The consultation paper asks questions on sections 1 - 5, and schedules 1 and 2 of the draft Bill, along with a question on reporting and an opportunity to raise issues not covered elsewhere. It may be helpful to read the analysis below alongside a copy of the draft Bill, which is available with the consultation paper at https://consult.scotland.gov.uk/equality-unit/draft-gender-representation-on-public-boards/.
Gender representation objective
Section 1 of the Bill sets a gender representation objective for a public board:
- 50% of non-executive members who are female or who identify as female; and
- 50% of non-executive members who are male or who identify as male.
Where a public board has an odd number of non-executive members, the requirement for 50% female and 50% male non-executive members applies as if the board had one fewer non-executive member.
Question 1: What, if any, comments would you make in relation to section 1 of the draft Bill?
In total, 92 respondents made a comment at Question 1, with some of these comments also addressing issues about the Bill as a whole. Although not specifically asked whether they agreed with the proposal to set a gender representation objective for public boards, around 1 in 2 respondents making a comment indicated broad support for the principle, while around 1 in 5 expressed opposition. The remaining respondents did not express a clear view. Respondents opposing the objective of the draft Bill often suggested that appointments should be made on merit alone  or that they considered the proposals to be discriminatory. The majority of those expressing clear opposition to the proposals were individual respondents, who often reiterated these views at later questions.
The most frequently-raised issue, suggested by around 1 in 5 respondents at Question 1, concerned the possibility that, by focusing only on gender, the Bill as drafted does not consider and could even disadvantage individuals who share other protected characteristics  . This issue recurred throughout consultation responses, although particularly at Question 10, and was often raised by respondents who otherwise agreed with the aim of increasing the number of women on Public Boards.
Many respondents (particularly "Other" organisation respondents) noted that the Bill uses a binary definition of gender, and thus omits individuals who do not identify as either male or female. It was suggested this could be rectified by changing the objective so the number of men and women should "differ by no more than one", allowing for the appointment of non-binary people.
A further change in wording was proposed with regard to the phrases "who are female, or identify as female" and "who are male or identify as male". Several respondents suggested simplification to "who identify as female" and "who identify as male", arguing that this would be more inclusive, and that to distinguish between people who "are" and "identify as" male or female is unnecessary and could have a detrimental effect on transgender people, particularly those without a Gender Recognition Certificate. Again, these points were also made elsewhere in consultation responses, and particularly at Question 10.
The remaining points made at Question 1 were raised by smaller numbers of respondents, and sometimes included specific issues about the way the proposed legislation might affect particular bodies.
A number of Public Body respondents noted that, for their organisation the appointing person on whom the duty would be imposed is the Scottish Ministers, sometimes adding that Board members do not see or receive information from the equality monitoring forms completed by candidates. It was also suggested by a Universities and Colleges respondent that, as many appointments are made by Ministers, they could influence Board composition directly, without the need for legislation. It was also noted that a Board could work with the Public Appointments Unit to improve the appointment process in order to encourage applicants from the under-represented gender. Encouragement of applications is discussed further at Question 5.
Potential complications caused by requirements in other legislation were also highlighted. For example, it was observed that the Regulation of Care (Scotland) Act 2001 requires the Scottish Social Services Council to appoint at least two Board members who use or have used care services. A number of Universities and Colleges respondents were amongst those who noted existing codes to which they are already subject, including the Scottish Code of Good Higher Education Governance. Quoting from this code, a Universities and Colleges respondent noted the requirement that " The governing body…shall establish appropriate goals and policies in regard to the balance of its independent members in terms of equality and diversity, and regularly review its performance against those established goals and policies". The commitment of the Committee of Scottish University Chairs to work towards gender balance, (defined as at least 40% of each gender on each governing body) was also noted. In terms of the health and social care sector, an Equality Outcomes plan for an Integrated Joint Board was referenced.
A degree of flexibility in the 50% gender representation objective was proposed by a number of respondents, who suggested that the present target will be too rigid and/or difficult to implement, and that a minimum representation standard of 40% of each gender would be more practical. It was also noted that this would allow for up to 60% of non-executive Board members to be women. Other respondents suggested their preferred target would be "at least" 50% women.
Further points were raised with regard to flexibility extended to the way in which the 50% target is framed. Respondents asked whether 50% could be taken as an average over a period of several years, or whether it might be an average for Public Boards within a particular sector or across Scotland as a whole, rather than for individual bodies. It was noted in this context that some Boards have only a small number of non-executive posts.
Several respondents suggested a potential negative impact of the legislation for bodies whose existing Boards have more than 50% female non-executive members, since there would in future be a duty to increase the number of male members in such circumstances. It was argued that this was contrary to the overall aim of increasing the representation of women. One Universities and Colleges respondent suggested that the draft Bill might prevent a governing body from taking positive action on the gender balance of the Board as a whole, by removing the ability to use appointments under its direct control to redress an overall imbalance. It was also suggested that compliance with the proposed legislation could potentially conflict with the (voluntary) 50/50 by 2020 initiative as this is generally understood to refer to a 50/50 balance overall, not just in the non-executive membership.
The limitation of the proposed measures to non-executive roles was highlighted by a number of respondents who suggested that it would also be helpful to consider gender balance in executive positions, sometimes adding that such positions may also be Ministerial appointments. It was also noted that there is no recognition in the draft Bill of the greater responsibilities and influence of the Board Chair and it would be useful to see if a gender representation objective could be drawn up for these positions as well. A slightly different point with regard to the position of Chair was that, depending on the cycle of appointments, a body could find itself obliged to target one gender for this senior role.
Finally, the absence of sanctions associated with non-compliance was queried by some respondents who sometimes suggested that sanctions are necessary if targets are to be achieved. However, other respondents supported the target being set as an objective rather than a compulsory quota, or voiced concern as to how legislation might be enforced against authorities who have acted in good faith, but fail to achieve the target.
Section 2 defines 5 key terms used in the draft Bill, namely: "appointing person"; "excluded position"; "non-executive member"; "public authority"; and "public board". It also introduces schedule 1, the list of Public Authorities to which the legislation would apply. To avoid duplication, however, comments on schedule 1 made at Question 2 are considered at Question 7 which invites comments specifically on schedule 1.
Question 2: What, if any, comments would you make in relation to section 2 of the draft Bill?
In total, 48 respondents made a comment at Question 2. Of these around 2 in 5 made only very short remarks, agreeing that the definitions were acceptable or easy to understand.
With respect to the definition of "appointing person" in the draft Bill it was noted that:
- Although explained in the consultation paper, the Bill itself does not make clear that for Public Board appointments, the appointing person is frequently Scottish Ministers. The Public Body respondent making this point added that an Authority cannot be held responsible for the gender balance of its Board when it does not make appointments. Another Public Body respondent noted that in many cases a separate Appointments Panel acts on behalf of Ministers. It was suggested there should be clarity as to who else, other than Scottish Ministers can be an appointing person.
- A Universities and Colleges respondent queried how the definition of an "appointing person" relates to a governing body where appointments are made by that body rather than an individual.
Comments on excluded positions included welcoming the definition and noting that it would not be sensible to give a governing body responsibility for meeting a gender balance objective when it does not control these appointments. However, it was also highlighted that both in colleges and universities and in the NHS the significant number of excluded positions may mean that the 50/50 gender representation objective is not achieved. Given the large number of elected or nominated positions on such boards, it was suggested there should be a wider duty to support staff/students to consider gender when electing or nominating members.
An "Other" organisation respondent suggested that some of the positions listed as falling within the definition of an "excluded position" would naturally be considered "non-executive in nature". The Lord President, The Lord Justice Clerk and the President of the Scottish Tribunals were cited as examples.
A small number of respondents made points on the definition of "non-executive" including:
- It does not include those who are also employees, implementing the definition in section 37 of the Scotland Act 2016. It was suggested, however, that consideration could be given to extending this definition, relying on the second new exception in section 37.
- There is no reflection of the difference in arrangements for appointment between the Chairs of Regional College Boards, who are remunerated, recruited and directly appointed by Scottish Ministers, and other non-executive members, who are unpaid and recruited by College Boards in the context of the skills mix and overall effectiveness of the Board.
- Using an alternative phrase to "non-executive member" might help avoid the potential for confusion.
Points made concerning the definition of "public authority" were limited, and all were made by Universities and Colleges respondents. As noted above, these are considered at Question 7.
Additional definitions requested
Either at Question 2 or elsewhere, several respondents suggested the Scottish Government should explain what is meant by:
- Equally qualified;
- Best qualified;
- Exceptional circumstances; and
- Identify as female or male.
It was also suggested that the distinction between elected and appointed non‐executive members ought to be made and included.
Sections 3 and 4 of the Bill describe the duty to take certain steps when appointing non-executive members. No action is required in relation to executive members. Certain other members of boards are excluded by virtue of being elected to the board as opposed to appointed.
The duty falls on the "appointing person". For the majority of appointments to public boards the "appointing person" is Scottish Ministers. Where there are two or more equally qualified candidates for an appointment, the appointing person must appoint a candidate of the under-represented sex, unless there are exceptional circumstances which tip the balance in favour of another candidate. This is the tie-breaker provision. It applies only where there are two or more equally qualified candidates.
Duty when appointing non-executive members
Question 3: What, if any, comments would you make in relation to section 3 of the draft Bill?
A total of 64 respondents made a comment at Question 3. Of these around 1 in 4 of respondents made a positive comment or noted their agreement with the proposals, often making only a short statement with comments including that these are clear or sensible. Around another 1 in 5 respondents expressed disagreement generally giving reasons very much in line with those expressed at Question 1 - largely that appointment should be on merit, and/or that the proposals are sexist or discriminatory. A small number of respondents who disagreed did so because the proposals do not take account of people who do not identify as either female or male.
Amongst the remaining respondents at Question 3, a small number reiterated comments made elsewhere, that the wording should simply read "identifies as female" and "identifies as male" or that there is need to included individuals with non-binary self-identity who do not identify as either gender or prefer not to say.
Other points, generally made by only one or a small number of respondents, included comments on timing; the Bill as drafted requires action is taken " with a view to achieving the gender representation objective immediately after the appointment takes effect." Respondents requested confirmation of their understanding this means that once appointment takes effect, then the gender balance on the Board will be closer to 50/50, or that the intention is that before decisions are made, the post-appointment impact on the gender balance of the board should be considered.
A Public Body respondent proposed that the Bill should make clear that positive action measures can only be taken under the provisions of the Equality Act 2010 where there are reasons to believe that there is a current gender imbalance, fewer applicants from women and/or barriers to women applying. They suggested that the provisions for positive action measures are no longer applicable where a gender balance has been achieved.
Other points raised in relation to section 3 concerned the duties of the appointing person with a small number of respondents noting that, for their organisations, these duties would lie with the Scottish Ministers. A Universities and Colleges respondent queried how the provisions would work for organisations which have no appointing person but where the decision is made by a governing body. It was also suggested, in this case by an "Other" organisation respondent, that to reduce the risk of unconscious bias in bodies outside of the public appointments framework, placing the duty on an appointing panel would be preferable to a single person. A requirement around selecting for interview was suggested by an Individual respondent. They suggested requiring boards to select for interview all members of the under-represented sex who meet the minimum criteria for the post.
Other respondents raised concerns that the excluding appointment of Executive Directors may mean the changes have a limited effect or suggested potential complications when appointing to some roles where there is a requirement to appoint members from certain reserved groups. A Universities and Colleges respondent suggested that introducing a legal requirement to address what could be a relatively small gender imbalance could be at the expense of broadening the diversity of the governing body as a whole.
Some specific questions were also posed with respect to how the legislation would apply:
- To an existing non-executive member eligible for reappointment?
- If an existing board member changed their gender?
Finally, it was suggested that there is a need for greater support and training if the Bill's objectives are to be achieved, including that:
- Public bodies will require support and training in recruitment and outreach to enable them to increase gender representation.
- The culture of the Board and the organisation must be supportive of all its Board members. The retention and experience of members is important.
Consideration of candidates
Question 4: What, if any, comments would you make in relation to section 4 of the draft Bill?
A total of 77 respondents made a comment at Question 4. Section 4 includes the so-called "tie-breaker" clause to be used in favour of the under-represented gender on the Board, when candidates have been identified as otherwise equally qualified for the position. As at other questions, some respondents made only short remarks either agreeing (around 1 in 10 respondents) or disagreeing with the proposals (around 1 in 5 of the respondents who commented).
Those who disagreed suggested that appointments should be on merit or suitability rather than gender; that organisations should be free to choose the person who they consider the right candidate without the need to meet criteria set externally; that the Bill as drafted is discriminatory, including against other protected groups; or that the best candidate may be overlooked in order to meet a gender representation objective. It was also suggested that the Bill is contrary to the Equality Act 2010 since the latter prohibits discrimination based on gender.
The Equality Act 2010
The relationship between this Bill and the Equality Act 2010 was also noted by several other respondents who commented on the similarity of the proposed "tie-break" clause to section 159 of the 2010 Act which, it was stated, allows employers to recruit or promote an under-represented sex or other minority group where two candidates are "as qualified as" each other. It was suggested the language of the Bill should more closely mirror that of the Act. A Public Body respondent did suggest, however, that the Explanatory Notes to the 2010 Act require that actions should not be based on policy but on assessment of merit in an individual case.
A Public Body respondent welcomed the Bill as recognising that there is no conflict between appointing on merit and appointing a gender-balanced board. However, an "Other" organisation respondent highlighted that suggesting female candidates lack the necessary skills and experience is often expressed alongside a view that quotas are directly contrary to appointment based on merit. In order to demonstrate that this is not the case, it was argued, there must be transparent and robust recruitment processes to avoid assumptions about the skills and capabilities of female candidates, complemented by support programmes where required. Other respondents also cited the importance of robust and transparent procedures, including to ensure there is clarity should any appointment decisions be challenged.
Several respondents suggested that what the Bill means by "equally" or "best" qualified has not been made sufficiently clear, or is open to interpretation. Alternative wording as follows was proposed by an Individual respondent: "priority is to be given to the under-represented sex if the candidate is equally well qualified in terms of suitability, competence and professional performance" was proposed.
Other comments focused on what is to be taken into account around qualifications and included that:
- "Qualification" may sometimes be interpreted too narrowly and that board members bring knowledge and skills gained through experience rather than just qualifications.
- Different types of qualifications should be considered.
- Factors such as more frequent job changes because of childcare responsibilities should be taken into account.
It was also suggested that there may be circumstances when candidates are "equally but differently" qualified, with different but equally balanced skills, and that this may be particularly relevant when making multiple appointments in a single round, when a tie-breaker provision based on gender could be a blunt instrument. One Universities and Colleges respondent sought confirmation of their understanding that "qualified" means candidates meet the selection criteria, and that applicants who are not considered appointable are not required to be appointed on the grounds of gender alone.
Development of an assessment tool that includes guidance on considering equality in relation to merit, proportionality, and assessment of "equally qualified" was proposed. It was noted that Explanatory Notes to the 2010 Act explain that " the question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgement based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance".
A similar suggestion was that there should be a code of practice or guidance that could be issued by the Commissioner for Ethical Standards in Public Life.
It was noted that while the appointing person will often be Scottish Ministers, the Minister will usually rely on the advice and recommendations of a panel convened by the Public Appointments Unit. The Public Body and Universities and Colleges respondents raising this point suggested that the appointment panel would need to determine the order in which candidates were considered appointable and whether leading candidates were of equal merit, and the Minister would then have to accept this guidance, or conduct a separate exercise to arrive at their own assessment of the relative merit of the leading candidates. It was suggested this duty may mean that, in future, Ministers feel obligated to question a recommendation from the panel that the best qualified person is from the over-represented gender, and that care will need to be taken not to bring the objectivity and fairness of the process into question. It was also suggested it must be made clear to candidates from the outset whether the relevant Minister is to be involved in the appraisal process, which could add to the time required to complete the recruitment process.
An "Other" organisation respondent queried how the appointing person is instructed to act if he or she determines that a particular candidate is best qualified for the appointment. They sought clarification that the appointing person is at liberty to appoint that candidate without any consideration of the gender representation objective.
Although the Bill does not include any information on the appointments process to be adopted but it was suggested provision should be included to make it clear that appointments should be made following clear, unambiguous criteria - in addition to the guidance laid down in the Code of Practice for Public Appointments. A small number of Public Body respondents highlighted the importance of ensuring that appropriate non-discriminatory appointment criteria are developed, and that members of the appointing panel have suitable experience and training on equal opportunities in recruitment and managing tie break situations.
The competence of those appointing was also considered important, and several respondents proposed that monitoring, auditing and reporting the performance of those appointing is required. In particular, it was suggested that unconscious bias could lead to people appointing "in their own image". One Individual respondent making this point suggested a need to ensure women are involved in the appointment process.
A number of respondents commented on the phrase " Unless … there are exceptional circumstances…" in section 4.3, including that this requires further explanation, or that it would be useful to provide examples. However, it was also suggested that this clause should not be allowed to undermine the intent of the Bill.
Other respondents suggested specific "exceptional circumstances" that should be mentioned including:
- Where a non-binary person is equally qualified to other candidates. It was argued this would make clear how the gender representation objective could apply to non-binary people.
- When it could be preferable not to appoint the under-represented gender, should this have an adverse impact on equality as it relates to other protected characteristics.
- Where there are no appointable candidates of the under-represented gender or where, despite best endeavours, it is not possible to fulfil the requirements of the Bill.
Other protected characteristics
Work to identify potential barriers to achieving a positive outcome when applying the provision in practice was suggested. There was a particular concern that achieving the gender-representation objective might prevent the appointment of a candidate with another protected characteristic equally under-represented on a board. This concern tended to be raised by Public Body or Universities and Colleges respondents who were otherwise sympathetic to the principles underlying the Bill.
One Public Body respondent suggested it should be possible to appoint a candidate from an under-represented group who scores less highly than another candidate on their current ability, but has the potential to make an equally good or better contribution with suitable mentoring or support.
Other points and queries
One respondent questioned what should happen if there are 3 or more equally qualified candidates and the appointment of 2 or more of these candidates would achieve gender balance on the board in question. How should a decision be made between 2 equally qualified candidates of the same gender?
Finally, a concern was expressed that the use of the "tie-breaker" provision could dissuade the unsuccessful candidates(s) applying or seeking nomination to other boards in the future.
Section 5 of the Bill places a duty on all appointing persons and listed public authorities to take steps, as considered appropriate, to encourage persons of the under-represented gender to apply to become a member of a public body. In contrast to the tie-breaker provision which focuses on the decision made by appointing persons, section 5 focuses on the process which leads up to an individual appointment.
Encouragement of applications
Question 5: What, if any, comments would you make in relation to section 5 of the draft Bill?
A total of 75 respondents made a comment at Question 5. Of these a number made short comments indicating their support or opposition to the proposals. In addition to comments (also made at other questions) that appointments should be based on merit or that the proposals are discriminatory, those who disagreed with the actions described in section 5 also suggested that encouraging recruitment in the manner proposed would encourage weaker candidates to take positions within Boards or would not be practical.
A small number of respondents stated their support for encouraging applications "from under-represented groups" making no direct comment on the proposed requirement to encourage applications from the under-represented gender, while others specifically stated their view that all protected characteristics should be included. As at other questions, several "Other" organisation respondents asked that wording with reference to gender should be simplified to "identify as female" or "identify as male". It was also noted that the duty will only apply when a Board does not have equal gender representation and this will change over time, so it might be preferable to express the requirement as an ongoing duty to promote diversity.
A number of Public Body and Universities and Colleges respondents noted that their organisation already encourages applications from under-represented groups sometimes citing the requirements of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 as amended in 2016, the Scottish Code of Good Higher Education Governance Main Principle 9, or referring to previous work with the Equality Challenge Unit, Changing the Chemistry, Women 5050 and Equate Scotland. It was requested that the Scottish Government should issue guidance or a legal view on how encouragement of applications could be further enhanced without contravening other legislation, or creating a perception of positive discrimination.
A small number of Universities and Colleges respondents welcomed the current "light-touch" approach, and cautioned against more prescriptive measures. Others however, suggested that this section as drafted is vague or weak and that the Bill would benefit from being accompanied by a code of practice or by statutory or non-statutory guidance which sets out acceptable standards. Supporting guidance or good examples or tools were also suggested by other respondents, with two respondents offering to share their experience with other organisations looking to improve the diversity of their Boards. The types of issues suggested as needing to be considered in relation to the recruitment process included:
- The wording of the person specification.
- The language used throughout the advertising and selection process, including in the marketing or communications materials used.
- How any advertising is targeted.
- The design of the assessment process, including training for those involved. Ensuring that the whole process emphasises the value of diversity and the avoiding of bias.
- Providing opportunities to gain experience of attending Board meetings as an observer.
A specific suggestion was that a recruitment marketing/communications toolkit might be way to ensure consistency of applications that target a wide, diverse group of capable individuals.
Other suggestions focused on ensuring that the ongoing arrangements associated with Board membership to not act as a barrier to application and included:
- Ensuring the times and places of meetings held do not act as a barrier.
- Using remote access so physical attendance is not essential.
- Providing opportunities for flexible working.
- Offering childcare or support in meeting transport costs.
- Providing support/mentoring and development once in post.
In addition to encouraging individual applications, it was suggested that more could be done to increase public awareness of board members' roles and responsibilities particularly in sectors with greatest changes in gender representation and to provide engagement/leadership skills to give people confidence to apply for board roles.
It was also noted, however, that in many cases Board positions are advertised and the appointment process managed by the Scottish Government Public Appointment process and that the latter will therefore have a key role to play.
A small number of respondents suggested that actions taken to encourage applications should be monitored. Requirements for reporting under the Bill are considered further at Question 8.
Other points made on section 5 of the Bill included:
- There is no mention of board chairs, as a distinct category from other non-executive members and where women are even more under-represented.
- Consideration should be given to offering guidance on routes back to work for women who have taken maternity leave or who have other caring responsibilities and who might be thought too inexperienced to serve on boards.
- Making an explicit link between this legislation and the broader public sector requirement to gather employee data on recruitment, development and retention was suggested as a way of improving overall compliance, reducing duplication of effort within individual organisations, and reducing any perception that the Bill presents a new and additional "burden".
At Questions 6 and 7 the consultation paper asks for views on the two schedules to the draft Bill.
Application of Act to Certain Listed Authorities
Question 6: What if any, comments would you make in relation to Schedule 2 (introduced by section 7) of the draft Bill?
Only 26 respondents made a comment at Question 6, and remarks were generally brief. This perhaps reflects the relatively narrow scope of schedule 2, which applies only to: the Judicial Appointments Board for Scotland; the Regional Board for Glasgow Colleges; Regional colleges; and the Scottish Criminal Cases Review Commission. Some comments made at Question 6 were more directly applicable to schedule 1 and have been considered at Question 7.
A number of respondents (predominantly Individuals) simply noted their agreement. One respondent particularly welcomed inclusion of judicial appointments.
Other respondents suggested schedule 2 was complicated or unclear, or sought clarification on why certain vacancies need to be disregarded in appointing certain board members. In this context, it was also suggested that Section 1(2) could be expanded to reflect the position where there are unfilled vacancies.
Question 7: What, if any, comments would you make in relation to Schedule 1 (introduced by section 2) of the draft Bill?
A total of 37 respondents made a comment at Question 7 which concerns schedule 1, wherein the Public Authorities covered by the proposed legislation are listed along with a note of those positions on their Boards that are excluded from the gender representation objectives set out in the Bill. The analysis below also includes comments on schedule 1 made at both Question 1 and Question 6.
Although two "Other" organisation respondents welcomed the inclusion of educational bodies on schedule 1, several Universities and Colleges respondents expressed a view that Higher Education Institutions should not be described as Public Authorities at all, and hence should not be covered by the Bill. A statement from the Office for National Statistics that it classifies Universities in the Private Sector was cited in support of this position.  Individual listing of West Highland College UHI on schedule 1 was also queried, when other similar institutions are grouped together.
In contrast, several respondents queried why some organisations are not currently listed in schedule 1, believing that they should being included. The bodies mentioned specifically were:
- Integrated Joint Boards of Health and Social Care Partnerships.
- Regional Transport Partnerships such as SEStran, or Tactran.
A number of other Public Authorities that do feature on the list simply noted their inclusion or asked that the name used in their entry should be amended.
Finally, clarification was sought regarding an apparent anomaly, in that some Public Boards are included on schedule 1 for the purposes of this legislation, but not for The Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012.
Some specific requests were made with respect to amendment of excluded positions including:
- The Scottish Ambulance Service Board has an exclusion for elected Councillors, but actually employs Directors rather than Councillors.
- NHS Boards have Employee Directors, elected by staff side organisations then appointed in a non-executive role. It was suggested these positions should also be excluded.
- The Convener of Social Care and Social Work Improvement Scotland should be listed as an excluded position on the Scottish Social Services Council Board.
- Higher Education Institution's excluded positions could be amended to read as " directly appointed by the governing body" and student representative members should be added.
A small number of points was also made concerning exclusions in general: that they should be worded precisely to avoid creating loopholes; that there could be provision for regular review to identify misuse; and that having too many exclusions could undermine the equality objective. As an example of the last point it was suggested that universities and colleges have so many excluded positions on their governing bodies that the Bill is unlikely to create gender equality.
It was also suggested that, although local authorities are independent of central government, the Scottish Government might encourage local authorities to take gender balance into consideration when making their appointments of elected members to public bodies.
Power to modify schedule 1
Finally, a small number of respondents commented specifically on Section 6 of the Bill - concerning the power to modify schedule 1. One Public Body respondent simply asked to be consulted on any proposed changes impacting upon their organisation, while an "Other" organisation respondent suggested that, rather than being reserved to Ministers, there should be a mechanism to allow any citizen to propose that an organisation be added to the list.
Question 8: The draft Bill does not specify any requirement for reporting. Do you have any comments on reporting arrangements under the legislation, including timescales, location and content of reports?
In total, 68 respondents made a comment at Question 8. Many of those commenting noted the importance of requiring public bodies to report on their compliance with the legislation. In particular, it was felt that while reporting will not ensure compliance it will provide a level of transparency and public accountability and will also help identify the sectors which face the greatest challenges.
A number of respondents suggested that reporting requirements should be included in the legislation and a specific suggestion was that the requirement for reporting should apply to both the appointing person and the Public Authority. One Public Body respondent noted that as their appointing person is a Scottish Minister, they would not know if positive action had been used and suggested that any such actions to achieve a gender balance should be recorded and reported centrally by the Scottish Government's Public Appointments Team. Another suggestion was that the Public Appointments Team should provide a strategic overview at a national level. It was also suggested that since the number of people sitting on individual public boards is small, any equality and diversity statistics pertaining to a single board would enable the identification of individual Board members. The Public Body respondent highlighting this issue went on to suggest that any reporting should be done on a Scotland-wide or sectoral basis to protect anonymity.
A number of respondents were of the view that, rather than there being additional requirements, reporting could be covered within the existing reporting requirements, and in particular under the Scottish specific duties under the Equality Act 2010 and/or the Public Sector Equality Duty Amendment Regulations 2016. However, a Public Body respondent noted that the difference in the list of bodies covered by this Bill and those subject to the Equality Act regulations would mean that only some bodies would report if there were not specific requirements under this legislation. A solution suggested was that, if reporting requirements are introduced, consideration should be given to them only covering institutions not already subject to the Public Sector Equality Duty ( PSED.
Others, including some of those who did think there should be specific reporting requirements for this Duty, suggested that any requirements should be aligned with existing reporting regulations and timescales under the PSED Otherwise, views varied on any appropriate reporting cycle, with those respondents who commented suggesting one of the following:
- Bi-annual reporting should be required.
- That an annual reporting cycle would be appropriate.
- There should be a two-year reporting cycle. This was reported as being in line with other equality mainstreaming reporting requirements. An associated suggestion was that, after a period of one year, Boards should be required to demonstrate their progress towards implementing the target within the 2-year period.
- Every 4 years in keeping with the requirements to publish equality outcomes, equality outcomes progress, mainstreaming and equal pay statement / information under the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012. It was noted that governing body members typically serve terms of office lasting for three or four years with the possibility of additional terms of office and suggested that any reporting cycle should reflect this.
- After each appointment cycle has been completed.
Reporting every 2 years or annual reporting were the most frequently made suggestions.
In terms of how any requirements should be framed, suggestions included that public bodies should:
- Provide an annual status report to the Scottish Government. Specifically, this report should be made available through the Scottish Government's website.
- Bodies should include statements on compliance within their Annual Report. It was suggested that the Annual Report and Accounts tends to be the document that the public will refer to in order to find out information about the composition and work of an organisation.
It was suggested that all public boards should make their membership public and where gender parity does not currently exist, boards should be required to outline their strategy to reach parity (including timescales and the individuals leading this work). A similar suggestion was for a detailed action plan containing measurable, achievable, relevant, and time-bound actions. Other suggestions as to specific components or actions which should be reported included:
- Where "encouragement of applications" has been used and its impact.
- Details of all applications, including the protected characteristics of applicants, those interviewed and those appointed.
- Instances where the "tie-breaker" provision has been used by gender.
- A breakdown of board demographics by gender.
- A corporate governance statement setting out membership of the governing body.
- Retention rates and length of service on the Board by gender.
- Measures of Board members' experience of being on a Board.
- Succession planning arrangements.
It was felt that making information available would help support benchmarking and encouragement of best practice. To this end, it was suggested that it should contain enough data to enable the monitoring of trends over time.
In terms of what should be done with reports and other information provided suggestions included:
- Compliance against the legislation should be reported to the Scottish Parliament.
- Reports should be placed on the Scottish Government website.
Question 9: Do you have any comments on the draft Bill, not already expressed in response to previous questions, including on how the Bill could be strengthened to deliver Minister's stated objective of gender balanced public boards?
Although a total of 54 respondents made a comment at Question 9, around half of these reiterated views already expressed at earlier questions or summarised an overall position. Other issues raised are summarised on a theme-by-theme basis below.
Set specific targets: Several respondents suggested the legislation should include target dates for achieving the Bill's objective of equal gender representation, and that these targets could be staged, as has been done in other countries, including Canada, France and Norway. It was also proposed that there should be a "sunset clause" that would enable the Bill to be repealed easily once a more diverse gender balance has been achieved or that, to help guard against unintended consequences there should be an evaluation of the impact of the changes after three years.
Monitor compliance, sanction non-compliance: A number of respondents questioned what would happen if a body failed to implement the gender representation requirements set out in the draft Bill, given the lack of information on non-compliance. One "Other" organisation respondent making this point suggested a principle of "comply or explain" might be acceptable while several respondents were of the view that there must be oversight, along with penalties for non-compliance. One Individual respondent suggested that significant progress towards the gender balance objective of the Bill will not be achieved without sanctions for non-compliance.
It was also observed that although there has been a recent shift towards gender-balance on public boards, board membership and recruitment processes have not adequately reflected obligations to advance gender equality, including the PSED. The leadership of the First Minister was cited as being decisive in driving recent progress.
It was suggested that enforcement, while necessary, must be adequately resourced and that the Equality and Human Rights Commission could have a role to play. It was also argued that the full facts of each case of non-compliance should be examined and that any sanctions applied should be specific to the reason for non-compliance rather than "blanket" in nature. Examples of possible sanctions given included: temporary loss of financial and non-financial benefits by board members; annulment of board appointments; or verbal sanctions by regulatory bodies.
Positive experience in achieving compliance in other countries was also referenced by respondents who proposed penalties for non-compliance. It was reported that in Norway companies were threatened with serious penalties, including dissolution of the company, while in France a Board appointment could be nullified if it violated legislation on gender balance.
Other respondents, however, drew less positive messages from the Norwegian example, one citing the "golden skirts" phenomenon, whereby a relatively small group of women hold multiple board memberships, rather than widening participation to more women. It was suggested that if this experience is to be avoided in Scotland there should be a limit to the number of board memberships one person can hold. It was also noted that while Norway has implemented a mandatory gender quota, other Scandinavian countries without such quotas also have high levels of board gender diversity, suggesting that factors other than legislative compliance may be involved.
Additions proposed: It was also suggested there is nothing in the Bill to give protection to candidates who may feel that they have been unfairly discriminated against and that an appeals process or Ombudsman system might be appropriate. Other suggestions with respect to the appointment process included considering the gender balance of appointing panels, and considering the use of lay members on appointing panels. Requiring administering bodies to publish their equality impact assessment for each appointment process was also proposed.
Extend the scope: For the future, it was suggested that establishment of a gender balance on Standing Committees of the NHS Board might be considered, as could whether there is value in reviewing the public appointments process perhaps setting the principles for public appointments in legislation, rather than just this one objective. The Public Body respondent making the last point noted that the process of public appointments itself may be a barrier to certain groups and can disadvantage those not familiar with it, suggesting consideration should be should be given to the greater use of co-option where necessary.
It was also proposed that consideration should be given to introducing quotas for people with other protected characteristics, once 50% gender quotas have been achieved by a majority of Public Boards and the process has been evaluated.
A further suggestion was that the Bill could place a duty on public authorities to have regard to gender balance on the boards of organisations with which the authority may be contracting through, for example, procurement.
Consider "sex" and "gender": Making a specific legal point one Public Body respondent noted that the Bill refers to "gender" as if it were a protected characteristic under the Equality Act 2010, when the correct term is "sex", and that sex and gender are not synonymous terms. It was therefore suggested that it is not clear how this Bill interacts with the Equality Act 2010. It was also observed that the devolution of equal opportunities set out in the Scotland Act 2016 relates solely 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". Since "protected characteristics" include "sex" but not "gender", the respondent expressed concern that the Bill as drafted may not lie within devolved competence and could be open to challenge. It was suggested that if the intention of the Scottish Government is to include gender reassignment within the definition of protected characteristics, this should be addressed on the face of the Bill and not left to interpretation.
The EU context: A series of complex legal points made by an Individual respondent concerned whether non-executive members of public boards actually fall outwith the scope of European law. In which case, it was argued, there are no limits on what the Scottish Parliament could legislate for and, in this light, the proposals as drafted appear weak. It was also suggested that Brexit will mean that the Scottish Government does not, in any case, require to comply with European Law, although it may choose to do so.
As one alternative, a two-stage approach was suggested, with the Commissioner for Ethical Standards in Public Life in Scotland selecting and maintaining a pool of candidates suitably qualified for appointment to a non-executive position on a public board. Boards would be required to interview all women from this pool who expressed an interest in a position, and to explain why an individual was not appointed if not deemed to be the best candidate or, why the balance had not tipped in her favour if one of equally well qualified candidates.
Email: Eileen Flanagan
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House