Gender Representation on Public Boards (Scotland) Act 2018: statutory guidance

Terminology used in the Act

2.1 This section considers some of the key terms and concepts in the Act.

The gender representation objective

2.2 Section 1 of the Act sets a "gender representation objective" that a board has 50% of non-executive members who are women. Where a board has an odd number of non-executive members, the objective applies as if the board has one fewer non-executive member.

• If a board has 12 non-executive members, the gender representative objective is that the board has 6 non-executive members who are women.
• If a board has 9 non-executive members, the gender representation objective applies as if the board has one fewer non-executive member – in other words as if the board has 8 non-executive members. Consequently, the gender representation objective is that the board has 4 non-executive members who are women.

2.3 The gender representation objective is not a cap. The Act does not require board non-executive membership to be precisely 50:50 men and women and it does not prevent a board having more than 50% of non-executive members who are women. A board with more than 50% of non-executive members who are women has met the objective.

Public Authority and Appointing Person

2.4 The Act places duties on public authorities and appointing persons to take action to achieve the gender representation objective.

2.5 For the purposes of the Act, "public authority" means an authority listed, or within a description listed, in schedule 1. This list is reproduced in the Annex to this guidance.

2.6 The "appointing person" is the person who has the function of appointing a non-executive member of a public board. In this context, the word "person" may mean the organisation or position which makes the appointment. For many public authorities, the appointing person is "the Scottish Ministers". The Annex lists who the appointing person is for all of the public authorities covered by the Act.

Public Board

2.7 The gender representation objective applies in relation to the non-executive members of public boards. The Act defines a public board as:

• if the public authority is a company, the directors;
• if the public authority has a statutory board or other equivalent statutory management body, that board or body;
• in relation to any other public authority, the membership of the authority.

Excluded Positions

2.8 The gender representation objective only covers certain non-executive members of a board. Section 2 of the Act defines "non-executive member", in relation to a public authority, as "a position on its public board-

• (a) that is not an excluded position,
• (b) that is not held by an employee of the authority".

2.9 Section 2 of the Act defines an "excluded position", in relation to a public authority, as "a position mentioned in the second column of the table in schedule 1 which corresponds with the public authority mentioned in the first column".

2.10 Public authorities listed in schedule 1 of the Act and appointing persons for public authorities listed in schedule 1 of the Act, should determine which members of their board are "non-executive members" for the purposes of the Act. It is important that there is no ambiguity about whether or not an individual board member is a

"non-executive member" as this forms the basis on which the gender representation objective is calculated.

2.11 Moreover, no action is required under the Act in relation to members who are not "non-executive members" for the purposes of the Act.

The meaning of "woman" for the purposes of the Act

2.12 There is no definition of "woman" set out in the Act with effect from 19 April 2022 following decisions of the Court of 18 February^[2] and 22 March 2022. Therefore "woman" in the Act has the meaning under section 11^[3] and section 212(1)^[4] of the Equality Act 2010. In addition, in terms of section 9(1)^[5] of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person's sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person's sex becomes that of a man.