Gender Representation on Public Boards (Scotland) Act 2018: Scottish Ministers' Report to Parliament 2023

About the 2018 Act

2.1 The 2018 Act was introduced to improve women’s representation on public boards in Scotland. It sets a ‘gender representation objective’ for listed public authorities that 50% of non-executive board members are women.

2.2 A “non-executive member” is a position that is not held by an employee of the public authority and that is not an excluded position.

Calculating the gender representation objective

2.2 The gender representation objective is not a cap. The 2018 Act does not prevent a listed public authority from having more than 50% women non-executive members on its board. Nor does it require listed public authorities to have 50:50 male and female members. A listed public authority with more than 50% women non-executive members has met the gender representation objective.

2.3 If there are an odd number of non-executive members, the gender representation objective applies as if there was one fewer member. In this situation it can be possible for a listed public authority to achieve the gender representation objective if less than 50% of the non-executive members on its board are women. For example, if there are 9 non-executive members, the gender representation objective would be achieved if 4 (44%) of those members are women, and if there are 7 non-executive members, the gender representation objective would be achieved if 3 (43%) of those members are women.

2.4 The 2018 Act also specifies certain ‘excluded positions’ for individual listed public authorities. Excluded positions do not count towards the gender representation objective and appointing persons and public authorities are not required to take steps in relation to them. Some positions are excluded positions because they are filled through an electoral process rather than an appointment process, or because a person automatically holds a non-executive position by virtue of holding another position.

2.5 In relation to some listed public authorities, the 2018 Act covers all members of the authority’s board. The first authority listed in schedule 1 of the 2018 Act, the Accounts Commission for Scotland, is a good example. The Accounts Commission for Scotland has 12 non-executive members, all appointed by Scottish Ministers, and no excluded positions. In relation to other listed public authorities, such as higher education institutions and colleges, only some members of the authority’s board are covered by the 2018 Act.

Duty to take steps to achieve the gender representation objective

2.6 In addition to setting a gender representation objective, the 2018 Act requires appointing persons and public authorities to take steps to achieve the objective. This includes steps to encourage women to apply to become non-executive members and a duty to appoint a woman in certain circumstances. If the gender representation objective has not been met and there are at least two equally qualified candidates, at least one of whom is a woman, a woman should be appointed if this would result in the authority achieving the gender representation objective, or making progress towards achieving the gender representation objective.

2.7 The duty to appoint a woman is subject to a provision at section 4(4) of the 2018 Act which requires an appointing person to consider whether the appointment of an equally qualified candidate who is not a woman would be justified on the basis of a characteristic or situation particular to that candidate.

What public authorities are covered by the 2018 Act?

2.8 Schedule 1 of the 2018 Act lists the public authorities covered by the 2018 Act. It includes a range of Scottish public bodies, regional and special Health Boards, higher education institutions, colleges and regional Transport Partnerships.

2.9 The majority of the appointments covered by the 2018 Act are regulated by the Commissioner for Ethical Standards in Public Life in Scotland. These appointments are made by Scottish Ministers and the selection process is run on their behalf by Scottish Government officials.

2.10 The individual public authorities, and the total number of listed public authorities covered by the 2018 Act, may change from time to time, as new bodies are created and added to Schedule 1, and others removed.

2.11 The Scottish Government has published statutory guidance to support appointing persons and public authorities to carry out their functions under the 2018 Act.^[7]