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Publication - Consultation analysis

Gender Representation on Public Boards (Scotland) Act 2018 implementation: consultation analysis

Published
3 April 2020
Directorate
People Directorate
Topic
Equality and rights, Public sector
ISBN
9781839606670

This report presents the main messages arising from the consultation on the implementation of the Gender Representation on Public Boards (Scotland) Act 2018 (the Act).

View supporting documents Supporting documents

Executive Summary

This Executive Summary presents the main messages arising from the Consultation on the Implementation of the Gender Representation on Public Boards (Scotland) Act 2018 (the Act).

The purpose of the Act is to improve the representation of women on the boards of Scottish public authorities. The Act was made following Scottish Government consultation on how to shape proposals on using legislation to achieve gender equality on the boards of public bodies (2014), and further consultation on a draft Gender Representation on Public Boards (Scotland) Bill (2017). The Act sets a gender representation objective for the non-executive member component of public boards. The objective is that 50% of non-executive members are women.

The Act places duties on public authorities, appointing persons, and Scottish Ministers in connection to their role in achieving the gender representation objective. For many public authorities, Scottish Ministers are the appointing person. But the Act covers Scottish Ministers and appointing persons separately as the duties on Scottish Ministers extend beyond their role as the appointing person, and cover functions which other appointing persons do not have such as laying reports before the Scottish Parliament.

The Act requires that appointments must be made on merit. But where the board has not already met the gender representation objective and there are two or more equally qualified candidates for an appointment, the Act requires the appointing person to appoint a candidate who is a woman, unless there are specific circumstances which would justify appointment of another candidate. Public authorities, appointing persons, and Scottish Ministers must take such action as they consider appropriate to encourage applications from women. And, where the gender representation objective has not been achieved, they must take such additional steps as they consider appropriate with a view to achieving it by the end of December 2022.

To support the implementation of the Act, Scottish Ministers must publish guidance and those with duties under the Act must have regard to the guidance.

This latest consultation sought views on two elements of implementation of the Act:

  • Draft regulations setting out the arrangements for reporting on progress under the Act.
  • Draft statutory guidance on the operation of the Act.

In total 310 responses were received to the consultation (272 individuals and
38 organisations). It should be noted that much of the feedback focused on concerns raised regarding terminology and definitions used in the Act. More specifically, the term "gender" and the definition of "woman" for the purposes
of the Act.

Table 1: Summary Analysis Table

Questions Assessment of Feedback Main Comments For and/or Against
Regulations Setting Out Reporting Arrangements: Section 1 – Timescales for Reporting
Q1 - Do you think that public authorities and appointing persons should be required to report on the carrying out of their functions under the Act at intervals of no more than two years, with the first reports being published not later than the end of April 2021? Around two-thirds supportive
  • Reporting will help ensure public accountability and transparency.
  • Regular review and reporting was welcomed.
  • The importance of identifying, sharing and embedding good practice was emphasised.
  • Timescales were generally considered reasonable and appropriate.
  • Alignment of reporting timescales with other reporting cycles was also welcomed.
Q2 - Do you think that Scottish Ministers should report to the Scottish Parliament on the operation of the Act at intervals of not more than two years, with the first report being laid before Parliament not later than the end of December 2021? Around two-thirds supportive
  • Regular reporting would promote openness, accountability, transparency and scrutiny.
  • It would encourage public authorities to comply with the legislation.
  • It would increase public understanding of the steps taken to increase the representation of women on the boards of Scottish public authorities, the difference made, how well public authorities were fulfilling their duties, and any challenges experienced.
  • The timescales for reporting were generally considered appropriate, and would allow sufficient time for Scottish Ministers to review and collate data from public authorities and produce informed reports to the Scottish Parliament.
  • Regular reporting would ensure gender equality on the boards of public authorities remained a policy priority.

Note: Across the closed questions in the consultation there was generally higher support among organisations, and in particular public sector bodies.

Further, the relatively high number of "not answered" or "don't know" responses has resulted in lower levels of support for each closed question, than if these responses were excluded.

Table 1: Summary Analysis Table

Questions Assessment of Feedback Main Comments For and/or Against
Regulations Setting Out Reporting Arrangements: Section 2 – Content of Appointing Persons' and Public Authorities' Reports on their Functions under Section 3-6 of the Act
Q3a - Do you think that appointing persons should include within their reports a statement whether the gender representative objective has been met? Just over half supportive
  • A common theme that emerged to the open question on Q3a to Q3c was that it would be important to have robust monitoring mechanisms and regular progress reporting to help Scottish Ministers assess the overall effectiveness of its policy interventions. As highlighted earlier, this was considered important from an accountability, scrutiny and good practice perspective. As well as developing an understanding of the reason(s) for any imbalance in gender representation.
  • Reporting should be based on sex not gender.
Q3b - Do you think that appointing persons should include within their reports a statement that provides information on any training received by, or on behalf of, an appointing person on the operation of sections 3 and 4 of the Act? Just over half supportive
  • Some respondents called for further clarity on the nature of information to be provided on training – to ensure that it was relevant and meaningful. There was recognition that reporting on training received would need to go beyond reporting on the "number" of people participating in training.
  • It was reported that appointing persons (and selection panels) must be suitably trained and experienced to ensure that appointments were made transparently and fairly. Effective and consistent implementation of the regulations was emphasised.
Q3c - Do you think that appointing persons should include within their reports a statement that provides information on vacancies? Around two-thirds supportive
  • A variety of comments were raised (none by a majority of respondents). These centred on aspects such as how and where the vacancy was promoted, the wording used, the number of applications received by women (as proportion of total), status of posts taken up by women, justification in each case for not appointing a woman, what worked well.
Q4 - Do you think that appointing persons and public authorities should report on the activity they have undertaken to encourage applications from women? Almost three-quarters supportive
  • This was considered a reasonable request – important that evidence was provided and would show a commitment to the public and stakeholders that appropriate, practical and proactive steps had been taken. The requirement for reporting would ensure compliance. Ultimately it would be important to understand the extent to which activity and action had led to increased applications from, and appointments of, women.

Table 1: Summary Analysis Table

Questions Assessment of Feedback Main Comments For and/or Against
Q5 - Do you think that appointing persons and public authorities should, if the gender representation objective has not been met, report on the details of any other steps taken with a view to achieving the gender representation objective by 31st December 2022? Almost two-thirds supportive
  • This would support increased accountability and transparency, and prevent inaction among public authorities.
  • This would ensure that the legislation is taken seriously – there needs to be continued focus and action in this area.
  • The importance of regular self-assessment, self-reflection, identification of lessons learned, and a commitment to continuous improvement were highlighted.
  • There was also recognition that reasons for not meeting the gender representative objective were likely to be varied – this highlighted the importance of developing a greater understanding of why some actions were more effective than others, barriers encountered, and any extenuating circumstances.
Q6 - Do you think that appointing persons and other public authorities should be able to publish their reports on carrying out their functions under the Act within another document if they wish to do so? Just less than half supportive
  • Relatively mixed feedback to this question.
  • Where there was support for the proposal, the main feedback was that flexibility of reporting was welcomed, including among smaller organisations where the need for a separate report could be viewed as an administrative burden. However, this was generally caveated with comments around the importance of progress being set out in a report that is fully and easily accessible to the public, and within a report that contained similar/related statistics and information.
  • Among those not in support of this proposal, the main feedback was that a standalone report would be better for visibility and clarity of reporting.

Table 1: Summary Analysis Table

Questions Assessment of Feedback Main Comments For and/or Against
Regulations Setting Out Reporting Arrangements: Section 3 – Scottish Ministers Reports to the Scottish Parliament
Q7 - Do you think that Scottish Ministers, in preparing their report to Parliament, must use information published by public authorities and appointing persons in their reports on carrying out their functions under sections 3-6 of the Act? Almost two-thirds supportive
  • This was considered an appropriate and logical approach. Using published information and data produced by public authorities and appointing persons was considered essential from a scrutiny, transparency and openness perspective.
  • It was felt that wider information/data sources could also be used, so long as it came from reliable, trustworthy and easily accessible sources.
  • The provision of accurate, verified, evidence-based and data driven progress reports was highlighted – this would also aid effective oversight.
Q8 - The draft regulations do not specify the content of Scottish Ministers' reports to Parliament other than that they contain an overview of the operation of the Act. Do you have suggestions on the content of these reports? -
  • The importance of acknowledging the clear differences between sex and gender was emphasised.
  • In order for reports to be truly meaningful, data should be collected (and reported on) as per the protected characteristics as outlined in the Equality Act.
  • Reports should be concise, accurate, meaningful and accessible.
  • Some suggested that there should be the ability for comparisons across public authorities to be made, and for the identification and dissemination of shared learning.
  • The focus of reports should be on providing an examination of the operation of the Act, including its overarching purpose, and an overview of the "collective impact" of public authority action across Scotland.

Table 1: Summary Analysis Table

Questions Assessment of Feedback Main Comments For and/or Against
Regulations Setting Out Reporting Arrangements: Section 4 – Alignment with Reporting under the Public sector Equality Duty and Other Reporting Cycles
Q9 - What, if any, comments do you have on the relationship between the proposals for reporting on the Act and reporting under the 2012 Regulations in relation to the public sector equality duty specific duties? -
  • There were relatively few comments provided that did not focus on the concern reported throughout the consultation regarding a) the use of the word "gender" in the Act, and b) the definition of "woman" for the purposes of the Act.
  • Where wider comments were made, these confirmed that the reporting relationship as set out in the consultation paper was appropriate, and that flexibility of reporting and alignment of reporting timescales with other reporting cycles were welcomed.
  • There was support for integrated and streamlined reporting arrangements.
Q10 - Please tell us any other comments you have on the draft regulations? -
  • The main comments related to concerns raised around: a) the use of the word "gender" in the Act, b) the definition of "woman" for the purposes of the Act, and c) the implications that these issues would have for meaningful data collection and reporting on the operation and effectiveness of the Act.
  • Wider comments related to the importance of legislation, regulations and guidance being written in plain English, and a need for greater consultation with women and women's groups on how the policy/legislation would affect women's rights.

Table 1: Summary Analysis Table

Questions Assessment of Feedback Main Comments For and/or Against
Content of Draft Guidance: Section 5 – Terminology Used in the Act
Q11 - Do you have any comments on the terminology section of the guidance? -
  • A majority of respondents provided comment on the definition of "woman" for the purposes of the Act.
  • Feedback largely highlighted the following points: a) the definition used has extended the legal definition of woman far beyond the Equality Act (2010); b) that sex not gender is a protected characteristic; c) the definition should align with the Equality Act (2010), and be clarified; d) that the definition should not be changed without consultation; e) the term "woman" should be biologically born woman; and f) the extended definition would have implications for meaningful reporting.
  • Comments were also provided on the term "gender representative objective". Here, the main feedback was that the term "gender" was ambiguous, and should be replaced with "sex" (the two terms are not synonyms).
Content of Draft Guidance: Section 6 – The Appointment Process
Q12 - Do you have any comments on the guidance on meeting the duties under sections 3 and 4 of the Act? -
  • The importance of public authorities having transparent decision-making processes for the appointments process was emphasised.
  • There would need to be clearer definitions provided for "equally qualified" (too objective, hard to assess, hard to apply in practice) and of when a "characteristic or situation" particular to a candidate who is not a woman may be used to select that candidate.
  • Some felt that the language used suggested a hierarchy of protected characteristics would be in play in the appointments process.
  • The guidance should include recommendations for those involved in the appointments process to be fully trained and aware of equality and diversity issues, complying with equality legislation, unconscious bias, and the use of the tie-break provision.

Table 1: Summary Analysis Table

Questions Assessment of Feedback Main Comments For and/or Against
Q13 - Do you have any comments on the guidance on section 4(4) of the Act which considers a "characteristic" or "situation" particular to a candidate who is not a woman may be used to select that candidate? If so, please let us know. -
  • The main theme aligned with much of the commentary in the report regarding the terminology and definitions used within the Act.

Contact

Email: Eileen.flanagan@gov.scot

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