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Parliamentary debates and questions

Equal Opportunities Committee 30 June 2016

The agenda for the day:

Interests, Work Programme.

Interests

The Convener (Christina McKelvie)

Good morning and welcome to the second meeting of the Equal Opportunities Committee in session 5. As members know, if they wish to use devices such as tablets, they may do so, but they should be switched to silent as they interfere with broadcasting.

Agenda item 1 is a declaration of interests by David Torrance.

David Torrance (Kirkcaldy) (SNP)

I have no relevant interests to declare.

The Convener

Thank you.

Work Programme

The Convener

Our substantive piece of work this morning is agenda item 2, which is a discussion on our work programme. With us this morning we have Angela Constance, who is the Cabinet Secretary for Communities, Social Security and Equalities. Supporting her is Yvonne Strachan, who is head of the equality unit in the equality, human rights and third sector division at the Scottish Government.

Cabinet secretary, we thank you for your letter to the committee, which has set the scene and allowed us to consider where we want to go. That has been helpful as we have only 45 minutes with you today. We are grateful that you could come along and speak to us, especially as you have already done quite a detailed session with the Social Security Committee this morning.

I will ask a wide-ranging opening question and then I will bring in members to ask their questions. I appreciate that we all have a lot to say in this area, but I have already explained to members that they should ask concise questions, and we would appreciate concise answers as well. In that way, we can ensure that we all get the most out of this morning.

I begin by asking you to say what the Government’s priorities are, but I need to caveat that by asking you to say how those priorities are now, given the potential withdrawal from the European Union and the subsequent impact that that might have, with calls for a repeal of the Human Rights Act 1998 and a withdrawal from the European convention on human rights.

The Cabinet Secretary for Communities, Social Security and Equalities (Angela Constance)

I am not known for my brevity, but I will start by saying three things, and members will have the opportunity to question me about various manifesto commitments that the Government has made over the piece.

The first thing is that equalities and human rights are a function of this Government and all ministers and indeed all our partners across the public sector have responsibilities for them. We have a good top-level manifesto commitment about doing more to embed our obligations.

In the weeks and months ahead, I want to ensure that, as much as possible, we discuss equalities and human rights in plain English. A lot of this debate and narrative can be quite philosophical and quite legal. I am not saying that those are bad things but, given events over the past week with the Brexit vote, we will have to make a strong defence of the Human Rights Act 1998, for example, and it is incumbent on us all to explain how human rights are relevant to everyone in their day-to-day experience of life. We have to make this relevant to folks’ lives.

Everyone who is here will have heard the First Minister’s statement on Brexit and seen events unfold over the past week, so I will not repeat any of that. There is uncertainty and we do not as yet know the consequences or the fallout in relation to how the economic uncertainty will impact on the public finances, for example. For the immediate future we are still part of Europe, as things stand, so there are no imminent changes other than the uncertainty about the future and the impact that that will have on public sector finances.

The Convener

Thank you, cabinet secretary. We will move on to some specific topics. Each member has their own issues that they want to raise with you. We will start with Jeremy Balfour.

Jeremy Balfour (Lothian) (Con)

Good morning, cabinet secretary, and thank you for the very helpful statement that you sent us. I have two questions, the first of which is about what you say on page 3 of your statement about tackling hate crime. We all welcome the progress that has been made on that, but a number of groups from different areas have asked me whether it is possible for the Government to review how people who have had hate crime perpetrated against them are treated. We have information about how many cases go to the Procurator Fiscal Service, but there is little information after that.

We need to consider how people are treated when they first approach the police and, later, whether sheriffs take a greater role in sentencing where there is hate crime. Disabled groups and others would like some case studies of people who have experienced hate crimes and information on how the approach is working. It is clear that quite a lot of work needs to be done on that. Is the Scottish Government willing in principle to look at that?

Angela Constance

Case studies are important in bringing to life what people have experienced in being the victim of a hate crime but also, crucially, in showing how the authorities—not least the police—have responded to that. Police Scotland has very clear commitments around equalities training. We want police officers and others to understand what hate crime is and what the law says and to be sensitive and appropriate when they deal with reports of that nature.

You are right to raise the importance of tackling hate crime, because that is one of our key priorities. Race hate crime remains the biggest category. Although the number of such crimes has fallen a little bit over the year, they account for the majority of hate crimes. We have also seen a 20 per cent increase in hate crimes against lesbian, gay, bisexual, transgender and intersex—LGBTI—people. There has been some variation, although the numbers are smaller, in Islamophobia and crimes against disabled people, and we have seen an increase in the number of crimes against transgender people. Although those increasing figures are not good news, we must be clear that we want people to report hate crimes and we need a nuanced understanding of what the statistics are saying to us. I look forward to working with committee members on how we can improve our understanding and, indeed, our scrutiny of how others are exercising their duties. We will take the issue away and give it some further thought.

Jeremy Balfour

Thank you, cabinet secretary. My second area of questioning is quite different. Yesterday afternoon, we had an interesting debate about lots of equality issues, particularly in regard to the number of people who should be on boards and whether the gender balance should be 50:50. My party may take a different view on that at the moment but, if the Scottish Government is going to go down that road, should we not be looking at equality in other areas as well? For example, one in five people in Scotland is disabled. Should they have that percentage of representation on boards? Should people who come from different racial minorities have representation on boards? Why are we focusing on one area and not on all areas of equality?

Angela Constance

A positive note from yesterday’s debate was that there was, I think, agreement across the political divide that diversity is good and that diversity in those who are in positions of leadership and those who are on boards making decisions about public resources and how public services are delivered is a good thing. However, yes, I think that there is a difference of opinion about how best to achieve that.

Women make up more than half the population and we have waited a long time for gender equality. Nevertheless, I take your point that, if we are committed to diversity and equality, it must apply to everybody. There is no silver bullet. We are not pretending that gender inequality will be solved overnight because we have introduced quotas for public sector boards. We need comprehensive action that starts in the early years and goes all the way through to women’s experience in the labour market and, indeed, older women’s experience of the labour market. It is no secret that I am a supporter of the 50:50 campaign—I think that it is an issue whose time has come—but that does not mean that our minds are closed to other ideas about how to improve diversity and equality across the field.

Mary Fee (West Scotland) (Lab)

Good morning, cabinet secretary. You will know that there were two inquiries on Gypsy Travellers in session 4, when I was the convener of the committee. Anecdotal evidence tells me that there has been little or no progress on the condition of sites on which Gypsy Travellers live or in the provision of sites for Gypsy Travellers. There has been very little improvement on access to care for Gypsy Travellers, and there has been no improvement in relation to the discrimination that Gypsy Travellers face. I am aware that a national strategy for Gypsy Travellers is to be published. Will you give us an update on progress on that and say what further work you think is necessary in relation to Gypsy Travellers?

10:15  

Angela Constance

It is fair to say that a lot of further work is needed in and around issues that impact on Gypsy Travellers. The Government recognises that they are a distinct ethnic group and we encourage others to do so. We certainly recognise the work that the Equal Opportunities Committee has done in the area and pay tribute to it for that. Mary Fee is right to touch on the fact that the work on the strategy paused in 2015 to allow for a period of reflection. That was a result of concerns from the Gypsy Traveller strategy development group. We sometimes need to pause rather than carry on regardless, although other work continues in relation to education and Traveller sites. We are happy to think further about how we take forward that work.

I do not have a definitive answer on what we will do when; I can simply give an honest recognition that we have much more work to do. I would prefer it if we paused that work rather than carrying on regardless or in a careless fashion. Over the summer, I want to take stock of that work so that, at a future date, I can come back to the committee and point to a direction of travel. If there are particular aspects or route maps that members wish to pursue, I am sure that you will not be shy in coming forward.

Mary Fee

Will the national strategy be published later in the year?

Angela Constance

That is a possibility, but I want to immerse myself in some of the issues before I give a final commitment. I want the national strategy to be right. I do not want to publish something that means that we cannot take people with us.

Mary Fee

You will be aware that the Gypsy Traveller community is very keen to see progress. Any signal that there are further delays only diminishes the faith that the Gypsy Traveller community has that changes will actually be made.

Angela Constance

We will take on board that point that there is frustration and that any needless delay would send out the wrong signal. Perhaps I can come back to the committee about that after the summer recess.

Mary Fee

I would be grateful if you did that. Thank you.

David Torrance

Good morning, cabinet secretary. I have a question on the lack of sites for Gypsy Travellers. How do we encourage local authorities to provide sites? In many instances that I have dealt with, a lack of sites causes problems and creates conflict between Gypsy Travellers and local communities.

Angela Constance

That is a good point. There were changes in the legislation about 10 years ago, I think, that changed the obligations on local authorities. I ask Yvonne Strachan whether she has any details on that, because my memory is a bit sketchy.

Yvonne Strachan (Scottish Government)

I have two points on that. First, there are requirements on local authorities to take account of the needs of Gypsy Travellers in their local housing strategies. That is expected of our local authorities. In 2014, revised guidance was introduced on the housing need and demand assessments for local housing strategies, to take account of such concerns. That was to ensure that councils fully take into account the accommodation needs of Gypsy Travellers as they plan accommodation provision in their areas. The expectation was that that would help to drive a different approach by local authorities.

Secondly, in May 2015, the Scottish Government published minimum quality standards for Gypsy Traveller sites and core rights and responsibilities for site tenants. Those were developed with Gypsy Traveller site tenants, local authorities and other stakeholders. The responsibility for sites rests with local government, but the Scottish Government will do what it can to encourage that approach through its relationship around housing and accommodation sites, which is the process that has been used to date.

David Torrance

I know that there is legislation in place, but in my experience it seems that there is a lack of sites because councils are reluctant to provide them. Can we have an update on how many new sites have been provided by the 32 local authorities, and on how many are needed?

In the area of Fife that I represent, we have a huge problem with a lack of sites for Gypsy Travellers.

The Convener

Cabinet secretary, will you come back to the committee on that point?

Angela Constance

I would be delighted to provide that factual information, convener.

The Convener

I have one question to add to that. Yvonne Strachan said with regard to the housing strategy that there is an expectation. Is it only an expectation, or is there a duty?

Yvonne Strachan

There is a duty on local authorities to consider the needs of ethnic minorities as part of their development of strategic approaches. The guidance expects that, in that process, Gypsy Travellers will be part of their considerations.

The Convener

An expectation holds much less weight than a duty, so we perhaps need to define the term. If you can update the committee on that, it would be very helpful.

Mary Fee

I have a brief question on gender recognition, cabinet secretary. Can you update us on when you intend to review gender recognition law? You will be aware that the Scottish Transgender Alliance is calling for a reduction in the age for gender recognition from 18 to 16 and the removal of psychiatric diagnosis. Where are you with that?

Angela Constance

We will spend the rest of the year speaking to stakeholders with a view to consulting in the first half of 2017. There is a clear commitment from the Government that we want to review gender recognition law in line with best practice. There is unanimity on that among parties on all sides of the chamber, and I think that all the parties have made a commitment in that regard.

There are some complexities and issues that we will need to look at in depth with regard to the role of doctors and the preponderance of a medical model. The issues around age will have to be looked at very closely indeed. We want to have an in-depth discussion and dialogue with a range of stakeholders, with a view to having a consultation next year.

The committee may be interested to know that David Mundell has intimated to me that the UK Government is also looking at the issue of gender recognition. We have informally commenced a dialogue on how any provisions could dovetail. Although responsibility for that area is largely devolved, any action could feed into areas that are reserved. We want to have a pragmatic discussion with the UK Government, given that David Mundell has made a commitment to make progress on the issue.

Mary Fee

That is very useful—thank you for that update.

The Convener

I too think that that update is very welcome. I have two additional points to make. One of the challenges to addressing gender recognition in the past has been that we cannot change the current provision because that would impact on pensions. If, as the cabinet secretary says, the UK Government and David Mundell are taking the issue forward, that might not be such a huge issue after all.

Another issue concerns a specific constituency case of mine, in which someone wants to have their medical records changed to reflect the fact that she is a woman. Will the consultation that you mentioned look at that area?

Angela Constance

Yes—it will have to be a wide-ranging consultation, so we want to take a bit of time to talk to stakeholders to ensure that the consultation is well crafted and covers all the bases.

The Convener

Excellent—thank you.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I declare an interest, as I am an out-going member of the leadership panel for Scotland’s national action plan for human rights, and a past convener of Together—the Scottish Alliance for Children’s Rights.

Good morning, cabinet secretary. Thank you for coming to see us and for your paper. I have two specific questions, so I will take each in turn.

First, we have cause to reflect, after the atrocity in Orlando, on whether we still discriminate against the LGBT+ community in any vestiges of public policy. To that end, can you outline the Scottish Government’s consideration of any such areas, in particular the ban on blood donation?

Angela Constance

I will get back to you on the specifics regarding blood donation, although it might be more useful for the health ministers to correspond with the committee on that. You alluded to the broad point about the impact of the Orlando atrocities on the LGBTI community here, which is that we need to embed human rights under international treaties and practice, to make them a reality for any community and to make them work for people on the ground.

Alex Cole-Hamilton

On page 4 of your letter, you talk about certain successful reports in which

“the Scottish Government has already given a strong account of Scotland’s efforts”

to implement our obligations, particularly with regard to the United Nations Convention on the Rights of the Child.

However, we are still struggling in two areas. First, we are struggling with the practical application of children’s rights, particularly at a local authority level, where there has been a decline in the number of children’s rights officers, and reporting is still not quite as we envisaged when we passed part 1 of the Children and Young People (Scotland) Act 2014. Similarly, without full incorporation, children still do not have access to justice in terms of abuses against their rights.

As a supplementary to that, where is the Scottish Government with regard to physical punishment? We will be for ever out of step with our obligations to the UN Convention on the Rights of the Child while we still allow violence against children in the home.

Angela Constance

Mr Cole-Hamilton will be aware of our manifesto commitment to embed and give further effect to international treaties. He rightly points to the fact that we have put ourselves forward for scrutiny, and we welcome the opportunity to be scrutinised by UN committees. In the words of the First Minister, how we give better effect to international treaties in Scotland will be a challenge to face and a debate to have in this parliamentary session.

The issue of incorporation is important. Although treaties do not always lead to better policy—after all, we are still reliant on human beings such as politicians and those who implement the treaties—we nevertheless recognise their importance. With the Children and Young People (Scotland) Act 2014, there is an on-going legislative commitment to review—and, in many ways, keep open—how we are realising and giving further meaning to the rights of children under international treaties and the impact of that. That debate is not over and, as education ministers and as a Government, we have to account for that and report back. I am also aware of concerns about the decrease in the number of children’s rights officers.

As for smacking, which is an issue that I know was of great interest to Alison McInnes and many members across the chamber, Mr Cole-Hamilton will know that the Government is not in favour of it, that we do not encourage it and that we have tried to support people in being aware of other ways of informing and shaping children’s behaviour. Given the evidence that smacking can be harmful, the Government does not support it in any shape or form. However, we have had some concerns and have been reticent on the question of needlessly criminalising parents for light smacking and the detrimental impact on family life.

As for all the live issues about how we improve children’s lives and protect their rights, I am sure that Mr Cole-Hamilton will pick up Alison McInnes’s good work and the genuine interest that she had in that area.

10:30  

Alex Cole-Hamilton

I absolutely agree. If we are genuinely to achieve the shared ambition of making Scotland the best place in the world in which to grow up, we need to take much of the issue out of party politics and look at furthering children’s interests.

We could spend all day arguing about smacking, but I will reflect on one point: we are one of only four countries in the Council of Europe that has still not extended to children equal protection in the eyes of the law. Extending such protection has not led to the needless criminalisation of parents in the many European countries that have already taken that step.

The Scottish Government is to be applauded for its work on children’s rights, but it has not gone far enough. In the previous parliamentary session, there was a stand-alone draft bill on the rights of children and young people that was conflated with and which became part 1 of the Children and Young People (Scotland) Bill. That moved us from a position where we were going to have due regard to and actual justiciability around the UNCRC to a very watered-down commitment for ministers to raise awareness of the UNCRC. Frankly, that is not ambitious enough and we will be making excuses to the UN Committee on the Rights of the Child until we actually get serious on the issue.

Angela Constance

I am not sure whether Mr Cole-Hamilton is looking for me to respond to his statement. I am conscious of the convener’s instruction to be brief so, without going over the history of the Children and Young People (Scotland) Act 2014 and how the two bills became one, I think that perhaps the simplest thing to do is to point to the positive, which is that the 2014 act contains specific requirements for Government to constantly review how we put children’s rights into practice. The debate about many aspects of how we improve children’s lives and enhance and protect their rights is not over. As a Government minister, though, I note Mr Cole-Hamilton’s indication of on-going parliamentary interest.

Willie Coffey (Kilmarnock and Irvine Valley) (SNP)

Good morning, cabinet secretary. I want to ask you about the broader legislative landscape in which we might find ourselves after last week’s decision. As you are well aware, equalities and human rights are pretty much embedded in everything that the Scottish Parliament does, all our legislation complies with EU laws and frameworks and so on. Will the Scottish Parliament have to unpick much of its legislation post Brexit, if it happens, or will it be able to maintain its current legislative framework and remain consistent with principles that are enshrined in European law?

Angela Constance

Goodness me. I will struggle to answer that question with any brevity, convener, but I will take my guidance from you.

The Convener

I will allow you some time.

Angela Constance

There are three different things at play here. This Government is a strong defender of the Human Rights Act 1998; any suggestion that the act should be repealed is utterly reckless, and we will resist it at every opportunity. The Human Rights Act 1998 and the Scotland Act 1998 breathe life into the ECHR, and if human rights were knocked out of that equation it would make things particularly messy. However, I will come back to that.

On the specific issue of Brexit, I repeat that we as a country have voted to remain part of Europe and that the Government wants to realise the democratic will of the people of Scotland. If we come out of Europe, that will knock out a host of European directives on the equal treatment of people irrespective of racial or ethnic origin, equal treatment with regard to employment and occupation and equal treatment of men and women in terms of access to and supply of services. One of the best examples, which I have mentioned in my letter, is the Charter of Fundamental Rights of the European Union, which is based on but goes further than the ECHR.

In the Scottish Government’s view, the ECHR is not the ceiling but the floor; it is the baseline or foundation on which we build, whether we are talking about further enhancements of human rights or other areas. Brexit will have fundamental consequences, because it will knock out a raft of EU directives. There will also be funding consequences for non-governmental organisations and equality organisations with regard to equality issues. For example, we want to understand far more about what could happen to a substantial programme called the rights, equality and citizenship programme, which is running from 2014 to 2020 and has a budget of nearly €450 million.

As for more immediate concerns, I point out that, as things stand, we are still in Europe and subject to all EU directives. Yesterday we debated the positive gains in and around equality for women with regard to provisions on equal pay, maternity discrimination, shared parental leave et cetera. However, another aspect of Brexit is that it has fuelled previously articulated intentions to repeal the Human Rights Act 1998 and replace it with a watered-down bill of rights. We have heard Theresa May talk about repealing the 1998 act and other UK Government ministers have spoken in the same vein, although the consultation on that has never materialised. Indeed, some UK Government ministers are on record as saying that they want to get out of the ECHR, which is abhorrent, given that it is the international baseline. As I have said, it is the floor, not the ceiling.

That is why I am determined to articulate far better what the ECHR and all our international treaties on human rights mean to people on the ground. Human rights are about protecting those with no power, not about protecting Governments or politicians. For example, people have used human rights legislation to challenge aspects of welfare reform, and it was also used with regard to compensation in and around the Mid Staffordshire hospital crisis. There are many practical examples of how people have used human rights legislation to advance and protect their interests, and I think that we all need to be talking far more about them. The Human Rights Act 1998 is part of the Scottish Government’s DNA and our founding principles, and we want to resist all the way any moves to remove it from what we are about and who we are.

Willie Coffey

In areas where the Scottish Parliament has legislative competence, inevitably the European Union will evolve and perhaps review and improve its attitude to human rights issues and its legislative framework on them. Do you see the Scottish Government aligning its legislative framework with any changes or improvements in the European Union’s human rights legislation? Would we mirror those, no matter whether we were in or outside the EU?

Angela Constance

I think that there would be some opportunities to do that. Human rights per se is a devolved matter, but we cannot tinker with the Human Rights Act 1998. However, other obligations will go on, irrespective of Brexit. The ECHR will continue to exist outwith Brexit and the Council of Europe treaties will continue to exist, although they are not legally enforceable under our domestic law. The issue is therefore the impact on our domestic law. Where we have devolved competence, we can fill some gaps, but it will all become quite messy if we legislate to mirror progressive practice elsewhere while we are quite powerless to change or protect a raft of other aspects of our daily life.

Annie Wells (Glasgow) (Con)

Good morning, cabinet secretary. My question is about LGBTI bullying in schools. How does the Scottish Government plan to ensure that every professional who works with a child has been given the equality training that relates to LGBTI so that every child can feel confident in going to their teacher or another professional to ask for help and support? How will the Scottish Government tackle that?

Angela Constance

We are committed to working closely with the time for inclusive education—TIE—campaign and with Stonewall Scotland. In fact, I think that Mr Swinney has either met them recently or will meet them very soon. I certainly met LGBT Youth Scotland and Stonewall Scotland in my time as education secretary.

I will share a personal reflection with you, as members of the Scottish Parliament. We all have the privilege of visiting schools and meeting young people. Recently, it has often struck me that the work that we have done with young people on improving their attitudes and reducing risky behaviours around drugs and alcohol has been very successful—the statistics bear that out. However, when we speak to young people, it seems that they feel less supported around their mental health and LGBTI issues. We have to take cognisance of that. We always have to listen to young people first and foremost.

We have to ensure that every professional who is working with children is confident about those issues. Sometimes there is a misapprehension and people are a bit less well informed about the current legal position, so they can be worried about what they can and cannot say to support young people.

Ensuring that teachers in particular, as well as other professionals, have the absolute confidence to talk to and to support young people on a range of LGBTI issues is the right approach and we have made a commitment to ensure that newly promoted guidance teachers will be the first to have access to good equalities training. However, the issue is broader than that and such training will have to be extended to all teachers. Anybody who works with children and young people needs to be steeped in and comfortable with equality issues, to understand them and to know how best to support young people.

We have to remember that, while literacy and numeracy are important core parts of our curriculum, so are the health and wellbeing of our young people. If we do not get health and wellbeing right, it will impair our ambitions for raising attainment.

This is not a side issue; it very much has to be a mainstream issue. Various toolkits have been produced and various bits and pieces of guidance have been revised. We have guidance on sexual health and relationships education and on parenthood education. However, the key is ensuring that the adults to whom we entrust our children and young people are comfortable and clear about what the expectations are. We have to help them on that journey.

The Convener

David, is there anything else that you want to add?

David Torrance

No.

The Convener

The only other thing that I wanted to raise was that, on the back of Brexit last week, we have seen some horrendous examples of ethnic abuse across all sectors. I raised directly with the Cabinet Secretary for Justice the idea of Police Scotland keeping an eye on the situation and I have received reassurances. However, it is incumbent on us all to ensure that the same message goes from the Government and from all of us that such behaviour will not be tolerated and that, when there are examples of it, people should report it or intervene, if it is safe. It has to be safe for someone to intervene and make a challenge—I understand that. Everyone in this place needs to send the clear message that we will not tolerate such behaviour and we will report it. Does the Government have any views on that?

10:45  

Angela Constance

Hear, hear convener. This is Scotland. We are modern, progressive and outward looking. We have 170,000 EU citizens living in Scotland. This is their home and they remain welcome here. We have done a lot of work to support asylum seekers and refugees. We have moral and international responsibilities to live up to and we will not shirk them. We will indeed call out any nasty, narrow, illegal and abusive behaviour. All Government ministers need to get out there and engage with our communities and I am sure that MSPs will be working hard to engage with all the communities in their constituencies.

This is Scotland. You are welcome. You are part of the fabric of our country and that is the way it will remain.

The Convener

Thank you, cabinet secretary.

Is there anything else in the Government’s programme that you want to add today or have you exhausted your portfolio?

Angela Constance

I have not exhausted my portfolio; it reaches far and wide. There are many issues that neither I nor the committee have touched on and I look forward to coming back to cover them all in depth.

The Convener

The committee is just about to discuss our forward work programme, so you can rest assured that we will come back to you.

Angela Constance

Good.

The Convener

Thank you for coming this morning. I know that you have done two committee meetings back to back and that is never easy, so we really appreciate it. I am sure that I speak on behalf of the committee in thanking you.

10:47 Meeting continued in private until 11:20.