer to decriminalise gay sex in Scotland than in England and Wales, and public opinion on gay rights did not make for happy reading.
So our campaign to have all of equality law devolved – to empower the Scottish Parliament not only to promote equality of opportunity but to regulate it, and prohibit discriminatory practices – did not succeed in 1998.
Nonetheless, the powers the parliament gained were significant, and it demonstrated its ability to deliver change for minority rights by almost immediately repealing Section 28. I am still inspired by the political bravery shown in that fight, particularly by Donald Dewar and Wendy Alexander.
As we know, the Scottish Parliament went on to enact a whole range of further legislation which improved LGBT and other minority rights. And public opinion changed dramatically in the intervening years. We are now at the happy stage of having passed marriage equality law by a huge majority and with massive support across Scotland.
But that gap in legislative opportunity remains. And I think now is the time to close it.
Devolution is about bringing power as close as possible to the people affected by it, and creating the appropriate layers of government to deliver the best outcomes for the most people. So the Smith Commission process cannot simply be a competition about who can put the most power in Holyrood’s hands. And if we are to argue for the devolution of a power from Westminster to Holyrood, we should do so on the basis of what we want to achieve with it.
Scotland has demonstrated a particular commitment to gender justice in its laws and its politics since 1999. The Scottish Labour Party led on gender balance in elected representation in that first parliament, ensuring through deliberate and hard-fought-for processes that 50% of its MSPs in 1999 were women. It has recently brought back those measures for the 2016 selections. The Scottish Greens have a similar commitment.
But while political parties can act to regulate against discrimination, the Scottish Parliament currently cannot. So it is unable legislate for example for gender equality on public boards. And as the recently formed cross-party Women 50:50 campaign group clearly sets out, this could and should be an aim for Scotland. This is a clear instance of devolution of a power for a purpose.
Devolution of equality law would also allow Parliament to tackle multiple discrimination more effectively, deliver much-needed improvements to transgender and intersex rights, and continue to use the nimbleness of our devolved legislature to deliver worthwhile improvements to the lives of Scots who suffer discrimination.
I can see today that the concerns expressed about this in 1999 were reasonable. But I think now, 15 years on, it’s clear that the risks have subsided and the opportunities are far greater.
Let’s back the devolution of equality law to the Scottish Parliament, and use it to further our fight against discrimination.