Gender Representation on Public Boards (Scotland) Act 2018: consultation on implementation

Part 1: Background and Context

The Gender Representation on Public Boards (Scotland) Act 2018

Introduction

1.1 The purpose of the Gender Representation on Public Boards (Scotland) Act 2018 is to improve the representation of women on the boards of Scottish public authorities.  

1.2 The Act was made following Scottish Government consultation in 2014 on how to shape proposals on using legislation to achieve gender equality on the boards of public bodies^[1] and further consultation on a draft Gender Representation on Public Boards (Scotland) Bill in 2017^[2].

1.3 The Act sets a gender representation objective for the non-executive member component of public boards.  The objective is that 50% of non-executive members are women.

1.4 Only non-executive members appointed to public boards are covered by the Act.  A non-executive member of a public board is an individual who is not part of the executive structure of the organisation in question.  In contrast to an executive member, non-executive members are not employees and are not involved in the day to day operational management of the organisation.  Rather they act in an advisory capacity and offer leadership, direction and guidance to the organisation.  Accordingly, “non-executive member” is defined in section 2 of the Act to exclude positions held by employees.

1.5 Schedule 1 of the Act lists the public authorities covered and specifies where some non-executive members are excluded from the Act’s provisions (for example, because they are elected rather than appointed to the board).

Duties and Requirements

1.6 The Act places duties on public authorities, appointing persons and Scottish Ministers in connection to their role in achieving the gender representation objective.  For many public authorities, Scottish Ministers are the appointing person.  But the Act covers Scottish Ministers and appointing persons separately as the duties on Scottish Ministers extend beyond their role as the appointing person and cover functions which other appointing persons don’t have such as laying reports before the Scottish Parliament.

1.7 The Act requires that appointments must be made on merit.  But where the board has not already met the gender representation objective and there are two or more equally qualified candidates for an appointment, the Act requires the appointing person to appoint a candidate who is a woman, unless there are specific circumstances which would justify appointment of another candidate.

1.8 In addition, public authorities, appointing persons and Scottish Ministers must take such action as they consider appropriate to encourage applications from women.  And, where the gender representation objective has not been achieved, they must take such additional steps as they consider appropriate with a view to achieving it by the end of December 2022.

1.9 These duties are not yet in force.  Scottish Ministers will specify in due course the date (or dates) when the duties will come into force.  

Implementation

1.10 An important element of the legislation is a requirement to report on progress.  The purpose of reporting is to highlight action that is being taken and ensure transparency.  Reporting duties are placed on public authorities, appointing persons and Scottish Ministers in relation to their functions under the Act.  Scottish Ministers are under an additional duty to lay a report before the Scottish Parliament on the operation of the Act.  The detailed arrangements for reporting, such as timing, frequency and content, are not specified in the Act.  Regulations must be made setting out these arrangements.

1.11 To support the implementation of the Act, Scottish Ministers must publish guidance and those with duties under the Act must have regard to the guidance.

1.12 This consultation seeks views on a draft set of reporting regulations and draft guidance.  When the regulations and guidance have been finalised, the Scottish Ministers will bring the duties in the Act into force.

The Public Appointments Context

Regulated Appointments

1.13 Many public appointments are made under a system regulated and monitored by the Ethical Standards Commissioner.  It is the Commissioner's role to ensure that appointments are made on merit, using methods that are fair and open.  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.

1.14 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 (except regulated chair appointments) and Higher Education Institutions, is run by the public bodies concerned (see paragraphs 1.21-1.23).

1.15 Appointments are only made on merit.  The definition of merit is not fixed; it is determined by the appointing person at the start of each appointment round and set out in the person specification.  The person specification is a clear and accurate description of the skills, personal qualities, knowledge and experience a person will need to be effective in the role. 

1.16 Selection panel members assess the merit of applicants against the person specification using the methods they have agreed. Applicants are not assessed against each other.  New requirements cannot be introduced during the appointment round.

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

1.18 The Commissioner’s strategy, entitled Diversity Delivers, is intended to enhance equality of opportunity and to increase the diversity of the boards of Scotland's public bodies.

1.19 The requirements of the Act are consistent with the Code of Practice.  The Commissioner will produce guidance on how the requirements of the Act should operate in the context of the Code.

1.20 The Commissioner does not have a role in determining compliance with the Act.

Non-Regulated Appointments

1.21 For the purposes of the Act, colleges and Higher Education Institutions are defined as “public authorities” in schedule 1.  Appointment of non-executive members of the boards of colleges and Higher Education Institutions (HEIs) are not regulated by the Commissioner.

1.22 The HE Code of Good Governance sets out arrangements for appointments to Higher Education Institutions.  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.

1.23 College boards with responsibility for board appointments must ensure a formal and open procedure is in place for recruiting and selecting new non-executive board members. Boards must have regard to all relevant Ministerial Guidance on board appointments such as the College Sector Board Appointments: 2014 Ministerial Guidance and the Code of Good Governance for Scotland’s Colleges.

1.24 In relation to 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.