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Equality Strategy: Working together for Equality

Appendix 1 Legislative framework

• Scotland Act (1998)

The power to legislate on equal opportunities is reserved to the UK Parliament. There are two exceptions to the reservation: the encouragement (other than by prohibition or regulation) of equal opportunities and in particular the observance of the equal opportunities requirements; and the imposition of duties on Scottish public authorities and cross-border public authorities in relation to their Scottish functions. The Scotland Act defines "equal opportunities" as:

"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."

It should also be noted that in terms of Section 57(2), a member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the rights under the European Convention of Human Rights or with European Community Law.

• UK legislation

The relevant statutory provisions within the UK are:
The Equal Pay Act 1970
The Sex Discrimination Act 1975
The Race Relations Act 1976
The Disability Discrimination Act 1995

In addition to specific anti-discrimination legislation, including amendments to the Race Relations Act 1976 currently being considered by the UK Parliament, there is other legislation that may be seen as important in underpinning equal opportunities or which may embody principles of equal treatment that are important in affording protection or awarding entitlements to particular groups.

Examples include:

Employment Act 1989
Employment Rights Act 1996

The Human Rights Act 1998 incorporates certain of the rights and freedoms set out in the European Convention on Human Rights into UK domestic law. This is in addition to the obligation placed on the Scottish Executive under the Scotland Act to act compatibly with the Convention. Section 6 of the Human Rights Act makes it unlawful for a public authority to act in a way that is incompatible with a Convention right (which includes Article 14 of the Convention). A public authority includes a court or tribunal and any person certain of whose functions are functions of a public nature (including the Scottish Parliament).

• European Convention on Human Rights

This has been incorporated into domestic law by virtue of both the Scotland Act 1998 and the Human Rights Act 1998. The relevant provision for discrimination purposes is Article 14, which provides -

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

This requires to be construed according to the case law of the European Court of Human Rights, and they have held it not to be a free-standing article in its own right. For this Article to come in to play, there must be a breach of one of the substantive articles of the Convention (e.g. right to a fair trial or right to respect for private and family life). It therefore has a more limited application than one might expect.

• EU law

The European Community Treaty has various articles dealing with discrimination. Article 12 contains a general prohibition against discrimination on grounds of nationality that is directly effective. Article 13 provides for action to be taken by the Community institutions to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 141 of the Treaty requires each Member State to ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. It also allows the Council, after consultation, to adopt legislation to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.

In addition to these specific provisions on various forms of discrimination, Article 39 of the Treaty provides that freedom of movement of workers shall be secured within the Community, Article 43 prohibits restriction on the freedom of establishment of nationals, Article 49 prohibits restrictions on the freedom to provide services within the Community and Article 56 prohibits all restrictions on the movement of capital between Member States. These rights under the Treaty are all directly effective and may be relied on by an individual against the Member State concerned.

In the Treaty of European Union, Article 6(1) declares that the Union is founded upon principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, principles which are common to the Member States. Article 7 of that Treaty provides a mechanism for enforcing the principles set out in Article 6(1).

• Other international obligations

The UK is also a signatory to a large number of international conventions which have anti-discrimination provisions, although these do not currently provide a right of individual complaint against the UK's international obligations. Some of the most important are:

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