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The Scotland Act 1998

The Scotland Act 1998 is the law which enacted devolution by creating the Scottish Parliament and the Scottish Executive (now Scottish Government). In doing this specific obligations were placed on them to observe and uphold human rights. They are also permitted to encourage equal opportunities. 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.”

Section 29 of the Scotland Act specifies
(1) An Act of the Scottish Parliament is not law in so far as any provision of the Act is outside the legislative competence of the Parliament.

(2) A provision is outside that competence so far as any of the following paragraphs apply –
(d) it is incompatible with any of the Convention rights or with Community Law

This means that any law passed by the Scottish Parliament must comply with human rights (as defined in the Human Rights Act) or the law can be challenged in court as being ultra vires.

Section 57 further states:
‘(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 Convention rights or with Community law.’

This means that the Scottish Executive (now called the Scottish Government) must ensure that all rules, regulations and other subordinate legislation also comply with human rights, including the prohibition on discrimination.

Section L2 of Schedule 5 provides that the power to legislate on equal opportunities is reserved to the UK Parliament at Westminster so the Scottish Government cannot introduce, and the Scottish Parliament cannot pass, equal opportunities legislation. Equal opportunities means the prevention, elimination or regulation of discrimination between persons on grounds of, amongst other things, religious beliefs. There are exceptions to this reservation which mean that the Scottish Parliament and Scottish Ministers have competence over the encouragement of equal opportunities and the observance of the equal opportunity requirements. Equal opportunity requirements are the legal requirements. Parliament and Ministers can exhort public authorities and others to adopt equal opportunity policies. The exceptions also mean that they can develop schemes to secure the better provision of services to groups who may be the subject of discrimination or legislate to require certain public authorities and office holders to have due regard to equality law.

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