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

Section 10

Achieving the Gender Representation Objective

Context

Achievement of the gender representation objective is not a one-off event and for some bodies this will fluctuate. The draft guidance discusses how the Act applies when the gender representation objective has been achieved.

Question 17:

Do you have any comments on the guidance on how the Act applies when the gender representation objective has been achieved? If so, please let us know.

The main theme that emerged from the feedback was concern around the use of the term "gender" and the definition of "woman" for the purposes of the Act.

Wider feedback, though not reported by many, was that:

• Once the gender representation objective had been achieved, respondents felt that efforts should continue to be undertaken by boards to maintain it - beyond 2022. The general view was that there is an ongoing duty to encourage applications by women, regardless of whether or not the gender representation objective had been met.
• There was agreement among respondents that achievement of the gender representation objective is not a one-off event. Increasing the representation of women on the boards of public authorities requires long-term commitment to encouraging women to apply for non-executive roles, embedding cultural change within public authorities, and a commitment to continuous improvement. This point is reflected in the respondent quote below.

"It will still be important to encourage those from diverse backgrounds to apply until it becomes more of a norm for those from diverse backgrounds to consider board roles".

• Respondents commented that public authorities should be encouraged to undertake a regular review of representation and the policies and processes they have in place for board recruitment to meet their obligations under the Act (e.g. risk assessments), and to make improvements where required.
• There was, however, wider recognition among respondents that there might be times when there were insufficient suitably qualified women applying for non-executive member positions, and that it might not always be possible to make an appointment of a female applicant. It was reported that there was a continuing need to ensure that, while appointment was always based on merit, subsequent recruitment aims to re-establish gender balance.
• The importance of sharing learning on what worked well in increasing the representation of women on the boards of public authorities was emphasised by respondents.

Where specific comments were made on the content of the guidance, these are outlined below:

• Some respondents felt that this section of the guidance might benefit from clearer articulation on the requirements for the appointing person or public authority. It was suggested that an example of a board in this situation and what was done would help better articulate what is required.
• Respondents also suggested that the guidance could benefit from worked examples at section 7.3 and 7.4 and to be clearer on what the Act specifically requires in terms of section 3 (2) and 3(3). For example, it would be helpful to illustrate what "at the time of recruitment" means in terms of the gender objective having been met in relation to the wording of section 3 (2) and 3(3). If, for instance, a board had 6 female and 6 male non-executive members but went out to recruitment for a vacancy that was due to arise from the future retirement of one of those female members, would section 3 and 4 of the Act apply or not? Respondents suggested that it might also be helpful to include, perhaps at this point of the text and at other points in the document, a high profile reminder that the appointing person must appoint first of all on the basis of who is the best candidate and not on the basis of their gender.
• Further feedback from respondents was that there is a danger in a 50:50 Board that when one member leaves, the public body will view the vacant post as male or female. It was suggested that the guidance should be clear on the criticality of merit in this specific circumstance.