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

Part 2: Draft Reporting Regulations

Overview

2.1 This consultation seeks comments on draft regulations which set out arrangements for reporting on progress under the Act.  You will find these at Annex A to this document.

2.2 The Act contains 4 reporting duties as follows:

1: Scottish Ministers must report on the carrying out of their functions under sections 3-6 of the Act.

2: Appointing persons must report on the carrying out of their functions under sections 3-6 of the Act.

3: Public authorities must report on the carrying out of their functions under sections 5 and 6 of the Act.

4: Scottish Ministers must report to the Scottish Parliament on the operation of the Act.

2.3 The first 3 of these 4 reporting duties are similar.  In order to avoid repetition this consultation document combines its consideration of these duties where appropriate.  The 4^th reporting duty is distinct and is treated separately.  The draft regulations cover all 4 of the reporting duties.

2.4 Throughout this document, the term “appointing person” includes the Scottish Ministers in their role as an appointing person unless otherwise stated.

2.5 This consultation document asks questions on:

• The overall timeframe for reporting
• Appointing persons’ and public authorities’ reports on their functions under sections 3-6 of the Act
• Scottish Ministers reports to the Scottish Parliament
• Alignment with reporting under the public sector equality duty specific duties

Detailed Proposals

Timescales for Reporting

2.6 Different public authorities will have different timetables for making appointments.  For many authorities, appointment rounds are infrequent and will arise less than once a year.  Making progress will therefore take time.

2.7 The approach in the draft regulations is that public authorities and appointing persons will be required to report on the carrying out of their functions under sections 3-6 of the Act at intervals of no more than 2 years, with the first reports being published not later than the end of April 2021.

2.8 This timetable aligns reporting with the timescales already established for reporting progress under the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (as amended).  This is discussed further at paragraphs 2.22-2.27 below.

Question 1 Do you think that public authorities and appointing persons should be required to report on the carrying out of their functions under the Act at intervals of no more than 2 years, with the first reports being published not later than the end of April 2021? 

Yes

No

Don’t know

Please tell us the reason for your answer.

2.9 The draft regulations also require Scottish Ministers to report to Parliament on a 2 year timetable, with the first report due by the end of December 2021.  The intention is that Scottish Ministers must use the information published by public authorities and appointing persons in their reports on the carrying out of their functions under the Act.  The deadline set for these reports is no later than the end of April 2021.  This will provide Scottish Ministers with around 8 months to produce their report to Parliament.

Question 2 Do you think that Scottish Ministers should report to the Scottish Parliament on the operation of the Act at intervals of not more than 2 years, with the first report being laid before Parliament not later than the end of December 2021?  

Yes

No

Don’t know

Please tell us the reason for your answer.

Content of Appointing Persons’ and Public Authorities’ Reports on their Functions under Sections 3-6 of the Act

2.10 The Act refers to “Scottish Ministers’” and to “appointing persons” and requires each to report on their duties under sections 3-6.  For the purposes of sections 3-6, the Scottish Ministers are appointing persons.  Their functions under these sections are the same as those of other appointing persons.

2.11 The draft regulations require reports on the carrying out of functions under the Act.  The regulations are intended to balance flexibility for individual public authorities to reflect their own position against a common framework that will allow a degree of comparability.  It is not therefore the intention to specify precisely and exhaustively what reports should contain.  But the draft regulations do set out a number of requirements as follows:

Sections 3 and 4 of the Act and whether the gender representation objective has been met

2.12 Sections 3 and 4 of the Act set out duties in relation to the appointments process.  These duties fall on the appointing person.  The draft regulations specify that the reports must contain a statement containing 3 elements:

• stating whether the gender representation objective has been met;
• providing information on any training received by or on behalf of an appointing person on the operation of sections 3 and 4 of the Act; 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, where the numbers will not identify individuals
      • whether an appointment was made, and if so, whether a woman was appointed.

2.13 Where the Scottish Ministers are the appointing person, their statement must provide this information for each authority to which Scottish Ministers make appointments.

2.14 Statements should be published in accordance with guidance (see Part 2 of this document).

Question 3 Do you think that appointing persons should include within their reports a statement containing the following 3 elements:

1. Stating whether the gender representation objective has been met.

Yes

No

Don’t know

Please tell us the reason for your answer.

2. Providing information on any training received by or on behalf of an appointing person on the operation of sections 3 and 4 of the Act.

Yes

No

Don’t know

Please tell us the reason for your answer.

3. 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, where the numbers will not identify individuals
    • whether an appointment was made and if so, whether a woman was appointed.

Yes

No

Don’t know

Please tell us the reason for your answers.

Sections 5 and 6 of the Act

2.15 Sections 5 and 6 of the Act cover appointing persons and public authorities.  Section 5 sets out duties in relation to encouraging applications by women and section 6 covers additional steps that may be taken.  The draft regulations specify that reports should include the following:

• Details of any activity undertaken by appointing persons and public authorities to encourage applications from women.  Where the Scottish Ministers are the appointing person, their report must provide this information for each authority to which Scottish Ministers make appointments.
• Details of any other steps taken by appointing persons and public authorities with a view to achieving the gender representation objective by 31 December 2022.  Where the Scottish Ministers are the appointing person, their report must provide this information for each authority to which they make appointments.

Question 4 Do you think that appointing persons and public authorities should report on the activity they have undertaken to encourage applications from women? 

Yes

No

Don’t know

Please tell us the reason for your answer

Question 5 Do you think that appointing persons and public authorities should, if the gender representation objective has not been met, report on the details of any other steps taken with a view to achieving the gender representation objective by 31 December 2022?  

Yes

No

Don’t know

Please tell us the reason for your answer.

Publication

2.16 The draft regulations state that publication must be in a manner which is accessible to the public and must be in accordance with guidance issued by Scottish Ministers.

2.17 Appointing persons and public authorities may meet their reporting duty by setting their report within other published documents if they wish.  This provision is intended to permit, but not to require, publication within reports made under the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (as amended).  It will also allow publication within annual reports or other corporate documents.  And it will allow a public authority and appointing person to publish a joint report, if they wish to.

Question 6 Do you think that appointing persons and other public authorities should be able to publish their reports on carrying out their functions under the Act within another document if they wish to do so?

Yes

No

Don’t know

Please tell us the reason for your answer

Scottish Ministers reports to the Scottish Parliament

2.18 The regulations specify that Scottish Ministers must lay reports before the Scottish Parliament at intervals of not more than 2 years.  The date of the first report should be no later than the end of December 2021.

2.19 The draft regulations state that Scottish Ministers’ reports should provide an overview of the operation of the Act by relevant public authorities and appointing persons.  The draft regulations do not specify any further what the content of these reports should be, but do state that in producing their reports Scottish Ministers must use information published by public authorities and appointing persons in their reports on carrying out their functions under sections 3-6 of the Act.

Question 7 Do you think that Scottish Ministers, in preparing their report to Parliament, must use information published by public authorities and appointing persons in their reports on carrying out their functions under sections 3-6 of the Act?  

Yes

No

Don’t know

Please tell us the reason for your answer

Question 8 The draft regulations do not specify the content of Scottish Ministers’ reports to Parliament other than that they contain an overview of the operation of the Act.  Do you have suggestions on the content of these reports?  If so, please tell us.2.20 “Laying” a report before the Scottish Parliament means that it is sent to the Presiding Officer who then makes it available to MSPs in the Scottish Parliament Information Centre.  The Parliament does not make the report publicly available.

2.21 The draft regulations therefore require Scottish Ministers to make their reports accessible to the public and to do so as soon as practicable after the report is laid before Parliament.

Alignment with reporting under the Public Sector Equality Duty

2.22 The Equality Act 2010 places a duty on public authorities to have due regard to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations – referred to as the “public sector equality duty”.  To enable Scottish public authorities to do this more effectively the Scottish Ministers made the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (as amended) (the 2012 Regulations)^[3] setting out a framework of activities and reporting obligations.  Most, but not all, of the public authorities covered by 2018 Act are also covered by the 2012 Regulations.

2.23 The 2012 Regulations also contain provisions under Regulation 6A relating to the gathering and use of information on the protected characteristics of board members^[4].  They require listed public authorities to publish details of the number of men and women who are members of the board of the authority; and to publish details of how they have used, and how they plan to use, any information provided to them by Scottish Ministers on the protected characteristics of their board.  (This latter provision has not yet been implemented).  In both cases the details are required to be published within reports on how the public sector equality duty is being mainstreamed across the functions of the public authority.

2.24 It is the intention that reporting under the Act can be aligned with reporting under the 2012 Regulations if authorities think that is appropriate.  The timescale for reporting under the Act has therefore been set to coincide with that under the 2012 Regulations.  The intention is to be flexible.  If a public authority wants to report on its functions under the Act within the reporting regime for the 2012 Regulations it can do so, but it is not required to.  In addition, the reporting proposals for the Act do not duplicate any of the requirements of the 2012 Regulations.

2.25 A very small number of the public authorities that are subject to the 2012 Regulations operate to a different cycle for reporting under those Regulations.  The use of the wording “not later than the end of April 2021” will allow those authorities to publish in alignment with their specific duties reporting in April 2020 if they wish to.

2.26 Scottish Ministers have indicated that they wish to review the operation of the 2012 Regulations.  Preparations for the review are underway, and the intention is to assess how effective the specific duties are and how they might be improved.  Given the desire for close alignment between the reporting regimes for the 2012 Regulations and the Act, the impact of any changes made to the 2012 Regulations will need to be considered in due course.

2.27 The public sector equality duty in the Equality Act 2010 and the 2012 Regulations which were made to support it can be enforced by the Equality and Human Rights Commission (EHRC).  This is a Non-Departmental Public Body (NDPB) established by the UK Government.  It operates across GB but it is not a “cross-border public authority”^[5].  Its remit and functions are set out in the Equality Act 2006.  Scottish Ministers cannot place additional duties on the EHRC.  The EHRC does not therefore have an enforcement role for the Act or the reporting regulations made under it.

Question 9 What, if any, comments do you have on the relationship between the proposals for reporting on the Act and reporting under the 2012 Regulations in relation to the public sector equality duty specific duties.

Conclusion

2.28 The draft regulations set out a framework for reporting under the Act which is intended to be flexible and to align with other reporting cycles.  There is provision to allow reports to be published in combination should particular appointing persons and public authorities wish to do so.

2.29 Reports must state whether the gender representation objective has been met and must include details of action being taken to meet obligations under the Act.

Question 10 Please tell us any other comments you have on the draft regulations.