Finally, the consultation paper asked two questions seeking views on the impact of the draft Bill on equality groups, and the business and financial impacts. Responses to these questions will support the development of an Equality Impact Assessment and a Business Regulatory Impact Assessment.
Equality Impact Assessment
Question 10: To help with the development our Equality Impact Assessment, please provide any comments on the impact of the draft Bill on people who share certain "protected characteristics": age, disability, sex, gender reassignment, sexual orientation, race and religion or belief, or any further information you think is relevant
A total of 60 respondents made a comment at Question 10. Inevitably, given the consultation's subject area, many of the issues raised had already been highlighted elsewhere and respondents often referenced their answers at earlier questions.
A small number of respondents stated that they had not identified any negative impacts for people with protected characteristics. However, most respondents who commented did identify potential impacts.
A frequently raised issue concerned the degree to which the Bill is inclusive of transgender people and/or people who identify as non-binary. It was suggested that, as drafted, the Bill could be negative for transgender people, creating a legal difference between those who "are" a gender, and those who "identify as" a gender, for public appointments, and that this could be a particular problem for Trans people who do not have a gender recognition certificate. It was suggested that this issue, and the potential exclusion of those with non-binary identities, could be redressed with small changes to the wording of the Bill.
A number of respondents noted that given the gender representation objective, men are likely to be impacted negatively. An example given was that potential male applicants and those male applicants who reach the final stages of the selection process could have concerns that that their application could be legitimately rejected and the Bill used as justification. It was also suggested that a perception of unfairness and potential discrimination might prevail.
Other respondents suggested that women could also suffer a negative impact, if regarded as token appointments, or that, if concerned that they are likely to be appointed on the basis of their gender, fewer applications from women could be received. It was also suggested positive impacts on women will be limited if wider access issues are not also addressed. However, it was suggested that the Bill should also have a beneficial effect on women who are at risk of pregnancy or maternity discrimination.
Other protected characteristics
It was noted that the proposals could be beneficial for lesbian, gay and bisexual people if "sexual orientation" was specifically mentioned and discrimination noted as unlawful.
The most-frequently-made comment, however, was that by prioritising sex/gender, the Bill could either have a negative impact on those from the other protected characteristics groups or at least would not do anything to promote Board membership amongst people from these groups. It was suggested that intersectionality (having more than one protected characteristic) could be considered in the equality impact assessment and also that it would helpful to understand the gender representation objective in the context of a range of measures designed to achieve better representation of people with other protected characteristics currently under-represented on public boards.
A very much less common view was that the Bill might have a positive impact on people who share other protected characteristics, if it makes Boards more aware of equality and diversity issues and more committed to achieving a diverse membership.
A small number of respondents made specific reference to the Equality Act 2010, including that prioritising gender appears to be in conflict with the intention of the Act to protect all characteristics equally, and that the Bill's desired gender representation outcomes could be met through the Act and Ministerial Instruction to public bodies.
Otherwise, a small number of comments addressed wider issues of social exclusion, including how these may impact and feed through into the profile of membership on Public Boards. A specific suggestion was that there should be person-centred support and empowerment work to increase the representation of people who are multiply-excluded through a combination of protected characteristics and socio-economic exclusion.
Business Regulatory Impact Assessment
Question 11: To help with the development our Business Regulatory Impact Assessment, please provide any comments on the costs and benefits of the draft Bill, or any further information you think is relevant.
A total of 39 respondents made a comment at Question 11. Respondents sometimes included evaluation of the costs and benefits involved with proposals they had made themselves at earlier questions in addition to those associated with the Bill as drafted. In general, Public Body and Universities and Colleges respondents considered there would be few additional costs, while "Other" organisation respondents were more likely to identify activities incurring costs.
Around 1 in 3 respondents (predominantly Public Body respondents) did not identify any additional costs associated with the draft Bill, or did not think additional costs would be significant. Minor costs identified by these respondents included:
- Writing and promoting guidance.
- Ensuring that all interviewing staff are trained.
- Administrative costs of gathering information.
- Encouraging applications.
- Staff time to develop mentoring schemes.
- Outreach work.
- Explaining/defending the objective.
- Longer timescales for completing recruitment exercises, including if Ministers choose to see candidates face to face before a final decision.
Other respondents identified general costs associated with the Bill - such as requirements for additional resources or administration for which they did not specify a scale. More specific activities identified as involving additional cost included:
- Capacity-building work.
- Training for existing and prospective board members, and for employees of the relevant organisations to ensure the range of equality issues and the business benefits of enhanced diversity at Board level are understood.
- Improving recruitment procedures.
- Proactively encouraging applicants.
- Monitoring volumes of applications by gender, to guard against perception on the part of potential applicants that the selection process might be skewed against applicants of one gender.
- Support with candidates' travel expenses.
- Provision of child-care for women with children, or of appropriate care for women with other caring responsibilities.
- Setting up an independent body to oversee the legislation and hear any appeals.
The individual cost mentioned most frequently, predominantly by Universities and Colleges respondents, was reporting requirements, which are not set out in the draft Bill, but on which views were sought at Question 8. Comments included:
- That an assessment of minimal additional costs for the proposals as a whole was based on an assumption that reporting obligations can be met using existing publications such as the Equality Report or Annual Report, or that linking reporting arrangements to those followed under the Equality Act (Specific Duties) (Scotland) Amendment Regulations 2016 would assist in minimising compliance costs.
- That costs could be quite high, depending on the quantity and level of reporting required.
A small number of respondents cited indirect costs associated with potential negative consequences of the proposed legislation including:
- Appointment of poorer quality board members leading to less effective Board performance and greater expense to the tax payer, or more challenges to the decisions made by public bodies.
- Potentially diminishing the Equality Act and undermining the creation of a more inclusive workplace through its division of existing equality groups.
Benefits were only identified briefly, and were much in line with those set out in the consultation paper, including that Public Boards would:
- Have greater diversity of perspective.
- Be more representative of the communities served.
- Improve sector attractiveness to currently under-represented groups.
Email: Eileen Flanagan
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House