Summary of the Draft Bill
The purpose of the Gender Representation on Public Boards (Scotland) Bill is to redress gender imbalances on the boards of public bodies.
The Bill seeks to achieve this by setting a gender representation objective for the non-executive member component of public boards and requiring certain action to be taken in the appointing of non-executive members, towards the achievement of the objective.
Who is covered?
Only bodies that are "Scottish public authorities with mixed functions or no reserved functions" are covered by the Bill. The Bill does not therefore cover private companies or voluntary organisations. Schedule 1 lists those bodies it is proposed will be covered by the Bill, and includes certain colleges and higher education institutions.
Only non-executive members appointed to public boards (that is, members who are not also employees of the body in question) are covered by the Bill. Schedule 1 also specifies other members of the relevant public bodies who are excluded from the Bill's provisions (for example, because they are elected as opposed to appointed to the board).
The Bill has been made possible by the Scotland Act 2016 which transfers competence to the Scottish Parliament to legislate on equal opportunities as far as relating to the appointment of non-executive members to the boards of Scottish public authorities  . It does so by creating an exception to the equal opportunities reservation in the Scotland Act 1998.
However, the application of EU law, including a body of European Court of Justice case law, also has implications for how the Bill can be framed. A summary of the relevant EU legislative framework and its implications is set out at Annex A. The key principles in EU law which any Bill in this area must seek to take account of are:
- Positive action measures can only be used to appoint on the grounds of gender where candidates are judged to be of equal merit, and;
- These measures cannot give automatic and unconditional priority to female candidates over male candidates and vice versa.
The legal position is complex and no final decisions have yet been taken as to exactly what might be needed to ensure compliance with EU law. In particular, no final decision has yet been taken on whether the Bill may apply to both gender equally.
The Gender Representation Objective
Section 1 of the Bill sets the 'Gender representation objective'.
The objective is that a public board has-
(a) 50% of non-executive members who are female or who identify as female, and
(b) 50% of non-executive members who are male or who identify as male.
Where a public board has an odd number of non-executive members, the requirement for 50% female and 50% male non-executive members applies as if the board had one fewer non-executive member.
Duty when appointing non-executive members - 'The Tie-Breaker Provision'
Sections 3 and 4 of the Bill describe the duty to take certain steps when appointing non-executive members. No action is required in relation to executive members.
Certain other members of boards are excluded by virtue of being elected to the board as opposed to appointed. Excluded positions are listed in schedule 1 alongside the relevant body.
The duty falls on the "appointing person". In the majority of appointments to public boards the "appointing person" is Scottish Ministers. However, other non-executive appointments are made, for example by the Lord President (for the Judicial Appointments Board for Scotland) and by the Scottish Parliamentary Corporate Body (for the Standards Commission for Scotland and the Scottish Commission for Human Rights).
Where there are two or more equally qualified candidates for an appointment, the appointing person must appoint a candidate of the under-represented sex unless there are exceptional circumstances which tip the balance in favour of another candidate.
This is the tie-breaker provision. It applies only where there are two or more equally qualified candidates.
Schedule 2 describes how the Bill should be applied in relation to certain listed authorities. These authorities are: the Judicial Appointments Board for Scotland; Regional Board for Glasgow Colleges; Regional Colleges, and the Scottish Criminal Cases Review Commission.
Section 5 of the Bill places a duty on all appointing persons and listed public authorities to take steps, as appropriate, to encourage persons of the under-represented gender to apply to become a member of a public body.
In contrast to the tie-breaker provision which focusses on the decision made by appointing persons, section 5 focusses on the process which leads up to an individual appointment.