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

Section 2

Content of Appointing Persons' and Public Authorities' Reports on their Functions under Sections 3-6 of the Act

Context

The Act refers to "Scottish Ministers and to appointing persons" and requires each to report on their duties under sections 3-6. For the purposes of sections 3-6, the Scottish Ministers are appointing persons. Their functions under these sections are the same as those of other appointing persons. The draft regulations require reports on the carrying out of functions under the Act. The regulations are intended to balance flexibility for individual public authorities to reflect their own position against a common framework that will allow a degree of comparability. It is not the intention to specify precisely and exhaustively what reports should contain. But the draft regulations do set out a number of requirements:

1. Sections 3 and 4 of the Act and whether the gender representation objective has been met. Sections 3 and 4 of the Act set out duties in relation to the appointments process. These duties fall on the appointing person. The draft regulations specify that the reports must contain a statement containing three elements:

• Stating whether the gender representation objective has been met.
• Providing information on any training received by or on behalf of an appointing person on the operation of sections 3 and 4 of the Act.
• Providing information on vacancies.

Where the Scottish Ministers are the appointing person, their statement must provide this information for each authority to which Scottish Ministers make appointments. Statements should be published in accordance with guidance.

2. Sections 5 and 6 of the Act cover appointing persons and public authorities. Section 5 sets out duties in relation to encouraging applications by women and section 6 covers additional steps that may be taken. The draft regulations specify that reports should include the following:

• Activity undertaken by appointing persons and public authorities to encourage applications from women. Where the Scottish Ministers are the appointing person, their report must provide this information for each authority to which Scottish Ministers make appointments.
• Other steps taken by appointing persons and public authorities with a view to achieving the gender representation objective by 31^st December 2022. Where the Scottish Ministers are the appointing person, their report must provide this information for each authority to which they make appointments.

3. The draft regulations state that publication must be in a manner which is accessible to the public and must be in accordance with guidance issued by Scottish Ministers. Appointing persons and public authorities may meet their reporting duty by setting their report within other published documents if they wish. This provision is intended to permit, but not to require, publication within reports made under the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (as amended). It will also allow publication within annual reports or other corporate documents. And it will allow a public authority and appointing person to publish a joint report, if they wish to.

Table 6: Question 3a

Do you think that appointing persons should include within their reports a statement whether the gender representative objective has been met?

	Yes	No	Don't know	Not Answered	Total
Individuals	57%	16%	11%	16%	272
Organisations	74%	3%	3%	21%	38
Third sector	54%	8%	0%	38%	13
Public sector	84%	0%	4%	12%	25
Total	59%	14%	10%	17%	310

Note: Percentages have been rounded therefore percentage totals may not equal 100%.

Table 7: Question 3b

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?

	Yes	No	Don't know	Not Answered	Total
Individuals	56%	10%	15%	19%	272
Organisations	58%	8%	11%	24%	38
Third sector	54%	8%	0%	38%	13
Public sector	60%	8%	16%	16%	25
Total	56%	10%	14%	19%	310

Note: Percentages have been rounded therefore percentage totals may not equal 100%.

Over half of respondents were supportive that reports by appointing persons should include a statement:

• On whether the gender representative objective had been met (59%).
• That provided information on any training received by, or on behalf of, an appointing person on the operation of sections 3 and 4 of the Act (56%).

Organisations, and more specifically public sector organisations expressed the highest level of support for both proposals.

Table 8: Question 3c

Do you think that appointing persons should include within their reports a statement that provides information on vacancies?

• how many vacancies for a non-executive member of the board arose during the period covered by the report.
• for each such vacancy:
  • how many competitions were run to fill the vacancy.
  • for each competition: how many applications were received and the percentage of those which were from women, where the numbers will not identify individuals; and whether an appointment was made, and if so, whether a woman was appointed.

	Yes	No	Don't know	Not Answered	Total
Individuals	64%	10%	11%	15%	272
Organisations	71%	5%	3%	21%	38
Third sector	54%	15%	0%	31%	13
Public sector	80%	0%	4%	16%	25
Total	65%	9%	10%	15%	310

Note: Percentages have been rounded therefore percentage totals may not equal 100%.

There was stronger support among respondents that appointing persons should include a statement that provided information on vacancies within their reports (65%). Organisations were slightly more likely to express support for this proposal than individuals – and in particular public sector organisations.

An open question then invited comments to Questions 3a to 3c.

We have grouped comments, where possible, across the three topic areas covered in Questions 3a to 3c, and have highlighted the most common feedback.

Firstly, the more general feedback provided by many respondents in support of the proposals emphasised the importance of robust monitoring mechanisms and regular progress reporting to help Scottish Ministers assess the overall effectiveness of its policy interventions.

Common themes that emerged from the consultation was that respondents felt that this would be important:

• For accountability, transparency and public scrutiny purposes.
• To understand what action had been taken/would be taken to address the issue of improving the representation of women on the boards of Scottish public authorities.
• To understand progress towards achievement of the key objective/purpose of the Act – at a national and public authority level.
• To identify ways that organisations could increase the representation of women on the boards of Scottish public authorities, and share good practice.

Wider feedback from some respondents highlighted the following points:

• The importance of public authorities having a greater understanding of the reason(s) for any imbalance in gender representation was emphasised by some respondents (e.g. fairness and balance in recruitment processes, whether candidate-attraction initiatives appealed to all).
• Respondents highlighted the need for clear guidance from the Scottish Government on what information would require to be provided, and any GDPR implications.

Secondly, comments specific to Question 3a, 3b, and 3c are captured below:

• Gender representative objective:
  • The main view of respondents was that reporting on whether the gender representative objective has been met should be based on sex segregation not gender. The following two quotes demonstrate some of these opinions:

"Records to be kept on biological sex primarily and if needs be, in addition, a record of gender. Importantly clear distinction needs to be made between biological sex and gender identity as the two are not the same and should not be confused".

"Depends on definition of woman. Biological sex is key, not some notion of gender".

• A small number of respondents commented that it was voluntary to declare gender during the application process. It was mentioned that self-reporting often leads to under-reporting, and a question raised was around how an organisation would then calculate and report on gender representation where there were information gaps.
• Training:
  • Some respondents felt that there should be further clarity provided around what information on training would be required to be provided, and in particular to ensure that it is relevant and meaningful. It was suggested that information should go beyond simply reporting on the "number" of people participating in training (e.g. type of training, training providers, quality of training, etc).
  • Respondents commented that persons (and selection panels) must be suitably trained and experienced to ensure that appointments were made "transparently and fairly", and that there was "effective and consistent implementation of the regulations" (e.g. operate without bias, reduce the potential for unconscious bias). A related point raised by a few respondents was the importance of having diverse selection panels, and that this could also be reported on.
• Vacancies:
  • A variety of comments were provided on the reporting of vacancies (albeit not reported by a majority of respondents): how and where the vacancy was promoted, the wording used, the number of applications received by women (as a proportion of the total), status of posts taken up by women, justification in each case for not appointing a woman, barriers/challenges, and examples of what worked well.

Table 9: Question 4:

Do you think that appointing persons and public authorities should report on the activity they have undertaken to encourage applications from women?

	Yes	No	Don't know	Not Answered	Total
Individuals	73%	8%	7%	11%	272
Organisations	79%	5%	0%	16%	38
Third sector	54%	15%	0%	31%	13
Public sector	92%	0%	0%	8%	25
Total	74%	8%	6%	12%	310

Note: Percentages have been rounded therefore percentage totals may not equal 100%.

The majority of respondents were supportive of the proposal that appointing persons and public authorities should report on the activity they have undertaken to encourage applications from women (74%). There was slightly higher support among organisations, and in particular among the public sector.

The main feedback from these respondents was that it was a reasonable request for appointing persons and public authorities to report on the activity undertaken to encourage applications from women. The following factors were considered important:

• Respondents commented that reporting should provide necessary evidence and show commitment to the public and wider stakeholders that public authorities had taken "appropriate", "practical", "positive", and "proactive" steps to encourage more applications from women and to achieving the goals of the Act. For example, one respondent noted that "reporting on activity will provide a driver to the activity happening".
• It was considered important that reporting should focus on the nature of activity undertaken by public authorities, and the extent to which this led to an increased number of applications from women and an increased number of women appointed.
• Respondents felt that legislation to increase the representation of women on the boards of public authorities would be meaningless if steps were not taken by public authorities to encourage the desired result (and subsequently reported on). The requirement for reporting would ensure compliance among public authorities.
• Respondents commented that it would provide an opportunity to share details of effective activity/practice, lessons learned, and any successes, and drive continuous improvement (as well as identify any problem areas).
• Some felt that it would give confidence in the recuitment process (i.e. greater transparency) – and potentially encourage more women to consider applying for a position on the board of a public authority.

Wider feedback reported in a few cases was that:

• Reporting should not be too burdonsome and/or cause additional work on top of existing reporting arrangements for public authorities regarding the fulfillment of statutory functions. A few respondents went further to suggest that this should be proportionate to the need for additional activity in this area.
• A few respondents said that reporting arrangements should include efforts and steps taken by public authorities to encourage applications from "diverse women" (e.g. LGBTI women, young and older women, disabled women, minority ethnic women, women with children, and women with other diverse lived experiences) and other under-represented groups.
• A few respondents commented that appointments should be made on the best candidate for the position on the basis of merit. Here, it was felt that the main focus should be on reporting steps taken by public authorities to encourage applications from the broadest range of candidates possible, including women.

A small minority of respondents reported that appointing persons and public authorities should not report on the activity they have undertaken to encourage applications from women (8%). Aside from feedback relating to terminology and definitions used within the Act, the main comments provided by this group of respondents related to the importance of public authorities undertaking steps to encourage a wide and diverse range of candidates to apply – including women – and that appointments should be based on merit.

Table 10: Question 5:

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 31^st December 2022?

	Yes	No	Don't know	Not Answered	Total
Individuals	59%	18%	12%	11%	272
Organisations	74%	8%	3%	16%	38
Third sector	54%	15%	0%	31%	13
Public sector	84%	4%	4%	8%	25
Total	61%	17%	11%	12%	310

Note: Percentages have been rounded therefore percentage totals may not equal 100%.

Some 61% of respondents reported 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 31^st December 2022. There was particularly strong support among organisations, and in particular from the public sector. Much of the feedback provided by these respondents echoed feedback to earlier questions:

• Respondents said that reporting this information would support increased accountability, transparency, fairness, openness, and would "prevent inaction" among public authorities. It was considered important that appointing persons and public authorities should:
  • Take the requirement to meet the gender representation objective seriously (i.e. there needs to be continued focus/action, and oversight that progress had been/would be made).
  • Monitor the effectiveness of their activities on an ongoing basis to develop greater insight into what worked well and less well.
  • Provide an explaination for why the gender representation objective had not been met (i.e. through a regular process of self-assessment, self-reflection, identification of lessons learned, a commitment to continuous improvement).
  • Give due consideration to identifying additional steps to be undertaken to ensure that further progress is made ahead of the next recruitment round. It was reported by respondents that this could include consideration of how best to overcome the barriers to participation among women (e.g. consultation with women).
• There was recognition among respondents that the reasons for not meeting the gender representation objective were likely to be varied. However, it was felt that appointing persons and public authorities had a duty to:
  • Provide commentary/analysis, as part of a formal reporting cycle, on the reasons why certain actions/steps were not as effective as others.
  • Report on any barriers encountered and/or extenuating circumstances to meeting the aims of the legislation.
  • Set out a clear plan for meeting the objective – this would demonstrate commitment to achieving the aims of the legislation.
• Respondents felt that the information reported on should provide useful learning for other public authorities, as well as generate ideas on potential actions/steps that could be taken based on the experience of others.

Almost one-fifth of respondents reported that appointing persons and public authorities should not, 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 31^st December 2022. Individuals were more likely than organisations to report this.

Aside from the issue of gender versus sex terminology used in the Act^[4], a variety of comments were provided by these respondents^[5]. A point that was raised by a few respondents related to public authorities that had more infrequent appointment rounds. Some respondents felt that this could place these organisations in a situation of potentially having to select a candidate based on gender rather than on merit. This point was reflected in the comments of some respondents that this was "not in the spirit of the Act".

Table 11: Question 6:

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?

	Yes	No	Don't know	Not Answered	Total
Individuals	38%	25%	23%	14%	272
Organisations	68%	13%	3%	16%	38
Third sector	23%	38%	8%	31%	13
Public sector	92%	0%	0%	8%	25
Total	42%	24%	21%	14%	310

Note: Percentages have been rounded therefore percentage totals may not equal 100%.

There was relatively mixed feedback to this question.

Less than half of respondents reported 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 (42%).

Higher levels of support was expressed by organisations, particularly by public sector organisations.

The main feedback from respondents in support of this proposal was that it seemed a sensible approach, and that "full transparency" and "visibility" of reporting was crucial.

Flexibility of reporting was also welcomed, including among smaller organisations, where the need for a separate report could be viewed as an "administrative burden" or be "unduly onerous" (i.e. limited resources). The option to include reporting within another document would allow for a more efficient use of resources and was generally viewed as "advantageous". The following quotes demonstrate this point.

"Being able to integrate the reporting requirements under the Act with other equality reporting requirements will help simplify information gathering and analysis and reduce duplication of effort".

"By reducing the requirement to produce new and distinct corporate documents this arrangement minimises bureaucracy for the public authority. It also reduces the proliferation of documents that members of the public may need to search through in order to find information of this nature".

Wider points/caveats raised by some respondents included:

• The report it is included within must be fully accessible to the public and widely promoted/disseminated/published. Some respondents specifically mentioned inclusion within the Public Sector Equality Duty (PSED) – Equality Mainstreaming Report.
• If progress reporting on the Act was to be included within another document, some respondents felt that it should be within another report that contains similar/related statistics and information. Some commented that this would provide ease of access by interested parties to wider equality-related information, including gender representation on the boards of public authorities.
• Where progress reporting on the Act was included within another report, it was felt that this should be reported on clearly under its own section – "by including this report in another document it must not be lost or overlooked".
• Some respondents commented that linking progress reporting with other reporting mechanisms might help public authorities to mainstream and embed gender equality considerations as part of their day-to-day operations, decision making and reporting arrangements.
• Others reported that it should be able to be provided separately if requested.

Almost one-quarter of respondents reported that appointing persons and other public authorities should not be able to publish their reports on carrying out their functions under the Act within another document if they wish to do so (24%). Third sectors organisations, followed by individuals were more likely to report this.

Aside from the issue of gender versus sex terminology used in the Act^[6], the main issues raised by these respondents included the following:

• Some respondents identified a perceived risk that public authorities could "obfuscate information" or "hide their failure within the small print of another document". A standalone document was therefore the preferred option for these respondents, with some suggesting that excerpts could be included in other documents.
• Others mentioned that standalone reports would result in greater visibility and clarity of reporting on progress. It was reported that the public must be able to search for, and access, reports easily. It was considered important that public authorities were held accountable for their actions, and standalone published reports would help maintain public awareness of progress made. Wider comments focussed on the content and presentation of the reports, with ease of readability emphasised.
• A few respondents mentioned that a central repository of the relevant information from the public authorities would help enhance transparency by enabling the information to be easily found, aggregated and monitored.

The following two quotes demonstrate the points raised by these respondents.

"Enabling organisations to publish reports within other publications decreases the accessibility of information and its capacity to be used as an accountability tool".

"The information should be published where the public would expect to find it, to avoid future accusations of having tried to hide it".