Review of the Gender Recognition Act 2004: consultation

Annex G – Equal Opportunities – Scottish Parliament’s Devolved Powers

1. The power to legislate to prevent, eliminate or regulate 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, is reserved to Westminster. This is in terms of section 30 and Schedule 5 Part II, Head L2 of the Scotland Act 1998.

2.Schedule 5 Head L2 also sets out certain exceptions to this reservation. The Scottish Parliament may legislate:

To impose duties on—

(a) any office-holder in the Scottish Administration, or any Scottish public authority with mixed functions or no reserved functions, to make arrangements with a view to securing that the functions of the office-holder or authority are carried out with due regard to the need to meet the equal opportunity requirements, or

(b) any cross-border public authority to make arrangements with a view to securing that its Scottish functions are carried out with due regard to the need to meet the equal opportunity requirements.

In relation to

• Equal opportunities so far as relating to the inclusion of persons with protected characteristics in non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions.
• Equal opportunities in relation to the Scottish functions of any Scottish public authority or cross-border public authority, other than any function that relates to the inclusion of persons in non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions. 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;
  (c) provision that reproduces or applies an enactment contained in that Act, with or without modification, without affecting the enactment as it applies for the purposes of that Act.