Gender Representation on Public Boards (Scotland) Bill: consultation analysis report

Executive Summary

This report presents analysis of responses to a consultation on the draft Gender Representation on Public Boards (Scotland) Bill. In total, 101 responses were available for analysis, of which 66 were from groups or organisations and 35 from individual members of the public. The majority of group respondents were bodies to which the proposed legislation would apply, and their responses sometimes focused on how the objectives would impact on their own organisations.

The major themes to emerge from analysis of responses to the consultation were as follows.

Support for increased representation of women on Public Boards

There was widespread support for the principle of increased representation of women on public boards, although a minority of respondents argued that all appointments should be on merit alone and that the draft bill is discriminatory.

Potential to disadvantage other protected characteristics

The most frequently-raised issue, suggested by around 1 in 5 respondents at Question 1, concerned the possibility that, by focusing only on gender, the Bill as drafted does not consider and could even disadvantage individuals who share other protected characteristics. This issue recurred throughout the consultation, although particularly at Question 10, and was often raised by respondents who otherwise agreed with the aim of increasing the number of women on Public Boards. It was sometimes suggested that the Bill should address all protected characteristics equally since all are under-represented, and that addressing gender imbalance in isolation could be at the expense of broadening the diversity of a Board as a whole.

Flexible targets

It was also argued that the 50/50 gender representation target may not be achievable in some cases, that a target of a minimum of 40% of either gender might be preferable and/or that the 50/50 representation might be taken as an average over a period of several years.

Include other Board roles?

It was suggested that restricting the gender balance requirement to appointed non-executive members of Public Boards means that small Boards, or those with a large number of excluded positions, may struggle to meet the 50/50 balance even if they meet the 50/50 target for appointed non-executive members. It was proposed that consideration should also be given to gender balance in executive positions, and also to the influential position of Board Chair. Given the large number of elected or nominated positions on some boards, it was suggested there should be a wider duty to support staff or students to consider gender when electing or nominating members.

Definition of gender

Many respondents noted that the Bill uses a binary definition of gender, and thus omits individuals who do not identify as either female or male. A number of respondents argued that the definitions used should be "identify as female" or "identify as male" to be more inclusive of transgender people.

The Public Appointments process

Public Body respondents sometimes observed that since their Board appointments are managed by the Scottish Government's Public Appointments Team and that their appointing person is a Scottish Minister, the Authority itself has neither responsibility for, nor control over such appointments. Universities and Colleges respondents sometimes observed that their Board appointments are made by the Governing Body rather than an individual person, so they do not have an "appointing person" as defined in the draft Bill.

List of Public Authorities

Several University respondents expressed a view that Higher Education Institutions should not be described as Public Authorities at all, and hence should not be covered by the Bill. A statement from the Office for National Statistics that it classifies Universities in the Private Sector was cited in support of this position.

Other respondents suggested Integrated Joint Boards of Health and Social Care Partnerships and Regional Transport Partnerships such as SEStran, or Tactran should be included on schedule 1.

Reporting

The importance of reporting was highlighted by many respondents, although it was often suggested that any reporting requirement should be aligned with existing requirements under other legislation. The biennial mainstreaming report required by the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 was often suggested. However, a Public Body respondent noted that the difference in the list of bodies covered by this Bill and those subject to the Equality Act regulations would mean that only some bodies would report if there were not specific requirements under this legislation. A solution suggested was that, if reporting requirements are introduced, consideration should be given to them only covering institutions not already subject to the Public Sector Equality Duty ( PSED).

Targets, oversight, sanctions

Several respondents suggested the legislation should include target dates for achieving the Bill's objective of equal gender representation, and that these targets could be staged, as has been done in other countries. Other respondents were of the view that there must be oversight, along with penalties for non-compliance. It was also observed that although there has been a recent shift towards gender-balance on public boards, board membership and recruitment processes have not adequately reflected obligations to advance gender equality, including the PSED.