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

Section 6

The Appointment Process

Context

The draft guidance discusses how the provisions at section 3 and 4 of the Act can be used within the public appointments process. This includes consideration of the term "equally qualified" and of when a "characteristic or situation" particular to a candidate who is not a woman may be used to select that candidate (section 4(4) of the Act).

Question 12:

Do you have any comments on the guidance on meeting the duties under sections 3 and 4 of the Act? If so, please let us know.

Aside from comments about the definition of "woman" used in the Act, a wide range of individual comments were raised. The most common themes running through these comments were:

• The importance of public authorities having transparent decision-making for the appointments process was emphasised by respondents. For example, it was felt that public authorities should be able to demonstrate the way in which they evaluated each candidate and how any scoring was applied. It was suggested that this should include detailed records of the application, testing and interview process, and records of their reasoning as to why a particular candidate was appointed and another was not.
• Respondents highlighted that there was not a standard appointments process and criteria for board membership. As such, some felt that there would need to be clearer definitions provided in the guidance for "equally qualified" and of when a "characteristic or situation" particular to a candidate who is not a woman may be used to select that candidate. The following quote helps to illustrate the points raised.

Not doing so would "leave the concept of merit based qualification open to the judgement and biases of the appointing barrier to avoid the use of the 'tie-breaker' provision in the Act".

• Respondents suggested that 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 use of the tie-break provision.
• The importance of having inclusive and diverse recruitment panels was also raised by some respondents.
• There were a number of comments provided regarding the term "equally qualified":
  • No precise definition of "equally qualified" was provided within the Act or guidance. There was a sense across the feedback that "equally qualified"was objective, hard to assess and apply in practice. This is reflected in the following quotes: "there will always be room for dispute", "no such thing as two equally qualified candidates", "more difficult to determine at the earlier stages of the recruitment process if two or more candidates are equally qualified".
  • It was reported that "equally qualified" should not be limited to, for example, the same qualification level or years of service in a particular capacity. Some respondents suggested that it should be defined more broadly to include, for example skillset, knowledge and experience to ensure that women are not at a disadvantage.
  • Other respondents commented that it would be crucial to highlight the importance of the person specification in determining the definition of merit.
• Some respondents felt that the language used "suggested a hierarchy of protected characteristics would be in play in appointment decisions". A number of respondents went on to say that this would "place women, once again at the bottom" and "it creates tensions between protected groups where it should foster good relations".
• Where there are two or more equally qualified candidates, it was felt that the Act should be used for the advancement of the female candidate until/unless full parity is achieved. The point raised is reflected in the quote below.

"If targets are not being met they must appoint the closest woman that meets their standards regardless of any other applicants. If you want to promote other protected characteristics then do that separately not tagged onto a bill to promote women. If they are not attracting good female candidates they need to look at their advertising and target women better".

• However, a few respondents felt that the implication that women may end up appointed to boards at the expense of more qualified candidates was flawed, and "a barrier to equal representation in public life".
• Some respondents mentioned that if the objective of the Act was to protect the rights and protections afforded to women, then the only characteristic that mattered was biological sex. A few respondents felt that the terms "equally qualified" and of when a "characteristic or situation" particular to a candidate who is not a woman may be used to select that candidate sounded like a "get out clause" and "not in the spirit of the Act" which aimed to boost the representation of women on the boards of public authorities.
• A few mentioned the importance of having access to specialist legal advice on the parameters determining "equally qualified", "tie-break provision" and of "when a characteristic or situation particular to a candidate who is not a woman may be used to select that candidate".
• A few comments were made around the guidance on meeting the duties under sections 3 and 4 of the Act being overly complicated, technical, and difficult to follow. Some respondents suggested it could be clearer, more accessible and practical (e.g. in terms of the language used, provision of summaries and case studies).

Question 13:

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 overriding common theme on the guidance on section 4(4) of the Act aligned with much of the earlier commentary on the terminology and definitions used within the Act (i.e. "gender" and "woman").

Here, the importance of "promoting genuine equality for biological women" was emphasised. The following quotes help illustrate the points raised:

"This clause will be used to further exclude females".

"This simply gives public authorities an excuse to fail to have adequate representation of women".

"This section is open to misuse. If the stated aim is to increase women's participation to 50%, having a clause which allows this to be overridden negates that aim".

"If the aim of the Act is to correct the sex-based imbalances seen on public boards then there cannot be anyone who is equivalent to a woman and yet not a woman. There are other protected characteristics and minority groups which also deserve representation on public boards but this Act is specifically about correct sex-based imbalance (or at least it should be). The phrase being used 'a 'characteristic or situation particular to a candidate who is not a woman may be used to select that candidate' makes no sense in the context of this Act, and suggests you cannot be a woman but may be a suitable substitute. There is no acceptable substitute. If there are insufficient women candidates then the problem is engaging with sufficient female candidates, the solution is not to find non-women substitutes".

A wide range of individual views were also raised. Where common themes could be identified, these are outlined below.

Firstly, the importance of advancing equality for other protected characteristics was mentioned by a few respondents. However, some felt that this "should be considered under separate arrangements". Conversely, others opposed the use of positive discrimination. As some respondents commented:

"Positive discrimination is still discrimination. Appointment should be on merit, not on sex".

"It could be appropriate to ensure competence on the board to select based on specific knowledge or experience required if the best fit for that post is not a woman. We should not create gender balance at the cost of the effectiveness of the Board".

"The guidance is clear and recognises that public authorities may wish to appoint candidates based on another protected characteristic or a factor. It is clear this is justifiable if based on the board's skills and diversity requirements and expressed in the appointment round information pack".

Secondly, various comments were provided about the language used being misleading and confusing. The need for plain English was emphasised by some respondents.

A few responses mentioned that the guidance should be delayed until the Gender Representation Act process is complete.