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

Reporting on progress

Overview

6.1 Section 8 of the Act makes provision for reporting arrangements as follows:

• Scottish Ministers must lay reports before the Scottish Parliament on the operation of the Act at intervals of no more than two years.
• Scottish Ministers must publish reports on the carrying out of their functions under the Act.
• Appointing persons must publish reports on the carrying out of their functions under sections 3-6 of the Act.
• Public authorities must publish reports on the carrying out of their functions under sections 5 and 6 of the Act.

6.2 Scottish Ministers may specify public authorities and appointing persons for the purposes of reporting and may make further provision about reports.

6.3 The arrangements for all of these reports are set out in regulations^[6]. These arrangements include details of the content, timing and frequency of reports and how they should be published.

6.4 Public authorities, appointing persons and the Scottish Ministers must act in accordance with the arrangements set out in these regulations. They are not obliged to publish any additional material under the Act.

Reporting on sections 3: Duty when appointing non-executive members and 4: Consideration of candidates

6.5 Sections 3 and 4 set out obligations when selecting candidates for appointment as non-executive members. The regulations require an appointing person, including Scottish Ministers in their role as an appointing person, to publish a statement containing the following elements:

• stating whether the gender representation objective has been met at the date of publication; and
• providing information on:
  • how many vacancies for a non-executive member of the board arose during the period covered by the report,
  • for each such vacancy:
    • how many competitions were run to fill the vacancy,
    • for each competition:
      • how many applications were received and the percentage of those which were from women,
      • whether an appointment was made, and if so, whether the appointment made was a woman.

6.6 There is no requirement for appointing persons, or those acting on their behalf, to be provided with training on the operation of sections 3 and 4, however, appointing persons will want to ensure that they are fully aware of their obligations. The term "training" here could include written, online, verbal or other training options.

6.7 It is not necessary to publish any additional information in the statement. No reference should be made to whether or not the tie-break provision has been used.

Reporting on section 5: Encouragement of applications by women

6.8 Section 5 requires appointing persons and public authorities to take such steps as they consider appropriate to encourage applications by women. The regulations require that reports by appointing persons or public authorities should include details of any steps taken.

6.9 Since the Act requires appointing persons and public authorities to take such steps as they consider appropriate it is possible that no steps will have been taken. In these circumstances the report should state that no steps were taken in relation to section 5.

6.10 The Act is clear that nothing in section 5 prevents an appointing person or a public authority from taking such steps that they consider appropriate to encourage applications from people with other protected characteristics (as defined in the Equality Act 2010). But there is no obligation within the Act to report on any such activity.

Reporting on section 6: Duty to take steps towards achieving objective

6.11 Section 6 requires appointing persons and public authorities to take such other steps as they consider appropriate with a view to achieving the gender representation objective by 31 December 2022. In this section "other steps" means any steps in addition to those taken to encourage applications by women. For example, this might include providing training to those participating in recruitment. The regulations require that reports should include details of any steps taken.

6.12 Since the Act requires an appointing person and public authorities to take such steps as they consider appropriate, it is possible that no steps will have been taken. In these circumstances the report should state that no steps were taken in relation to section 6.

6.13 This section applies until 31 December 2022. After this date, the requirements under section 6 will no longer apply, even where an authority has not met the gender representation objective. However, the other reporting requirements will remain in place.

Publication of reports

6.14 The regulations require reports to be published in a manner which is accessible to the public. They also make clear that reports can be published within another published document. This would allow publication as a joint report by an appointing person and relevant public authority. A joint report would need to make clear what the public authority had done and what the appointing person had done. It is for appointing persons and public authorities to make decisions about any joint reporting.

6.15 Publication within another published document could also include within an annual or other corporate report, or within a report under the public sector equality duty (see paragraphs 6.19-6.21). Again, it is for appointing persons and public authorities to make this decision.

6.16 The regulations require appointing persons and public authorities to submit a copy of any report under the Act to the Scottish Ministers within 7 days of publication.

6.17 The submission to Scottish Ministers should be sent to the Scottish Government mailbox: Genderrepresentationonpublicboards@gov.scot and should include:

• A pdf copy of the report itself (or another format such as MS Word)
• A link to the publication on a relevant website.

6.18 Scottish Ministers will consider the content of reports when making their own reports to the Scottish Parliament on the operation of the Act across Scotland (see paragraph 6.22 below).

Connections to the Public Sector Equality Duty

6.19 Many of the public authorities subject to the requirements of the Act are also subject to the requirements of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012^[7], as amended (the 2012 Regulations). Under regulation 3 (reporting on mainstreaming) of the 2012 Regulations, public authorities must publish a regular progress report. If a public authority wishes to combine its reports on progress under the Act within its reports under the 2012 Regulations it can do so.

6.20 The 2012 Regulations were amended in 2016^[8] to include new regulation 6A on the use of member information. Under regulation 6A public authorities covered by that regulation must publish in their mainstreaming reports details of the number of men and women who have been members of the authority during the period covered by the report ("members of the authority" means members of the board).

6.21 Given the connection between the requirements of the Act and the reporting requirements under the 2012 Regulations, it may be helpful to combine reporting. Doing so would provide a complete picture, in one place, of action to meet legal obligations on board diversity. But there is no requirement to publish a combined report – it will be for appointing persons and public authorities to make this decision.

Scottish Ministers' reports to the Scottish Parliament

6.22 Scottish Ministers must report to the Scottish Parliament on the operation of the Act at intervals of not more than 2 years. It is for Scottish Ministers to determine the content of these reports. But, in preparing their reports to Parliament, Scottish Ministers must consider the reports published by appointing persons and public authorities on their functions under the Act.