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

Annex C

Impact Assessments

Introduction

This Annex summarises the approach towards 3 impact assessments:

• Equality Impact Assessment

A single assessment covering both the guidance and the reporting regulations.

• Business and Regulatory Impact Assessment

An assessment covering the reporting regulations only.

• Data Protection Impact Assessment

A single assessment covering both the guidance and the reporting regulations.

Final versions of these impact assessments will be produced to accompany the final set of regulations when they are introduced to the Scottish Parliament.

Draft Equality Impact Assessment – Summary of Approach

The equality impact assessment process helps to identify the impact of a policy on people who share certain ‘protected characteristics’: age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Who is affected by the proposals?

The Act primarily affects women by requiring a range of activities to be undertaken to increase the representation of women on the boards of Scottish public authorities.

The Act affects people who are not women to the extent that, in a tie-break situation where there are 2 candidates of equal merit, the appointing person must select the candidate who is a women (unless the appointment of a candidate who is not a women can be justified on the basis of a characteristic or situation particular to that candidate).  People who are not women are also affected to the extent that the Act requires steps to be taken to encourage applications from women and does not require steps to encourage applications from people who are not women.

The focus on increasing the representation of women is lawful positive action.  Equality legislation permits interventions and resources to address disadvantage on the basis of protected characteristics where that disadvantage results in under representation or lack of participation.

Although the Act addresses the under-representation of women it does not prevent action to tackle the under-representation of people with any other protected characteristics.

Given that the Act primarily affects women, the guidance to support the Act and the regulations setting out reporting requirements will focus on women. 

Wider opportunities to promote equality

Women are not a homogeneous group – they are diverse and have other protected characteristics.  Women have an age and an ethnicity; some are disabled, are of different faiths and none, and have differing sexual orientations.  It is important that action ensures that all women can benefit from the new requirements for gender representation.

In particular, the barriers experienced by women from minority ethnic communities, disabled women, young women and women of different faiths and of differing sexual orientations need to be identified and addressed.  Pregnant women and women with childcare responsibilities may also have particular needs.

The good practice section of the guidance can explore these wider diversity issues in more detail.  But it is not possible to use the guidance to introduce new requirements over and above those set out in the Act.

Draft Business and Regulatory Impact Assessment – Summary of Approach

The Business and Regulatory Impact Assessment helps the Scottish Government to analyse the costs and benefits of proposed legislation.  This impact assessment only covers the draft regulations, it does not cover the guidance.

Options considered

Option 1 – Do nothing

The Act states that Scottish Ministers, appointing persons and public authorities must publish reports in accordance with provisions made in regulations.  They must also publish reports on carrying out their functions under all relevant sections of the Act.

Doing nothing would mean that Scottish Ministers, appointing persons and public authorities would not be able to meet their statutory obligation to report.

Option 2 – Require annual, stand-alone reports

The regulations could require reports every year on a specified date.  However, appointing rounds are not regular and for many public authorities they will not occur every year.  It will take time for progress to be made.  Reporting every year therefore may be too frequent for meaningful progress to be seen.

Option 3 (recommended) – Align with other reporting timeframes and with the flexibility to publish within another document

The regulations could align reporting with existing frameworks.  For example, most public authorities covered by the Act are subject to the public sector equality duty and must report progress on that every two years under arrangements set out in the Equality Act 2010 (Public Sector Equality Duty) (Scotland) Regulations 2012 (as amended).

Costs

The BRIA is expected to take the following approach to costs:

• Costs estimated for gathering and analysing information and writing text.
• Costs estimated for publication.

Where the gender representation objective has already been achieved, Scottish Ministers, appointing persons and public authorities need only to report on section 5 of the Act.  Section 5 requires them to take such steps as they consider appropriate to encourage women to apply to become non-executive members of the public board.  It is estimated that reporting here would consist of one page of material.

Where the gender representation objective has not been achieved, Scottish Ministers, appointing persons and public authorities must report on their functions under sections 3-6 of the Act.  It is estimated that reporting here would consist of up to 3 pages of material.

Progress over time

An estimated one third of public boards will have achieved the gender representation objective by the time of the first set reports (April 2021).  For these, the appointing person and public authority will only report on section 5.  As time passes, more public boards are expected to meet the gender representation objective meaning that the cost of reporting is expected to decrease in subsequent years.

Business

The regulations require public authorities to publish reports.  There are no anticipated costs for business or impacts on business.

Legal Aid

The draft regulations create no new rights or responsibilities.  Nor do they create any new procedure or right of appeal.  The policy requirement is only that a report is published.

Enforcement, sanctions and monitoring 

The regulations do not include enforcement mechanism or sanctions.  They do require appointing persons and public authorities to submit a copy of their report to the Scottish Ministers within 7 days of publication.  Scottish Ministers must use the information in these reports to produce an overview of the operation of the Act.  This overview must be laid before Parliament.

Draft Data Protection Impact Assessment – Summary of Approach

The data protection impact assessment looks at data protection issue that arise in relation to the guidance and the reporting arrangements for the Gender Representation on Public Boards (Scotland) Act 2018.

Current procedures for gathering and using diversity data during the public appointments process largely will not change.  Details of these procedures are available here:  http://www.publicappointments.org/delivering-diversity/overview/

Changes to existing practice

Publication of a report will use data in a different way and this in particular means that privacy issues must be considered.

Identification of issues

Involvement of multiple organisations

Multiple organisations are not involved.  The duty to publish falls on the appointing person (in most cases this will be the Scottish Ministers) and it is also the appointing person who will process data.

Anonymity and pseudonymity

Individuals will not be identifiable.  There will be no new database, nor will data from other data sources be combined.

Technology

Reporting on progress does not require any new technology.

Identification methods

There are no new identification methods.

Sensitive/Special Category personal data

Sex is not classed as sensitive/special category personal data.

Changes to data handling procedures

Data on gender is already gathered and processed as part of the public appointments process.  No changes will be made to how data is gathered or stored.

Statutory exemptions/protection

Data must be processed in order to meet the statutory requirements set out in the Gender Representation on Public Boards (Scotland) Act 2018.

Justification

The public appointments process already requires the processing of diversity data, including gender.  The 2018 Act makes two changes to how gender data is used.  The changes are lawful under EU equality legislation.

Conclusion

This Annex sets out the intended approach to a range of impact assessments.

Question 20 If there is any information that you would like to highlight that you think would be helpful for the Equality Impact Assessment, the Business and Regulatory Impact Assessment, or the Data Protection Impact Assessment then please let us know.