Legislation and Policy
In addition to helping bodies to deliver more diverse and effective Boards, this guidance seeks to help bodies address the requirements of new policy and legislation:
The Public Sector Equality Duty
The Public Sector Equality Duty (PSED) was created under the Equality Act 2010 and came into force on 5 April 2011. It consists of a general equality duty, supported by specific duties which are imposed by secondary legislation. Those subject to the PSED must, in the exercise of their functions, have due regard to the need to:
- Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.
- Advance equality of opportunity between people who share a protected characteristic and those who do not.
- Foster good relations between people who share a protected characteristic and those who do not.
These are sometimes referred to as the three aims or arms of the general equality duty. The Act explains that having due regard for advancing equality involves:
- Removing or minimising disadvantages suffered by people due to their protected characteristics.
- Taking steps to meet the needs of people from protected groups where these are different from the needs of other people.
- Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.
The equality duty covers the nine protected characteristics as defined by The Equality Act 2010: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex and sexual orientation.
The Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2016
The Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2016 require listed public authorities with appointed Board members to use information about their Board's diversity to better perform the PSED.
Each listed public authority is expected to include in the
mainstreaming reports that are published every two years as part of
the requirements of the Equality Act 2010 (Specific Duties)
(Scotland) Regulations 2012 details of the steps they plan to take
across all relevant protected characteristics to promote member
diversity. Because of the small numbers involved care must be taken
not to inadvertently disclose protected characteristics associated
with individuals. Other than numbers of men and women as members of
the authority, no information on protected characteristics will be
in the report.
Gender Balanced Boards - The Partnership for Change
The Scottish Government's Programme for Government encourages public, private and third sector organisations to sign up to the Partnership for Change and to set a voluntary commitment for gender balance on their boards of 50/50 by 2020. Most public bodies have signed up to the Partnership for Change.
The Gender Representation on Public Boards (Scotland) Bill
The Gender Representation on Public Boards (Scotland) Bill will ensure that Boards have an equal representation of women and men on them.
The Bill sets a goal for gender balance in non-executive membership of public Boards, requiring action to be taken to achieve this. It also requires organisations to encourage applications from the under-represented gender.
Bodies should also be aware of the pre-existing legislative context in which regulated appointments are made to their Boards.
The Commissioner for Ethical Standards in Public Life in Scotland regulates appointments to the Boards of many of Scotland's public bodies. The appointment process is run by officials on behalf of the Scottish Ministers. The Commissioner has, in consultation with the Scottish Ministers, Scottish Parliament and the Boards of Scotland's public bodies, produced a Code of Practice that gives guidance on the way in which the appointments should be made. The principles underpinning the code are merit, integrity, diversity and equality.
The Commissioner has also produced a strategy, entitled Diversity Delivers, intended to enhance equality of opportunity and to increase the diversity of the Boards of Scotland's public bodies. As well as including recommendations for the Scottish Government, the strategy includes a number of recommendations for activities that public bodies themselves should engage in to secure more diverse Boards. This also includes a helpful checklist.
Email: Robert Boyter