Gender Representation on Public Boards (Scotland) Act 2018: Regulation 2 report April 2023

2. Regulation 2(2)

The Scottish Ministers must publish a report under section 8(3) of the 2018 Act at intervals of not more than 2 years beginning with the date on which they last published a report under this regulation.

Regulation 2(2) requires for each authority where Scottish Ministers are the appointing person, a report including the following information:

(a) a statement of whether at the date of publication that authority has achieved the gender representation objective,

(b) a statement confirming the number of vacancies for non-executive members which arose during the period covered by the report,

(c) a statement confirming for each vacancy referred to in sub-paragraph (b) how many recruitment competitions were held with a view to fill the vacancy and, for each competition—

(i) the number of applications received and, where applications were received, the percentage which were from women, and

(ii) confirmation of whether an appointment was made, and where an appointment was made, whether a woman was appointed"

(d) details of any steps taken by the Scottish Ministers under section 5(1) of the Act to encourage applications from women to become non-executive members of the public board, and

(e) details of any other steps taken by the Scottish Ministers under section 6(2) of the Act with a view to achieving the gender representation objective by 31 December 2022.

2.1 Regulation 2(2)(a) - The Gender Representation Objective

The 2018 Act sets a "gender representation objective" for listed public authorities, namely that 50% of the authority's non-executive board members are women. If the authority has an odd number of non-executive board members, the gender representation objective applies as if there was one fewer non-executive member. For example, if there are 9 non-executive members on a board, the gender representation objective would be achieved if 4 of those members are women.

In relation to boards where the appointment process is regulated by the Ethical Standards Commissioner (ESC) ('regulated boards') and the appointments are made by Scottish Ministers, 64 have met the gender representation objective and 26 have not (as at 31 December 2022) .

2.2 Regulation 2(2)(b) - Vacancies

Where information was available in board reports, listed public authorities reported 313 vacancies for non-executive members arising during the period covered by their reports, resulting in 107 reported recruitment competitions.

In regulated appointments between May 2020 and December 2022 there were 257 vacancies

The majority of vacancies arising were for a single non-executive member and the majority of vacancies were filled through a single recruitment competition.

2.3 Regulation 2(2)(c) - Recruitment Competitions, Applications and Appointments

Regulation 2(2)(c) requires Scottish Ministers to publish, for each relevant vacancy for which they were the appointing person –

(i) the number of applications received and, where applications were received, the percentage which were from women, and

(ii) confirmation of whether an appointment was made, and where an appointment was made, whether a woman was appointed"

This information is provided in the statistical tables in this report from page 16 onwards.

The appointment process across the different types of boards subject to the 2018 Act varies. Appointments to public body boards can be 'regulated' and 'non-regulated.'

2.3.1 Regulated appointments

When an appointment is regulated it means that the appointments process for that Board is regulated by the Ethical Standards Commissioner (ESC). Whether or not a public body is regulated by the ESC depends on the type of body it is, and decisions made at the time it is established.

It is the ESC's role to ensure that appointments are made on merit, using methods that are fair and open. The appointment process for regulated appointments is run by Scottish Government officials on behalf of the Scottish Ministers.

2.3.2 Non-regulated appointments

Each appointment process for unregulated appointments, including those to the boards of colleges and Higher Education Institutions, is run by the public body concerned. The following bodies have appointments which are made by Scottish Ministers, universities, colleges, Regional Transport Partnerships and others.

For the college sector, appointments are made in accordance with schedule 2 of the Further and Higher Education (Scotland) Act 1992 (which contains provisions on the composition of incorporated college boards, both for regional and assigned colleges) and with schedule 2B of the Further and Higher Education (Scotland) Act 2005 (which contains provisions on the composition of regional boards).

In addition, the Scottish Code of Good Governance for Scotland's Colleges, and the 2014 College Sector Board Appointments Ministerial Guidance, sets out provisions on Further Education Governance, including best practice in relation to governing body membership and appointments. Regarding Newbattle Abbey College, Sabhal Mòr Ostaig, and West Highland College UHI, appointment of board members is made by the company.

2.3.3 Good practice in appointments

Good practice dictates that public appointments are made on merit and appointments by Scottish Ministers must be made on merit. Merit should be defined for each role and set out in the person specification. A person specification should provide a clear and accurate description of the skills, knowledge, understanding and/or experience a person will need to be effective in the role.

2.3.4 Appointments and equality mainstreaming

In 2017, the Scottish Government published a suite of equality outcomes for the 2017 to 2021 reporting period under the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012. This included an equality outcome on participation in decision making, which states "Ministerial public appointments are more diverse reflecting broadly the general population by 2021".

Since this outcome was created in 2017 the Public Appointments Team have made changes to their processes and used data, management information and lessons learned to drive improvement in the appointments process. The team have delivered an outreach and engagement programme with the aim of increasing interest in public appointments and addressing the barriers that people from the protected groups face. As a result we have seen improvements in the number of applications from people from an ethnic minority background and disabled people. Across all public appointments women represent 51% of appointees.

2.3.5 Appointments made

Where listed public authorities gave information, they reported that 274 appointments of non-executive members were made during the period covered by their reports. Of these, 135 appointments, or 49% of appointments, were of women.

Regulated Boards – As of 31 December 2022 64 Boards (71%) met the gender representation objective and 26 did not.

Unregulated Boards - 26 Boards (53%) met the gender representation objective and 23 did not.

Colleges - 17 Boards (63%) met the gender representation objective, 7 did not and data is not held for 1 Board.

Higher Education Institutes – 8 met the gender representation objective, 11 did not.

2.4 Regulation 2(2)(d) - Encouraging Applications from Women

The 2018 Act requires appointing persons and public authorities to take steps to encourage applications from women to become non-executive members.

It is not possible from the data received from boards to give definitive figures on the percentage of applications that were from women as there are gaps in reporting.

Consideration of the 2018 Act requirements is built into the regulated public appointments process. At the outset of each appointment round the appointing Minister will consider the gender balance of the board and what steps can be taken to encourage women to apply. Where women are under-represented on a board Scottish Ministers will state explicitly in the applicant packs that women are encouraged to apply, in most appointment rounds vacancies will also be shared directly with women's networks.

Other steps taken by Scottish Ministers include working with third sector organisations to encourage and enthuse women to apply, for example in in 2021 and 2022 Changing the Chemistry were engaged in the following appointment rounds: Scottish Housing Regulator, Quality Meat Scotland, Scottish Environmental Protection Agency, Dumfries and Galloway College, Crown Estate Scotland, Highlands and Islands Enterprise Agency and Office of the Scottish Charity Regulator.

Some steps taken to encourage applications from women, highlighted by appointing persons and public authorities in their reports, included promoting member vacancies to a range of organisations and individuals with a view to enhance the interest among and secure applications from a more diverse range of candidates. This included reaching out to organisations representing women, minority ethnic groups, young people and disabled peoples organisations.

In another case, text was included in the advertisement of the roles to emphasise the diversity of the particular body and encourage applications from women and individuals from protected characteristics groups currently under-represented. The range of advertising networks used beyond mainstream print media was reviewed and included professional networks for women and other under-represented groups.

2.5 Regulation 2(2)(e) - Other Steps Taken by Scottish Ministers to Achieve the Gender Representation Objective

If the gender representation objective has not been achieved, the 2018 Act requires appointing persons and public authorities to take any other steps they consider appropriate, with a view to achieving the gender representation objective by 31 December 2022.

The most common steps taken by Scottish Ministers in regulated appointment rounds were:

• events and communications targeted at women which aimed to demystify the public appointments process
• using role models/current women board members to speak about their experiences, and
• board shadowing and mentoring opportunities for women, particularly for women interested in Chair roles.

This complements other strategic work undertaken to diversify public appointments, including:

• Outreach and engagement, mentoring and shadowing - these have all proved successful in encouraging people to apply for public appointments.
• An ongoing improvement programme, currently underway, to drive forward the Scottish Government's commitment to having Boards more reflective of Scottish society.
• Guidance on succession planning, together with a toolkit of resources to help public bodies reach out to, and develop, potential new Board members.
• The provision of a programme of workshops to support diverse groups of people, who are underrepresented on public boards, to complete high quality applications and prepare for interviews.
• Work to raise the profile of public appointments as an attractive and accessible way to public life.
• The implementation of a corporate induction for new members to support them into their roles: encouraging them to feel part of Scotland's public service leadership cohort, reinforcing their role in delivering Ministerial priorities, and encouraging peer support and networking.
• The organisation of peer-learning and networking opportunities for Chairs to help them to create a Boardroom culture that harnesses the benefits of Board diversity and gets the best from the new members.

Some examples of steps taken to achieve the gender representation objective include, but are not limited to:

The Crofting Commission: The Commission has taken a variety of pro-active steps since May 2020, including setting up a Short-Term Working Group to encourage women to apply for appointed posts, and also to come forward for election to the Board of the Commission in 2022. The Commission also circulated a questionnaire to gauge women's views.

The Scottish Legal Aid Board (SLAB) has, as well as working closely with the Scottish Government to ensure that good practice was followed in the person specification, application and assessment process, taken action under the following themes:

• A positive and inclusive publicity strategy which specifically encouraged applications from women. This also included direct targeting of a range of organisations that deal with women's issues, such as women in business or equality issues, in order that they could promote the vacancies with their members and stakeholders
• Using a range of different staff and board member networks to promote the vacancies.
• Featuring video profiles, on our website, and as part of the application package, of two current board members. They spoke about their roles and the value that it has brought to them personally and professionally.

Tactran has included specific mention in adverts that applications from women would be welcomed due to Tactran being committed to promoting equal opportunities, greater diversity and gender representation in the membership of Public Boards. Tactran also contacted Transport Scotland requesting assistance in advertising the vacancies to attract a more diverse response and their most recent and current vacancy has been advertised via TS Twitter.