Brexit and Gender Equality in Scotland: What does the Future Hold?

Written by Nicole Busby, Strathclyde Law School

Despite Brexit’s almost total dominance of the news agenda in recent months, there has been little mention of the fact that 62% of the Scottish electorate, and every local authority in Scotland, voted to ‘remain’ in the EU.  Furthermore, the First Minister has been highly vocal about the fact that the Scottish Government has been left out in the cold during the UK Government’s negotiations with Brussels and the whole debate has been criticised for being “too male”.  Where, then, does that leave Scotland’s women?  

Scottish Parliament - Debate EU Withdrawal Negotiations, 5 March 2019: Youtube

Equal opportunities is one of the Scottish Parliament’s four key principles, the others being the sharing of power, accountability and access and participation. The expanded committee structure and open style of governance facilitates participation by citizens and civil society in law and policy-making, which has recently resulted in ground-breaking legislation aimed at tackling domestic abuse. Such advances in gender equality have been spearheaded by Scotland’s vibrant feminist movement. However, as recent research shows, such progress is dwarfed by the continuing inequality endured by women in Scottish society and a pay gap of 32.2% when comparing men's full-time average hourly earnings with women's part-time average hourly earnings. According to the EHRC’s recent report, Scotland remains a very unequal society with women continuing to bear the brunt of much of that inequality.

The EU has been heralded for its ‘powerful role in protecting equality rights against erosion and in pushing forward expansion’. The UK stands to lose a very important pillar of anti-discrimination protection as well as certain human rights guarantees. Nothing will happen overnight as the Equality Act 2010 and associated legislation will remain in place. However, the destabilisation of the equality framework with the potential loss of the minimum standards imposed by EU law and a failure to keep pace with future European developments pose a very real threat to gender equality in Scotland.

Scotland’s strong remain vote may give the Scottish Government a political mandate to preserve EU protections but ambition can only be matched by what is practically possible. Under current devolution arrangements, both equality and employment law are reserved to Westminster and the Scotland Act 1998 gives little competence to Scotland’s legislature to enact significant change. However, equality is always high on the agenda whenever further devolution of power is discussed, as when the aftermath of the Independence Referendum resulted in further devolved powers.

Brexit has, once again, put equality under the spotlight with the dominant political rhetoric being for Scotland to distinguish itself in the areas of equality and human rights and forge its position as a global leader. Recent innovations include calls for the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to be incorporated into Scots Law.

Scotland is able to distinguish itself from the rest of the UK in relation to human rights, which is an area of devolved policy.  In December, the First Minister’s AdvisoryGroup on Human Rights Leadership set out its vision for the future of human rights in Scotland. This was the culmination of a participative process with representation from across civil society driven by Nicola Sturgeon’s pledge that “The Scottish Government is committed to standing up for human rights, particularly in the face of the risks created by Brexit and the UK Government’s proposals to repeal the Human Rights Act.” 

First Minister's Advisory Group on Human Rights Leadership: https://humanrightsleadership.scot/

The Group’s work was underpinned by three key principles: to ensure, as far as possible, non-regression from current EU rights; to keep apace with future EU rights developments; to take leadership in the protection and promotion of all human rights. Its main recommendation is for an Act of the Scottish Parliament that would set out the rights belonging to everyone in Scotland, consolidating the protections provided by the Human Rights Act alongside the economic, social, cultural and environmental rights drawn from UN treaties. Seen as a first step towards a model of incorporation, starting with the imposition of a ‘due regard’ duty on public authorities and moving to compliance with appropriate enforcement mechanisms, this is intended to give everyone in Scotland meaningful access to those rights currently provided by international law. 

The key to achieving this would be a process of engagement and public participation led by a National Task Force comprising members of Scotland’s public authorities and other relevant organisations, which would participate in the Act’s preparation and implementation. Responsibility for enforcement would ultimately rest with the Scottish Government through a proposed mechanism for monitoring, reporting and implementation and the development of human rights indicators as part of Scotland’s National Performance Framework. Finally, the door is left open to any further devolved powers to be integrated into the framework. If Scotland were to become independent, a written constitution including a Scottish bill of Rights is proposed.

Collaboration is key. The Scottish Government already has processes in place for community engagement and clear aspirations for a system of open government, but is Scotland really so different from the rest of the UK in relation to human rights and will this development see off the wider threat posed by Brexit?

Scotland’s political vision and ambition are certainly distinctive. However, the work of the First Minister’s Group is only the start of a long and challenging process. Scotland is as susceptible as the rest of the UK to the damage that a no deal or hard Brexit could inflict on the equality framework and has only limited legislative power in this respect. The complexity of the constitutional arrangements inevitably limited the scope of the Group’s recommendations, although the door is left open to future change. The current impasse between the UK and Scottish Governments over Brexit could be resolved in any number of ways, with two very real possibilities being greater devolved powers for Scotland or a further Independence Referendum. Whatever the future holds, let’s hope that gender equality is high on Scotland’s agenda.  



The views expressed in this blog are those of the author and do not represent the First Minister’s Advisory Group on Human Rights Leadership. 

For more from the Strathclyde University Feminist Research Network on Brexit, please visit our sister blog at Gender Equal Media Scotland for the first of series of blogs analysing the representation of women in Brexit news, by Melody House