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

Section 4

Alignment with Reporting under the Public Sector Equality Duty and Other Reporting Cycles

Context

The Equality Act 2010 places a duty on public authorities to have due regard for the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations – referred to as the "public sector equality duty". To enable Scottish public authorities to do this more effectively the Scottish Ministers made the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (as amended) (the 2012 Regulations) setting out a framework of activities and reporting obligations. Most, but not all, of the public authorities covered by 2018 Act are also covered by the 2012 Regulations.

The 2012 Regulations also contain provisions under Regulation 6A relating to the gathering and use of information on the protected characteristics of board members. They require listed public authorities to publish details of the number of men and women who are members of the board of the authority; and to publish details of how they have used, and how they plan to use, any information provided to them by Scottish Ministers on the protected characteristics of their board. This latter provision has not yet been implemented. In both cases the details are required to be published within reports on how the public sector equality duty is being mainstreamed across the functions of the public authority.

It is the intention that reporting under the Act can be aligned with reporting under the 2012 Regulations if authorities think that is appropriate. The timescale for reporting under the Act has therefore been set to coincide with that under the 2012 Regulations. The intention is to be flexible. If a public authority wants to report on its functions under the Act within the reporting regime for the 2012 Regulations it can do so, but it is not required to. In addition, the reporting proposals for the Act do not duplicate any of the requirements of the 2012 Regulations.

A very small number of the public authorities that are subject to the 2012 Regulations operate to a different cycle for reporting under those Regulations. The use of the wording "not later than the end of April 2021" will allow those authorities to publish in alignment with their specific duties reporting in April 2020 if they wish.

Scottish Ministers have indicated that they wish to review the operation of the 2012 Regulations. Given the desire for close alignment between the reporting regimes for the 2012 Regulations and the Act, the impact of any changes made to the 2012 Regulations will need to be considered in due course.

The public sector equality duty in the Equality Act 2010 and the 2012 Regulations which were made to support it can be enforced by the Equality and Human Rights Commission (EHRC). This is a Non-Departmental Public Body (NDPB) established by the UK Government.

It operates across GB but it is not a "cross-border public authority". Its remit and functions are set out in the Equality Act 2006. Scottish Ministers cannot place additional duties on the EHRC. The EHRC does not therefore have an enforcement role for the Act or the reporting regulations made under it.

The draft regulations set out a framework for reporting under the Act which is intended to be flexible and to align with other reporting cycles. There is provision to allow reports to be published in combination should particular appointing persons and public authorities wish to do so.

Reports must state whether the gender representation objective has been met and must include details of action being taken to meet obligations under the Act.

Question 9:

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 by respondents 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 purpose of the Act.

Where wider comments were provided, the following common themes emerged:

• Respondents commented that the reporting relationship as set out in the consultation paper was appropriate.
• Flexibility and alignment of reporting with other reporting cycles was welcomed by respondents. Some commented that it would be sensible to keep linked reporting together (e.g. both have the same overriding objective of advancing women's equality).
• Some mentioned that the proposed reporting requirements were similar to reporting requirements under the 2012 Regulations, and that it would be disproportionate to require separate reporting in respect of this particular duty when other appropriate publications (e.g. equality outcomes and mainstreaming reports), place similar duties on appointing persons.
• Aligned timescales for reporting was also considered sensible by many respondents.
• Some respondents suggested that alignment of reporting should help ensure that improving women's representation on the board of public authorities was an equality mainstreaming issue within the terms of the public sector equality duties of the Equality Act 2010.
• That, over time reporting should be integrated and streamlined – some respodents commented that this should reduce duplication of effort.

The following quote is illustrative of comments provided by many respondents.

"It is sensible to have the same reporting timelines and framework for reasons of consistency, efficiency, transparency and oversight".

A wider comment made (but not by many) was that the Scottish Parliament might wish to consider the ramifications of potential amendments to the 2012 Regulations given that the EHRC does not have an enforcement role for the Act or the reporting regulations made under it.

Very few respondents mentioned the need for a dedicated report on the Act. Where this was mentioned, the main reasons given for doing so were:

• For maximum transparency.
• The importance of providing robust evidence.
• That it should encourage public authorities and appointing persons to consider tailored approaches to gender representation, and a focus on women from diverse groups to be considered as part of the single objective.
• That it was important that anyone with an interest could access this information easily. It was felt that including reporting on the Act within other reports would "run contrary to that ideal".

Question 10:

Please tell us any other comments you have on the draft regulations?

The main other comment provided by most respondents related to earlier concerns raised regarding a) the use of the word gender in the Act; b) the definition of "woman" for the purpose 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.

Wherewider comments were provided, common themes were as follows (albeit not raised by many respondents):

• Respondents welcomed the legislation and regulations, and the level, frequency and flexibility in reporting were considered appropriate.
• The importance of legislation and regulations being written in plain English for ease of understanding among the lay person was considered important.
• Some respondents commented that there was a need for greater consultation with women and women's groups on how the policy/legislation could affect women's rights.