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

Introduction

About This Report

This report presents analysis of the consultation on the Implementation of the Gender Representation on Public Boards (Scotland) Act 2018 (referred to as the Act herein)which opened on 13^th May 2019 and closed on 4^th August 2019.

Background

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)^[1], and further consultation on a draft Gender Representation on Public Boards (Scotland) Bill (2017)^[2].

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.

Only non-executive members appointed to public boards are covered by the Act. A non-executive member of a public board is an individual who is not part of the executive structure of the organisation in question. In contrast to an executive member, non-executive members are not employees and are not involved in the day to day operational management of the organisation. Rather they act in an advisory capacity and offer leadership, direction, and guidance to the organisation.

Schedule 1 of the Act lists the public authorities covered and specifies where some non-executive members are excluded from the Act's provisions (for example, because they are elected rather than appointed to the board).

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.

Scottish Ministers will specify in due course the date (or dates) when the duties will come into force.

An important element of the legislation is a requirement to report on progress. The purpose of reporting is to highlight action that is being taken and ensure transparency. Reporting duties are placed on public authorities, appointing persons, and Scottish Ministers in relation to their functions under the Act. Scottish Ministers are under an additional duty to lay a report before the Scottish Parliament on the operation of the Act. The detailed arrangements for reporting, such as timing, frequency and content, are not specified in the Act. Regulations must be made setting out these arrangements.

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.

When the regulations and guidance have been finalised, the Scottish Ministers will bring the duties in the Act into force.

Analysis Methodology

The Scottish Government provided EKOS Ltd access to all responses via Citizen Space. Some responses were not submitted by respondents through Citizen Space (six) and did not always follow the consultation structure (e.g. email or letter response to the Scottish Government). Where this was the case, the Scottish Government provided responses as separate documents for inclusion in the overall analysis.

Quantitative (closed questions) and qualitative (open-ended questions) responses were exported into Microsoft Excel for subsequent analysis:

• All Yes/No questions have been presented in table format.
• Qualitative responses have been analysed to identify common themes and messages.

Limitations of Consultation Analysis

An issue regarding terminology and definitions used in the Act was raised frequently throughout the consultation question set (i.e. Question 1 to 19). This centred on the term "gender" and the definition of "woman" (see Appendix B for definition of woman) for the purposes of the Act. This had implications for the consultation analysis, as considered in more detail below.

In summary, most respondents felt that the Act has extended the legal definition of woman far beyond the Equality Act (2010). It was recommended by most respondents that the Act should replace the term "gender" (i.e. a set of stereotypes commonly associated with males and females) with "sex" (i.e. biologically male and female). The main view was that the gender representation objective should be expressed as the sex representation objective.

The vast majority of respondents felt that the terms/definitions used within the Act would "further alienate the 50% of the population it was intended to attract". The "lived experiences" of women were considered of vital importance. It was suggested that if the aim was to improve representation of people with other protected characteristics under the Equality Act (2010), that this should not be at the expense of improving female representation. Some, however, noted the importance of the "intersectionality of characteristics" in delivering on the Act's objectives (e.g. disabled women, LGBTI women).

The main limitation for the consultation analysis was that many respondents simply inserted exactly the same response across multiple open-ended questions. In many cases, the feedback was not directly related to the question(s) posed. This made it extremely difficult to identify wider common themes. In most cases, the issue regarding terminology and definitions used within the Act was the overriding theme that emerged to all questions. Wider themes reported were not always based on a large absolute number of responses.

The afore-mentioned concerns relating to the consultation were further reflected in the relatively high proportion of repondents that reported:

• "Don't know" or "did not answer" any or some of the closed questions. If these cases were excluded from the analysis of Yes/No questions, the level of support for the proposals would be higher than what has been reported.
• They were either slightly dissatisfied or very dissatisfied with the consultation (50%)^[3].

Our overall sense from analysis of the consultation responses was that there was general support for the proposals, and of what the Act sought to achieve – but the issue around conflating sex and gender would need addressed, and further clarity provided.

Profile of Respondents

In total 310 responses were received to the Consultation on the Implementation of the Gender Representation on Public Boards (Scotland) Act 2018, broken down by individuals and organisations in Table 2.

Table 2: Profile of Consultation Respondents

	Number	Percentage
Individuals	272	88%
Organisations	38	12%
Total	310	100%

Note: 10 duplicate entries were removed (e.g. both electronic and hard copy submission).

Organisations made up a very small proportion of the total number of responses received. In discussion with the Scottish Government, we agreed how best to code organisations, Table 3. As the absolute number of responses was small in many cases, organisations were coded as either public or third sector.

Table 3: Further Breakdown of Consultation Respondents

	Number	Percentage
Individuals	272	88%
Public sector organisations	25	8%
Third sector organisations	13	4%
Total	310	100%

Within the public sector, the most responses were received from Executive Non-Departmental Public Bodies (NDPB), followed by Further and Higher Education Institutions. Wider responses were received from the health sector, regulatory bodies, public corporations, local government, and non-ministerial offices. Third sector responses were predominantly national organisations with an equality focus. In the remainder of the report we have sought to draw out any differences in responses across different sub-groups, where appropriate.

Report Structure

The remainder of the report has been structured in line with the Consultation Paper:

• Section 1 to Section 4 covers Questions 1 to 10, and is related to the regulations setting out reporting arrangements.
• Section 5 to Section 11 covers Questions 11 to 18, and presents feedback on the qualitative questions on the statutory guidance on the operation of the Act.
• Section 12 covers responses to Question 19, and presents details of any other comments provided on the draft guidance.

Additional information is contained with the Appendices.