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

Part 3: Draft Guidance

Introduction

3.1 Scottish Ministers must publish guidance on the operation of the Act.  This consultation explores a draft of the guidance which you will find at Annex B to this document.

3.2 Section 7(2) of the Act sets out what the guidance must in particular cover; and sections 7(3) and (4) require an appointing person and a public authority to have regard to the guidance in carrying out their functions under the Act.  The Act specifies that guidance must in particular cover:

• An appointing person’s functions in:
  • Appointing non-executive members under sections 3 and 4,
  • Encouraging applications by women under section 5(1),
  • Taking any steps under section 6(2),
  • Reporting under section 8(4),
• A public authority’s functions in:
  • Encouraging applications by women under section 5(2),
  • Taking any steps under section 6(3),
  • Reporting under section 8(5).

3.3 Guidance can cover additional areas not specified in section 7(2), but cannot be used to create new duties or requirements that are not prescribed by the Act.

3.4 During the Act’s parliamentary passage, the Scottish Government committed to include a number of specific issues within the guidance:

• More information on the meaning of “a characteristic or situation particular to that candidate” in section 4(4) of the Act;
• Confirmation of the appointing person or persons for each of the public authorities in schedule 1;
• Examples of good practice.

Structure of Draft Guidance

3.5 The draft guidance is attached at Annex B of this consultation document.  It is structured in 8 main sections:

• An introduction, providing background and context
• Terminology used in the Act
• The appointment process set out in the Act
• Encouraging applications by women
• Taking other steps
• Reporting progress
• Achieving the gender representation objective
• Good practice guide

3.6 There is also a section containing references to other guidance material produced by the Commissioner for Ethical Standards in Public life, the Equality and Human Rights Commission and others.

3.7 The guidance ends with a list of who is covered by the Act – public authorities and appointing persons.

Content of Draft Guidance and Consultation Questions

Introduction

3.8 This section sets out the purpose of the guidance and places it in the wider context of public appointments.  The status of the guidance is also explained.

Terminology used in the Act

3.9 The draft guidance explains the meaning of a variety of terms used in the Act:

• The “gender representation objective”
• “Public authority” and “appointing person”
• “Public board”
• “Non-executive member” and “excluded position”
• The definition of “woman” for the purposes of the Act

Question 11 Do you have any comments on the terminology section of the guidance?  If so, please let us know.

The appointment process

3.10 The draft guidance discusses how the provisions at sections 3 and 4 of the Act can be used within the public appointments process.  This includes consideration of the term ‘equally qualified’ and of when a ‘characteristic or situation’ particular to a candidate who is not a woman may be used to select that candidate (section 4(4) of the Act).

Question 12 Do you have any comments on the guidance on meeting the duties under sections 3 and 4 of the Act?  If so, please let us know.

Question 13 Do you have any comments on the guidance on section 4(4) of the Act which considers when a ‘characteristic or situation particular to a candidate who is not a woman may be used to select that candidate?  If so, please let us know.

Encouraging applications by women

3.11 Section 5 places a requirement on appointing persons and public authorities to take such steps as they consider appropriate to encourage women to apply to become non-executive members of public boards.  While it is for appointing persons and public authorities to determine what steps are appropriate, the guidance discusses how this might be approached.

3.12 Appointing persons and public authorities may also refer to the Scottish Government’s Succession Planning Guidance and Toolkit^[6] which seeks to help public bodies to develop effective succession plans for their boards.

3.13 Section 5(3) provides, for the avoidance of doubt, that subsections 5(1) and 5(2) do not prevent an appointing person or public authority from taking such steps as it considers appropriate to encourage persons with other protected characteristics (within the meaning of section 4 of the Equality Act 2010) to apply to become non-executive members of the public board.

Question 14 Do you have any comments on the guidance on meeting the duties under section 5 of the Act?  If so, please let us know.

Taking other steps

3.14 Section 6 places a duty on appointing persons and public authorities to take such steps as they consider appropriate, in addition to anything done under sections 3 to 5 in the case of appointing persons, and in addition to anything done under section 5 in the case of public authorities, with a view to achieving the gender representation objective by 31 December 2022.  Under subsection (1), section 6 applies whenever the gender representation objective is not achieved in relation to a public board.

Question 15 Do you have any comments on the guidance on meeting the duties under section 6 of the Act?  If so, please let us know.

Reporting

3.15 Arrangements for reporting progress under the Act will be set out in regulations – and this document includes consultation on draft regulations.  The draft guidance provides further information on how reporting should take place.  This includes the content of reports, the approach to publication and how reports should be submitted to Scottish Ministers.

Question 16 Do you have any comments on the guidance on meeting the reporting requirements?  If so, please let us know.

Achieving the gender representation objective

3.16 Achievement of the gender representation objective is not a one-off event and for some bodies this will fluctuate.  The draft guidance discusses how the Act applies when the gender representation objective has been achieved.

Question 17 Do you have any comments on the guidance on how the Act applies when the gender representation objective has been achieved?  If so, please let us know.

Examples of good practice

3.17 The draft guidance concludes with some examples of good practice, including examples of steps to encourage women to apply to become non-executive members and examples of other steps that could be taken.

Question 18 Do you have any comments on the guidance on good practice examples of steps to encourage women to apply to become non-executive members and examples of other steps that could be taken?  If so, please let us know.

Question 19 Please tell us any other comments you have on the draft guidance.