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

The appointment process

3.1 Sections 3 and 4 of the Act set out the duties on appointing persons when appointing non-executive members under the Act.

Background

3.2 Appointments to public body boards can be 'regulated' and 'non-regulated'. When an appointment is regulated it means that the appointments process for that Board is regulated by the Ethical Standards Commissioner. Whether or not a public body is regulated by the Commissioner depends on the type of body it is, and decisions made at the time it is established. A list of the public body boards that the Commissioner regulates can be found on their website.

3.3 It is the Commissioner'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. The appointment process for unregulated appointments, including those to the boards of colleges and Higher Education Institutions, is run by the public bodies concerned.

3.4 In relation to higher education institutions (HEIs) appointments are made by the governing bodies of HEIs in accordance with arrangements set out in their governance documents, and in accordance with section 10 of the Higher Education Governance (Scotland) Act 2016 (which contains provisions on the composition of governing bodies) and, in the case of the ancient universities, with the Universities (Scotland) Acts. In addition, the Scottish Code of Good Higher Education Governance sets out provisions on Higher Education Governance, including best practice in relation to governing body membership and appointments.

3.5 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 are made by the company.

3.6 Good practice dictates that public appointments are 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.

The Role of the Commissioner

3.7 The Commissioner has produced a Code of Practice underpinned by three principles: merit, integrity, and diversity and equality. The Commissioner has also published guidance on the application of the Code.

3.8 The requirements of the Act are consistent with the Commissioner's Code of Practice. The Commissioner will produce guidance on how the Code should operate in the context of the requirements of the Act. The Commissioner does not have a role in determining compliance with the Act.

Appointment on merit when the Act applies

3.9 Where the Act applies, appointments must be made on merit and the most able candidate should always be appointed. However, in circumstances where there are two or more equally qualified candidates, at least one of whom is a woman, then section 4(2) of the Act requires the appointing person to give preference to a woman if doing so will result in the board achieving (or making progress towards achieving) the gender representation objective. This is, however, subject to section 4(4).

Meaning of equally qualified

3.10 Section 4(2) of the Act refers to candidates being "equally qualified". Being qualified will be role specific and for the appointing person to define. To determine whether candidates are equally qualified the appointing person should conduct a full and objective assessment of each applicant against the objective criteria which have been determined at the outset for the role.

The 'tie-break' provision

3.11 If there are at least 2 equally qualified candidates, one of whom is a woman, then the appointing person must appoint the woman if doing so would result in the board achieving (or making progress to achieving) the gender representation objective. This is subject to the provision at section 4(4) of the Act which requires the appointing person to consider whether the appointment of an equally qualified candidate who is not a woman would be justified on the basis of a "characteristic or situation" particular to that candidate and allows appointment of that candidate.

3.12 The inclusion of section 4(4) in the Act, which provides that an appointing person may over-ride the requirement to give preference to a woman in the circumstances described in sections 3 and 4 of the Act, is required by the jurisprudence of the European Court of Justice which provides that such a requirement cannot be absolute.

3.13 In a tie-break situation, where candidates are identified as equally qualified under section 4(2), the appointing person must then consider, under section 4(4), whether appointing a candidate who is not a woman, is justified on the basis of a characteristic or situation particular to that candidate. If so, they can appoint the candidate. If the appointment is a regulated appointment made by Scottish Ministers and the situation (other than relating to another protected characteristic) forms the decision making by the appointing person to appoint them, the appointing person should seek an exception to the Public Appointments Code of Practice from the Ethical Standards Commissioner.

3.14 This is unless the specific factor(s) or situation have been included in the applicant information pack as something that will be considered at the point where the appointing person makes a decision.

3.15 The Act does not define "characteristic or situation" but does provide, at section 4(5), that a "characteristic" referred to under section 4(4) includes a protected characteristic within the meaning of section 4 of the Equality Act 2010. These characteristics are – age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

3.16 A characteristic or situation particular to a candidate may be another protected characteristic or a factor such as socio-economic background, caring responsibilities or employment sector. This will be for the appointing person to determine based on the individual candidate, the board's skills and diversity requirements, which will have been established at the outset of the appointment round.