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Gender Representation on Public Boards (Scotland) Bill

Overview

The Bill creates a target for public boards to have 50% of non-executive members who are women. A non-executive member is on a public board but not an employee of the public authority. They don't engage in the day-to-day management of an organisation. 

They're involved in:

  • policymaking 
  • planning exercises
  • monitoring of the executive directors 
  • acting in the interest of the company stakeholders

If a public board has an odd number of non-executive members, the goal applies as if the board had an even number.

If there’s more than one candidate for a vacancy on a public board, there should be a mix of genders. At least one candidate should be a woman and at least one candidate should not be a woman. 

 

You can find out more in the Explanatory Notes document that explains the Bill.

Why the Bill was created

The Bill is being introduced to ensure equality of representation of women on public boards. 

Statistics showed that women were not represented across decision making bodies. This includes: 

  • public sector boards 
  • private sector boards 
  • political institutions, including the Scottish Parliament and the House of Commons 

The most recent census showed that women made up 51.5% of Scotland‘s population in 2011. In January 2018, only 45% of members and 25% of chairs were women. This limits women’s involvement and influence in public life and decision making.

You can find out more in the Policy Memorandum document that explains the Bill.

Where do laws come from?

The Scottish Parliament can make decisions about many things like:

  • agriculture and fisheries
  • education and training
  • environment
  • health and social services
  • housing
  • justice and policing
  • local government
  • some aspects of tax and social security

These are 'devolved matters'.

Laws that are decided by the Scottish Parliament come from:

Becomes an Act

This Bill passed by a vote of 88 for and 28 against, 0 abstentions. It became law on 8 March 2018.

Introduced

The Scottish Government sends the Bill and related documents to the Parliament.

Gender Representation on Public Boards (Scotland) Bill as introduced

Scottish Parliament research on the Bill 

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

Have your say

The deadline for sharing your views on this Bill has passed. Read the views that were given.

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

Video Thumbnail Preview PNG

First meeting transcript

The Convener (Christina McKelvie)

Good morning and welcome to the 21st meeting in 2017 of the Equalities and Human Rights Committee. We have received apologies from David Torrance. I make the usual request that mobile phones be switched to silent or to airplane mode. I also remind members to keep mobile phones off the table.

Agenda item 1 is the first part of our stage 1 scrutiny of the Gender Representation on Public Boards (Scotland) Bill. We have two panels of witnesses, so I am minded to give about 50 minutes for each one. I hope that we will be concise with our questions and I will allow the witnesses to give us full and detailed answers if they can. That would be incredibly helpful.

I welcome Talat Yaqoob, who is the chair of Women 50:50; Suzanne Conlin, who is a board member of the Scottish Women’s Convention; and Lindsey Millen, who is the policy manager at Close the Gap. The broadcasting person will deal with microphones, so the witnesses do not have to worry about pressing buttons. I hope that we will have a free-flowing conversation but, if any of the witnesses wants to come in, it would be incredibly helpful if they would catch my eye.

For the sake of transparency, I declare an interest as a steering group member of Women 50:50. I am very passionate about that. We should hear good stuff from Women 50:50 and all the others, too.

The witnesses have provided us with excellent written evidence. We have received a lot of written evidence that has been incredibly helpful in understanding the bill and what it does. All three witnesses come at the bill from slightly different angles, so I ask them to tell us why it is necessary and how it will make a difference.

Talat Yaqoob (Women 50:50)

Women 50:50 advocates 50 per cent representation of women across all decision-making positions. Our public boards make key decisions for the good of Scotland, and that includes the 51 per cent of the population who are women. While there is only 35 per cent representation of women on public boards, there is a deficit in decision making.

Fairness on our boards makes for better decisions. The evidence that McKinsey & Company has collated and what the Davies review says about private boards reveal to us that, when there is more diversity around a decision-making table, we have more effectiveness, higher productivity and better profitability. Therefore, it makes sense for there to be diversity in the people who make fundamental decisions about Scotland when those impact a diverse population in the first place.

I am positive about the bill. Women 50:50 has proposed amendments to strengthen it, which will come as no surprise. However, it is an excellent step in the right direction. It is one of the Women 50:50 campaign’s three asks.

Suzanne Conlin (Scottish Women’s Convention)

One of the reasons why we think the bill is important is that women tell us that it is. Our role is to tell politicians and policy makers what women think, and they tell us that the measure is important to them. It is also important because the services that public bodies provide, or the decisions that they make, predominantly affect women more than men. Therefore it is important that women are on the boards of those organisations so that they can influence the decisions that they make.

Lindsey Millen (Close the Gap)

Women’s employment is our main focus. Occupational segregation, whereby women and men do different types and levels of work, is a major issue in Scotland’s labour market and a drag on growth. Close the Gap research has shown that, if we addressed occupational segregation at all levels of the labour market, it could be worth £17 billion to the Scottish economy.

Occupational segregation is also bad for women and for the workplace because it leads to a waste of women’s talent. We want to ensure that women can access the roles on public boards, because we will then be able to create a new generation of role models for young people—in particular, young women, who will be able to see that those jobs are for them.

Obviously, we agree with Women 50:50 that it is essential that women’s voices be represented at all levels of decision making, because we know that, when they are included, the context and content of the discussions change, as do the decisions that are made.

We are very positive about the bill.

The Convener

One of the questions that started some of the debate on the issue is about how we encourage more women to step forward. We are looking for ideas on that, so we would be keen to hear yours.

We have received written evidence on the golden skirts syndrome, whereby one woman is on many boards because she is incredibly talented and incredibly busy. How do we widen it out to get greater diversity and people from different socioeconomic backgrounds and other backgrounds? If you have any ideas about that, we could interrogate some of them in the legislative process.

Talat Yaqoob

The golden skirts phenomenon is referred to in Norway, where a number of women are on multiple boards. However, it has been exaggerated to quite an extent. The golden skirts—the women who are on more than one board—are 15 per cent of board members who are women. For men, the figure is 10 per cent, so there is a 5 per cent difference. It is important that we do not exaggerate the number of women who are on multiple boards. In fact, Norway has gone quite far in ensuring that that does not happen. It is not a huge concern.

A concern is to ensure that we have diversity of women around the decision-making table. It is critical that we have women from different socioeconomic backgrounds, black and minority ethnic women, migrant women and lesbian, gay, bisexual and transgender women, because that is part of the diversity that makes good decisions. We can do that by ensuring that outreach happens not only among women who are already well networked. That requires public boards and public organisations to link up with community groups, such as Amina—the Muslim Women’s Resource Centre or the Equality Network, to ensure that vacancies are advertised at the most grass-roots level possible.

An example of that is that, at the moment, the south east of Scotland transport partnership—SEStran—is advertising vacancies through Equate Scotland, of which I am the director, to ensure that women are aware that they can be board members. That is specifically to advertise to women.

There are already examples of organisations taking that leap, but the most important thing that we can do is ensure that public boards have their own networks of community groups and ensure that those community groups support the boards in the advertising, training and development that are required for women to become board members.

Suzanne Conlin

I very much agree with that sentiment. When we ask women about being a board member, the questions that they ask are, “How do I find out?”, “Where do those vacancies exist?” and, “How do I reach them?” How do women find out if they are not in existing networks?

For a lot of women, becoming involved is about time. If a woman works full time and has children, her time will already be very precious and she will probably already struggle with childcare. It is not just about how we encourage women; it is about how we make things accessible to them so that they can feel free to give up their time to be a board member, which will often involve being away from their children. It is about how we get to them, encourage them and give them support to do that.

Lindsey Millen

Obviously, I agree with what my colleagues have said. A number of measures can be taken to encourage women to be involved. For example, very clear written policies on how a board plans to increase the number of women on it can be established. There can be an overarching strategy. Boards can review their recruitment strategies and policies and consider specifying in them that the women whom they seek to recruit will be as diverse as possible.

Creating a national pool of candidates who are skilled and prepared for public appointments is really important. We would like prescriptive guidance that details the steps that must be taken and that puts the onus on the appointing person and the public body to encourage women, to ensure that women receive adequate capacity building and to take steps to advance women’s equality. It is important that that is done not just at board level; those steps must be taken at every level of public bodies, because women will not develop the experience and skills that they need without the encouragement of progression throughout the whole organisation.

Organisations must ensure that they effectively communicate with women that board memberships are for them, and they must consider the timing of board meetings, how they are scheduled and access to childcare.

We have done a lot of work on the public sector equality duty and compliance with it across public bodies. There is a lot of overlap between what public bodies are required to do under that duty and what they will be required to do under the Gender Representation on Public Boards (Scotland) Bill. A lot of things should already be happening that will contribute but, unfortunately, as part of our assessment of the duty over the previous three reporting cycles, we have seen that there is a real lack of evidence of specific steps being taken. It is really important for the bill that public bodies are required to give evidence that they have taken steps and not just assurances that they are committed to equality.

The Convener

Gail Ross has a brief supplementary question.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

A lot of women I spoke to when we were trying to get people to go on to a certain board that I was on were unsure of a board’s functions. They were quite intimidated because boards are, as we know, predominantly male dominated. We have to look at a culture shift as well as legislative change. How can elected members, members of the public, community councils and local authorities get out the message about how women can be effective and build up their confidence to apply for those positions?

Suzanne Conlin

A lot of it is about language. We often find that the language is overwhelming and that women are simply intimidated by that. I agree with you. A lot of women tell us that they do not understand what being a board member means. They do not know what they would have to say and contribute, what skills they would need and how much time it would take up. Women tell us that they need more information about what is involved, what would be asked of them and what they would be expected to do. A lot of women tell us that there is a huge confidence issue. They are not confident in their skills and abilities. There is a role in changing the culture of how women view their value and how they can contribute.

Talat Yaqoob

With a different hat on, I am the director of Equate Scotland, which has a partnership with the Scottish Government. We run evening training sessions on how to be involved in a public board and what public boards are. Women who are on public boards come along and talk about why they are involved, what they have learned from that and what expertise they use while they are on the board. Every time that we hold those events, they are sold out. There is no lack of talent or interest among women regarding being on public boards, and the events that we hold shape the likelihood of women pursuing that further rather than just being enthusiastic about it.

It is critical that we balance the confidence-building aspect for women with culture change. For instance, I could give women all the confidence building that they require, but if there are cultures that are hostile or exclusionary with regard to women, that confidence will not matter. It is important that we balance the development of women with the challenging of male-dominated boards so that, when women are on boards, they are included. The last thing that we want is for a woman to make the effort to tackle barriers and become a board member and then to experience exclusionary behaviour while she is there. While developing the women, we should also develop our boards.

09:45  



Lindsey Millen

The word “confidence” comes up again and again in this context. Whenever it does, I view it as being about confidence that the system will treat women fairly. Women should have that confidence, because they have the ability and capacity to sit on public boards. It is important to have discussions with women to ensure that they are aware of opportunities and what is involved. However, we also need to have discussions with men on boards about the culture of boards and how challenging it can be for women to come into that culture and stay. That is the flipside of what should be happening.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Good morning, panel, and thank you for coming to see us. In the spirit of transparency, I should say that I, too, am a signatory to Women 50:50 and, through that, have sought to bring about improvements to the Liberal Democratic Party selection process. We had our first all-women shortlists at the recent snap general election.

I have a number of questions around the tension that will exist when we introduce the bill’s provisions. I am supportive of the bill, but there is a lot of pressure on boards nowadays to professionalise, for want of a better word, so that, when boards are recruiting new members, they will seek a mix of skills that fit the challenges that the board faces. Those skills might involve expertise in the financial sectors, in business development, in law and so on. We are therefore already asking boards to apply one matrix of filtration to their selection process, but we need to apply a second matrix of filtration, which will be welcome.

Can the panel speak to the issue of the tension that will exist? A lot of the skill sets that we are asking boards to recruit for are from professions that have traditionally been dominated by men, certainly at a senior management level. It is often difficult to find women in very high positions in, say, a financial services organisation, given male domination. How do we address that? How do we have both the skills mix and the diversity that we seek?

Suzanne Conlin

I am not sure that it is so difficult to find those women. They are there if we look hard enough.

I accept that organisations need people with professional skills, but they also have to think about the organisation’s purpose. It is about not just professional skills but who influences what the organisation does. For example, if an organisation influences public policy, it needs to represent within itself the public that it serves. It cannot just be about professionals; the organisation must represent the whole population that it serves. Yes, organisations need professional skills, but they also have to look at what other skills are important to them.

Talat Yaqoob

If we want more women to be at the head of finance or higher up in the legal field, giving them board membership could give them the experience to get those jobs—the two aspects are intrinsically linked. Surely, we want our public bodies to fulfil their equalities duty in order to help in the widest way possible. The vast majority of middle managers and those below that level in the finance and legal fields are women, and the vast majority of law graduates are women. If financial or legal organisations are looking for expertise, they can create expertise in their boards as well by providing job experience opportunities.

As Suzanne Conlin said, our public boards also require members with lived experience. We should not downplay the importance of lived experience when seeking people with professionals skills or those who are at the top of their professions. That lived experience in public policy making is critical and is one of the many things that women can bring to public boards.

Alex Cole-Hamilton

That was an excellent answer.

The meat of the bill is sections 4(2) and 4(3), which are on the consideration of candidates—that is where the mechanism for achieving diversity is set out. However, I am concerned that we are leaving a lot of that to personal judgment, which is influenced by prejudice, culture, patriarchy and so on.

Let us explore the issue of selection. In preparation for the bill, we talked about things such as anonymous sifting, whereby all the biometric details are taken out. I am concerned that that also has inherent bias, because, as we know, men tend to talk about their achievements far more readily than women and they will have had opportunities that women might not have had as a result of the prejudices within our system, which the bill is trying to break down. How can we improve the bill to ensure that it is not left to a subjective view on who is the best qualified candidate before we get to the tiebreaker situation that is defined in section 4(2)?

The Convener

Before I ask the panel to answer that question, I will bring in Annie Wells, because I know that her line of questioning complements those points. That will allow our witnesses to answer more fully.

Annie Wells (Glasgow) (Con)

My questions follow on from what Alex Cole-Hamilton just said. In the section of the bill that is on the consideration of candidates and appointments, it appears that merit underpins the way in which we achieve the aim of getting the best candidate for the role. Alex Cole-Hamilton talked about the anonymity of applications. However, let us say that an organisation has a vacancy on an eight-person board and there are already four males and three females on the board. There does not seem to be any way to ensure that the vacant position is filled by a female. At the end of the day, if the two candidates are the same, merit underlies the decision to appoint a certain person and, as long as there has been scrutiny, a man can be appointed to that position. How can we achieve 50:50 representation when merit is at the heart of the bill?

Lindsey Millen

That is one of the reasons why the bill must be supported by prescriptive guidance that details exactly the steps that must be taken. From the performance of the public sector equality duty, we know that one of the biggest barriers for public bodies is the lack of clarity in the guidance on the particular actions that they can take to advance equality for each of the protected characteristics. As a result of that lack of specificity, what we have seen in the performance of the duty is a real homogenisation of equalities work, which does not really result in a positive change for anyone.

When it comes to the issue of merit, there are reams of evidence to show that having a gender diversity quota will bring merit to a board. Quotas increase the overall level of merit because they draw candidates from a wider pool than just the old boys’ networks that are typically where board candidates come from. There are also questions of what we consider to be merit and what the requirements for the role are. That goes back to the mix of skills and perspectives that having gender diversity on boards brings, because not just particular skills but lived experience is key for excellence in public service delivery.

Suzanne Conlin

On the first question, about the selection process, I agree that it will be a challenge to remove bias. However, organisations that are currently male dominated will have to ensure that their selection process is not influenced by that. For example, if they struggle with the fact that they cannot have an all-male panel, they will need to look at sourcing other support to get women on the panel so that there is a balanced view.

On merit, we argue that, where the balance is not 50:50, quotas should apply rather than merit. If a board does not have a 50:50 gender balance, resolving that balance should be more important than merit.

Talat Yaqoob

As Lindsey Millen said, there is no shortage of evidence that those measures do not prevent appointment on merit—they have promoted it time and time again. It is important that the measures mean that we look at a wider talent pool and reach out to the people with merit who we have not had on board thus far. That is the point of them.

The vast majority of evidence in European countries is on political representation on private boards, not public boards. However, if both types of board are looked at, average merit will be seen to have increased because women have joined boards. If anything, women increase the skills base—that point is critical. Section 4 of the bill is entirely about the point at which a tiebreaker decision is made between two people—a man and a woman—with equal merit. I do not think that there is any issue whatsoever in picking the woman provided that we are able to show evidence that she can support and enhance the work of the board. That is the purpose of the bill.

On the second part of the question, about selection processes, the response from Women 50:50 says that the responsibility of the appointing person is important. They need to be educated about unconscious bias and trained in good outreach and recruitment to ensure that individual and panel biases do not get in the way of good decision making and that there are no all-male panels making recruitment decisions.

Lindsey Millen

I forgot to make that point, but we echo Talat Yaqoob on the support that must be given to people who have responsibility for recruitment. It is essential that guidance on transparent and robust recruitment and decision-making processes includes an equalities aspect, including details of how decisions can be influenced by assumptions about women’s skills and capabilities. Public bodies should be required to report publicly on the steps that they have taken to encourage and deal with applications from women.

Evidence from Muriel Robison and Nicole Busby of the University of Glasgow said that the legislation should include a redress mechanism for unsuccessful candidates of the underrepresented sex, so that an organisation is obliged to provide on request the qualification criteria on which a selection was based, the objective comparative assessment of those criteria and, where relevant, any considerations that tilted the balance in favour of the other candidate when there was a 50:50 situation.

Annie Wells

I do not think that anyone here would not want to encourage more women into STEM subjects and on to public and political boards. I am all for encouraging women into those things, but what do the witnesses suggest should happen if we have anonymous sifting at the beginning and two males come out as the two best candidates for one place on the board?

Talat Yaqoob

I question whether the direction of the bill is to pursue guidance to have anonymous applications—I do not know whether that is the case. First and foremost, we are trying to pursue gender equality, which is not the anonymity of names but the tackling of bias. It is more critical that, when names are in front of an appointing person, they look at them objectively than that the names are removed from the application process, particularly if the entire purpose is to get more women on boards. The tiebreakers—whether between a man and woman or between two women or two men—are about favouring women, so anonymity might get in the way of what the bill is trying to achieve. Anonymity might be a way forward, but that cannot be instead of training and development in tackling unconscious bias and predetermined judgments.

Alex Cole-Hamilton

That point touches on what Talat Yaqoob and Lindsey Millen have said about the guidance that will underpin the legislation. I was a public policy operative in the voluntary sector for 15 years before I was elected, and my experience is that guidance is often where good legislation goes to die despite the best intentions. Unless it is implemented properly or has robust teeth, it means absolutely nothing and will gather dust on the shelf. Refreshes to the guidance do not help, as many as there may be.

You both hit upon the fact that guidance about training and the rest of it is crucial to the bill. Is there something that needs to be escalated from the guidance that you would like to see put in the bill? Talat, would you delineate the amendments that you mentioned you would like to see?

10:00  



Talat Yaqoob

Yes. This is an opportunity for me to talk about non-compliance sanctions. Including some kind of non-compliance sanctions is critical to creating a bill with teeth, otherwise it will be just a set of recommendations that people can choose whether to take. There is a perfect example of that in Spain, where a bill was passed to make private boards at least 30 per cent women. Because the bill contained no sanctions, the figure is currently only 19 per cent. There has been some change, but it has been slow. There needs to be mandatory reporting, a mandatory action plan of steps to be taken in the run-up to December 2022 and non-compliance sanctions to ensure that we have 50:50 representation when we get to December 2022.

Alex Cole-Hamilton

I have just been passed a note by my colleagues that says that the Scottish Government does not intend to publish guidance under the bill, which is troubling. I fully support what you say about non-compliance sanctions, but how do we police that? A lot of what we are talking about is unconscious bias, and it is difficult to evidence that that has been a factor.

Talat Yaqoob

I do not mean non-compliance in terms of how biased someone has been; I mean non-compliance with the bottom line of having 50 per cent women. This is not about what judgments someone has made; it is about what steps they have taken to reach 50 per cent representation. That, in itself, overcomes some of the bias, because it means that people have to make extra effort to get women in the room. Non-compliance is about the numbers, not necessarily about whether someone was biased in their judgment.

Alex Cole-Hamilton

Okay.

The Convener

Jamie, do you still have a supplementary question on the subject? Mary Fee wants to come in from a different angle.

Jamie Greene (West Scotland) (Con)

It depends on what Mary wants to ask.

The Convener

Go for it—I trust you.

Jamie Greene

It is all relevant. This goes back to Annie Wells’s original question about how we approach the perception of selection on merit and how the bill does or does not achieve that.

My understanding, having come to the issue fresh and having read the bill as it is currently drafted, is that, when there is a vacancy on a public board and there is at least one male candidate and one female candidate, the appointing person will have to go through the following process. The first selection criterion will be that the appointing person should appoint the best-qualified candidate; however, if no candidate is best qualified, they should identify candidates who are equally qualified. If two candidates are equally qualified and one is male and one is female, the appointing person will have to give preference to the female candidate in order to achieve the gender representation objective. I may be corrected by the clerks or the bill team, but that is my current understanding.

How does that address the critique of the bill that, when it comes down to the wire, assuming that both candidates are, subjectively, of equal merit—that is a vague statement—preference will be given to the female candidate and the appointment will not be made on merit? How does someone determine whether one candidate is best qualified or the candidates are equally qualified? The wording seems very loose, and I find it a little confusing. If I were the board member making an appointment, I would be confused by that wording.

Suzanne Conlin

We talked about the appointing person making a decision based on merit, but, if they establish that candidates are of equal merit, the merit discussion is not really relevant any more. We have to go back to the spirit of the bill, which is to achieve 50:50 representation. I would argue that, if the appointing person has established that candidates are of equal merit, the merit discussion has been had. I grant that people perhaps need to be supported in making that assessment, but the merit discussion has been had at that point, and the spirit of the bill is to achieve 50:50 representation.

Talat Yaqoob

The vagueness that you highlight between what is best qualified and what is equal merit emphasises, if anything, why there should be guidance alongside the bill. Guidance needs to be created about how to establish merit, how to do outreach, how to do training and development and how to ensure that there is the widest possible circle of women to choose from so that people can get the merit that they are looking for.

I think that the spirit of the bill is to get women there, and, if you reach out to a wide range of women, you will get the merit that you are looking for. I do not see any evidence that the merit that you need is not there. However, your point emphasises the need for guidance alongside the bill.

Lindsey Millen

That shows why it is absolutely essential that we have robust recruitment processes that deliver an objective comparison of criteria, that that comparison is recorded and that public bodies are required to report on the steps that they have taken.

Mary Fee (West Scotland) (Lab)

In a way, my question follows on from the previous line of questioning. My colleague Alex Cole-Hamilton highlighted section 4 of the bill. Sections 5 and 6 are just as important. Some of the criticism that we have heard is that although the bill is a positive step, it does not go far enough, because there are no sanctions in it.

I am interested in your views on the wording of section 5(1), where it says:

“An appointing person for a public board must take such steps as it considers appropriate to encourage women”.

I think that that language is far too loose. Again, the next paragraph talks about

“steps ... it considers appropriate”.

The two words “considers appropriate” are repeated frequently. What I consider appropriate, what you consider appropriate and what someone else considers appropriate could be entirely different. Is that wording strong enough or does it need to be strengthened to be far more descriptive and explicit about what is expected of boards in relation to encouraging women?

Suzanne Conlin

We agree that the wording should be stronger and if it is not made stronger within the bill, the guidance on what is appropriate needs to be clear. To be honest, it comes back to the bottom line. If organisations do not meet 50:50, they should have to publish that information and be accountable for how they have got to where they are. What they deemed appropriate and whether they did enough should be reviewed. They should be subject to more scrutiny.

Any bill or any guidance will never cover everything and what we view as appropriate can be subjective. It is about how we review the bottom line—the outcomes and how they got there—and how we critique it. Organisations need to learn that, but it is about supporting them and ensuring that we hold them accountable.

Talat Yaqoob

I do not think that the wording is strong enough. I think that the word “appropriate” is vague. Does it mean financial investment, outreach, training and development, or taking on their own quotas? Those boards that are already close to 50 per cent and have a strategy or an internal wish to be diverse will go further than those boards that perhaps need to do it but do not know where to begin or have a resistance to it. That is why there should be guidance on what the words “considers appropriate” actually mean.

I would recommend that such guidance is written with equality organisations such as ours and that it sets out five things that boards can do that the bill deems appropriate. That would create some coherence across recruitment and around the actions being taken. That would mean that the compliance and reporting would be much easier to assess because there is something that they are being assessed against; “considers appropriate” is too vague a measurement for any action to be taken or for any support of a board.

Lindsey Millen

I share Engender’s concern that it may create an inadvertent loophole that would allow public bodies to appoint men where they should be appointing women. There is evidence that shows that a group that is adversely impacted by gender quotas is the men who are already in those leadership positions—male incumbents can respond strategically in order to circumvent the impact of those quotas.

It comes back to our point that we want to see clear, prescriptive guidance on what steps should be taken. Precedent exists of public bodies not complying with equalities legislation. The public sector equality duty is a good example—or a bad example—in that it is not uncommon for public bodies still, in 2017, even though the public sector equality duty came into play in 2012, not to publish their gender pay gap or occupational segregation information. Those things exist in the equality duty legislation, but when we look underneath the steps that bodies are required to take and the requirement to use that information to advance equality, which in this case would be about how they are going to take steps to get women on to the boards, there is even less evidence of that happening.

We want the steps that are required to be taken to be included in the bill so that public bodies are required to produce an action plan and report on it. We also feel very strongly that non-compliance sanctions and robust enforcement are essential.

Mary Fee

I will ask about the bill’s financial implications in a second, but I want to ask you another brief question before that. One of the other criticisms that we have heard is that the bill represents a missed opportunity in relation to people with disabilities. I absolutely accept and understand the ethos of the bill to encourage more appointments of women, but there has been criticism that it represents a missed opportunity for disabled people. There has also been criticism that the bill uses a binary definition of gender, so a section of people are completely missed out. I would be interested in your views on that.

Talat Yaqoob

Women 50:50 supports the Equality Network’s response, which discusses the need to ensure that the pursuit of women on boards is inclusive of trans women. It is important to note that, when we talk about women being 51 per cent of the population, we are talking about those who self-identify and report as women, and I think that they should be included. Given that only 36 per cent of people on our boards are women but 51 per cent of the population identify as women, it is fair that the bill is about that 51 per cent, but it needs to be inclusive of trans women.

I return to the point that I made about a diverse set of women being included in the reach of the bill, including disabled women, LBT women, BME women and women from different socioeconomic backgrounds. It is important—I keep coming back to this—that the guidance is about pursuing a diverse audience of women so that we ensure that disabled women are engaged through the bill.

Suzanne Conlin

We would agree with that. We believe that, when it comes to the reporting aspects, it should not just be about women on boards. It should be about all the protected characteristics. Organisations should be open and clear about who is on boards and who they open them up to. Women are not just one group of people. There are many different types of women. It is about how organisations report on all the protected characteristics and not just on gender.

Lindsey Millen

Going back to the public sector equality duty, we have seen an increasing homogenisation of equalities work that shows little recognition that the causes of the inequality that is experienced by protected groups are different, as are the solutions. It is absolutely right that the bill targets the barriers that are faced by women in the workplace but also the systemic barriers to representation that are faced by women who share other protected characteristics. For instance, disabled women experience higher levels of discrimination and stigma in employment and in trying to progress and to access positions such as board membership. We want to see included in the guidance a specification that the group of women that we are targeting goes beyond just the characteristic of being a woman, and that organisations have to strive to have a diverse group of women represented.

Mary Fee

Okay. Thank you.

My next question is about the financial burden that will be placed on boards if the bill is enacted. The explanatory notes on the bill say that appropriate steps could include

“evaluating and targeting advertising strategies and outreach events to better reach and appeal to women”

However, the financial memorandum says:

“The Scottish Government does not consider that there will be resources attached to making the case for greater board diversity, given that the majority of boards covered by the Bill are already working towards achieving this outcome or greater gender diversity via voluntary commitments.”

If we want to have a programme to attract women to become board members, whether that is through advertising or any other means, it seems to me that there will be a cost implication for boards.

10:15  



If we have greater diversity and there are more women on boards, there might be a need to support women with childcare or maternity leave, or to support men with paternity leave. There is a financial implication for boards, mostly at the outset as they try to encourage women to apply, and, if we want to promote inclusion, we need to do something about that. Advertising strategies are not cheap; they do not come with no cost. What will the financial burden on boards be?

Suzanne Conlin

A public board that influences public policy has a duty to have a diverse board, and that should not be thought of as an extra thing that the board has to pay for. It is not just about diversity of gender, but diversity of skills, which should apply to the whole board. The board should represent the population. It is not an extra thing that we have to do; public boards should be doing it already as they have a duty to ensure that they represent the people of this country, which is not just about getting women on boards.

Lindsey Millen

The work to encourage applications from women overlaps with the work that public boards should already be doing under their public sector equality duty, so it does not represent an additional legislative burden. If they are already doing the work that they are required to do in gathering data on recruitment, development and retention, analysing that data and developing action plans and equality outcomes that seek to advance equality across their organisations, there will be a massive overlap with what they will be asked to do to get more women on to boards.

We know that greater gender diversity on boards leads to excellence in public service delivery and efficient use of public funds so, if there is a cost involved, there will be a quid pro quo.

Talat Yaqoob

There is a financial implication in, for example, outreach work, which should already be happening, as Lindsey Millen said. I do not concede that it could be called a financial burden and I am leery of referring to it as that, because it is a financial responsibility.

Annie Wells

Following on from Mary Fee’s point, I listened to what was said about ensuring that we have a diverse group of women, whether that is LGBT women or women with disabilities. Should we look at ensuring that male appointments to boards include men who are LGBT, BME or have other protected characteristics? Should we ensure that there is a more diverse range of men on boards, so that boards are more representative of society? How would we do that? Would we need a campaign that reaches different groups of people to encourage applications?

Talat Yaqoob

That comes back to my point about boards having connections and working with community groups to ensure that they pursue diversity across the board.

It is absolutely right and proper that the bill is about the 51 per cent of the population who are women. They are grossly underrepresented at every level of decision making in Scotland and it is right that the bill focuses on that.

Part of the public sector equality duty is the public sector being diverse across the board and for all protected characteristics. If a board just has white, able-bodied, straight men, there is already an imperative on it to pursue diversity. The bill is about the 51 per cent of the population who are grossly underrepresented, but there is already a duty on public sector boards to pursue diversity.

Gail Ross

I am sorry that I jumped in earlier without saying, “Good morning, welcome and thank you for coming.” As we are declaring interests, I am also a signatory to Women 50:50.

We spoke to officials last week and I made a point about Christina McKelvie and I speaking to the resolution on that issue at the Scottish National Party conference. I am convinced that the legislation is required, but what would you say to such groups as the Institute of Directors, which is not

“in favour of a random proportion being attached to one group”?

It would rather that a “holistic approach” to reporting on diversity was taken, as well as action to encourage women through training and mentoring. We hear that that is already happening and we know that the proportion of women on boards is already increasing, so why is the legislation needed?

Talat Yaqoob

Holistic approaches are welcome, but we have been doing them for a long time and we are at only 36 per cent. The data in front of us tells us why the bill has been introduced. Voluntary mechanisms that have no non-compliance sanctions and which do not come with a push from Government get us to around 30 to 35 per cent, which is where we are. Evidence tells us again and again that we reach a plateau in the number of women who come forward and are recruited on to boards.

I believe that there should be a holistic approach, but the bill ensures that a holistic approach will be taken. That is its purpose. Right now, a holistic approach can be taken or not taken.

If you look at what countries across Europe have pursued, particularly with regard to private boards, you see that, where there are voluntary mechanisms involving holistic approaches in training and development, they tend to put the onus on the women, not on the culture change and board change that we have discussed, and they do not get us to 50 per cent.

We are talking about decision makers and fair representation, and holistic measures have not worked. Soft and gentle approaches involving training and development have been done for decades, and they have not got us to 50 per cent.

Suzanne Conlin

Holistic approaches have been in place, but they have not done enough. If they were adequate, we would be at 50:50.

The women who speak to us directly say that they want the bill because there are barriers. All that we are looking for is a level playing field. We are not looking for special treatment; we just want to level the playing field and let those women have the same access. That is very simplistic, but that is what the women who want the bill say clearly.

Lindsey Millen

We know that homogenised equalities work does not work. You cannot do something that will advance the equality of all the nine protected characteristics at once without taking specific steps that meet each group’s needs and challenge the barriers that each group faces. It is absolutely right that the bill is looking at advancing equality for women.

The Convener

I have a final question. Who should do the monitoring?

Lindsey Millen

There is potentially a role for the Equality and Human Rights Commission, because it is already responsible for monitoring compliance with the public sector equality duty. Obviously, there is a question of resource. If the commission was required to do the monitoring, it would be essential that it was adequately resourced to do so.

In its submission, Engender suggested the Commissioner for Ethical Standards in Public Life in Scotland. What Engender said on that made a lot of sense, but again resource is an issue. Whoever is asked to enforce compliance should be given the teeth and resources to do so.

Talat Yaqoob

Women 50:50 completely backs Engender’s proposal on that. In both our submissions we said that whoever is doing the monitoring should report to the Scottish Government and the Scottish Parliament so that everything is public and not happening behind closed doors, and so that the debate takes place in our chamber.

The Convener

I do not think that we have exhausted all our questions, but we have exhausted our time—we have a second panel to hear from.

We are incredibly grateful for your contributions this morning. If you go away and think, “I should have said this,” please let us know, because we still have a way to go on the journey with the bill. Thank you so much.

10:24 Meeting suspended.  



10:30 On resuming—  



The Convener

Welcome back. We continue our scrutiny of the Gender Representation on Public Boards (Scotland) Bill with our second panel of the morning.

I am delighted to welcome to the committee Rory McPherson, who is chair of the Law Society of Scotland’s equalities and law committee; Professor Susan Deacon, who is chair of the Institute of Directors Scotland—good morning and welcome back to Parliament, Susan; and Professor Muriel Robison, who is a guest lecturer at the University of Glasgow’s school of law. Thank you all so much for coming to the committee this morning. I know that you were in the public gallery to hear the evidence that we took from several organisations in the previous evidence session.

Given that you come from three different areas, I am keen to hear summaries of your views on the bill and what you think it means. We will start with Rory McPherson.

Rory McPherson (Law Society of Scotland)

Thank you, convener. In 2017, across the European Union, five countries already have mandatory quotas for female board membership—Belgium, France, Germany, Italy and Norway—and 10 have either an optional quota or a comply-or-explain best practice, such as Denmark, Greece, Austria, Slovenia and Finland. In the United Kingdom, after 10 years of voluntary schemes, we are yet to achieve gender diversity on public boards.

Against that background, the Law Society supports the bill, as we see other jurisdictions in Europe where comparable legislation has been used successfully. Although Norway’s approach might have been seen as relatively controversial when it was introduced in—I think—2006, all the evidence shows that the discussion moved on very quickly and that, in Norway now, there is simply no debate about the issue.

Professor Muriel Robison (University of Glasgow)

I have taken an interest for a very long time in positive action and legislation in relation to positive action, so I am particularly interested in and pleased to see legislation that essentially introduces a requirement to undertake positive action measures. Most legislation is permissive rather than prescriptive—it is voluntary rather than creating a requirement—so it is good to see a bill of this nature.

Along with a colleague from the University of Strathclyde, I submitted a response to the Government’s consultation on the draft bill. Some very welcome changes have been made in the bill that has been introduced—the bill that the committee is consulting on—in particular the duty to take steps in relation to the objective, the duty to report and the target date. Those are all good developments. There are also some less welcome changes, including the apparent removal of transgender women from the bill and the removal of the “exceptional circumstances” defence and its replacement with a justification-type defence, which we might pick up on later.

The bill seems to be limited in its scope. It is important that it is as efficient and effective as it can be, given that, in this case, we are restricted to looking at non-executive, non-employee members of boards so, even if the legislation achieves 100 per cent success, we will still not have gender balance as such on our boards. It interests me, given the limited scope of the bill, that everything that it seeks to do could be applied to employees. That would not breach European law or the Equality Act 2010, and I therefore think that it would be permitted by the new section 37 exception, which is the broader and more general exception in relation to the functions of public authorities.

Those are my opening remarks. I am happy to follow up on any of those and any other issues.

Professor Susan Deacon (Institute of Directors Scotland)

I thank the committee for giving me the opportunity to be here today. The discussion on the bill is important, as is the wider discussion on related issues. The convener nodded to the fact that I have been around various debates for some 30 years both about how we ensure that more women get into leadership roles across business and public life and about how we get good governance, not least of our public services. The area that the committee is discussing is therefore of real interest to me, and I am very happy to do anything that I can to help and to feed in thoughts and ideas to the committee.

As many of you will be aware, the IOD was set up as an organisation by royal charter in 1906. It operates across the UK and its members span the private, public and third sectors in big and small organisations, commercial and not-for-profit organisations and many other variations in between. Many of our members have board positions across different sectors and organisations, which is something that we actively encourage. I chair the IOD in Scotland, among a number of things. I am appointed from among the volunteer membership, if you like, to take on the chair’s role for a fixed period, and that is where I am coming from for this meeting.

If it is of use to the committee, I will comment today on some of the wider issues around boards and governance considerations and how we achieve gender balance in that regard. I think that we all want really good and effective balanced boards, not least in our public bodies. I think that we all share that aim. The question is how to achieve it. As I said, I am happy to contribute to that discussion.

Alex Cole-Hamilton

Good morning, panel, and thank you for coming to see us today. I am aware that you were in the public gallery for the earlier evidence session and will have heard the arguments that were deployed.

I was talking at the margins with my colleagues while the meeting was suspended, and it was clear to me that, although we all agree that the bill is important, some of us feel that it could be strengthened in the way that the previous panel defined, particularly with regard to the use of sanctions. Scots law has a range of existing sanctions around recruitment for certain areas, with perhaps the most extreme example coming from the Protection of Vulnerable Groups (Scotland) Act 2007, which makes it an offence to knowingly employ somebody who is barred from working with children or vulnerable adults—that is why we have the protection of vulnerable groups scheme. However, there is a spectrum of options for sanctions. If we were to strengthen the bill by including sanctions, what would be available to us in that regard and what would be proportionate?

Professor Robison

I would like to see further sanctions in the bill and I think that not having them is a weakness in it. As you said, it is important that sanctions are proportionate. We have to take account of the fact that we are talking about public authorities, so some of the sanctions that we see in Europe, such as striking off and large fines, would probably not be appropriate or proportionate.

As I think has been discussed, we should look to an alignment with the public sector equality duty and its requirements on reporting and the like. If there was alignment with the public sector equality duty, the Equality and Human Rights Commission could play a role, as was discussed earlier, in relation to sanctions or failures with regard to that duty. Sanctions of that kind would be appropriate.

Rory McPherson

As you will have seen from our submission, the Law Society is sceptical about the effectiveness of the bill. One of the important concepts of legislation is that it should have an impact. Although I have not analysed Muriel Robison’s helpful description of the possible penalties or civil remedies, absent some form of sanction or remedy system, the bill could be described as, in essence, legislation that reflects the voluntary codes. The reason why the Law Society is sceptical is that we have had the voluntary codes for a number of years and they have not achieved the desired end.

Across Europe, there are countries that have enforcement regimes. The most famous is the Norwegian regime, under which the requirement was for women to make up at least 40 per cent of company board members or the company would be delisted. That could not apply to a public sector board, but one can envisage possible remedies through the courts system if boards did not achieve their gender quotas.

One wonders what other type of socially useful legislation would succeed in the absence of a sanction. Would road traffic legislation operate if there was no sanction for people speeding, to be simplistic? It would therefore seem logical to have some form of enforcement mechanism. In the absence of such a mechanism, the Law Society is sceptical.

Alex Cole-Hamilton

We would all agree that a reporting duty would strengthen that. It would concentrate minds and embarrass bodies that were falling behind into pulling their socks up.

You touched on guidance. It was something of a revelation to some of us that the Government does not plan to put statutory guidance behind the bill. Is that a mistake? Does it give the lie to the idea that the bill does anything more than, as you say, reflect good practice and give away that that is all that the Government wants to do with it? If so, what teeth can we give the bill under statutory guidance?

Rory McPherson

It is helpful to provide guidance on the interpretation of any legislation. Legislation is a useful instrument for the courts or other bodies to interpret, but guidance on how it is meant to be interpreted can be incredibly useful and can provide subtle guidance for the people who are required to implement it daily—in this case, the appointing person or the board in general.

The bill provides that

“A public authority … must publish reports on the operation of this Act”.

There have been comments that there are requirements in other legislation, such as the public sector equality duty, to publish reports. However, publication can be a fairly broad concept. Where the reports were published and whether they were readily available to people outwith the organisation would be critical. Internal publication of an organisation’s report might not have a useful impact.

Alex Cole-Hamilton

My colleague Mary Fee rightly pointed out the weakness of the language in the phrase

“An appointing person for a public board must take such steps as it considers appropriate”,

which is repeated several times in the bill in respect of the duties on those who appoint persons. Do the witnesses have experience of that phrase working in the past? Is it strong enough? How can we strengthen the language of the bill?

Professor Robison

I do not have experience of that particular phrase but, in my response to the consultation, I said that the problem with that and similar phrases such as “have due regard to” is that a public authority or an appointing person could say that they have thought about it and they do not think that there is anything appropriate. It looks as though that would comply with section 5. If there were sanctions for failure, any court that was considering the matter would say that the authority or appointing person had thought about it, which was all that the section required them to do.

There needs to be specific provision on what the steps are in relation to all the good practice that colleagues on the previous panel discussed. It seems to me that requirements to report, review and revise are needed. They might be in guidance or even in a code of practice or regulations. They do not necessarily have to be in guidance; there could be something stronger than guidance in a code of practice or regulations.

10:45  



Professor Deacon

I would like to pick up on the themes that Alex Cole-Hamilton raised, but I would like to come at them from a different angle. By definition, any piece of legislation should be precise, so the committee is right to think about the detail of the bill. That is also one of the challenges of legislating in this area. You are in terrain that is about culture change and achieving change across a wide range of areas. In some respects, the more precise you are, the more problems and possible unintended consequences you can stack up in getting to where you want to be.

The shared objective for everybody is to have good, strong and balanced boards for all our public bodies and to get more women into leadership roles. I therefore urge caution. In all its work and research in this area, in Scotland and in the United Kingdom, the IOD has urged caution on other occasions when legislative proposals have been considered because, although the right intent might underpin proposals, there can sometimes be unintended consequences as a result of precision.

Let me take the example of reporting. We should never underestimate how much reporting and transparency, in and of itself, can be a huge driver for change. In the private sector, a lot of work has been done on the FTSE 100 and FTSE 250 companies over recent years. That transparency—that shining a light on what is going on—has in and of itself driven a lot of change. We can increase by a factor of 100 the number of different ways that we can shine a light on what is going on in Scottish public bodies that do not require us to put everything into the letter of the law.

It is nearly 20 years ago that I, as Minister for Health and Community Care, did a review of national health service governance in Scotland. Many of the measures are still in place. We spent an inordinate amount of time really thinking about how we could get the mix of structures, people and practices that was needed for that particular service at that particular time. Obviously, others since then have done more—and I am sure that they have done better—but my point is that the changes that have been made that have delivered changes in culture and practice have not necessarily been made by legislative measures and with the precision that is in legislation; they have been made by comprehensive efforts to drive culture change, part of which is reporting and transparency.

In Scotland, there is the Parliament, Audit Scotland, various inspectorates and ministers, who are the people in question in the bill. Through their actions and through being held to account by the Parliament, ministers have an enormous capability to drive change and transparency to ensure that there is a really clear and shared understanding of what is going on in our public bodies.

I will add one other point, which we can perhaps come back to and discuss in more detail. A number of people—including us—have mentioned this in their submissions. The bill focuses on non-executive members of boards because that is where the power to legislate exists, but what is going on with the executive appointments in our public bodies across Scotland is every bit as—if not more—important. There is a danger that, through a focus on the areas that it is possible to legislate on, energy, attention and effort will be displaced from carrying out some of the big changes that need to be made to get better gender balance and better balance more generally in many of our executive appointments to our public bodies in Scotland.

Gail Ross

Good morning, panel. Alex Cole-Hamilton asked about sanctions and Rory McPherson has spoken about what happens in other countries. I have some wide-ranging questions. Does the bill meet your expectations? How does it compare with legislation in other countries? I am thinking, in particular, of Norway, if that is a good example. Can anything be done to strengthen the bill?

We have touched on some areas, and an interesting point was made during the discussion with the first panel about encouraging women to have the confidence to be on boards. We know that there are women with the right skills, and having role models will have a knock-on effect in encouraging younger people into other areas of public life. Is there any knock-on effect for the private sector?

Rory McPherson

The bill is very different from the Norwegian example, which was a stringent imposition of a requirement. There was a comparable approach in other Nordic countries. Sweden did not introduce equivalent legislation. As I understand it, it achieved gender equality without legislation. In Scotland, the bill builds usefully on the experience of voluntary codes and picks up the non-executive directors in the area of competence of the Scottish Parliament precisely because the voluntary codes have not achieved the relatively low levels of gender equality that it was their aim to achieve. The debate about the governance of public bodies is slightly different from the debate about the governance of private organisations, where the governance is not of public resources and the provision of support to the Scottish population.

A comment was made earlier about encouraging people to come through to be on public boards. The Law Society of Scotland is a body of slightly more than 11,000 Scottish solicitors. It is well reported that more than half of those are women, so there is a pool of slightly more than 5,500 people who, I would suggest, are relatively well qualified to be on public boards. There is the capability to achieve gender equality if only from the legal profession; other professions could equally come up to that kind of standard. Many individuals at different parts of their professional careers would see the benefit of being on a public board, partially for career advancement and also to enhance their greater understanding of the role of a solicitor in society.

I am sorry if I have not answered all your questions.

Gail Ross

That is grand—thank you.

Professor Deacon

I want to pick up on the last part of Gail Ross’s question. These days, I am something of a zealot in encouraging cross-fertilisation across sectors, boundaries and organisations. An enormous amount of learning can be done in that space across the private, public and third sectors. Across all those sectors, there are examples of really good practice that is driving sustained culture change. Frankly, one of the reasons why I am involved with the IOD in Scotland is because it is one of the few organisations that draw a thread across the leadership community in Scotland, and people who are working across boards in various organisations. I believe passionately that Scotland plc needs to have good boards across all those good organisations, so that we do our best for the country and the economy. We do a lot in encouraging that cross-fertilisation. A growing number of people are taking on non-executive positions alongside their executive roles and crossing sectors, in different directions, to do that. That is healthy, and the more we can do to encourage it, the better.

Similarly—here I must pay tribute to a range of organisations, including the likes of Women’s Enterprise Scotland and Changing the Chemistry—we are engaged in systematic efforts to train and develop potential board members, with much of the focus being on women, and, critically, to train others, such as board chairs, in what they can do to ensure that they put balanced boards in place and create an environment that is effective in enabling different people to participate and contribute. They need to ensure that they get a genuine mix of skills and experience around the table. That is why I stress the importance of what is sometimes dubbed cognitive diversity. It is really important that we do not just focus on the kind of diversity that is measurable and tangible in getting a balanced board together; we need to think about the diversity of thought and experience that is so important.

The more that any of us can do to drive change and learn across sectors, the better it can be. Scotland is a small country and we can do that at scale in a way that other parts of the UK cannot.

Professor Robison

Gail Ross also asked about what works in other countries, and I mentioned one or two things about fines and the like. There is a limit to what can be done, given the powers that the Parliament has.

Another thing that I could mention in terms of sanctions is the possibility of giving redress to individuals, whereby they could challenge why the public body did not apply the gender equality objective to their appointment. At the very least, that would focus the minds of the public authorities. If you know that you will be asked for detailed feedback, you need to think very carefully about why you made the decision and why you did not use the objective in particular circumstances. Interestingly, that was suggested in the draft EU directive on increasing diversity on company boards, so it has been proposed at the European level.

Gail Ross

I want to follow up on that with a small legal point. If boards are to be required to tell people why they were not suitable for the job, and a male applicant finds out that he was overlooked in favour of a female candidate, will the proposed legislation prevent him from taking any legal action?

Professor Robison

It would not prevent him from doing so, but it would be used as a defence by the public authority. It could use the Equality Act 2010, where that was appropriate, and the bill as enacted to explain and justify its position.

Rory McPherson

The converse is also true. When boards do achieve gender equality, the female candidate would be able to take that information back.

One can speculate about the hypothetical situation of two precisely equally qualified candidates, but I do not think that the experience in Europe is that such difficulties with identically qualified candidates have caused a hindrance in other jurisdictions that have brought in mandatory quotas.

Gail Ross

Is it not true, then, that the person will always be appointed on merit rather than because of their gender?

Rory McPherson

The Law Society’s view is that the bill encourages appointing the person out of the 100 per cent of the Scottish population who is best suited on merit. Given the gender profile, a question might arise about why, against the 100 per cent of the Scottish population, the profile of public boards seems to represent a smaller group in society.

The Convener

Susan, did you want to come back in?

Professor Deacon

I suspect that Annie Wells will cover the same terrain.

Annie Wells

It is a similar point. Obviously, if there is anonymity of applications, you could have two male candidates who come out as the lead candidates. It would be quite difficult to achieve a 50:50 ratio if we do not have something set down to start with.

11:00  



Professor Deacon

I am glad that you raised that point, because that is exactly the sort of terrain that I wanted to comment on further. It is incredibly difficult in discussions such as this to drill down into how you operationalise some of these kinds of practices. However, having been involved in quite a lot of board recruitment and so on in my time, I tried quite hard when I was reading through the bill and the various explanatory notes to think through how I would apply the proposals and how they would marry with the current public appointments process in Scotland. There are a number of operational challenges that I do not think can be addressed fully in this type of discussion, as I said. However, I encourage the committee and the Scottish Government to test fully and widely how some of the issues that have been raised would play out in practice and whether there are changes that would need to be made in the current practices around the public appointments process in Scotland to ensure that everything works in tandem.

I have expressed concern about the bill as it stands partly because of the point about how legislation can sometimes be a blunt instrument that has unintended consequences. We are in terrain in which everything—from people being encouraged to apply, through the sift process, the selection process, the appointment process and the training process—has to work together to get a good outcome. However, at the moment, it seems to me that a lot of these issues are in danger of perhaps not getting the attention that they deserve because people are—rightly—keen to achieve gender balance. It is important that those questions are worked through.

Mary Fee

Ms Deacon, when you answered Gail Ross, you spoke about driving change and taking a more holistic approach across the areas that you represent. Can you tell us what is currently done to share good practice across those areas?

Professor Deacon

I do not purport to represent all those areas, and I would always say that everybody could do a lot more.

The Scottish ecosystem, as it were, has had almost 20 years of devolution and all that has gone with that, and there are networks and connectivity between organisations that are really quite special and which we can build on and do a lot more to learn from. For example, IOD Scotland often tries to do the things that it does in partnership with some of the other organisations that I have mentioned and with certain companies and, indeed, the Scottish Government, with which we have worked to develop trustees in charity boards and so on. Some of the activity is simply very good practical and grounded training and development activity, and some of it is mentoring—anyone who has acted as a mentor knows that it is a hugely rewarding thing for the mentor as well as the mentee.

The big challenge, which I touched on earlier, is how we can develop what is generally called the executive pipeline in any organisation. I have been party to more discussions and events on that than I care to remember over the years. I think that there are areas in which significant change and progress have been made—I am talking about the wider culture shift, not just the gender balance or diversity within top teams—but there are many other areas in which, 30 or so years ago, those of us of a certain age would have expected there to have been greater change by this time in our lives.

I am not sure that compulsion, whether through legislation or other measures, is necessarily the best way to get underneath what is stopping some of that deeper culture change. I do not purport to have the answers, but organisations such as the IOD and some of the others that I have mentioned can be hugely effective at brokerage between different organisations.

I meant to say at the beginning that one of the core royal charter purposes of the IOD is

“to promote the study, research and development of the law and practice of corporate governance”.

The organisation has a big research capability, as well as lots of networks and connections, across the UK and within Scotland. Irrespective of where the committee decides to go with the bill, there has to be, in addition, a wider array of activity that seeks to drive that change in culture and practice.

I hope that that answers your question; I do not know whether I gave you enough specifics.

Mary Fee

Yes, it does—it was very helpful.

If some of the language in the bill was tightened up, and there was statutory guidance and some kind of reporting or audit mechanism, do you think that it would be helpful to put something in the guidance about building on and developing the shared practice that already exists and building on the networks that are already there?

Professor Deacon

I think that we would continue to urge caution about what is put into primary—or, indeed, secondary—legislation. That is one of the main messages that I want to feed into the committee today.

Mary Fee

Does Muriel Robison want to come in on that before I ask another question?

Professor Robison

It is interesting that Professor Deacon says that we have been expecting greater and better changes for 30 years but that we have not had them. We have had the voluntary approach for all those 30 years and many more, and that is why provisions requiring positive action such as those that are in the bill are required.

I want to pick up on one or two other things in relation to the point about merit, which Ms Wells mentioned. In my response to the consultation on the draft bill, I talked about the fact that merit is contested. That is a difficulty. It comes back to the need for guidance in order to channel people in the right direction.

There are issues with the bill. For example, it gives no further help with what “equally qualified” might mean. Unlike Mr McPherson, I think that there are often situations where two candidates are equally qualified and the panel weights some factor or other that suits them, such as the fit with the organisation. Here we are saying that the panel must weight gender. If there is underrepresentation, that is what the panel must weight. The bill would ensure that people were thinking it through and actually doing that.

Professor Deacon

Can I come back on a couple of points, convener?

The Convener

Yes, of course.

Professor Deacon

On my reference to change over 30 years, I want to be clear that I was talking about the broad culture change that I think many of us wanted to see in organisations generally and in society more widely. My point is that a very complex mix of factors feeds into that. We are really only going to get sustained change in the workplace when we have a much more holistic conversation about life, work, family and a whole bunch of other stuff.

In my view, that is all the more reason why we have to be cautious about quotas of any sort. I feel that I have been involved in debates around quotas throughout my adult life, whether in organisations, in politics or wherever. I totally understand why quotas have a place and why some boards voluntarily choose to have them when they think that it is right for their organisation and the kind of skills mix that they need. I—and the IOD as an organisation—worry greatly about having a quota that applies across a very diverse range of boards and in one area alone. We worry how that might impact on the desire to get the balanced board that is wanted.

The other thing I am going to say—as a woman who has held leadership roles in my time—is that we have to respect the fact that a number of women are still uncomfortable about being part of a process that involves a quota system.

There are very different views among women—as there are among all people—about quotas. However, I would like it to be noted, for the record, that I know that a number of women are still very uncomfortable about them. No matter how robust a selection process is, rightly or wrongly, I would argue that using a quota creates a climate in which it starts to be implied or suggested that women are not there on merit. That is a potential unintended consequence of heavy overreliance on quotas. However, none of those points should go against the high-level aims that everybody here has; they are just words of caution along the way.

The Convener

We have only a few minutes left. Mary Fee wants to come in. Mary, you will have to be very quick, as Jamie Greene wants to come in as well and I want to give him some time.

Mary Fee

I will be very brief. I asked the same question of the previous panel, but I will shorten it. Does the panel see any financial implications for boards of taking steps to increase and improve diversity, given what the previous panel has said, which was that boards should be doing that already?

Rory McPherson

No.

Mary Fee

That was short and sweet. Thank you. Excellent.

Professor Robison

I tend to agree, partly because, as the previous panel said, the public sector equality duty already requires people to think about positive action. In my view, that is a requirement of the duty, so people should be thinking about positive action in relation to protected characteristics across the board. They should already be doing that; the focus here is on one protected characteristic.

Professor Deacon

It could be argued—I was thinking this while I was listening to the previous discussion—that if it is all already happening, and therefore there is no cost, there is no need for legislation. If we need legislation, we will need to spend money too, if we are to drive the kind of change that is needed.

Jamie Greene

I am sorry that we do not have a lot of time left. I want to check a statistic because I am reading conflicting figures. The IOD’s submission says that the current level of female representation on public boards is 42 per cent and increasing. Is my understanding of the submission correct?

Professor Deacon

I did not write the submission, but I saw the 42 per cent figure. I think that it is in the Scottish Parliament information centre document and that that is where it came from.

Jamie Greene

The only reason that I flag it up is because the Close the Gap figure was 36 per cent, so that is why I am confused. I ask not just to be fiddly with the numbers, because six percentage points make quite a difference psychologically. To me, 36 per cent sounds like a third, while 42 per cent and increasing sounds as though we are heading in the right direction. That is where, for me, the dichotomy in the bill manifests itself.

I hear both sides of the argument. Susan Deacon is probably one of the few voices that we will have in this room who represents a substantial part of Scotland’s economy and business community and who thinks that the legislation is not required. That is why I want to check that figure. If you are saying to me that it is 42 per cent and it is increasing, so that we are heading towards 50 per cent anyway and therefore there is less requirement for the legislation, your argument makes more sense. However, 36 per cent means that we are still far away from 50 per cent.

Professor Deacon

The 42 per cent figure is on page 3 of the SPICe briefing, so I presume that that is where our people took it from.

Jamie Greene

I guess that my question—

Professor Deacon

On reading that number in the SPICe briefing, my question about it was whether that had looked at boards as a whole or just at non-executives. I thought that there needed to be more clarity around that. More statistical information needs to be flushed out.

Jamie Greene

I agree. Obviously, people can be selective with statistics, to show one side of an argument over another. What strikes me about the bill is how narrow it is. It focuses only on public boards—not on those in public organisations but on the non-executive boards within those organisations—and it applies only to situations in which there is no best-qualified candidate. The conversation seems to be more around how the bill should be beefed up and strengthened or should have more provisions, such as on sanctions and reporting requirements. It has been intriguing to hear somebody say why they do not think that there is a need for quotas at all—which I believe is what you are arguing—and that the bill imposes a mandatory duty that they do not think needs to exist.

Professor Deacon

To be clear, I—and the IOD as an organisation—completely respect the right of the Parliament to work with Government on working through the issue to get the best outcome, which, as I have said, is one that we all want. Both in the written submission from the IOD and in the comments that I have made today, we are urging caution. As you rightly say, this is about legislating across the piece, in the same way, for all public bodies; for one part of each board, which is the non-executives; and for one aspect of diversity on a board.

Given that the overarching aim and purpose from a good governance point of view is to get good, strong, balanced boards with a rich mix of skills, experience and diversity, we are really just posing the question, “Are you sure that this is actually going to deliver that outcome, or might there be unintended consequences?” In a sense, we are then putting it back to you, as policy makers, to keep working that through, having, we hope, taken some of our questions and thoughts on board.

11:15  



Jamie Greene

It very much seems that voluntary measures are not working, because we are not achieving true proportionality in representation, so I am sympathetic to the objectives of the bill. However, I take your point about the unintended consequences of a quota, which might divert attention from the real issue of getting proper representation at executive level across business, the third sector and the public sector. I still do not fully understand why a quota will do less than a voluntary measure. Voluntary measures seem not to be working, so there is a gap in my understanding of how organic processes will get us to where we need to be. Is it your view that representation does not need to be 50:50 on certain boards?

Professor Deacon

I must stress again, because I want to be very clear, that we do not seek to be prescriptive. I think that everyone who is involved in work and discussion in this area is open-minded about trying to develop the most effective ways of getting to the place that we all want to get to. I see this as a bit of a shared learning journey. I would hate for either me as an individual or the organisation that I represent to adopt a black-and-white, yes or no position. I really stress that.

Your questioning raises exactly some of the things that I would encourage you to look into further. On your question about numbers, as I said, the 42 per cent figure is lifted directly from the SPICe briefing. What exactly does it mean? Is the gap eight percentage points, or is it one of the figures that others have quoted? I do not know; we have just operated from that information.

I must stress the overarching point about balanced boards. We must not divorce equalities issues from governance issues. We are talking about boards that have oversight of hugely complex and important public services across Scotland and billions of pounds of taxpayers’ money. We all want to ensure that there is a rich mix of people around those tables. As the previous panel explored, diversity comes in many shapes and forms, and there has to be a diverse mix, including among the men and the women themselves. We are not talking about boards of thousands of people; we are talking about 10 or a dozen non-executive appointments, and perhaps fewer in some cases. There are knock-on effects—one appointment might have a knock-on effect for someone else—and you cannot afford to leave a big, important, complex board with a real gap in terms of the skills and knowledge that it needs. We encourage the committee to explore those things further.

The Convener

You mentioned operational challenges. Do you have an example of such a challenge?

Professor Deacon

It is really to do with the terrain that we have discussed. I am sure that the Scottish Government has done this and can provide further information—I just have not come across it—but we need to work through whether, if we play out the letter of the bill as it is currently proposed alongside the existing public appointments process in Scotland, everything will actually hang together and take us to the place that we want it to take us. Will the people involved in that process actually be able to manage the issues to do with the numbers, the merit question, anonymity and so on?

The Convener

At the beginning, Muriel Robison mentioned two things that are not in the bill. You said that it does not include trans women, and we will interrogate that as we go along, but you also mentioned the removal of exceptional circumstances. Can you give us some insight into what you meant by that?

Professor Robison

I was referring to section 4 in the consultation draft. The issue involves ensuring that there are circumstances in which, in cases where a disabled person is as well qualified as a non-disabled person, an organisation can say that, because it has a problem with its diversity in relation to disabled people, it will select the disabled person. I think that the change in language from “exceptional circumstances” to a scenario involving a much broader justification perhaps gives too much scope to the appointing board in terms of when it can say that it is not going to follow the requirement to achieve the objective.

The Convener

That gives us some other avenues to explore.

Rory McPherson

Earlier, Muriel Robison discussed the issue of circumstances in which there were candidates of equal standing. I responded to what I understood was essentially a hypothetical scenario involving two identically qualified candidates, but I am happy to defer to her expertise in this area and to concede that there will be instances in which there are two identically qualified candidates. The Law Society does not have a difficulty with the bill in that context. I was simply responding to the hypothetical position that is sometimes put forward involving the difficulties that would arise in cases involving two identically qualified candidates. In my own experience, individuals who are characterised as being identically qualified turn out not to be when we look more closely. The bill is useful in that it identifies an opportunity to consider gender capacity in that regard.

There are some challenges in the bill around the appointing persons’ rather subjective assessment. One would hope that the reporting requirements would tease that out. On the broader issue, as we have said, the Law Society hopes that there will be opportunities to come back at a future date to consider further legislation dealing with other protected characteristics. However, that might be tied in with issues of legislative competence.

At present, the society’s concern is that, with regard to the end that the legislation seeks to achieve, the absence of a form of penalty or redress, such as saying that the court can enforce the duties with appropriate remedies providing penalties for non-compliance, means that the legislation might be criticised as providing essentially a statutory voluntary code.

The Convener

We have run out of time. You have given us lots of questions to ask the Government, and we are grateful for your contribution. As I usually say to witnesses, if you go away and think of something that you should have said, please let us know in writing while we are still deliberating on the bill.

11:23 Meeting continued in private until 11:35.  



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Second meeting transcript

The Convener (Christina McKelvie)

Good morning and welcome to the 22nd meeting in 2017 of the Equalities and Human Rights Committee. I remind everyone to switch off their mobile phones or put them on silent and ask members to keep their phones off their desks. We have received apologies from our colleague David Torrance.

We have two panels of witnesses this morning, and I am minded to give about 45 minutes to each. Members have already been warned to keep their questions brief, and it would be helpful if we could get succinct answers.

Continuing with our stage 1 scrutiny of the Gender Representation on Public Boards (Scotland) Bill, I welcome to the meeting Bill Thomson, the Commissioner for Ethical Standards in Public Life in Scotland; Melanie Stronach, public appointments officer, Commissioner for Ethical Standards in Public Life in Scotland; Lynn Welsh, head of legal in Scotland, Equality and Human Rights Commission; Liz Scott, equality manager, Highlands and Islands Enterprise; Professor James McGoldrick, convener, Scottish Social Services Council; and Fiona Moss, head of health improvement and inequalities, Glasgow city integration joint board.

Thank you all for your very helpful written evidence. I ask each member of the panel to give us a quick understanding of who they are, what they do and their thoughts on the bill.

Liz Scott (Highlands and Islands Enterprise)

Thank you for inviting Highlands and Islands Enterprise to give evidence. Highlands and Islands Enterprise is an economic and community development agency for the north and west of Scotland, and we are keen to promote the business and economic case for diversity on boards, both across the public sector and in the private sector.

We welcome the bill, and I think that there are opportunities to increase the number of skilled and capable women who are able to come into positions of decision making and governance on boards. Over the past few years, we have worked quite closely with the Scottish Government, as a result of which we have increased the diversity on our own board quite significantly and have worked on some interesting initiatives both to help increase the talent pipeline coming through and to develop our own board membership.

Professor James McGoldrick (Scottish Social Services Council)

I am convener of the Scottish Social Services Council, which regulates the social services workforce. About 100,000 people are currently on our register, so it is a big workforce; however, we are a relatively small board, and part of my contribution today will be about some of the issues around achieving diversity on a board of 10 people. After all, a small number can mean big percentages when there is a 50:50 target. We are also the sector skills council for the social services workforce in Scotland.

Fiona Moss (Glasgow City Integration Joint Board)

I head health improvement and equalities in Glasgow health and social care partnership. We, along with the other integration joint boards in Scotland, were created through the Public Bodies (Joint Working) (Scotland) Act 2014, and we are the largest such board in Scotland. We made a submission because we were surprised to find that, even though we have about 9,000 staff and over £1 billion of spend and provide health and social care for all age groups in Glasgow city, we have not been listed in the bill. We support gender parity on boards, including our integration joint board.

Bill Thomson (Commissioner for Ethical Standards in Public Life in Scotland)

I will not repeat my title as it will take up too much time. My interest in public appointments is limited to regulated appointments, which are specified in statute, but I support the gender representation objective in section 1 of the bill.

It might be helpful to clarify what I understand to be the current position in respect of women appointed to public boards in Scotland. I will limit my comments to regulated appointments, which amount to 640 posts spread across 94 public boards. That is slightly smaller than the total number of boards covered by the bill.

The committee has been given various figures for the number of women appointed to such boards, including 36 per cent, which was the position in 2014. In 2015-16, as the Scottish Parliament information centre briefing notes, 42 per cent of regulated posts were held by women. In 2016-17, that figure increased to 45.1 per cent; I am sorry for being so precise, but the 0.1 is a whole person.

As of September 2017, the percentage of women in regulated posts is 45.8 per cent of the total. If you break that down to the level of chairs, where there are far fewer women, women represent 25 per cent of the total. However, excluding chairs, the percentage of board members who are women is 48.9 per cent.

In 2014, 45.6 per cent of ministerial appointees were women; in 2015, that figure increased to 53.6 per cent and in 2016 to 58.6 per cent. In other words, for the past two years, more women than men have been appointed by ministers to regulated posts.

I hope that that has been helpful.

The Convener

We will come back to that.

Melanie Stronach (Commissioner for Ethical Standards in Public Life in Scotland)

As public appointments officer in Bill Thomson’s office, I am here because I am a specialist in the area of public appointments.

Lynn Welsh (Equality and Human Rights Commission)

I am head of legal at the Equality and Human Rights Commission. Our job is to promote and protect equality across Great Britain, and we share our human rights mandate with our sister organisation, the Scottish Human Rights Commission. We have a direct interest in the bill and its interaction with the public sector duties in the Equality Act 2010, in which we have a particular role as a regulator.

The Convener

Thank you for giving us an overview of who you are and where your influence lies. We will go straight to questions.

Mary Fee (West Scotland) (Lab)

Good morning, panel. Thank you for providing us with your very helpful written evidence.

I have a specific question about the definition of gender in the bill. Although I understand and support the principle, some of our witnesses have raised concerns that the bill is not inclusive of trans women and has a binary definition of gender, which means that there is no way to include people who identify as non-binary. I would be interested in hearing the panel’s views on that. There is legislation across European Union states that has a similar aim but which uses a different definition of gender. What are the panel’s views on what could be done to achieve inclusion?

Lynn Welsh

As you are probably aware, the Scottish Government is restricted in how it can legislate in this area by the devolved competence that it was given under the Scotland Act 2016, which requires the legislation to fit with the protected characteristics set out in the Equality Act 2010. To an extent, that is a restraint on what the Scottish Government can do. However, I know that the Equality Network has suggested an amendment to the bill that would extend it to cover trans women, too. As long as it fits with the protected characteristics definitions in the 2010 act, I see no reason why that cannot be possible.

Bill Thomson

My interest is in diversity in its broadest sense. I accept entirely what Lynn Welsh said about the statutory limits on the Government’s ability to operate in this area, but I think that the Government is also interested in diversity in its broadest sense. I have no problem with what Mary Fee is suggesting, but I can see that, legally, there might be a difficulty.

Mary Fee

In what way?

Bill Thomson

As I understand it, the bill addresses protected characteristics, which are what the Scottish Government has the power to deal with under the Scotland Act 2016. However, as you are probably well aware, there is an exception in section 4(4) that allows, certainly in terms of ministerial appointments, reference to other characteristics or circumstances. I would have thought that that was broad enough to cover the issue that you are raising.

Fiona Moss

I am not an expert on the legal side, but we gave some thought to how we as an integration joint board would deal with the gender issue. It was suggested that we look for a way in which the gender that someone wanted to be known by was recognised in their membership on a board, but obviously that would have to be within legal constraints. I do not see the bill necessarily making that particularly difficult.

Mary Fee

It would, of course, make it difficult if someone identified as non-binary.

Fiona Moss

The issue for us is that in most cases people identify with a particular gender; it might not be the gender that they were born with, but a gender that they identify with. We would look to recognise that, within legal confines, but I do not know about the legalities of that.

Professor McGoldrick

For us, one of the big challenges relates to the other protected characteristics. Our board has tended to have a pretty balanced gender profile over the years, but I might say a bit more about that if the issue comes up later.

Liz Scott

Some colleagues here are probably more au fait with the legal definitions, but to ensure that we were covering all the protected characteristics, it would be good to be able to cover the non-binary issues. Where things become more difficult is requiring people or organisations to report on proportions of board members at individual board level, because that is where the small numbers come in. It would be right to cut across all the protected characteristics at an aggregated level for the whole public sector and the different sectors within it: health, transport and so on. The principle is good, but the practicalities of the small numbers will create an issue.

The Convener

We will hear from the Scottish Trans Alliance next week, when I hope that we will be able to interrogate that issue a bit more. However, if you have any other comments on the matter, we are happy to hear them.

Jamie Greene (West Scotland) (Con)

Does anyone on the panel have any thoughts on the bill’s financial implications for the various organisations that will be subject to the bill’s requirements and how they will deal with them? A wide variety of matters could affect them, including additional recruitment costs and management of the reporting mechanisms. At Government level, the monitoring, reporting and management of the entire process will affect a substantial number of public bodies. Does anyone have any views on the bill’s financial implications? I am keen to hear them.

Professor McGoldrick

We looked at that aspect, particularly with regard to reporting. If we have to have a different set of reporting arrangements other than the ways in which we naturally report our activities, that might have a financial implication for us. Otherwise, we think that if we can report by having a section in our annual report that covers gender equality, there will not be a big implication, as things stand.

09:45  



Fiona Moss

For organisations that are close to or have achieved gender parity, the costs will not be substantial but for those organisations that are quite far away from that parity, they will be. I had a look on Google, as you do, at the gender representation in some of the organisations that are listed in the bill; some are already there while some are quite far away.

If women made up only a third or less of an organisation’s board, it would involve quite a lot of work. A lot of effort would need to be put in to bring forward women to apply, to support them, and to make sure that they are coming through the organisation in different professional roles, if that is what you have on your board. The cost depends on the business of that organisation. Some organisations, such as ours, have gender parity now, so we will not have that cost. For other organisations, that cost would be significant.

Jamie Greene

Where do you think the money should come from? Given that these are primarily publicly funded bodies with finite budgets, if an organisation is so far away from where they need to be, at 50 per cent representation—say there are two or three women on a board of 10 people, for example—and there will be a fairly substantial cost to get them up to that level, should those organisations pay for that or should additional funds be made available to them to help them to meet that commitment?

Fiona Moss

What a horrible question to ask me. [Laughter.]

Jamie Greene

Sorry—there is no right or wrong answer.

Fiona Moss

I would always say that a public organisation needs additional funding. The reality is that it is probably about a blend of the two. It will depend on how quickly we want gender parity to happen and how far away the organisations are from where they need to be. If you need it to happen more quickly and you are quite far away from 50 per cent representation, you will probably need to give something to enable it to happen or to support particular developments. One area that we are interested in is mentoring schemes that bring more women on in certain areas. You might want to support that kind of activity for the range of organisations that are further away.

Lynn Welsh

I would not want the potential cost to be overstated. Substantial support and information are available and there are organisations that can assist with how that work should be done. An organisation could partner up with a board that is already excellent in that area.

I do not think that the monetary cost would be that substantial and, when you weigh it against equality and the huge benefits of having women on the board, it would be reasonable.

Jamie Greene

There is no denying that equality has no price, in that respect, but it is important to recognise that boards have budgets to manage and any additional costs will need to come either from existing budgets, which are already spent, or from additional funding from the Government. I think that that is a fair observation.

Lynn Welsh

I assume that such organisations, as public bodies, will have been covered by the public sector equality duty, apart from any other legislation, for a number of years, so arguably they should have been building their work in this area for quite a while and therefore will not be hit by a sudden requirement under the proposed legislation. It would be good if the organisations would now take responsibility for doing some of that work.

Professor McGoldrick

Fiona Moss made points about boards that are far away from the target, and it is important to be aware of other resources that could support them. I do not know whether this came up in the evidence from the Institute of Directors but there is a Scottish Government and IOD partnership on developing board potential, particularly around gender representation, so that resource is already there. I suppose that it is about being aware of it and being able to tap into it as opposed to there being an additional cost to a specific board.

The Convener

Bill Thomson, I know that your office has been doing some work with the Scottish Government public appointments team. Could you give us some insight into the work that you have done on advancing some of the public organisations?

Bill Thomson

Yes. Our experience is that a combination of things is required to improve diversity on boards and most of them have been mentioned by other witnesses. Part of it is about working on the profile of the board so that people know that it is there. Part of it is about making sure that that profile makes it interesting so that people want to participate. I am talking about diversity in the broader sense.

Gender diversity is very important and there is already a momentum towards that, at least in terms of regulated appointments. It will not cost very much more for that momentum to carry forward. However, there will be other underrepresented groups that are more difficult to reach or to interest and which might have greater needs with regard to being board ready. You have heard about mentoring; quite a few mentoring schemes are under way and they are very effective.

If you want to keep the process open to avoid cronyism—that is the whole point of having regulated appointments—you have to be careful to keep the pipeline sufficiently open so that it is not just a particular cohort that is taken through a pipeline, comes out at the end and is appointed. Work and effort is involved in that and, for ministerial appointments, it requires the minister or those who are advising the minister to think carefully about what they are looking for. It is terribly obvious but, if you ask the same questions, you will get the same answers. One of the things that has changed is that ministers are setting out the specifications of roles differently so, in effect, they are asking different questions and getting different answers. I am not in a position to say how much that costs.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I thank the panel for coming to see us today. I whole-heartedly support the principles behind the bill, but I am concerned that we will not put sufficient teeth in the legislation, particularly with regard to the equalities agenda, in which we come dangerously close to virtue signalling. Legislation for legislation’s sake, when it is not backed up by sanctions or a way to implement the will of the bill, is pretty pointless. I am not alone among colleagues on the committee in having concerns that there is a profound absence of sanctions or teeth in the bill to compel or induce boards that are dragging their heels to bring their standards up to what we would hope them to be.

Will the panel reflect on how we can strengthen the bill beyond the reporting duty, which is the only measure that puts pressure on boards to up their game? In which sections of the bill can that strengthening take place?

The Convener

Does Lynn Welsh have something to say about that in her role as a guarantor?

Lynn Welsh

There is a fine line to be walked. We have to keep on the side of positive action and not positive discrimination, and we are constrained by EU law in that regard. One issue that has come through in various cases at the EU level is that, if sanctions are too severe—if there are sanctions at all—they might breach the idea of positive action and encourage boards to take positive discrimination measures, which will mean that they are unlawful. There is a balance to be struck and it depends how much you want to push or pull.

I can see that some form of regulation or sanction might get boards that have not taken the issue seriously to date to take it more seriously. What that would look like is open to discussion. As the bodies are public authorities, I guess that you would not want them to face substantial fines, which might be counterproductive, so the regulation or sanction would be something that got the required work done in order to meet the will of the bill. For example, under the public sector equality duty, as a regulator, we can issue compliance notices, which are a sort of action plan, or get the body to state what action it will take and then hold it to that, legally. We can enforce that through the courts. The sanction is for the body to take the action that it failed to take; it achieves something, rather than simply being punitive.

Professor McGoldrick

As a board chair, it is a question that I have tussled with a bit. On the idea of sanctions for non-compliance, I worry about the law of unintended consequences. Boards might appoint to meet the compliance requirement rather than the broader aim that the organisation is trying to achieve. The sanction of naming and shaming non-compliant boards is probably available already. I take the point about fines and other things, but they would potentially disrupt the board’s work.

The Convener

Bill Thomson has provided some guidance in the past on how boards should operate, so he may want to comment.

Bill Thomson

My guidance, which is really for ministers, is on the appointment process. That takes me to my main point in answering the question, which is that regulated appointments are made by ministers and not by public bodies. The public bodies have a role, and the better they play that role—provided that the minister is aware of what is going on, as I am sure they will be—the better the contribution will be. Bodies have two requirements under the bill to promote gender equality. However, it would be very difficult sensibly to apply any penalty to a board, given that the appointments are made by somebody else.

The teeth, as Alex Cole-Hamilton put it, need to be looked for in slightly more subtle ways. The committee and the Parliament can and do hold ministers to account. As I understand it, ministers have a sponsorship arrangement with the bodies that they support. You will need to ask somebody else for the detail of this, but I believe that those sponsorship arrangements are changing so that there is greater emphasis on diversity and what a board does if it has a diversity issue. Obviously, that process will not be public, but the minister would certainly be able to answer questions on it.

Actually, naming and shaming and public reporting are more powerful than they might sound. Of late, a number of boards have been in the public eye in an uncomfortable way. Nobody in their right mind wants to be in that situation. If public opinion is strongly enough behind gender diversity or diversity more broadly and a board falls foul of that, it would be in an extremely uncomfortable place, and I do not think that anybody would sit there for very long.

Fiona Moss

I add that the membership of the integration joint boards is set out in legislation. We have an equal split between elected members and non-executive members of national health service boards. In reality, our board membership is on the whole determined by bodies that we do not control. That is an example of Bill Thomson’s point.

I also agree that all public bodies want to do the best job that they can. We do not want to be singled out for poor performance or for not achieving—we want to work to be good on the issue.

Professor McGoldrick

Building on that point, I note that our board has 10 people, one of whom is the chair of the Care Inspectorate, so the gender of that person is determined by another organisation—well, it is determined by nature but, in terms of their appointment, it is determined by another organisation. Our terms of reference say that we need to have two people who are registered with the SSSC and two people who have experience as carers or users of services so, for about half of our board, we almost have no control over who the people are. That is a complicating factor for us.

Alex Cole-Hamilton

I am grateful for those very full answers. Bill Thomson made a good point about public reporting and how strong naming and shaming can be. There is a reporting duty in the bill, but it is only a duty on public bodies to report to ministers. I will seek to amend the bill to place a duty on ministers to report to Parliament on that process, so that a more public airing is given to how we are doing on the issue.

On my question about strengthening the bill, Professor McGoldrick talked about some of the provisions. To me, the bill gives a significant degree of subjectivity and wiggle room. For example, under section 5, which is on encouragement of applications by women,

“An appointing person for a public board must take such steps as it considers appropriate to encourage women to apply”.

The phrase “as it considers appropriate” is very subjective and there is no test of it or threshold for it.

Section 4 is on consideration of candidates. Section 4(4) says:

“The appointing person—

(a) must consider whether the appointment of a candidate identified under subsection (2) who is not a woman is justified on the basis of a characteristic or situation particular to that candidate, and

(b) if so, may give preference to that candidate.”

Again, that is very subjective. Anyone could give a reasonably coherent narrative as to why they picked a particular man over a particular woman in a particular circumstance. Is that section strong enough? How might we tighten it?

10:00  



Bill Thomson

Ministers are required to disclose the reasons for appointments, and those reasons have to be credible. If they are not, anybody who is disappointed by the outcome has a right of complaint and ultimately—although this is extreme and it would probably never happen—could take the minister to the court for judicial review. That has happened at a United Kingdom level, fairly spectacularly. It is not as free and easy as it might sound.

Alex Cole-Hamilton

We are talking not just about ministers but about people who are appointing boards at lower levels in public authorities.

Bill Thomson

The bulk are regulated appointments that are made by ministers, and ministers publish statistics on them, whether directly or not. I did not come here to blow my own trumpet, but my annual report contains a lot of statistics, which are figures that are provided by the Government and checked over annually. A lot of the information is out there already. In a broad sense, people just have not taken enough interest in it.

I think that the bill is trying, given that there is momentum towards gender diversity, to ensure that there is no backsliding and we do not lose the gains that have been made. At the moment, the gender diversity margin is quite small, so we should not get too worried about the discretions that are in the bill. It will not always be appropriate for women to be appointed.

Alex Cole-Hamilton

I get all that. You have illuminated us with the statistics on how things are improving organically, which is great news. However, you are right that the point of the bill is to stop backsliding, so that if in the future we have a less progressive Administration that is not interested in diversity it will be held by the strictures in the bill. My concern is that the bill does not have many strictures and there are a lot of get-outs and wriggle room, such as the idea that a board must take only

“such steps as it considers appropriate”.

Lynn Welsh

I agree that that is not the strongest wording that the bill could have. “Reasonable steps” would perhaps be better, as that has a definition that can be looked at objectively.

The bill will change the acceptable reasons why appointers would be able not to appoint a woman in a tie-break situation. The wording that is currently used is, I think, “exceptional circumstances” and it will become

“the basis of a characteristic”.

I like that, because it makes it clear that other diversity characteristics that the man may hold could be important to the board’s diversity. The man might be from the black and minority ethnic community or disabled. Those issues should be looked at and they could amount to exceptional circumstances.

I think that

“situation particular to that candidate”

is certainly weaker, so perhaps there needs to be some kind of middle ground.

You are probably aware that an awful lot of organisations listed in the bill already have a reporting duty in the public sector equality duty, specifically in relation to diversity on boards. It came into force last year and the first reporting should have been done this year, but it has been delayed for various reasons. The reporting must not only say how many men and women a board has, but set out actions that a board has taken and intends to take to improve its diversity. It is very explicit and we expect boards to publish what they have done, what they are going to do and where they are at. That reporting is public.

The requirement for that reporting will not cover all the bodies that are listed in the bill. I do not know whether there is a way of bringing those bodies into that reporting regime; I guess that the reporting bit is being left to regulations so that how those two pieces will fit together can be worked out. That reporting duty is relatively strong.

Liz Scott

The question of what public sector bodies are required to report is quite interesting. It is really important that public bodies report what they intend to do, what they have done and how that has improved the overall proportion of women or people with other characteristics on their boards. It is probably quite important to keep the specific requirements around the progress that has been made rather than around individual numbers; otherwise, it would get quite difficult for very small boards to report. It is important to focus reporting on the actions that are taken and the progress that is made as a result of those actions.

The Convener

Bill Thomson gave us some incredibly interesting figures at the start about the proportion of women in regulated posts rising from 36 per cent all the way up to 45.8 per cent in only about two and a half years. Were any particular actions key to that progress being made?

Bill Thomson

My view is that political will has changed the climate and the whole agenda. This is of course a time of wider interest in gender equality across society. This issue is not seen just in terms of private sector financial performance; it is on the agenda in a different way. If I have a concern about the bill, it is simply that it focuses on gender equality, where significant progress is being made, and there is a risk—albeit a small one—that other areas of diversity where improvement is required will have to play second fiddle.

The Convener

Okay, we hear that. Annie Wells wants to come in on the tie-break question—that is a really good segue—and then I will bring in Gail Ross. We have only a short time left.

Annie Wells (Glasgow) (Con)

Good morning, panel. Lynn Welsh touched on the tie-break issue, which the committee came up against last week, too. There is no actual statement in the bill that, “We must achieve 50:50.” We know that anonymous applications and anonymous sifting happen. What would happen if we needed a woman on a board to get gender balance, but two men came out of the sifting process? There have been references to putting consideration in place and to reasonable structures, but if we are trying to achieve 50:50, we must actually have something in place. As far as I can see, merit sits at the heart of the bill. Encouragement is absolutely brilliant—I would encourage anyone to apply for a role in any aspect of life to get more women involved—but I do not see how the bill will get us completely to 50:50.

Bill Thomson

This is not the answer you are looking for—I am sorry—but I think that you have to have faith in the ability of women.

Annie Wells

I absolutely do.

Bill Thomson

I am sure that you do. If you have faith in the ability of women, if the process is truly open and if appointment is made on merit, it follows logically that at least 50 per cent of appointees will be women.

Annie Wells

May I come back in on that point? I encourage women whole-heartedly. However, we need to have something in place in case two men come out of the anonymous sift as the initial candidates, for example. We know from past experience that women undersell themselves. If there are eight items on a job list, men will say, “I can do seven or eight of them,” but women naturally undersell themselves. That has been proven.

I would love to see gender diversity on boards, but the tie-break situation excludes other characteristics. Are we taking gender equality over BME equality, disability equality, and lesbian, gay, bisexual and transgender equality? There is nothing in the bill to ensure that a board that needs two female members will get two women. I do not see that completely.

Bill Thomson

If a man is the best candidate, he should be appointed—merit is the key to this. However, the process has been opened up. You are entirely correct that women have a different attitude. People like me are more willing to have a go and put our names forward. Speaking in generalities, women do not feel the same way about it.

Adjustments have been made to the process and the way that the criteria have been set. Although the political will has been critical to that, that political will allows people to put effort into doing that in a way that allows women to put themselves forward. Lynn Welsh made the point that the best candidate might be a man who is also disabled. He may be young, in the sense that the bar is set at 49. A lot of us would not think that 49 is particularly young, but we are struggling overall to get people under 49 on board. If you have a 45-year-old man, why not?

Liz Scott

It stresses the importance of building the talent pipeline. There are lots of initiatives around—for example Changing the Chemistry—that are really trying to build the capability of good women who have got the potential to contribute to boards. When it comes to your selection, if we have done a lot of work in those areas, many more women will have come through who have got the level of ability they need to get the appointment on merit.

Lynn Welsh

It depends how you define merit, and what you are actually looking for. As importantly, there has been the right to take positive action for a number of years, which not only includes encouraging people to apply. You do not have to do all your sifting anonymously, although it is good practice in lots of areas. There have been some great suggestions for how you can ensure that women are being interviewed, if that is your concern. However, at the end of the day selection must be based on merit; otherwise, you are discriminating. The issue is how you get people to the point at which you are making that final decision. Lots of lawful positive action is available that you could take to ensure that women get to the interview stage.

Annie Wells

I absolutely agree that we need to encourage women and get that pipeline going. Mentoring is a fantastic thing. I would still be quite concerned about the anonymity of applications—I know that that is what happens now on public boards.

Bill Thomson

It is not a requirement.

The Convener

There is lots to think about there.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

Good morning, panel. I have a round-up question. We have heard that, as a result of voluntary measures, the figures for gender balance are quite good at the moment. A lot of good work is being done to encourage women, and to inform them what their role would be on a board and how they can use their experience and knowledge to influence decision making. I refer to the Highlands and Islands Enterprise paper on occupational segregation—a lot of good work is being done in that important area.

If all the good work is being done through voluntary measures, is the bill necessary?

Lynn Welsh

Yes.

Gail Ross

Why?

Lynn Welsh

There is very good practice in a number of organisations and none in some, and a way has to be found to lift those perhaps more recalcitrant bodies to the correct level. It also sends out an excellent signal in relation to equality altogether. This will not just be about boards—it will start to trickle down into other areas that those boards will be in contact with.

Professor McGoldrick

I fully endorse that comment. The workforce that I mentioned at the start of the session is largely a female workforce. Gender representation is very meaningful in that context.

Fiona Moss

I would say yes, too. As a public organisation, it is not often that we ask for more legislation. However, the reality is that legislation in this area is good for us as a society and good for us as an organisation, so we fully support the bill.

Liz Scott

It is also an important way of raising awareness, not just in public bodies but across Scottish society, about the place that women, in this case, can take on public boards. However, it is important that that is reflected across the other characteristics.

The Convener

Bill Thomson mentioned that we needed the legislation in order not to have a roll-back, and said that one of the drivers for change was political will. If there were to be a change in the political will, and if we were not to have the legislation, do you perceive that there would be a roll-back?

Bill Thomson

I agree that there would be a risk of that.

10:15  



The Convener

One of the issues that arose from our two panels last week was about organisations looking for guidance. The bill does not provide for guidance for public bodies. What is your opinion on having a set of guidance that would go along with the bill? Would that help? I know that you have been involved in writing guidance.

Bill Thomson

There is guidance on ministerial public appointments. As others have mentioned, quite a lot of guidance is available already. The Government produces an online document called “On Board”, which has a certain amount of guidance and which would be relatively easy to expand if it were felt that things were missing.

Lynn Welsh

We also have quite a lot of guidance on positive action more generally, which might be at least a good basis for more specific guidance for the legislation if that were thought to be needed.

The Convener

Good. We like to be pointed in the right direction. Thank you very much.

Are there any other comments this morning? You have all been very disciplined—well done.

Jamie Greene

I appreciate that we have done a quick round on whether panel members feel that legislation is required. I did not quite get to a conclusion on whether they think that further enforcement or sanctions should be included. Could we have a quick yes or no on that?

The Convener

I suppose that that would depend on what the sanctions are, which was what the earlier conversation was about.

Jamie Greene

That is true, but I had the impression that there were quite mixed feelings on that.

Professor McGoldrick

I do not think that a sanction would be appropriate, other than through the reporting and the naming and shaming means that we already have available.

Jamie Greene

Thank you.

Lynn Welsh

I think that a sanction such as a compliance notice might well be appropriate.

The Convener

That is very interesting.

Fiona Moss

I agree with James McGoldrick’s comment. I do not think that that is necessarily the way to go; there are other ways of holding us to account.

Liz Scott

I think that a reporting requirement has its place.

Jamie Greene

Does Bill Thomson have a view on that?

Bill Thomson

I have expressed my views. I have nothing to add.

The Convener

I thank our panel members very much. I add my usual proviso, which is that if you go away and think that you should have said or offered something else, please do so. We have a bit of a journey to go on with the bill and we would be keen to hear from you. We are very grateful for your written submissions and oral evidence.

I suspend the meeting to allow for a change of panel.

10:17 Meeting suspended.  



10:24 On resuming—  



The Convener

We continue with agenda item 1, which is our continued scrutiny of the Gender Representation on Public Boards (Scotland) Bill. I welcome our second panel: Ken Milroy, chair, Colleges Scotland; Sheena Stewart, university secretary, University of Abertay Dundee, and convener of the secretaries group, Universities Scotland; Stephanie Millar, senior policy adviser, Equality Challenge Unit; Mary Senior, Scotland official, University and College Union Scotland; and Andrea Bradley, assistant secretary for education and equality, Educational Institute of Scotland.

Thank you for coming to the meeting—we are keen to hear from you. I also thank you for your written evidence. You have given us lots to read, for which we are grateful, as it will help to inform our questions. As I did with the previous panel, I ask you first to give us a wee oversight of who you are, what you do and why you think the bill is or is not important.

Andrea Bradley (Educational Institute of Scotland)

As you said, convener, I am an assistant secretary at the Educational Institute of Scotland, which is the biggest teacher trade union in Scotland. We have an interest in the bill because of the college boards and the university governing bodies dimensions. In addition, we are part of the wider trade union movement. The women’s committee of the Scottish Trades Union Congress in particular has been a long-standing advocate of 50:50 representation on public boards.

In my remit as assistant secretary with responsibility for education and equality, the issue cuts right across significant parts of my work. The EIS has made several contributions in the legislative process in the area and in other for a that are related to this campaigning issue. The issue is an on-going and long-standing area of interest for us.

Ken Milroy (Colleges Scotland)

Good morning, convener and committee members. Colleges Scotland welcomes the opportunity to give evidence to the committee.

Colleges Scotland is the membership body for all of Scotland’s 26 colleges across our 13 regions. The colleges provide training and education to 227,000 students and employ 11,000 staff, 61 per cent of whom are female and 39 per cent of whom are male.

Governance has been critical to the sector over the past few years, since the regionalisation of the college sector. We have supported that through the establishment of the good governance steering group, which has produced a code of good governance. That code was published in 2014 and updated in 2016. Diversity issues have therefore been part of our considerations of our overall governance position.

A recent snapshot of where we have got to with our boards showed that gender equality has slightly improved from the position in the submission: the figures are now 59 per cent male and 41 per cent female. Probably around a third of members of our boards across the country are appointed externally, so around two thirds of them are appointed by the boards.

Stephanie Millar (Equality Challenge Unit)

Good morning. I work for the Equality Challenge Unit, which is a United Kingdom-wide organisation that supports universities across the UK and colleges in Scotland to implement their equality responsibilities as effectively as possible. We work across governance, staff and students in Scotland, and currently a significant part of our work is supporting college governance.

In 2014, we produced a research report entitled “Governing bodies, equality and diversity in Scottish higher education institutions”, which unpicked some of the issues around diversity for the boards and their knowledge of diversity. We have also produced guidance for college board members and university governors on their roles and responsibilities in relation to governance.

Mary Senior (University and College Union Scotland)

Hello. I am from the University and College Union, which represents academic and academic-related staff in Scotland’s universities, and we are the largest union in the higher education sector. Our interest is primarily in university governing bodies, which are often known as courts.

Over the past couple of years, there has been real progress on gender balance in university governing bodies. That is, no doubt, due to the scrutiny that has been applied to the university sector, particularly around governance. In the past, there has been criticism about a lack of diversity. That focus and the spotlight that has been on the sector have encouraged the sector to make changes, which we very much welcome. Nevertheless, our message today is that the university sector should not take its foot off the gas but should cement the good progress that has been made. That is why we are supportive of the bill.

10:30  



Sheena Stewart (Universities Scotland)

I am the convener of the Universities Scotland secretaries group. Universities Scotland is the representative body of the 19 higher education institutions in Scotland, and the secretaries group is responsible for corporate governance and for managing the appointment of governors. Gender representation is, therefore, very close to our hearts.

The sector is very supportive of the aims that are set out in the bill regarding gender and the requirement to appoint the best-qualified candidate. As Mary Senior said, we have worked hard—successfully—over the past few years to have more balanced gender representation on our governing bodies. However, we have an issue with our being included in the bill. We are not public bodies and do not have public boards; we are autonomous, not-for-profit charitable institutions. That is not to say that we are resistant to the bill’s aim or the practices that it sets out, which we think are standard practice for our institutions.

We have a code, which was produced in 2013, of which equality, diversity and the setting of targets are a core part. We are about to publish an update to the code with a further emphasis on equality and diversity in the leadership of governing bodies. Currently, 47 per cent of positions that are appointed by governing bodies are held by women. That excludes those who are elected, who are excluded from the bill. Ten of the 19 institutions currently exceed the bill’s aim—in fact, five have more women than men in those positions.

A huge amount of work has gone on, not just because of the pressure to change, which has been mentioned, but because, internally, we have changed as a community. A lot of work has been done with the Equality Challenge Unit and organisations such as the Leadership Foundation for Higher Education to establish boards that are more diverse in many respects, including gender.

The Convener

Thank you. That was a nice summary of what you do. We will go straight to questions.

Mary Fee

Good morning, panel. Thank you for providing us with your written evidence.

I will pose the same question that I posed to the previous panel. It is about the concern that has been raised that the bill is not inclusive of trans women but uses a binary definition of gender, meaning that people who identify as non-binary are not included. Should some change be made to the bill? In addition, what do the organisations that you represent do to ensure that they are inclusive of trans women and non-binary individuals?

Sheena Stewart

We address that point in our written submission. We have a lot of internal dialogue regarding trans matters, as the subject is close to our students’ hearts. We feel that what you outline is an issue and that, if we are going to have a bill, it should be inclusive. I will leave it at that and allow others to answer.

Mary Senior

In our written submission, we point out the need for boards to be at least 50 per cent women as opposed to having a 50:50 gender balance. Most trade unions and organisations that have set quotas have gone for the “at least” approach because it can be more inclusive in the way that you suggest.

The UCU has worked to encourage trans participation within the organisation. At UK level, we have sent an open and inclusive message and we recently had a seminar on trans and other LGBT issues, but I accept that all organisations can do more on that agenda.

Stephanie Millar

For us, there is a wider point. I fully accept that the definitions in the bill may not be broad enough to include anything outside the binary question, but we would like the bill to go further. Focusing on gender alone is taking us down a route that forces people to overemphasise one protected characteristic over another. To get back to your original question, the ECU recently produced guidance on supporting trans staff and students in colleges and universities, which might be useful. There is nothing in that guidance that could not be extended to governance.

Mary Fee

You say that the bill should go further. Can you be more specific about what you would like?

Stephanie Millar

Focusing on gender is important but, as Ken Milroy said, the difference between the number of men and women on boards may not be as big as in other places. All colleges and universities are legally required under the Equality Act 2010 to report on all protected characteristics and, under regulation 6A of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012, to plan in advance for board succession in terms of all protected characteristics. Our concern is that having a focus on gender may take away from the current legal requirements, because they are only in regulations.

Mary Fee

That is helpful.

Ken Milroy

We noted that area of concern in our submission, but the issue is not specifically reflected in the processes that we have in place just now. If we were minded to be more inclusive, we would need to give that further consideration. Perhaps there is a need for further guidance on how that might be achieved, but it is not an area that we have actively looked at through the good governance group.

Andrea Bradley

We referred to the issue in our written submission, too, suggesting that there is potential for the bill to be more inclusive of transgender women in particular. The EIS has done work around that and we have an LGBT informal network, which contributes significantly to policy development in our organisation. Events are organised by and for that network of LGBT members, and it has been particularly active in the past couple of years. There is gathering momentum on that area in terms of the interest of our members and their confidence to identify around those characteristics and to be active.

The STUC recently produced guidance on transgender workers, which may be of interest to the committee. We have recommended that guidance to our members, and in the past few years we have updated guidance for our members on LGBT matters that is applicable not only to teachers and lecturers but to children and young people who may identify as lesbian, gay, bi, trans or some other gender identity. We have done quite a lot of work on that in recent years.

Jamie Greene

I am going to deviate slightly from my previous line of questioning, since we have a different panel. I have a specific question for the EIS, which I can widen out to the rest of the panel. The EIS submission says that you welcome the decision to legislate in this area because

“Voluntary initiatives have not been sufficient to achieve equal representation.”

I do not know whether you were here to listen to the previous panel, but we have just heard from the Commissioner for Ethical Standards in Public Life in Scotland that we are currently sitting at 45.8 per cent. To me, that sounds like quite good progress, so can you justify your position on that?

Andrea Bradley

The figure of 45.8 per cent still falls short of 50:50, and progress towards that percentage has been relatively slow. In recent years, there has certainly been a gathering of momentum on the issue, and a lot of that progress has been relatively recent. We were maybe working with different statistics from you. We had stats that were gathered in 2015 that suggested that women’s representation on public boards was at about 35 to 36 per cent, so there was still a significant deficit. You maybe have a different set of statistics from the ones that we had when we wrote our submission.

We would say that legislation is necessary because voluntarism clearly has not delivered the 50:50 balance—or the at least 50 per cent female representation—that we are looking for. We suggest that the legislation could add further propulsion towards the realisation of that ambition. Obviously, legislation on its own will not achieve that, as other cultural changes need to occur, but we think that the legislation could further precipitate the move towards that aspiration.

Jamie Greene

Will the bill actually do that in its current form? Some members feel that it perhaps does not go far enough to do anything. It just states that the appointing person should consider candidates upon merit first and foremost and that, if there is a situation in which there are two candidates of equal merit—one male and one female—preference should be given to the female candidate, and if they do not do that, all they have to do is report that they did not. Does the bill achieve what you want it to achieve?

Andrea Bradley

We are not suggesting that the bill is perfect and will be a panacea, but it is certainly a step in the right direction. Over time there might have to be amendments to the legislation if it is found not to deliver the ambitions that it sets out. Our position, not only in relation to this area of work, is that ambition on its own does not deliver on aspirations. Other support has to be provided to organisations so that they can maybe shift mindsets and change people’s perceptions in order to ensure that everybody is working together towards the aspiration. Thus far, not enough has been done to balance the representation of women not only on boards but in employment structures, promotion structures and so on. This is only one part of a bigger piece of work that has to be undertaken over a longer period, but we have to start somewhere and the bill is a start.

Jamie Greene

I open out the question to the rest of the panel.

Sheena Stewart

For your information, we already have quite a transparent regulatory regime in this respect. For example, our code of practice is accepted by the Scottish Further and Higher Education Funding Council as good practice. It requires us to set targets in the area and to report on them, so there is also a reporting regime. In addition, we submit our statistics—including information on the diversity of our governing boards—to the Higher Education Statistics Agency. In addition to the requirement to meet the code of practice, it is also a condition of grant that we address those issues, so that regime is already in place in higher education institutions in Scotland.

Jamie Greene

That point slightly conflicts with your opening statement. You said that higher education institutions want to be exempt from the bill because they are autonomous non-public bodies, but you have just referenced the Scottish funding council, which is a public funding body.

Sheena Stewart

Absolutely.

Jamie Greene

How do you square that circle?

Sheena Stewart

We do not see our position as contradictory at all. The relationship is that a certain proportion of our funding comes from the Scottish Government, the UK Government and other sources. For that part of our funding for which we are given grant, it is quite right that we have a responsibility to report on the use of the grant, so for those aspects we are comfortable with the code of practice and the comply-or-explain approach that applies through that link on public funding. There are other authorities across the UK to which we have to respond.

Jamie Greene

Does that mean that the gender balance is applicable only on the public element of the funding? I am really confused.

Sheena Stewart

Not at all—we cannot divide it up in that way. We recognise that we are autonomous institutions but that we have responsibility to those who grant us funding. In some cases that will be the Scottish funding council and in other cases it will be, for example, research councils, because when we undertake research we are also required to demonstrate equality of opportunity and so on.

As autonomous institutions, in responding to authorities such as OSCR—the Office of the Scottish Charity Regulator—the Scottish funding council or the research councils, we have embedded and mainstreamed equality and diversity. That is right and good, but it is different from seeing us as having public boards, which we do not. That has been acknowledged by Audit Scotland and some of the Government’s own papers on the bill also recognise that we are autonomous institutions.

10:45  



Mary Senior

Sheena Stewart is right that universities are autonomous bodies, but they receive £1.5 billion of Scottish Government money to carry out education, research, teaching and so on. That is why it is important that they are accountable and why they should be included in the bill. Over the past few years, universities have made real strides forward on gender balance, but that is because there has been a lot of scrutiny: universities have been under the spotlight and politicians and Scottish Government ministers have been asking questions.

Sheena Stewart made a point about the number of women on boards in universities. Boards only appoint a proportion of their members directly; there are other categories of members, such as those from staff, senate, alumni and sometimes local authorities. We think that incorporating all those members within the ambit of the bill would be a positive step. That would place an onus on other bodies, such as local authorities, student associations and trade unions, to take gender balance into account when presenting nominations to the governing bodies. That is very important.

As the bill stands, it would not include board members from the local authority or alumni. The bill should include all members of the university body, because they all contribute and because there is a knock-on effect on other areas of society that should be taking diversity and gender balance into account.

Jamie Greene

That is interesting.

Alex Cole-Hamilton

Thank you for coming to see us today. In the previous evidence session, we heard about organic growth and the differential in the statistics that you identified between 2016 and the current position. It represents a significant improvement, although Bill Thomson made the point that the bill is intended to prevent backsliding so that, should we find ourselves in less enlightened times in which that organic growth might be reversed, legislation would be in place to ensure that that could not happen.

However, as I said to the previous panel, without meaningful teeth or justiciability—if there is wriggle room and there are no sufficient sanctions—the bill is largely meaningless. All we have is a reporting duty. The previous panel seemed to think that that was sufficient and that naming and shaming institutions that are not meeting the act’s aspirations will be enough. What is your view? Do we need anything else in the bill?

Stephanie Millar

I would like to address two aspects of that question. I agree with Bill Thomson on the first point. There has been quite significant progress in the college and university sector over the past few years, and the numbers are increasing. However, they are not going far enough and there is a risk that, without some legislative underpinning, there could be the kind of backsliding that you have mentioned not only on the national agenda, but from a local perspective. If there is a change on a board, and the new board members do not take the issue quite as seriously, there is a risk that the situation could go backwards. From that point of view, the bill is necessary.

With regard to sanctions, you need to understand that there are lots of reasons why the membership of boards fluctuates and, indeed, that it is difficult to get board members at all, let alone the type of board member that you are specifically looking for. As for measures to address that, given that colleges and universities currently have to comply with the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 and report on equality progress every four years with updates every two years, we suggest that something could feed into or mirror that, partly to reduce the onerous workload on institutions that have to do many other things but also to smooth the process. Sanctions, particularly punitive ones, could have a detrimental effect on people’s approach to the issue. Ultimately, the use of sanctions could lead to a lack of meritocracy, as a sanction would mean their having to appoint women instead of appointing women of merit.

Ken Milroy

I have mentioned the number of members that we have across our boards in the college sector; the majority are volunteers, and they come from communities across Scotland. Given that the majority of our boards are charitable organisations, I would be concerned about the unintended consequences of sanctions and about people being put off from giving their time to the college sector or other public services. We need to think carefully about the sanctions issue. Reporting, monitoring and visibility are important, and we would welcome it if the bill reinforced those things. However, I would urge caution about sanctions.

Sheena Stewart

I agree with Ken Milroy. We have volunteers from all parts of the community on our boards, and we already have the reporting that Stephanie Millar talked about. We also have transparency on such aspects in our annual accounts. In addition, an aim of the committee of Scottish chairs is to achieve proportions of 40:40:20 to allow for the flexibility that we need at some points. Periods of office can last two or three years, but people sometimes step down early and the balance might change temporarily for a period of time. Having wriggle room in that regard is very helpful. For someone like me, who is managing the process and trying to find good applicants, having that kind of scope is helpful.

Alex Cole-Hamilton

With regard to the wriggle room that Sheena Stewart mentioned, I am not alone on the committee in believing that there is a substantial amount of wriggle room in the bill, particularly in the sections on the justification principle in terms of a decision to appoint a man over a woman. Section 5, which relates to encouraging applications by women, states:

“An appointing person ... must take such steps as it considers appropriate”.

As we understand it, no statutory guidance will underpin the bill. In the absence of such guidance, how can we strengthen the appointing process to ensure that it is not entirely subjective and that people do not just tick boxes and say “Well, I did everything I could and we just have to appoint the guy”? I am keen to hear how the panel thinks we can strengthen the bill in that regard. Do we need statutory guidance to define what is meant by “appropriate” steps?

Stephanie Millar

I fully endorse the bill’s underpinning by statutory guidance, partly because things would become unbalanced if sanctions were considered and boards were not given adequate support and a framework to work within. That is particularly the case with regard to section 4, which relates to choosing between two suitably qualified candidates. It might be argued that, if we do not have underpinning guidance, we are setting boards up to fail.

Andrea Bradley

As we have said in our written submission, there should be further consideration of the application of sanctions, because voluntarism thus far has not delivered the ambitions that we have talked about. That said, we have suggested that there be no heavy-handed, blanket approach to sanctions. There would have to be monitoring and perhaps interrogation of why a public body had not met the requirement to achieve gender balance on its boards, and any sanctions would be appropriate to the reasons why the body was unable to deliver on that. There could be a mechanism that would allow not only dialogue to take place but a penalty to be applied.

The other way of thinking about the issue would be to provide incentives to encourage public bodies to accelerate progress towards achieving gender balance on boards. Indeed, we have seen that approach in other aspects of public policy. However, our submission suggests further consideration of sanctions to give the legislation more teeth, as Alex Cole-Hamilton has suggested.

Annie Wells

My question, which I asked in the previous evidence session, is about the tie-break situation, but I think that it has been covered a bit in the responses to Alex Cole-Hamilton’s question. If a board is looking for one member to take the balance to 50:50, how might that be done at the moment in universities? If merit lies at the heart of this bill, how can we guarantee 50:50 representation on public boards from the kick-off?

Sheena Stewart

In seeking applicants, taking decisions and making appointments, universities usually draw up skills and gender matrices. When a vacancy arises or is about to arise, we first identify what skills the board will need, some of which will come from our governing orders or the statutory instruments that apply. Secondly, we look at all aspects of diversity, including age, gender and disability. That can help with advertising. The members of our nominations committees, all of which, I think, involve staff and student governors, will usually have had training on things such as unconscious bias. There will be an awareness of, first, the skills that have been identified and, secondly, the matrix and the gender and diversity breakdown on the board, and the members will go into the interviews and nominations committee meetings with that information to hand.

I can expand on that if you like, but I hope that that is sufficient to give you an idea.

Annie Wells

In using that gender and skills matrix, are you excluding anyone from being a member of the board because of their gender or other characteristics?

Sheena Stewart

We try to apply it across the protected characteristics. As you have probably heard from other witnesses, there has been a difficulty in attracting women to apply, and the same goes for people with disability and from ethnic backgrounds. We have worked closely with the Equality Challenge Unit to try to reach out in various ways. Some higher education institutions have invited people to be co-opted on to committees of their governing body, so that they can get insight into the workings of the board and determine for themselves whether they are interested in applying. That has been a helpful way of broadening out boards that have traditionally been seen as very monotone.

The main thing for us is the skills, as we are talking about multimillion pound organisations. However, those skills can be varied. For example, one aspect of the skills that we are looking for might be having a stakeholder’s view, which could mean having alumni who know what it is like to be a student at the university. The skills that we are looking for are not necessarily technical; they could be about having that sort of insight. We try to look at everything across the piece, but the main focus has to be skills.

Gail Ross

Good morning. I have a quick question about how things are done at the moment. Are your interview panels gender balanced?

Sheena Stewart

I can speak only for my institution on that. For those panels, we draw on the governance and nominations committee, which includes lay or independent governors, staff governors and student governors. They are given training on key points so that they have the support that they need in the interview process. We cannot guarantee a gender balance every time, because it can depend on availability, but that is what we strive for.

Gail Ross

What about the rest of the panel?

The Convener

I think that Stephanie Millar wants to come back in.

Stephanie Millar

I do, but I also want to come back to the original point about positive action and meritocracy.

The Convener

Please cover both points, and then we can go to the other panel members.

Stephanie Millar

Okay. On positive action, our research in 2014 with HEI governors showed that they were not quite sure what positive action was and that they misunderstood the legality of it. We currently run two Scotland-wide projects that look at positive action with regard to student recruitment and promotion within staff, and what we are finding is that there is a drift towards positive action, but there is a spectrum in that respect. People are much more comfortable with advertising in different types of press and having gender-balanced interviews than they are with looking at, for example, choosing between two equal candidates based on a protected characteristic. They are not sure about the legality of that. Any measure on positive action such as choosing between two candidates based on a protected characteristic will need to be underpinned by a fair amount of guidance and support, because, at the moment, the sector does not feel that it has the knowledge to be able to do so fairly and successfully.

11:00  



Whether that leads to diversity and merit across the board comes back to how we define merit on the board. Perhaps we need to rethink some of the things that we are looking for in board members and to build diversity in that respect instead of trying to achieve diversity in the current system.

The Convener

Do other panel members wish to respond to Gail Ross’s question about gender-balanced interview panels?

Ken Milroy

My most recent appointment experience was the appointment of the principal of North East Scotland College. There was gender balance on the short-list and long-list panels, so it was very visible there.

Andrea Bradley

When we appoint members of staff on to the leadership team, they are appointed by a panel of lay members on which there is gender balance.

Mary Senior

We appoint internally, but, as far as the question applies to public bodies, I do not know. As Sheena Stewart has said, there has been real improvement, and institutions are very mindful of the issue. As the legislation would do more to cement that, covering the issue in statutory guidance could be really helpful.

The Convener

Did you want to come back to your substantive point, Annie?

Annie Wells

No, I think that I have the answer that I need, convener. Gail Ross probably has a follow-up question.

The Convener

Gail, do you want to ask anything else?

Gail Ross

I have my usual wrap-up question, convener. We have probably got quite a good flavour of this, but, just to get it on the record, I want to ask the panel members directly whether they believe that the legislation is necessary.

Sheena Stewart

I reiterate that we do not believe that it is necessary for higher education institutions. We already have a regulatory regime and a code of good practice, and more than half of our institutions exceed the current goal.

Mary Senior

We believe that the legislation is necessary. Universities have made good progress, particularly on members who are directly appointed by the board, but the balance is by no means 50:50. The legislation will help move that process forward, and we certainly think that universities should be included.

Stephanie Millar

We also agree that the legislation is necessary. While recognising the huge progress that has recently been made, we believe that legislation would show a clear direction and not only provide national leadership but enable local leadership. There are caveats to that, however. For example, we would like broader diversity to be considered within the legislation and guidance to be added underneath it.

Ken Milroy

The college sector welcomes the legislation. It reflects what we have already been doing on a voluntary basis and reaffirms what has been achieved over quite a short period of time.

Andrea Bradley

I concur with Stephanie Millar. The legislation is a really strong starting point; it is completely consistent with what we are doing in the trade union movement to achieve more equality and diversity, and it sits very well with other parts of the Scottish Government’s ambition. We would say that it is necessary.

Jamie Greene

I just want to clarify Sheena Stewart’s answer. The question was whether you thought that the legislation was necessary. I appreciate that you were giving the position of the groups that you represent—and I respect that—but even if you do not want to be part of it, do you think that the legislation should apply to everybody else?

Sheena Stewart

We have seen what codes of practice can do. The groundswell is coming not just from the Government and others but from the population at large. I do not want to comment on what public authorities in Scotland would want to do, but we have shown what can be done. We have had very good results from acting voluntarily, albeit within a code of practice.

The Convener

What with Jamie Greene exercising his right to independence this morning and asking a different question from planned, we have one question outstanding.

Jamie Greene

I can ask that one, too, if you want, convener. That is fine. [Laughter.]

The Convener

From this morning’s evidence, you will understand where we are coming from with regard to the potential financial impact on organisations. The earlier panel said that, if organisations already have monitoring officers and are putting all the checks and balances in place, there should be no impact. However, if they are far away from where they should be in that regard, there might be a financial impact because incentives, staff training and the other things that come along with this will have to be put in place. What are your thoughts, feelings or insights on the financial impact?

Andrea Bradley

We have stressed that there is room for further training on all pertinent aspects of equality and diversity for the staff who work for public bodies and for current and prospective board members. We also need to consider that one of the bill’s aims is to make public bodies more effective. Although there might be a short-term financial cost to achieving the gender balance, it is in pursuit of greater effectiveness and productivity and more effective outputs, and that is in the longer-term interests of the public. It is surely an investment that is not only worth making but necessary to ensure that our public bodies truly serve the whole diversity of the Scottish public.

Ken Milroy

The college sector’s code of good governance is supported through the college development network with training for our board members, so we already have things in place. Given that we can set priorities in that training programme, which is funded by the public purse through the funding council, we have an opportunity to influence and shape things from a policy perspective and ensure that learning is embedded in the practice. Something that we are beginning to see and which I welcome is our learning some of the good practice that has been going on for many years in not just our sector but different bits of the public sector.

The Convener

Stephanie, given that your organisation is involved in helping other organisations make progress, you might have an insight into the cost benefit of this kind of work.

Stephanie Millar

I cannot necessarily talk about the financial implications. Some boards will have to reconsider their skills matrix and their recruitment process, and there could be costs attached to that, especially if staff resources are needed, too.

I echo Andrea Bradley’s point. Ultimately, fairly solid research shows that, as far as finance and effectiveness are concerned, a diverse board is massively advantageous to an organisation as a whole, and that very strongly counterbalances any initial financial outlay that might be necessary.

Mary Senior

To follow up on the points made by Stephanie Millar and Andrea Bradley, I think that a more diverse board responds more effectively to its stakeholders, who in the case of universities are the staff and students. A board might address issues such as the gender pay gap, occupational segregation or how to make a university more responsive to the needs of all students in the broader community. If there is an additional cost, such investment is well worth it in terms of the outcomes that the board and the organisation achieve.

Sheena Stewart

We are already investing in our boards and our staff who support them. For example, two weeks ago, our student president, one of our lay governors and I attended a Equality Challenge Unit event on diversity in governance. We have put training in place, and that will continue, as what we are talking about is a process of continuous improvement. There will be no big increase in costs, as we have already invested quite a bit, but there will be some costs for on-going maintenance and improvement. As has been said, reporting is already in place for higher education institutions.

The Convener

Jamie, did you wish to comment?

Jamie Greene

The previous panel asked who should pay for any additional funding that might be required. Should it come out of your budgets or should the Scottish Government make more money available to public institutions?

The Convener

We can guess the answer to that.

Jamie Greene

After all, the bill makes very little reference to additional funds being made available to implement it.

Mary Senior

Public bodies should already be doing a lot of these things. For example, if a female board member needs expenses for childcare costs or travel, a public body should be providing that. The previous panel indicated that most public bodies require more funding; we are happy to make the case for increased revenue for universities, but I am not sure that that will necessarily be spent on boards.

Alex Cole-Hamilton

It has just struck me that, without any statutory guidance, the amount of additional funding will be unquantifiable. We can ask appointing persons to take such steps as they deem necessary, but if there is no guidance to say what the standard is, we will not know whether that will cost any more money. It is a catch-22 situation.

The Convener

Is there anything that we have missed and which panel members have been itching to tell us? I see you shaking your heads—we have exhausted you and ourselves this morning.

We are very grateful for your attendance and your written evidence. If you go away and remember something that you should have said, please let us know as we still have a way to go with the bill and we want to be as informed as possible.

We now move into private session.

11:10 Meeting continued in private until 11:36.  



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Third meeting transcript

The Convener (Christina McKelvie)

Good morning and welcome to the 23rd meeting in 2017 of the Equalities and Human Rights Committee. I make the usual request that all mobile phones should be off the desk and on silent, please.

I welcome David Torrance back to the committee. It is good to have you back, David.

David Torrance (Kirkcaldy) (SNP)

Thank you.

The Convener

Today we continue our stage 1 scrutiny of the Gender Representation on Public Boards (Scotland) Bill. We have one panel, who we are delighted to have at committee: James Morton, who is manager of the Scottish trans alliance; Tanya Castell, who is chief executive officer of Changing the Chemistry; Iain Smith, who is policy and engagement team manager with Inclusion Scotland; and Rebecca Marek, who is policy and parliamentary officer for the Coalition for Racial Equality and Rights. You do not have to switch on your microphones, as the broadcasting people will sort that out.

I have a general opening question for everyone. Why is the bill necessary, and where could you influence how it should operate? We will start with Rebecca Marek.

Rebecca Marek (Coalition for Racial Equality and Rights)

Thank you very much for having us along this morning, convener.

CRER, as an equalities organisation, is always in favour of legislation that goes a way towards improving the situation for groups who are underrepresented in public life. I am here today not to call for homogenisation of the bill across the protected characteristics or for the introduction of similar quotas for black and minority ethnic groups, but because we have identified a few places in which we think the bill could be improved so that groups who are already disadvantaged do not fall further behind. In particular, we suggest better defining the characteristics that can be considered to allow preference to be given to a candidate who is not a woman, including wider representation, consideration and encouragement of applications from people with protected characteristics other than gender, and definitively requiring public bodies to publish specific information in order to report effectively on their equality monitoring. Those are relatively simple things that could be done.

We also have a suggestion that may be less popular, which is to look at changing the 50:50 target to a 60:40 target. We see potential loopholes and situations in which, for example, a white woman may need to be appointed over an equally qualified black man or disabled man who would also contribute to the diversity of the board but who might not meet the requirements within the narrow confines of the bill.

We are aware that, if a man were to resign from a board that had a 50:50 balance, a black woman may be overlooked in that situation. We question why we would want to limit representation to 50 per cent when we are talking about one or two people, and there may be situations—especially in sectors that have a high percentage of women in the workforce—in which a 60 per cent target may be even better.

I am happy to talk about any of those points. In summary, we support the bill’s equality initiatives—we simply ask that provisions are put in place to ensure that groups who are already quite underrepresented are not unintentionally left to fall further behind.

Iain Smith (Inclusion Scotland)

Inclusion Scotland supports the principles of the bill in relation to improving the representation of women on public boards. However, we question whether the bill is necessary to achieve that improvement, given that all the measures that it proposes, other than setting a 50 per cent target, can currently be taken by ministers. Nothing in the bill will change the powers that ministers currently have to be able to achieve that 50 per cent balance.

Nonetheless, we share many of the concerns that Rebecca Marek has just raised with regard to the broader diversity of public bodies. There may be unintended consequences of the legislation that actually lead to less, rather than more, diversity on boards. The bill will place a legislative requirement on public bodies and on ministers to promote the appointment of women, and will include measures to encourage more applications from women.

That might take away from efforts to encourage applications from other underrepresented groups, including disabled people. Last year, Inclusion Scotland did some work on behalf of the public appointments team in the Scottish Government, in which we identified a number of areas where work needs to be done to encourage more applications from disabled people. We are concerned that an inadvertent consequence of the bill might be that work to develop those proposals will be shelved because of the legislative requirement to concentrate on the gender balance issue.

Tanya Castell (Changing the Chemistry)

Changing the Chemistry is about promoting diversity of thought. Ideally, as has already been mentioned, that is not just about gender diversity. I guess that we see gender diversity as a proxy for diversity of thought, but it is a crude one, and the danger of putting off other types of diversity is a concern.

Why is the bill necessary? Currently, because of unconscious bias, recruitment is not a meritocracy. Our biases mean that we all tend to recruit people who look and sound like us. Until it is the norm to have greater diversity on boards, it makes sense to have a bill such as the Gender Representation on Public Boards (Scotland) Bill to help to overcome that. However, we would like to think that, in time, recruitment can become a meritocracy. Potentially, once the target—whatever it should be—has been hit for, say, five years, the legislation should disappear, because ultimately it should be about meritocracy and having the right people on boards.

I am interested in the idea of a 60:40 target. I would tend to suggest a 40:40:20 target whereby, with the 20, we have a bit more flexibility and can promote greater diversity of thought, rather than gender diversity exclusively.

James Morton (Scottish Trans Alliance)

The Scottish trans alliance works specifically on transgender equality and human rights. We work closely with the women’s equality sector in Scotland, and we find it a very good ally. We support the bill. We believe that for women to have only 36 per cent representation on boards when they are 52 per cent of the population is a really shameful underrepresentation, and one that needs to be addressed. We welcome any actions, such as the bill, that help to bring attention to that.

We are keen—and we are here today—to try to make sure that the bill does not accidentally produce any barriers to transgender people being involved in boards. We welcome the spirit of the bill and we do not believe that it is intended to cause any such difficulties, but we need to make sure that the wording is correct so that it does not accidentally do so.

The Convener

Thank you. The next question is from Mary Fee.

Mary Fee (West Scotland) (Lab)

Good morning, panel. My question follows on nicely from the comments that James Morton has just made. I am particularly keen to hear a bit more about the issues that the Equality Network and the Scottish trans alliance have raised about the wording of the bill and the impact that it could have on trans women and trans men.

I would also like you to touch on the issue of non-binary people. I have asked previous panels about that. What impact will there be on non-binary people? I would be grateful if you could give us a bit of a flavour of the barriers that trans people face in getting to the point where they are on boards.

James Morton

Under the trans umbrella, which covers anyone whose gender identity varies from the gender that they were assigned at birth, we talk about trans men, such as me, who were assigned a female gender at birth but grow up identifying strongly as a man; trans women, who were assigned a male gender at birth but grow up identifying strongly as a woman; and non-binary people, who find that their gender identity is more complex and does not fit neatly in the boxes of man or woman. We believe that the aim of increasing the representation of women on public boards needs to be clearly inclusive of trans women.

The bill’s wording is positive in that it says that it is about women and it does not try to limit that in a negative way against trans people, but we need to make sure that it is not open to misinterpretation. We would like a bit of extra information to be included for the avoidance of doubt. We propose that the bill should say that the definition of “woman” includes a person with the protected characteristic of gender reassignment who is living in the female gender and does not include a person with the protected characteristic of gender reassignment who is not living in the female gender.

It is about how people live and identify, not about whether they have gone through the very cumbersome process of getting a gender recognition certificate. At the moment, the vast majority of trans women, who have lived as women for many years, do not have gender recognition certificates, because getting one is such a degrading and humiliating process.

It is really important not to end up in a situation where boards feel that they have to scrutinise the histories, backgrounds and gender reassignment statuses of trans people. There is a fear of having your gender unpicked and questioned, and of the humiliation that goes with people in power asking themselves whether what someone’s life is like meets their criteria for womanhood. That is a major barrier for people applying for boards. Indeed, it is a major barrier for people who are just applying for jobs at the moment. It is so important that people are trusted when it comes to how they identify themselves. That is how we would trust people with all their other characteristics.

I am pleased that diversity monitoring in Scotland is already very much about self-declaration. People get asked how they identify their gender, and they write that down. That is how it should be. We have written the extra clarification carefully, so that it is compliant with the devolved powers that are set out in section 37 of the Scotland Act 2016. It refers to

“the protected characteristic of gender reassignment”,

so it keeps it in the required area. We have used the language of

“living in the female gender”,

because that is based on the language that is already in use, for example, in the Gender Recognition Act 2004. We therefore think that our suggested definition is a carefully phrased addition for the avoidance of doubt.

To explain a little bit more about the issues that people can face, one major barrier that trans people have faced when it comes to joining boards has been the requirement for their previous names to be stored at Companies House. Steps are now being taken to sort that out, but that has been a major barrier. Some trans people had been invited on to boards but then declined when they realised that it would out them as trans.

Mary Fee

May I interrupt you there? You say that steps are being taken to sort that out. What steps are being taken?

James Morton

There has been behind-the-scenes work to ensure that, although the data needs to be held, it does not necessarily need to be available to anybody who randomly happens to look at Companies House. However, if someone had a particular need to investigate a crime, for instance, they could access the information. There would still be the safeguards around storing the information, but it would not be subject to the exposure that trans people would be very uncomfortable with.

Going back to the point about non-binary people, we think that, because the bill focuses on women, it is important that it has the 50 per cent target for women, including trans women. Trans men like me and non-binary trans people would end up being counted among the other 50 per cent. We think that that is acceptable, because there is such a small percentage of trans people in society: we are talking about less than 1 per cent of the population. The population is probably 0.3 per cent trans women, 0.3 per cent trans men and 0.4 per cent non-binary folk. That will not massively affect your percentages. If we take boards consisting of 10 people, say, it would not really make sense to try and achieve a statistical representation quota for trans people. You would end up with having an arm of a trans person or something like that.

We are comfortable with the target. When it comes to reporting, it is important to ensure that you do not out non-binary people. Diversity monitoring of boards should ask people a non-binary-inclusive gender question. It should ask whether someone is male or female or whether they identify in another way. That is our good practice in diversity monitoring. For reports at individual board level, the number of places on the board that are filled by women could be stated, with the percentage of representation of women. That would not need to break down the exact male or other identifications of the other members of the board at local board level.

09:45  



If we were to break things down at a national level across all public boards to show how many of the total number of places Scotland-wide are filled by people who identify as women, how many are filled by people who identify as men and how many are filled by people who identify in another way, that would be useful. It might avoid the risk of outing people and it would help in letting us know whether any non-binary people were making it on to boards.

Mary Fee

You have explained what you would like to be added to the bill to give protection to trans women. Might it be beneficial to include in any guidance or policy documents that go along with the bill a further explanation of what is meant by that definition and what should be done to actively support and encourage trans women?

James Morton

Yes. It is important for explanatory guidance to make it clear that if someone applies as a woman and uses female pronouns in interacting with other board members, that is all anyone needs to know. No one needs to dig into what their birth certificate says or what, if any, gender reassignment or medical treatment they have had. Those are very personal and private matters; all that matters is how someone interacts with you on a day-to-day basis.

For those who are recruiting board members, the importance of having diversity across the different protected characteristics should be clarified to ensure that they do not just reach out to non-trans, white, middle-class women but take proactive steps to advertise and recruit a really diverse range of women. Encouraging that approach would be very helpful.

Mary Fee

Has your organisation had any input into the “On Board” guidance for board members?

James Morton

We have not been involved in that as yet, partly because there are only two transgender-specific equality and human rights posts in Scotland. Our primary focus, therefore, has been on whether trans people can get into employment at all rather than whether they can be appointed to boards. It is all a matter of priority. In the future, we would want to be more involved in that work, but for trans people, the issue is how to get through their daily lives instead of having some massive focus on getting on to a board.

Mary Fee

Thank you.

Jamie Greene (West Scotland) (Con)

Good morning, panel. I want to touch on the bill’s financial implications for the organisations that will be affected by it. When the Finance and Constitution Committee called for submissions on the financial effect of the bill, there were, unfortunately, only four respondents. However, one of them is sitting before us today, which is great.

Three of the responses were positive and said that the estimate of around £400,000 for the bill’s financial implications was adequate. Of the public bodies and organisations with an interest in the bill that were contacted, only Changing the Chemistry said that the amount was not enough. Tanya, can you share with us why you thought that, and tell us what the figure should be?

Tanya Castell

I do not have an exact number, but I can say that the main challenge for Changing the Chemistry is the assumptions that the estimate is based on. Initially, Changing the Chemistry worked very heavily with individual public sector bodies, but I think that only VisitScotland commented on that work in the consultation. We think that the figure is an underestimate because, given the way in which things are set out at the moment, it is not clear how they will be implemented to ensure that diverse candidates are found.

The bill’s ultimate aim is partly to ensure that society is represented, but partly to get better boards. Indeed, as far as Changing the Chemistry is concerned, that is the whole point of having more diverse boards. As a result, you need to get the right candidates. A lot of work has been done by the public appointments team, which has done a great job, and organisations such as Changing the Chemistry to reach out to and encourage individuals who might not necessarily have thought about going on to boards. Indeed, most of the people in question have never thought about doing such a thing.

We have been doing that work for two and a half years, which is not really long enough to enable us to be sure that we will continue to get that inflow of candidates, because we still have all the biases and stereotypes, and a number of people are still not thinking about entering the boardroom. The work needs to continue until we have addressed those stereotypes and got people thinking about going on to boards. For me, it is that outreach work that is important.

We could carry on as we are doing, with organisations advertising and people applying for roles, but either we will get the same people applying, which will mean that we will not necessarily bring in wider diversity of thought, or we will get people who are not necessarily prepared. I have sat on a panel for the Scottish Government and for Edinburgh College, so I know that we need people who understand and have had some support with the process, and who are of the right calibre. To me, we are talking about the cost of reaching out to those people.

As I understand it from the consultation with the members of Changing the Chemistry, the issue is how we will continue to reach out and get to those people. It seems that the approach is one whereby it will be incumbent on the individual boards to find those candidates and reach out to them. In my view, that is inefficient. I am vice-chair of Scottish Canals, which has a tiny board of six people. Every time we recruited, we would have to go and do that outreach. We are gender balanced, but we are keen to bring greater social and, ideally, ethnic diversity to our board the next time we recruit. We would have to go and do all that outreach work, and the time that it would take to do that effectively is not taken into account.

We could rejig things. Our challenge was less to do with the total amount and more to do with the approach. We could centralise that and continue to use the public appointments team, which has done a brilliant job in reaching out to different parts of the community and different social and ethnic groups through various networks. If one was to leverage that and use it to support all the public bodies, the costs would not necessarily be huge, but that is not how I read the way in which the implementation will be done.

Jamie Greene

You gave a good example of the board of a small organisation that will have less funds available to do proper outreach to enable it to reach the target. You are very lucky in that there is equality on the board of Scottish Canals, but there might be other organisations with smaller boards that are quite a way off the target and will need to do a substantial amount of work to reach it. Should the Government create a central pot to assist all public boards? I am always reticent about asking for money without a purpose, but is that an idea that we could propose?

Tanya Castell

The Scottish Government’s public appointments team has done some work in this area, which Changing the Chemistry has helped it with. Originally, we started working individually with public sector boards such as the boards of Scottish Natural Heritage and Highlands and Islands Enterprise, but given that we are a voluntary organisation and all our members work in their spare time, we said that that was not practical. We went to the public appointments team, which has reached out to various ethnic minority groups and all sorts of networks to bring people in, and which has also run events.

It would be good to have a pot that the public appointments team could use in consultation with other groups such as CEMVO—the Council of Ethnic Minority Voluntary Sector Organisations—to reach out to and bring in those additional networks. The public appointments team could manage that. As a result of a conversation that Changing the Chemistry has had with the team, it now has that sussed, so it does not need us to draw in diverse candidates.

The next stage is the application process. Many applications come in from people who are not used to doing competency-based applications. There is a good reason for not using CVs, and I support the process that is used, but we have said that Changing the Chemistry probably needs to help some of the diverse candidates to do the application form. That will mean that credible candidates get through the process. We should have a central pot for that, to make sure that those diverse candidates find out about the roles, are interested in them and succeed in the process.

Jamie Greene

This is an open question. Do you find that people tend to approach boards that they are interested in, or do you come across people who think that they would like to be a non-executive director on a public board and whose names go into a central pot before an attempt is made to match them up with a board that is relevant to their interests or experience? Is the approach individualised or is there room for a much more centralised approach to recruiting people to boards in general so that the pipeline is constantly being fed and there is always a bigger pool?

Tanya Castell

It is a bit of both. It will not have occurred to some people that they are good enough to be on a board. I will generalise horrifically and say that, in general, women underplay their skills. There is quite a lot of research to show that women tend to underplay their skills, whereas men overstate them. Forgive me for saying that, but there is research to back it up. I come across a lot of people who say, “Oh, I couldn’t go on a board”. Those people really underestimate their skills and it never even occurs to them that they could be on a board. When it does occur to them, it is because they are interested in something, so it is about a particular board.

To be a really good board member—it is easy to be a member of the Scottish Canals board, because the board is inspirational—the person has to have a kind of passion and interest, and they can grow that interest. There are certain types of boards that I would probably not be very good on, but there are others that are more my thing. We can do some pooling, but the fit and what works for the individual are also important.

Jamie Greene

My final point relates to that line of questioning. James, you said in your opening statement that 36 per cent of public board members are women. Last week, we heard that the figure is now up to 45 per cent. I just wanted to set the record straight. The 36 per cent figure gets used a lot, but it is very out of date. That is not a criticism.

James Morton

I saw that figure used in the first evidence panel, and some of the women’s organisations use it, too. Thank you for that clarification.

Jamie Greene

The percentage has gone up, so it is good news.

James Morton

It is not my specialist subject.

The Convener

We heard that bang-up-to-date figure from the commissioner only last week. The percentage has gone up because of the particular measures that have been taken very recently.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Good morning and thank you for coming to see us. I want to pick up on the remarks that Iain Smith and Rebecca Marek made in their opening salvos about the bill having unintended consequences. It is always important for a committee that is scrutinising a bill to consider any unintended consequences.

You are right to suggest that one of the unintended consequences of our drive to get 50:50 gender representation on the boards could be that we starve out diversity by exclusion and so lose out on people with other protected characteristics. The condition under section 4(4) of the bill is that the appointing person

“must consider whether the appointment of a candidate identified under subsection (2) who is not a woman is justified on the basis of a characteristic or situation particular to that candidate”.

My reading of that section is that, if there is such a “characteristic”—that suggests a protected characteristic—the person who is appointing can use it to justify why they have chosen not to pick a female candidate in a 50:50 situation. Is that provision not strong enough?

Iain Smith

We need to go further back in the process than that. It is possible that that section could be used in that way, although it is not specific or clear about the characteristics that might be considered.

The issue is that we need to ensure that the bill relates to the overall diversity of the board and all of us in Scotland, and not just to gender. There could be a specific gender target for appointments, but there is a need to address at the start of an appointments round whether the board is sufficiently diverse and what steps need to be taken to address the balance and any underrepresented groups within that. That includes considering the selection criteria for the appointment so that there are no barriers.

Often, appointments require the applicant to have previous governance experience or experience on a board. That immediately limits the pool to the groups that are already overrepresented on boards. There are questions about which criteria are essential things that every member of the board must have, which are things that some members of the board must have and which are things that people might be able to learn on the job. We have a tendency to look at too many things that everyone on the board must have, rather than saying that the board as a whole must have certain skills and experience. Not everyone on a board needs to have the skills—some people will be new and can learn those skills on the job. There are a range of issues that we need to consider in relation to selection criteria to ensure that we do not put people off.

10:00  



There is also the issue of how to attract and identify potential candidates, which was touched on in the responses to the previous question. People find out about appointments either because they have registered on the appointed-for-scotland.org website and they get the alerts or because they see them in specifically targeted advertising. Appointments for particular boards now tend not to be generally advertised—they tend to be specifically advertised. Again, that might limit the pool of applicants. The evidence from the work that we did last year was that disabled people, for example, tend not to be aware either that public appointments exist or that they can apply for them. There is a view out there that public appointments are for the people—the white middle-class males and females—who have traditionally tended to be appointed.

There are issues about how the Scottish ministers identify the selection criteria and go about advertising and promoting the bodies, and those need to be addressed before we get anywhere near the appointment stage. That also touches on things such as accessible communications and support for people who might need help with filling in application forms. For example, people with learning disabilities may have a lot to contribute to a board, but they may find the appointment process very daunting.

We would, therefore, like to see the bill amended to include a general requirement to look at the overall diversity of the board and not just specifically at the gender representation. In particular, we would like section 5 to be amended to cover the ways that boards try to identify and promote applications from all underrepresented groups on boards, and not just from women. At the moment, the unintended consequence of gender representation becoming a legislative requirement may be that that is all that boards will focus on. If they have a limited amount of money, which they will have, that is all that they will be able to afford to do. They will not be able to reach out to other underrepresented groups such as disabled people or black and minority ethnic candidates.

Rebecca Marek

I agree with a lot of what Iain Smith said. In our equality work, we find that, if a requirement to engage groups with protected characteristics is not explicitly laid out in legislation—and even sometimes when it is—it is often overlooked. Our opinion is that using the word “characteristic” is not strong, particular or narrow enough. I guess that a board could justify an appointment based on someone having the characteristic of having worked for the body whose board they are now applying for, or having some connections that would be useful.

The meaning of “characteristic” can be quite wide ranging, whereas “protected characteristic” narrows it down to the nine characteristics that are defined in the Equality Act 2010, ties it into legislation and opens it up for wider equality considerations. We see time and again, even with the public sector equality duty, that if that is not laid out and made explicit, it is just not done. We want section 4 of the bill to be strengthened, and perhaps tied specifically to the protected characteristics as defined in the 2010 act.

Alex Cole-Hamilton

I agree. Above that in the bill, section 4(1) says that

“The appointing person”

needs to pick the

“candidate ... best qualified for the appointment.”

That suggests to me that, if there is someone, as you described, who has worked for the body before and has relevant experience, that would qualify them in a way that others will not be qualified. I think that that is captured in that section. The fact that it mentions a

“characteristic ... particular to that candidate”

makes me wonder whether that is what the bill’s drafters are driving at.

I think it comes back to the fact that we are missing an element of the legislative process, with the intimation from the Scottish Government that there is no plan to provide statutory guidance behind the bill, so we have to interpret it solely on the letter of the law. That is a problem; we can assume or infer that the bill is talking about other protected characteristics, but unless we get that clarified, it will be misapplied by the appointing person and the board.

That brings me to my next question. Tanya Castell talked very eloquently about the demands on public boards in terms of encouraging women to apply, and they certainly exist. Aside from reporting, that is really the only duty that the bill puts on the public board, because the appointing person, as we uncovered at our previous meeting, is the minister. I think that we need that to be clarified more in the bill. However, if there is an equal duty on boards and ministers to encourage appointments of women, why are we assuming that all the costs of that should fall to the boards? Should we not make provision in the bill for ministers to find some way to generate resources to that end?

Tanya Castell

I agree that having all the costs fall on the bodies will mean that they are going to spend a lot more money. We should have something central that promotes and encourages people, continuing and probably expanding on what the public appointments team does today, supported by organisations such as Changing the Chemistry.

Changing the Chemistry has not charged for any of its work with the public appointments team. We do it because we have a group of passionate people who believe strongly in improving diversity of thought. Frankly, the money tends to be spent on booking locations and providing tea and coffee, so we are not talking about a major expense.

To my mind, if you distribute that responsibility to all the bodies, they will not necessarily have the skill sets or the time to do it. They are already trying to do a lot more with a lot less. It does not make sense to me to try to get everybody to do the same thing and replicate the work in all the different bodies. We need to have something central. In this particular case, I hope that it will be needed only in the short term because, ultimately, when we have enough people up there and there are role models, everybody will want to do it, so it should not be a long-term thing.

Iain Smith

The appointments process involves not just the minister and the public body but the sponsoring department. Within that, the sponsoring department should have a responsibility to ensure that the board has the resources that it needs to widen the applications.

For example, when we worked with the Mobility and Access Committee for Scotland, Transport Scotland funded the event that we ran to promote the appointments to disabled people in Scotland. It was not the Mobility and Access Committee for Scotland that paid for that; it was Transport Scotland, as the sponsoring department, with the support of the public appointments team in the Scottish Government. The bill should place a responsibility on the sponsoring department, and not just on the board, to ensure that there is compliance with the requirements.

Alex Cole-Hamilton

That is useful. Thank you.

My final question is for James Morton. You delineated the issue around gender definition very well. It is something that the committee has agonised over in its consideration of the bill. If we win the argument with the Government that we need statutory guidance to underpin this, will that be sufficient to deal with the issues that you have identified for non-binary people and trans people, or do we need a material change to the bill?

James Morton

It would be much better if there was a clarification, for the avoidance of doubt, in the bill. Sometimes people read statutory guidance, but sometimes they feel that they have understood things well enough after reading just the bill. Also, I do not want the definition to end up being quibbled over. It would be beneficial to have it in the bill, as that would remove the doubt, and it would have a stronger and clearer focus than if it was put into the depths of more detailed guidance.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

I am interested in the Changing the Chemistry submission. You laid out succinctly what you think reporting should cover and, at the end, you stated:

“One suggestion is that the number of women being appointed to chair positions”

should also be reported on. We have not touched on that in any of our evidence sessions so far. Can you expand on that a little bit?

Tanya Castell

That would need to be part of gathering information centrally, because clearly there is only one chair in each board. I do not have the latest statistics—you have much more up-to-date information. I know that the number of women chairs was hovering at around 21 or 22 per cent but that information may be a year out of date.

I know that there is a programme—because I am part of it—to mentor diverse candidates, including women, to aspire to be chairs of public sector bodies. However, that is another area where, potentially, bias can creep in around those appointments and people can be a little bit uncomfortable with a candidate who looks a bit different from candidates they have seen in the past. It would be worth while to have greater transparency in this area so that people can see what progress is being made.

Gail Ross

How should boards, or the bodies that the boards represent, approach training? We have spoken in previous evidence sessions about it being a confidence issue for women to put themselves forward for those positions, and about explaining what a board does, what their role would be on it, how they would be fantastic and how their skills would be used. How do we go about taking the next step up to a chair position?

Tanya Castell

The mentoring programme that is under way is a good starting point in helping individuals to think about that. I meet an awful lot of women because of what Changing the Chemistry does. I meet a lot of confident women and I tend to describe it by saying that we undervalue ourselves. We do not necessarily appreciate what we have got to give.

Once individuals are on the boards, the first thing is to help them to understand the board dynamic and get comfortable in it. The second thing is particularly for people who are coming from a different background, whether that is the third sector or the private sector. My background is in the private sector, so I wanted to get comfortable with interacting with Government. How does the relationship with the board’s sponsor team work? If I want to have influence and see my board do the right things, communicate properly and build the right relationships, how will that be different from what I have seen in the past?

We need to develop and do more of the training programmes in different aspects of boards—a public sector board is a different type of board—and in chairing techniques, such as how to manage a board and how the order in which questions are asked can, frankly, manipulate answers around the boardroom. We need to have such workshops to encourage and help people to realise that they are capable of doing that work.

Gail Ross

We also need to get the language correct. It is not a chairman any more; it is a chairperson.

Tanya Castell

I just say “chair”. I refer to myself as the chair.

Gail Ross

Rebecca Marek started by addressing the 60:40 or 60:20:20 aspect. How would that work and how would it help?

Rebecca Marek

When we consider the sizes of boards, we are looking at one or two people making the difference between 50 or 60 per cent and 40 per cent. I guess that that is likely to fluctuate over a period of time. Why should some boards not have 60 per cent women, especially in sectors in which women are overrepresented? For years, boards have been 70, 80 or 90 per cent men, so I do not think that we should necessarily cap the percentage at 50 per cent for women.

We see a lot of room for loopholes in terms of feeling required to promote a woman over a black man or a disabled man and almost prioritising one characteristic over another. That is not the intention behind the bill, but it might be the result. I think that you are tiptoeing into territory in which a 50 per cent cap could unintentionally create a ceiling for women and barriers for people from more underrepresented characteristics on boards. If someone is aware that a women has vacated a position on a 50:50 balanced board and is aware that the board will probably be keen to appoint another woman to keep the balance, we could assume that a black man would hesitate to apply for the position. If there is a lot of strong rhetoric around gender representation, another barrier might be thrown up for people from other characteristics who struggle a bit more than women with representation. That is our thinking behind the point.

Another issue that we have touched on is that the bill does not pertain to executive members. Chief executives and chief financial officers tend to be men, so a 60 per cent allowance offers the potential that the entire board, including executive members, might achieve a 50:50 balance. However, if it is capped at 50:50 for non-executive members and executive members are overwhelmingly men, that is another potential imbalance.

We find that the strict 50:50 target might create additional barriers, limit potential in some ways, or discourage groups with other characteristics. Our suggestion is 60:40 but we just wanted to highlight the issues that we see.

10:15  



The Convener

For clarity, is it your perception in reading the bill that there is a 50 per cent cap or that it is a strict 50:50? The committee’s interpretation is that the bill requires at least 50:50, so that there is some flexibility. If you are reading the bill in another way that the committee has not seen, we need to deal with it.

Rebecca Marek

That is the way that we read it. I apologise if we got the wrong end of the stick.

The Convener

I am not saying that the committee’s way or your way is right or wrong. It is just that, if there is a different perception, the committee needs to deal with that so that we do not build in an unintentional barrier.

Rebecca Marek

That is what we perceived the bill to say. Perhaps that is another area in which statutory guidance laying out matters further would be helpful.

A 50 per cent minimum does not totally remove the concern that a minimum might mean that black or disabled men would hesitate to apply. We still have concerns, and the language of 50:50 complicates the situation.

The Convener

Jamie Greene has a supplementary question.

Jamie Greene

I will keep it quick. I will ask the question that Annie Wells might have asked had she been here.

In a recruitment process with two candidates of “equal merit”, in the words of the bill, the bill dictates that preference should be given to the female candidate to meet the quota. How would that affect a situation in which there was a female candidate and a male candidate with another protected characteristic? That would be an unusual scenario, because of the difficulty in defining “equal merit”, but I am concerned that boards might be nervous about how to deal with such situations.

Rebecca Marek

I agree that there could be some tension and confusion on boards. That is one of the reasons for arguing for a change to section 4 to define “characteristic” better and to specifically reference the protected characteristics. That would go some way to addressing the issue.

Statutory guidance could make it clear that appointments are about not just balancing boards in terms of gender but looking at other areas in which a board lacks diversity, and that it is important to bring such areas into the consideration of appointments.

It is a difficult issue and one which it might not be possible to address fully in the bill. Guidance would go some way towards addressing it, as well as defining what is meant by “characteristic”.

Tanya Castell

It would be the minister who would make the decision, as he would have both candidates on the list.

Jamie Greene

The minister would be the appointing person.

Tanya Castell

Yes.

The Convener

If it is a regulated post.

Tanya Castell

Yes. The board members of Scottish Canals are not regulated posts.

Gail Ross

What are Iain Smith’s views on the 60:40 or 60:20:20 example? How do boards go about recruiting more disabled people?

Iain Smith

How long have you got?

The Convener

On my list of what the committee has to tick off is person specifications and how we ensure that they do not have unconscious bias built in. We have been following that line of thinking for the past few weeks. It ties in nicely with Gail Ross’s question.

Iain Smith

There has to be flexibility at the margins. Section 4(4), which Alex Cole-Hamilton referred to, needs to be reworded in that respect.

A board could currently have 45 per cent white middle-class women and 55 per cent white middle-class men. The two applicants with equal merit are another white middle-class woman and a disabled, ethnic minority, gay man. The minister decides that, in order to meet the target, they have to appoint the middle-class woman. That does not do much for the diversity of the board.

The bill needs to be amended to include a requirement for an overall look at the diverse nature of the board and boards in general. There is a serious risk that person specifications simply reflect the current make-up of the board. If a board is not particularly diverse, the chances are that it will set the same person specification and end up with the same applicants. It is important that we look carefully at person specifications.

As I mentioned earlier, another issue is the need for boards to look at their overall requirements rather than necessarily looking at individual requirements. All boards require somebody who has some understanding of governance and finance, but not every person on the board needs such experience because others on the board can advise and support them and they will learn on the job.

By requiring the traditional previous experience in governance and finance, boards tend to limit the pool of applicants to those who have traditional characteristics, such as middle-class lawyer or accountant types. By definition, people who come from disadvantaged backgrounds are less likely to have built up such experience because they will have had fewer opportunities to do so. Disabled people may not have had opportunities through education, or they may face barriers in other parts of their life that mean that they have not been able to develop that experience and those skills. Boards need to include in their person specifications other ways in which people can demonstrate that they have the qualities that are needed to be a good board member, which may not necessarily be the traditional qualities that people tend to think about when they carry out tick-box exercises.

In drawing up the specification matrix that is used to analyse qualities, boards need to be more imaginative, and less emphasis needs to be placed on saying, “You need to have this particular skill” unless the board is looking for a particular requirement for a specific job. Most boards need a better mix of skills.

There are ways of doing that. We had a look at the issue in an exercise that we did with the Mobility and Access Committee for Scotland, and we found that there were problems around defining which skills are essential and which are desirable, and which skills people might learn on the job. That aspect needs to be examined in general in looking at public appointments, in relation to not only gender representation but the representation of all diverse groups.

The Convener

I know that Changing the Chemistry has done some work on that—perhaps Tanya Castell can enlighten us.

Tanya Castell

It is not only Changing the Chemistry; the Scottish Government public appointments team has done a lot of work, too. Changing the Chemistry has worked with VisitScotland and more recently with other organisations, and they have massively softened some of their criteria. Rather than saying that applicants must have been on a board, the organisations ask whether people have worked with, supported or advised a board; there is also an emphasis on team working. The public appointments team has tried to soften the wording and provide a much wider set of examples in the general guidance that it gives out to sponsor teams.

Having said that, when I look at some of the notices that go out, I see that there are issues around selling the organisations. I looked at one—it might have been quite close to home—and thought, “Well, that really doesn’t describe the organisation, and I wouldn’t apply for that role.” There are some amazing organisations. The notices need to highlight what an organisation is about rather than just referring to governance or whatever, as Iain Smith described. I am not an ex-accountant or ex-lawyer but I am an ex-banker, so I definitely sit in the white middle class. I went to a nice university and everything else—I accept that I am not very diverse.

It is very much about making the wording softer. There is a lot of research about how notices can be worded to make them inclusive. Providing more context can often help people who are less familiar with what a role is about. It is also important to find those individuals and get the specification out to them, and to persuade them that being on a board is great fun.

Rebecca Marek

I cannot say too much about person specifications. However, on the subject of measures that can be taken to help people at the appointment stage, the “Removing Barriers: race, ethnicity and employment” report that your predecessor committee, the Equal Opportunities Committee, published last year presented a lot of useful suggestions in relation to employment that could also apply in the situation that we are discussing.

We have found that, when there is a BME representative on the interview panel, it is much more likely that a BME person will make it through to the interview stage and will be successfully appointed. With BME groups, we are not operating on a deficit model. The groups outperform their white Scottish peers in attainment and in going on to positive destinations, so qualifications are not lacking—again, the issue is discrimination and conscious or unconscious bias. This is beyond the scope of the bill, but there is a need to examine where discrimination has an effect and what evidenced measures can counter that. I cite that report as a good resource to consider.

Gail Ross

I will touch on something really interesting that I read in your submission. It is about getting underrepresented groups on to boards when they are already underrepresented in the workplace. You have used the words “underlying racism and discrimination”. If that applies to the workplace in some instances for some protected characteristics, does it also apply to boards? Are some people with protected characteristics put off applying because they feel those underlying tensions in some way?

Rebecca Marek

Yes, definitely. One of the few sectors in which BME people hold quite high positions is the health sector. In some instances, people have faced discrimination and racism in the workplace and might hesitate to apply for a board because they think that to do so would just open the door for that to happen again. Despite their qualifications, they might question the point of applying because they do not look like the people on the board.

We worry that, if the bill’s focus remains solely on gender, those groups will feel like another barrier has been thrown up. We talk about person specifications and the qualifications that people need to be able to be on a board and to achieve in a meritocracy. However, BME groups are underrepresented in employment and in higher-level positions. They are less likely to have the qualifications that get them through to boards, so the issue is with the entire pipeline. With the bill, we are looking at 500 to 600 positions and people who are already quite well along in their careers and have achieved a good amount. For BME groups, the problem lies much further back.

As the Equal Opportunities Committee found last year, the issue is not qualifications or merit; it is discrimination that is present in public bodies. There is a need to address that. If we find from the Scottish attitudes survey that some 20 per cent of Scottish people still think that it is appropriate to discriminate against people, it is fair to assume that that 20 per cent exists in the workplace and, in some cases, on boards. Therefore, it is fair to assume that that discrimination is present at that level.

Does that answer your question?

Gail Ross

Yes. Are we missing a trick by making the Gender Representation on Public Boards (Scotland) Bill just about gender?

Rebecca Marek

Yes. The latest census shows that BME groups are 4 per cent of the population and we anticipate that that figure will double by the time that the next census comes around, so quotas are tough to do for race. However, there are places where the bill could be extended to cover other protected characteristics in a way that would make it clear that diversity in all its forms is valuable and that we should try to achieve it on our public boards. That is what the amendments that I proposed in our supplementary submission are about. It is not about having quotas across the board, although I understand why that is an important measure for gender; it is about having cognisance of what representation might mean for other protected characteristics.

The Convener

The only issue that we have not covered is whether there should be sanctions. We took a lot of evidence on that last week. Some of that evidence suggested that a sanction too far could have the scatter effect—that is, people would not touch the board because of the sanctions that might be involved. However, some sanctions obviously need to be put in place to ensure that there is no rollback from progress that is made. Do you have any opinion on sanctions and what they should be?

Iain Smith

I am not entirely sure what the purpose of sanctions would be. The danger of sanctions is that people might focus solely on the target of having 50 per cent-plus representation of women on boards, not consider any of the other diversity issues and ignore section 4(4), which is about the possibility of using the appointment to support the representation of other protected characteristics.

10:30  



The most effective sanction is effective reporting and monitoring by the Parliament and by this committee to examine whether ministers—who are, in fact, responsible—are meeting the requirements of the bill and, I hope, the wider requirements for wider diversity of public bodies. I am not entirely sure what other sanctions there could be, because we would have to examine every appointment to find out whether in any single appointment the minister had failed to take account of the bill. In fact, the Commissioner for Ethical Standards in Public Life in Scotland already has that power.

The Convener

He was very clear about that at last week’s committee meeting.

Iain Smith

I have not read the evidence.

Alex Cole-Hamilton

This is perhaps more of a comment, but I would like to get the panel’s reflections on it.

The convener raised the point about sanctions. I admit to having done a bit of a volte-face on the issue in the sense that, as my understanding of the bill has improved, so too has my view on sanctions changed. If the only duties on public authorities are to encourage female candidates to apply and to report to ministers in respect of that fresh duty, I do not see how any public authorities would fail in that duty and what sanctions could be administered. If the buck ultimately stops with the appointing person, the only person who should be sanctioned is the appointing person—if that person is the Scottish ministers, that is a whole different story. Does the panel agree?

Tanya Castell

One other aspect is that having put diverse candidates—who will almost certainly not have been on a board before—on boards, there is a need for boards to support those individuals.

I am on a range of boards. As one of the boards has become more diverse, it has caused more challenge. Research shows that meetings of more diverse boards take longer, because it is necessary to hear all the different perspectives, and there is a little bit more tension. That is good, as long as tension does not become conflict; indeed, it is the whole point of having diversity of thought. We want some of that tension but it makes the chair’s job harder and there are board members who have not necessarily seen a board before.

All the boards that I am on are different and, at different times, each one of them has moments when I frankly feel like going in the corner and crying. It is really difficult and you have to be incredibly strong. Human nature is to conform; we are much more comfortable conforming and it can be painful not to conform.

There are all those different dynamics and we are bringing in people who may not be used to that environment, so another aspect—the situation has possibly evolved since Changing the Chemistry made its submission—is to think about experiences like some of the ones that I have seen in boardrooms over the past couple of years. There is an onus on the body to make sure that people who are new to the boardroom are fully supported and encouraged and to ensure that time is taken to build the connections and relationships to make diversity—which, by definition, brings a little more tension if it is going to add value—work.

Iain Smith

I will add to that very important point. We believe that it is necessary for boards and selection panels to have proper equalities training—disability equalities training and general diversity training—to minimise unconscious bias.

Other things could be done to support new applicants. For example, somebody could be appointed well in advance of them actually taking the appointment, so that they could shadow a board in a sort of apprenticeship way for a while and get used to the procedures and understand how the board works. When they come to take power on the board, they would have a better understanding of what is going on.

Mentoring and peer support systems—and a range of other things—could be put in place to help support people from diverse backgrounds and who have less experience to become available to sit on boards. Action could also be taken to ensure that all the proceedings of a board are fully accessible, with all the documents being produced in accessible formats and so on.

We do not want to get down to the quota business, because we then end up with disabled people having a concern that they are on boards in a tokenistic way and that they are just there to make up the numbers and are treated in a tokenistic way. They have to be full participating members of the board. Those are all very important things.

Returning to the sanctions issue, if a board is failing to do these things and is failing to provide support and to encourage diversity, I suppose that the ultimate sanction is that the minister does not reappoint the chair the next time that their position comes up for renewal or, indeed, sacks the chair. That option is available to ministers.

The Convener

We are well over time. We have heard some excellent evidence and are incredibly grateful to you all for your evidence this morning and for your written evidence. If you realise once you have gone away that there is something that you should have mentioned, please let us know. There are another couple of weeks before the minister is in front of us and we get to the end of our stage 1 consideration.

10:35 Meeting continued in private until 10:51.  



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Fourth meeting transcript

The Convener (Christina McKelvie)

Good morning, and welcome to the 24th meeting in 2017 of the Equalities and Human Rights Committee. I make the usual request for mobile phones and electronic devices to be switched to silent. Mobile phones should be off the table, please.

Agenda item 1 is our final evidence session at stage 1 of the Gender Representation on Public Boards (Scotland) Bill. To begin with, we have with us the Cabinet Secretary for Communities, Social Security and Equalities, Angela Constance. Good morning, cabinet secretary.

The Cabinet Secretary for Communities, Social Security and Equalities (Angela Constance)

Good morning.

The Convener

With the cabinet secretary are Eileen Flanagan, who is the equality policy manager at the Scottish Government; Lesley Cunningham, who is the gender equality policy officer; and Lucy Galloway, who is a solicitor. Good morning, and thank you for coming along to this final evidence session on the bill at stage 1. We are very grateful for having you here, and we are really interested to hear your thoughts.

I hope that you have followed the evidence that we have taken on the bill over the past few weeks—I expect that you have. Some very interesting threads have arisen from that evidence.

I will kick off with an opening question to allow the cabinet secretary to set the scene a bit. Some people have asked this question during the bill process. What is the purpose of the bill? What do you expect it to do in the future?

Angela Constance

The purpose of the bill is to redress a continuing imbalance in the representation of women on public boards in Scotland. We have made fantastic progress over recent years. If we consider the historical figures, from around 2004-05 to 2014-15, the representation of women on public sector boards in Scotland hovered in the mid-30s—between 34 and 38 per cent. Progress was quite slow. Over the past few years, we have made substantial progress, which is very much to be welcomed. You have heard in evidence that the representation of women on public sector boards in Scotland is now in excess of 45 per cent.

I have to point out that women are not a minority—they are 51.5 per cent of the population of Scotland—so we still have progress to make. We must be aware that, although that aggregate figure of 45 per cent is a really strong, powerful story, and women are better represented on Scotland’s public sector boards than ever before, that 45 per cent is not universal. Some boards are doing better than others. It is important that we dig beneath the headline figures and scrutinise where exactly we are making progress and where we need to redouble our efforts.

All the evidence shows us that improving diversity and improving the representation of women on public sector boards lead to better decision making. Fundamentally, we need to protect progress. We are not there yet, but we need to protect progress, lock in the gains and use the new equality powers that we have to maintain the momentum and to future proof that progress.

One of my favourite quotes is from Zadie Smith, who said that progress does not stand still, that we have to be proactive in protecting it, and that we have to always redouble our efforts and reimagine how we will do things to ensure that we protect and build on progress.

The Convener

Thank you very much, cabinet secretary. We will go through each area that has arisen over the past few weeks. Most members have issues that they have been working on. Gail Ross wants to discuss guidance.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

Good morning, panel. Thank you for coming to the meeting.

The Scottish Government has said that it does not intend to publish guidance under the bill, and the Equality and Human Rights Commission and the Commissioner for Ethical Standards in Public Life in Scotland have said that there is already a range of guidance for bodies to draw on. However, a number of witnesses have suggested that guidance will be needed and, indeed, that that will be desirable and sometimes necessary for them to move forward and ensure that they are getting it right. Why did the Government initially say that it would not publish guidance? Now that we have received evidence, will the Government change its mind on that issue?

Angela Constance

It is important that I clarify the Government’s position. We have existing guidance, which we certainly wish to consult on and update, and there is a ream of other guidance documents from others, such as the Commissioner for Ethical Standards in Public Life in Scotland and the Equality and Human Rights Commission. We accept that guidance is needed, and we want to update the existing guidance. I accept that guidance is important.

My understanding of the debate on the evidence that the committee has been presented with is that the question is whether that guidance should be statutory or non-statutory. At this point, our plan is to update our existing guidance and to be fully transparent and consultative in how we go about that. However, it is important to me that I have dialogue with the committee and others, because I want the bill to be the best that it can be and to be effective.

Gail Ross

Will the updated guidance be relevant to the bill in particular?

Angela Constance

Absolutely. In many cases, people are already undertaking the actions that they need to pursue to achieve the gender representation objective that is laid out in the bill. That is why there has been significant progress over the past two to three years in increasing the representation of women. The updating of the existing guidance would relate to the specifics in and around the bill.

Alex Cole-Hamilton (Edinburgh Western) (LD)

Good morning to the cabinet secretary and the officials who have joined us. I have a range of questions, which initially pertain to the appointing person specifically. The committee understands that it is largely the Scottish ministers who would make the final appointments, but are there any circumstances in which the appointing person would not be the Scottish ministers? If there are not, should we not just define the appointing person as “the Scottish ministers” in the bill?

Angela Constance

We will certainly look at that issue. Eileen Flanagan will correct me if I am wrong, but 60 per cent of the appointments to the boards that come within the scope of the bill are made by the Scottish ministers. Therefore, there are other appointing persons out there in the wider public sector, but that activity is largely undertaken by the Scottish ministers, supported by civil servants. Obviously, that has advantages in respect of knowing who is doing what and scrutiny of the activity. However, we will look forward with a fair and open mind to any suggestions that members make, particularly as we move towards stage 2.

Alex Cole-Hamilton

We believe that the teeth and meat of the bill in respect of the balance between meritocracy and action to improve the representation of women on public boards—I do not want to say “affirmative action”—lie in section 4. Do we have that balance right? It is quite clear that the decision rests first on merit so that the role will be given to the person who is best qualified. There are contingencies, particularly in section 4(4), where the appointing person, whether that is a minister or somebody else, can make a determination to appoint somebody who is not a woman on the basis of “a characteristic”. There has been a lot of debate and evidence from people who want to see additional protected characteristics as criteria for appointment, and that might override the thrust of the bill to increase gender representation. Will you clarify what is meant by “a characteristic” in that section?

Angela Constance

Absolutely. However, I want to say first that the bill will mean that we continue to appoint on merit. Taking positive action and appointing on merit are not mutually exclusive—it is important that we continue to hammer home that broad message and that we are really clear about it.

Mr Cole-Hamilton is right that, with regard to what he has described as a “tie-break situation”, we are looking at sections 4(3) and 4(4) of the bill. We have to operate in the confines of our competence over equalities legislation, which has increased but is a somewhat partial legislative competence over specific areas.

More germane to the question that the member raised is that we operate in the confines of European Union legislation. We have not used the term “protected characteristic” and have used instead “a characteristic or situation”. The reason for that is that using the term “protected characteristic” would have a narrowing effect in a tie-break situation with regard to people from other backgrounds. Our language around characteristics and situations includes protected characteristics—we are required to do that under the Equality Act 2010—but it could also include, for example, socioeconomic background, whether someone is a carer or a parent, or things such as geographical location. If we had to use the phrase “protected characteristic”, that would have a narrowing effect and, crucially, that could be outwith the law.

There is not a blanket tie-break rule in the context of EU law. Tie-break rules say that, as a condition, we must have guarantees on objective assessments that take account of the specified personal situations of all candidates. The narrowing use of protected characteristics in that circumstance could take us outwith EU law and our competence. It is an area that we have looked at closely and we will continue to do that.

Alex Cole-Hamilton

The bill is about improving the diversity of boards and my anxiety about having the ambiguous term “characteristic” without qualification is that it would, arguably, take us in the other direction and dilute the thrust of the bill.

As you say, there could be a range of other characteristics; I accept that and there is merit in trying to reflect in the bill that that could include socioeconomic, rurality or geographical issues. Without having that clarified in the bill or in the statutory guidance that underpins that provision, ministers 20 or 30 years from now might read that very differently and see it just as a means of appointing in the way that we have been for many decades so that we do not reflect diversity on boards. I guess that we will have to tease that out through the parliamentary process.

Angela Constance

I take your point about the content of guidance, although there is another point about whether there is added value from guidance being statutory, which we will continue to reflect on. The content of guidance needs to be rooted in real life and practical. The guidance needs to be a go-to guide to enable people to know what they need to do and how they should go about the mechanics of applying the law.

09:45  



However, I should emphasise that, although, as a Government, we must operate within the confines of our legal competence and the law—whether that is the broader thrust of equality legislation, the Scotland Act 2016 or European Union legislation—we are clear that there is no get-out clause. I know that you have not used that language, but it is very important that we say that there is no get-out clause. Section 4(3) says that if a public authority has two equally qualified candidates, it would be the expectation that it would appoint the woman if that would help it to meet its gender representation objective, but that must be balanced against other considerations—rightly, legislation has a habit of making such provision—given that the thrust of the EU legislation is about fairness and equality.

I suggest that the bill’s teeth lie in the duties to encourage applications, which is where guidance is important. Such guidance exists; people largely know what they can and should do. Given that there is a duty to report, there is a risk of reputational damage if an organisation is not making as much progress as it should be or is making decisions that are less than ideal or which do not stand up to scrutiny.

Alex Cole-Hamilton

That brings me neatly to my final area of questioning, which is on what you described as the teeth of the bill.

Section 5 places a duty on the appointing person and the public authority to

“take such steps as it considers appropriate”.

I have anxiety about that language, because I think that it is very subjective. Fifty years from now, a less progressive Administration might pay lip service to that requirement, and I do not think that it would stand up to any justiciable scrutiny.

Do you think that that language is strong enough? Will those provisions be worth the candle without immediate statutory guidance to underpin them?

Angela Constance

I want to make two points in response to that. We absolutely want to future proof and lock in the progress that we have made. Notwithstanding our on-going deliberations about the nature of guidance and whether it should have a legal basis, I accept the point that the guidance needs to be rooted in the practicalities of life.

There is a balance to be struck. I am conscious that different boards face different circumstances and different challenges in meeting their obligations. We want to be crystal clear about what people can and should do, because the evidence is there. I do not want to be crude, but how we improve diversity on boards is not rocket science. There is a substantial body of evidence on what needs to be done and what works. That does not mean that more progress does not need to be made, that more research does not need to be done or that more evidence does not need to be gathered on specific challenges.

I am concerned that we do not have a one-size-fits-all approach and that it does not become a tick-box exercise, but we are more than happy to discuss with the committee and with MSPs how we get the balance right. There is a danger of being overprescriptive, but we do not want there to be a lack of clarity. We know what works—we know what people have to do to reach in to different communities. We know that people need to think imaginatively about how they recruit and not just rely on the same old advert in the same newspaper.

We know because of how boards interview how they look at applications and they should not make the same old assumptions about the skills, attributes and knowledge that they think they need. The committee’s evidence contains someone talking about the importance of people with lived experience being represented on boards. We know that application processes need to be simplified and that the language used needs to be inclusive. We know that people have to have a clear view of the competencies that are required and to be thinking outwith the box about the knowledge, skills and attributes that will meet those requirements.

We know what works, but there is further research on things that we need to bore into. Why do we not get many applications from people under 50, for example? We suspect that it is because of the demands of working life and people being parents. We need to do other things but, by and large, we know what works. The bill is about making sure that people do that.

Alex Cole-Hamilton

Accountability is included in the bill in respect of the reporting duty, but there is no sanction for public authorities or the appointed person should they fall foul of their obligations under section 4 or section 5. Do we need sanctions? What would they look like?

Angela Constance

I refer to my earlier remarks about reputational damage and the duty to report. An organisation or public body that has a lack of women in leadership roles runs the risk of reputational damage, and that can be particularly powerful.

Sanctions is an interesting issue. I have listened to a lot of the evidence in which it has been explored. There has been a lot of rumination, but I have not heard any specific examples of a sanction and how it would operate. We will continue to listen with an open mind.

My expectation and anticipation is that public authorities will meet their obligations, especially given that 60 per cent of the boards are also subject to ministerial appointments. I note that some voices in the university sector have a different view from mine of whether they should be subject to the bill and whether they should be listed as a public authority; if I am asked about that, I will answer that specific question. If the bill is passed, I have no doubt that the university sector will meet its obligations.

The reporting requirements in regulations and the transparency around them are powerful and the risk of reputational damage is significant for any public sector organisation if it is not operating within the law.

I am conscious—this will be my final point, convener—that the EHRC is quite cautious about a sanctions regime. I hope that I am not putting words in the EHRC’s mouth, but it spoke about how a sanctions regime could push appointing persons and public sector organisations into taking more unlawful positive actions.

The Convener

I have a quick supplementary on sanctions. Last week, I was at the Council of Europe committees in Strasbourg, where there was a debate on women’s representation in public and political life. It was interesting to hear from different parts of Europe about the methods that they use, and some use sanctions or financial penalties. The ones that seemed to be making the most progress, however, were those that offered an accreditation system in which companies were praised and accredited and value was attached to the process. It seemed that the balance was more towards credits than sanctions in successful methods. Do you have an opinion on that?

Angela Constance

Instinctively, my opinion is that in many walks of life, positive reinforcement and encouragement—incentivising people to behave positively—tends to be more effective than an area that is quite hard to define and could be less effective. We will certainly have a close look at the evidence from across Europe that the convener has pointed to, which sounds very interesting.

The Convener

You mentioned the main driver being reputational damage. How would that be reported? Would there be an annual report to the Parliament, for instance, in which some of the commissioners might report a list of things that people have not done? Audit Scotland does that. Is that something that might be attractive to Government in order to put on record whether a board is not performing?

Angela Constance

Transparency and the reporting duties are imperative. Therefore, the regulations that will be introduced for reporting will be crucially important. We are giving them close consideration.

Transparency is absolutely crucial. We are talking about public sector organisations and all their dealings have to be transparent. Transparency drives performance. People in the public sector guard their reputations closely and carefully. We are very fortunate in Scotland to punch above our weight in terms of world-class higher education institutions, and the reputation of our world-class universities is very important to them.

We will obviously have to consult on the regulations, so it is a bit of a two-way street, but we have had some initial thoughts about their scope and shape and I will ask Eileen Flanagan to say a bit about what we envision. We are considering the reporting cycle and whether we should tie it into the public sector equality duty reporting cycle. We do not want to overburden people, but the duty to report on progress and performance and the need for transparency is absolutely crucial.

Eileen Flanagan (Scottish Government)

As the cabinet secretary said, we have been very mindful that we do not want to put an additional bureaucratic burden on boards in relation to how they tell us about their movement towards having membership of at least 50 per cent women. We are also mindful that a majority of the boards fit within the public sector equality duty that is specific to Scotland. That already involves reporting on their work around equality, so putting the reporting together is a logical way forward.

The suggestion to use the mainstream reporting cycle as a way for boards to tell us about their progress came out of the consultation on the draft bill. That is a two-yearly cycle and the first reporting opportunity would be 2019. The deadline that we have set for the achievement of board membership of 50 per cent women is 2022, so the boards would be reporting on that in the next again cycle. There is a lot of time for boards to meet the requirement and tell us about it in their mainstream report.

There is a small cohort of boards that are not within that reporting regime and we will be looking at how, proportionately, those boards can tell us about their progress. There is a lot of work to be done with the boards in a consultative way to make sure that the reporting works and is not only proportionate, but transparent, as the cabinet secretary said, so that people can see that progress is being made. Also, the Commissioner for Ethical Standards in Public Life in Scotland’s annual report tells us about what is happening in the ministerially appointed boards in Scotland, so there is that extra level of scrutiny.

We are mindful that we will need a system that gives the transparency that the cabinet secretary has mentioned. It also needs to work, and be proportionate, within the board’s structure for reporting.

We are also mindful that organisations are already working on succession planning as a way forward to strengthen their board in terms of equality and the skills that they need. If the bill is passed, we will definitely work with all the relevant people to have a reporting structure that works and lets us know where we are and whether we have achieved the bill’s objective.

10:00  



The Convener

On that point, section 11(3) says:

“Regulations under sections 7 and 8 are subject to the negative procedure.”

Would there be scope to change that to the affirmative procedure?

Angela Constance

Our position remains that a negative instrument will be proportionate. Although what we will be looking at is largely important, it is the power to make technical changes. However, we will have an open mind and open ears for the views and feelings of the committee and Parliament on those things.

The Convener

The Delegated Powers and Law Reform Committee has made that recommendation, so you are mindful of that.

Angela Constance

Yes.

The Convener

Thank you very much. For the record, we have now received apologies from David Torrance and Jamie Greene.

Mary Fee (West Scotland) (Lab)

Good morning, cabinet secretary. I want to explore a couple of areas with you. The first is the definition of gender in the bill. The definition is non-binary, and we have heard concerns in the evidence from the Scottish trans alliance that the bill, I suppose inadvertently, may not include trans women. The alliance has suggested a small change to include a definition of “women” that would be inclusive of trans women. Have you considered that suggestion? Would you be open to doing something to protect trans women?

Angela Constance

We are considering the suggestion, and we are certainly open to making improvements to how the bill is drafted. We made earlier improvements that enabled us to address the issue of people who are non-binary; a reason why we moved away from a gender representation objective of 50 per cent women and 50 per cent men was that there were some legal issues around it and it excluded non-binary people. Having a gender representation objective only about women is inclusive of people who are non-binary.

On trans women, when we use the term “women”, we want that to include all persons who self-identify as women, irrespective of the sex that they were assigned at birth and, crucially, irrespective of whether they have a gender recognition certificate. We are exploring the matter within our legislative competence. The Scotland Act 2016 amends reservations under the original Scotland Act 1998. As I said earlier, the inroads that we have made into equalities legislative competence have been partial. There are some wrinkles that we need to try to iron out. However, our intention is to resolve that issue.

We are looking closely at the suggestion from the Scottish trans alliance and we want the matter to be sorted for the bill. If for some reason we cannot do that, we have a consultation around our plans for a gender recognition act. We are working hard to address the matter and we are working through a number of legal issues. We will keep the committee fully informed.

Mary Fee

That is helpful. The Scottish trans alliance’s biggest concern is the potential for the bill to be misinterpreted. Including trans women in the definition takes a belt-and-braces approach, leaving in absolutely no doubt what we mean when we say “women”. The cabinet secretary’s words are very welcome.

On the financial implications of the bill, the financial memorandum says that there are “minimal costs” attached the bill. Although some of our witnesses have agreed with that, others have said that there is the potential for cost to be attached. Changing the Chemistry has said that the Scottish Government has underestimated the cost of finding diverse candidates. Inclusion Scotland and the EHRC have also raised concerns. What is your view on that?

Although the majority of boards are moving in the right direction, some boards are still finding it difficult to find that broad range of candidates and there may be a cost attached to trying to identify more candidates. There could be a cost for training the whole board after a more diverse membership is achieved. If there are more women on boards, there could also be an additional cost for boards in relation to childcare. What are your thoughts on perhaps reviewing the financial memorandum or looking at costs as the legislation progresses?

Angela Constance

On the point that different boards, depending on where they are in the journey, may well have to incur different costs, I would suggest that the financial memorandum is generous, given that the vast majority of boards are already on this journey. If you look at the margin, the financial memorandum goes from a minimum to a maximum cost. It has that flexibility and already covers a range of potential situations. From memory, the lower end of the scale of the costs set out in the financial memorandum was around £30,000 and the upper end of the scale goes up to around £250,000. That is a big scale. My view is that the financial memorandum is ample and generous.

I have looked at the four submissions that went to the Finance and Constitution Committee, and my reading of them is that only one organisation took a bit more exception to the financial memorandum. I say honestly to the committee that I think that the financial memorandum is fine and that my focus will be on other aspects of the bill.

Mary Fee

Okay. Thank you very much.

Angela Constance

Oh—forgive me. I should also say that childcare was indeed factored into the costs in the financial memorandum.

The Convener

That is a good point.

Annie Wells (Glasgow) (Con)

I have one point so I will not take as long as others. It is about sections 5 and 6, on positive action. In section 5, we have the phrase

“take such steps as it considers appropriate”.

A lot of the witnesses said that what might be considered appropriate is quite subjective and could be different for everyone. They asked whether there was any other way of describing that.

Angela Constance

I suppose that this picks up on the points that Mr Cole-Hamilton raised and my response to him. We want to avoid some sort of list or tick-box exercise or a one-size-fits-all approach. The public sector landscape in Scotland is quite diverse; it is quite complex in terms of the nature of the boards and how they are configured. However, we are open to suggestions.

We know what has worked, and I gave quite a full answer on the evidence and what we know, and what those steps could and should be. I do not want to repeat that—I want to avoid incurring the wrath of the convener—but there may be ways in which we could explore a non-exhaustive list within the bill. We have had to do similar things in other legislation that is going through Parliament. In the case of the Child Poverty (Scotland) Bill, we had a debate with the Social Security Committee on what needed to be in the bill in terms of what was covered in the delivery plan. I am happy to have that discussion.

Alex Cole-Hamilton

We would welcome a non-exhaustive list. With no malice, some people might just not be entirely sure how they are to discharge their duties under the bill. We need to have a discussion at the margins about what that might look like—I am not entirely sure about that. What you say is interesting. Childcare is important but we also need to consider the structure of board meetings. Many boards meet in the evenings, which people with parenting responsibilities sometimes find prohibitive. Culturally, that still acts as a barrier to women, even though we would rather have a more egalitarian style of co-parenting. That is more of a comment than a question.

Have the bill team or other officials hypothesised what

“such steps as”

an authority

“considers appropriate”

might look like when it comes to drafting guidance and giving support?

Angela Constance

That is where we really have to get the balance right. If we have a list of steps—even a non-exhaustive one—that could be taken, the danger is that people will take out a pen and tick things off. However, those steps may or may not be appropriate to a particular board in a particular location and a particular service area.

Although I absolutely get the point about board meetings in the evenings—or, indeed, board meetings during the day, when many of the under-50s are at work—we do not necessarily want to specify to every board in the country when it has its meetings. Therefore, we need to proceed carefully with determining the level of detail. However, I am open to having that discussion, bearing in mind the extensive work that Scottish Government officials and ministers have done over the past few years and the evidence that exists throughout Europe on what works.

There is a good, solid, international evidence base and, as I said, good, solid evidence about what works in relation to application and recruitment processes, interviews, meetings and how we upskill people. We need to be able to articulate that. Perhaps it is more about guiding principles. Sometimes, it is better to have some principles or a framework in a bill and the detail in the guidance.

Alex Cole-Hamilton

In my days as a voluntary sector lobbyist, you and I worked together on the design of guidance under other pieces of legislation. There are mechanisms for giving narratives and examples of what something might look like that do not form a non-exhaustive list and which could, in the fullness of time, become an exhaustive list. It would be possible to give examples of board set-ups and steps that boards have taken to enable the cross-fertilisation of best practice. That also applies to the duty under section 7 to report to the Government on the operation of the bill. Such reports should be about not only how many women a board has appointed but what steps it has taken to make that possible. That would allow other boards to pick up on those steps.

Angela Constance

Giving examples and the dissemination of good practice are the purpose of guidance. We will want there to be a link between the bill and the guidance. We will consider a form of words, as I am sure members will. I am conscious that individual MSPs are legislators and will formulate their own ideas and amendments.

Gail Ross

In one of our evidence sessions, there was a reference to the golden skirts phenomenon, but Women 50:50 said that that issue is exaggerated and pointed out that only 15 per cent of women on boards hold more than one position and that the figure is 10 per cent for men. I just want to mention that three very high-profile boards in Scotland are currently chaired by the same male, although I have absolutely no doubt that he is there on merit. What do we do not just to encourage women from different backgrounds to go on boards but to encourage them into office-bearing positions once they are there?

10:15  



Angela Constance

There is absolutely a broader point that we do not want the same small group of people circulating around the many public boards in Scotland. A lot of the work that we have commenced on improving representation and diversity across the piece is about expanding the pool of talent. One way to do that is to take proactive action to reach out to different communities. I am conscious that, as women make up 51.5 per cent of the population, it goes without saying that we are not a homogeneous group, and neither are men. We need to always try to expand the pool of people who serve on public sector boards.

As part of the public appointments improvement programme, there have been specific initiatives on role models and outreach. It is about working with chairs on the pipeline of talent and on things such as succession planning. There are various mentoring schemes and toolkits. Some of that work is focused on particular groups, such as black and minority ethnic communities, disabled people and folk who are under 50.

Addressing the underrepresentation of women also results in gains for other groups. We do not want to pitch one group of people against another. I say with gentleness and kindness—although I certainly do not want this to be understated—that I believe that, if we can get it right for women, that will help us to get it right for other groups. There are positive gains for other people when we get equality in the representation of women.

Should we always, forever and a day, look at the issues of women and gender through the lens of sorting out other issues? We have the situation in which more than 70 per cent of the positions of power across Scotland are occupied by men but, when we are recruiting men, we do not wonder how we can improve the representation of people with disabilities or people from BME communities. There is a danger that we always look at the issues to do with women through the lens of how to tackle all those other issues. However, I stress that, when we get it right for women, we will get it right for other groups as well. I think that it was Ban Ki-moon who used to talk about equality and progress for women actually being progress for everyone.

The Convener

In a previous evidence session, we discussed whether, if in a tie-break situation a disabled man lost out to an able-bodied woman, that would be a dangerous line to take. We heard about the situation in which someone with another protected characteristic who is male loses out to a woman just because she is a woman.

Angela Constance

Those are complex situations. As I said, the law is finely balanced. The action that we have taken to improve the representation of women on public boards will broadly benefit other groups of people. We need to avoid getting into a situation of pitching women against BME communities or people with disabilities.

I absolutely accept that, as well as an underrepresentation of women on boards, there is an underrepresentation of people with disabilities, people from the BME community and people under 50, which will require specific action. I sit in front of you today to talk about a specific bill that is focused on gender equality, and I make no apologies for that, but I am conscious that I am the equalities secretary and there is nothing in the bill that prohibits work in other areas. We have the race equality framework and we will be bringing forward the race equality action plan. There are specific actions in the work that the Minister for Social Security has done on the disability action plan on outreach work to increase the representation of people with disabilities on public boards. Their representation has increased over the past 10 to 15 years, but they are still underrepresented. The more recent figures actually show a decrease. We have an obligation and a duty there, too.

Gail Ross

That takes me neatly on to what I wanted to ask about. Section 1.1 says:

“The ‘gender representation objective’ for a public board is that it has 50% of non-executive members who are women.”

In its written evidence, the Equality and Human Rights Commission said that changing the target to 40 per cent would make the provisions much more flexible. Do you have an opinion on that?

Angela Constance

I suppose that I should have declared an interest at the start of the session: I am a signed-up member of the Women 50:50 campaign. Women make up 51.5 per cent of the population. The voluntary measures that many boards have taken to increase the representation of women to about 40 per cent have been effective. The bill is rightly focused on non-executive members, as that is where we can act. I am conscious that, given the complexity of the public sector landscape, there are people who sit on boards because they are elected to those positions or because they are ex officio. The bill does not address the representation of women in ex officio positions, nor indeed their representation among elected members. The bill is one measure, but there are broader issues that need to be tackled in and around gender inequality and other inequalities in society; we do not demur from that.

The bill is focused. It takes targeted action in response to our new powers, and I would argue that that is decisive action to lock in the gains that we have made and to build that momentum. However, there are other issues that we have to tackle and wrestle with as a Government and as a society. Why are only 29 per cent of elected members on councils women? There are 100 wards in Scotland where no women have been elected.

Thirty-five per cent of MSPs are women. That is a salutary lesson. The Parliament started off with nearly 40 per cent women MSPs, and the proportion has gone down. It is a stalemate between the last election—the 2016 election—and the previous one. That is one of the biggest lessons on why we need to guard against complacency. I am very proud of the fact that more than 45 per cent of the non-executive members of our public sector boards are women. However, if we consider the history of the Scottish Parliament, we realise that we need to guard against complacency. We need to lock in the progress that has been made and build on it.

Mary Fee

I take you back to your earlier point about universities. Universities Scotland is supportive of the bill. You will be aware that it does not think that the bill should apply to universities, because they are autonomous, non-profit institutions. How will you ensure that they abide by the legislation and that they make changes to their board structures?

Angela Constance

It is very clear that universities are considered to be public authorities under equality legislation. They are listed public authorities under schedule 19 to the Equality Act 2010, and it would be utterly inconsistent if they were not considered to be public authorities for the purpose of the bill given that they are considered to be public authorities for other equality legislation. By the by, they are also listed as public authorities under freedom of information legislation. As a former education secretary, I understand that universities are autonomous, unique and a special, not-for-profit sector. However, like the rest of us, they are accountable and, like other public sector boards, for the purposes of equality legislation and the bill, they are considered to be public authorities.

Mary Fee

Will you take any specific measures in relation to the sector to ensure that universities comply, given the stance that they have taken?

Angela Constance

I read with interest the evidence that was given by the University and College Union and by Mary Senior in particular. However, although I have strong views about the views that have been expressed by some in the university sector, I do not for one minute envisage the university sector not complying with the law.

Mary Fee

That is helpful. Thank you.

Alex Cole-Hamilton

That has sparked a question in my mind about the duties of the appointing person and the public authority. It is clear from your earlier answers who we mean by an appointing person, but who in the public authority will discharge the duty to take the steps that the appointing person deems necessary to encourage applications by women? Will that be done by the people who have the executive function in the organisation—the chief executive or the paid members of staff—or by the existing board? To whom does the duty apply, and do we need to specify that more clearly in the bill?

Angela Constance

That is a good question, as the person will vary depending on the board. As I indicated, 60 per cent of the boards are subject to ministerial appointments and, ultimately, ministers have a responsibility. Many of the duties that underpin ministerial responsibilities are fulfilled by civil servants, and we are subject to the full glare of scrutiny by committees and the Parliament as well as by wider civic society.

Eileen Flanagan may be able to give examples of who the appointing persons will be in other boards. The landscape is complex and variable.

Eileen Flanagan

The other main cohort is universities, whose appointment process has absolutely no connection to ministers. They have a code of governance for their process that mirrors quite closely the code of the Commissioner for Ethical Standards in Public Life in Scotland, which is about good practice in how they conduct their rounds. In colleges, a few appointments are made by ministers, but the majority are made independently, and colleges follow a code of governance that sets out how they should do that. There is a lot of information in there about good practice.

Recently, colleagues in our public appointments team have been transforming their process by using the good practice—the cabinet secretary talked about sharing good practice and what works—that is in the college and university sectors. People are looking at ways to learn from our recent experience.

That is the biggest group outwith the ministerially appointed boards. I may be wrong, but I think that schedule 1 lists lots of individual examples of boards where posts may be partly ministerially appointed and partly appointed by other authorities. It gets very bitty. If the committee is interested, we could list those bodies, but the main cohort outwith ministerial appointments involves universities and colleges.

10:30  



Alex Cole-Hamilton

I suggest that schedule 1 needs a third column—in addition to “Authority” and “Excluded position”—that defines who the appointing person is for each authority. If the appointments in question are not 100 per cent ministerial appointments, we need to clarify that in schedule 1.

The second part of my question was about the duty on public authorities. I want the people who will apply the legislation to be clear about with whom the buck stops, so that we do not have people saying, “I wasn’t clear about who in our organisation was responsible for taking such steps as they deem necessary.” The landscape is complex, and duties and responsibilities differ between authorities, but we need to be a bit clearer about who will ultimately be responsible under the legislation for the recruitment process. Will that be the chief executive or the paid members of staff?

Angela Constance

Although individuals who work in particular organisations will have responsibilities as employees—I am thinking in particular about those who work in human resources departments—and they will be expected to work in accordance with best practice and the best available advice and evidence, boards as a whole and chief officers will have a corporate responsibility and a leadership role. If there are ways in which we can flesh that out a bit better, we will endeavour to do that. We are in the business of being crystal clear where possible.

Eileen Flanagan

The number of appointments that are not to colleges or universities and are not ministerial appointments is very small. We are not talking about a lot of boards that come outwith those bigger groups.

Alex Cole-Hamilton

For all public authorities across the piece, we need to be clear from the authority’s side about who in the organisation should be taking the steps, or at least to delineate that it is not the responsibility of just the current board chair to work to make the appointments happen; it is also the responsibility of the chief officer, the HR department or whoever.

Angela Constance

This does not all rest on the HR department’s shoulders. The point about senior leadership, whether that is from Government ministers, senior civil servants or those in the wider public sector, is well made.

The Convener

Can I shift you away from universities, which think that they should not be part of the bill, to the evidence that we heard about a group of individuals who think that their organisations—integration joint boards—should be part of it? We heard from Fiona Moss of Glasgow City integration joint board, who was concerned that IJBs have not been included. That may be because they are not listed in schedule 1. Can we remedy that and make sure that they are listed in that schedule, given their size and function and the huge amount of public money that they are responsible for?

Angela Constance

I was really interested in Fiona Moss’s evidence; I am not unsympathetic to it. The issue is about the how. There are complexities around integration joint boards and the solution as to how we could include them in the bill is not obvious.

The difficulty is that some members of integration joint boards are specified in law—such as doctors, nurses and chief social work officers—and they are employees, while other members are nominated from local authorities, and they are elected members. The bill is about non-executive directors so, as it stands, it does not cover people who are employees or elected. I am afraid that that is the knotty issue, although I noticed that Glasgow City integration joint board is gender balanced.

The Convener

I noticed that some organisations seem to be really keen to be part of the bill and have demonstrated that clearly. If we can work through a remedy for that, that would be helpful. I do not think that we would be unresponsive to some pressure being put on elected members to recognise the need for gender balance when they make appointments to boards, because in some cases that does not happen.

Angela Constance

The integration joint board issue takes us into equality in the law and in practice in relation to employment and, indeed, into who is and is not elected in Scotland.

The Convener

We need to take baby steps first.

Have we covered everything that we need to? The clerk has reminded me that only one in four board chairs in Scotland are women. How do we improve that? When responding to some of my colleagues, the cabinet secretary touched on chairs and mentioned the pipeline. In some cases, it is a leaky pipeline, with women getting so far and then dropping off for all sorts of reasons.

I have heard anecdotal evidence about a woman who got to a chair position only to be told that it would be ensured that she would be there for only a year. She was not given the normal contractual period, which was four years—there was a routine of one year, two years and one year.

How do we fix that? How do we ensure that more women are encouraged to go for chair positions and that such barriers are taken away, to allow women to progress?

Angela Constance

We have been working hard on the issue of chairs for a few years. We have made good progress on the representation of women as non-executive members and, of course, chairs are non-executive members, so having more women on boards will give us a bit of a springboard to address further the issue of who chairs them.

The question is similar to the broader issue of women in leadership positions. Women are missing from and underrepresented in positions of leadership—in this instance, as chairs of boards. The improvement programme is focused on working with existing chairs on succession planning. It is about reaching into communities and looking at the talent pipeline—there are specific actions and activities. I can drop the committee a fuller note of what we are doing to improve the representation of women as chairs on public sector boards; there is a concerted effort on that.

The Convener

That would be helpful.

I think that that exhausts all our topics. We are grateful to the cabinet secretary and her officials for coming to the meeting. We will now get on with drafting our stage 1 report and no doubt we will hear back from you, and you from us, in due course.

Angela Constance

Thank you, convener. I look forward to receiving your report.

10:38 Meeting continued in private until 11:03.  



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21 September 2017

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28 September 2017

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5 October 2017

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26 October 2017

Equalities and Human Rights Committee's Stage 1 report

What is secondary legislation?

Secondary legislation is sometimes called 'subordinate' or 'delegated' legislation. It can be used to:

  • bring a section or sections of a law that’s already been passed, into force
  • give details of how a law will be applied
  • make changes to the law without a new Act having to be passed

An Act is a Bill that’s been approved by Parliament and given Royal Assent (formally approved).

Delegated Powers and Law Reform committee

This committee looks at the powers of this Bill to allow the Scottish Government or others to create 'secondary legislation' or regulations.

It met to discuss the Bill in public on:

5 September 2017:

Read the Stage 1 report by the Delegated Powers and Law Reform committee published on 5 October 2017.

Debate on the Bill

A debate for MSPs to discuss what the Bill aims to do and how it'll do it.

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Stage 1 debate on the Bill transcript

The Presiding Officer (Ken Macintosh)

The next item of business is a debate on motion S5M-09257, in the name of Angela Constance, on stage 1 of the Gender Representation on Public Boards (Scotland) Bill. I call Angela Constance to speak to and move the motion.

The Cabinet Secretary for Communities, Social Security and Equalities (Angela Constance)

I am delighted to open the stage 1 debate on the Gender Representation on Public Boards (Scotland) Bill. I thank all those who submitted evidence to the Equalities and Human Rights Committee, and I thank members of the committee for their thoughtful consideration of the bill and their constructive challenge to the Scottish Government to make it stronger. I welcome the fact that the committee supports the general principles of the bill and that, alongside many stakeholders, it has been so positive about the need for the legislation. I am disappointed that Conservative members do not currently support this piece of equalities legislation, but I remain hopeful that they will be persuaded by the arguments in favour of the bill and will join the rest of the Parliament in supporting it.

At its heart, the bill is about equality for women, who represent 51.5 per cent of the population, yet hold only 45 per cent of regulated ministerial public appointments. The bill is about this Parliament using its powers to deliver a fairer and more equal Scotland. Women’s voices need to be heard and they need to be part of the decisions that are made in Scotland’s boardrooms. Scotland’s public bodies, colleges and universities are responsible for significant sums of public money, and they oversee and deliver public services that touch all aspects of people’s lives. I believe that boards that reflect Scotland’s communities will make better decisions for Scotland’s communities, and there is ample evidence to support the argument that more diversity leads to better-quality conversations, which lead to better decisions and, ultimately, better performance.

Elaine Smith (Central Scotland) (Lab)

Does the cabinet secretary agree that, although the debate and the proposed legislation are about boards, the message that they send can go much wider than that, as what she just said is also true for political parties, councils, senior management jobs and so on?

Angela Constance

I agree with the sentiment that Ms Smith expresses. I will touch on some of those issues but, with our current powers, we have legislative competence and ability only in relation to public sector boards. Nonetheless, on the point that Ms Smith makes, we are grasping the opportunity to send a strong message—the right message—to other parts of civic Scotland.

In essence, I believe that gender diversity is the right thing to do and, crucially, the smart thing to do—that is bolstered by the evidence that I referred to.

Two days ago, I addressed the chamber on the issue of violence against women and girls to mark the start of 16 days of activism to end gender-based violence. I said that we also need to tackle the underlying attitudes that can perpetuate sexual violence and harassment by men—issues that everyone across society must tackle. To tackle them meaningfully, we have to become a more equal society. We must acknowledge and redress the inequality of power between men and women, and where we can take action on that, we must do so. The bill will play a part in tackling that inequality in our society by addressing the clear gender imbalance on Scotland’s public boards.

This Government has made a major effort to shift the number of women on public boards over the past few years, and I thank all those who have helped us to change the percentage of women holding regulated ministerial appointments from 35 per cent in 2007 to more than 45 per cent today.

Mike Rumbles (North East Scotland) (LD)

If the bill is passed as drafted, will it limit the proportion of women on a board to 50 per cent?

Angela Constance

The clear answer to that is no. It sets an objective for 50 per cent of non-executive members of public boards to be women. It will not limit the appointment of women. Members should bear in mind that everybody is appointed on merit so, in theory, a board could have more than 50 per cent women if it so wished.

We have made significant progress over a relatively short period. We should all be proud of that. Women are better represented on Scotland’s public boards now than they have ever been. However, that makes it all the more important that we have legislation that underpins all the work that has got us to this point.

There is a quotation by the writer Zadie Smith that I use a lot because it is one of my favourites. She said:

“progress is never permanent, will always be threatened, must be redoubled, restated, and reimagined if it is to survive.”

We have only to look as far as the chamber to understand what she was getting at: there are fewer women in the Scottish Parliament today than there were in 1999.

Despite Westminster’s efforts to champion women on private sector boards, starting with the Davies review in 2010, the percentage of women on private sector boards remains low: 27.7 per cent for FTSE 100 boards and 22.8 per cent for FTSE 250 boards as of October this year, according to the Hampton-Alexander review. I still remember an article from The Guardian a few years ago, which said that, at that time, there were more men called John on the boards of FTSE 100 companies than there were women. In fact, there were also more men called David and more men with knighthoods than there were women.

We cannot be complacent and I, for one, do not want to see that, five, 10 or 20 years down the line, we have stalled or, even worse, regressed. When we think about progress, we cannot just think about getting over the line; we have to think about how we sustain, embed and build on it.

The bill sets a gender representation objective for public boards that 50 per cent of their non-executive members be women. Where there are two or more equally qualified candidates at least one of whom is a woman, the bill requires that a woman be appointed if that will result in the board achieving, or making progress towards achieving, the gender representation objective, unless appointing another candidate

“is justified on the basis of a characteristic or situation particular to that candidate”.

That could mean another protected characteristic under the Equality Act 2010—someone’s socioeconomic background or their being a carer or a parent, for example.

The bill also requires steps to be taken to encourage women to apply to become non-executive members of public boards. That is really important. We cannot focus only on the final decision. We need to get women into the process in the first place, and the evidence suggests that, when they get into the process, they perform well.

Jamie Greene (West Scotland) (Con)

I ask for clarification on a technical point. Does the bill state that, in a tiebreak, where there is a male candidate and a female candidate, preference would be given to the female candidate unless there was another protected characteristic that the board felt it should take into account, in which case it could offer the position to the male candidate?

Angela Constance

It is important that we do not get into setting one characteristic against another in the way that Mr Greene perhaps articulated. There is guidance from the Equality and Human Rights Commission on what is meant by “equally qualified” and how to respond to that situation. To be clear, the bill requires that women be appointed in a tiebreak situation.

To be honest, it will not happen often that we get two candidates who are equal in every way. However, where that happens, if women are underrepresented on a board, a woman could be appointed unless the appointment of another candidate is justified on the basis of another protected characteristic, whether that is someone’s ethnicity, disability or socioeconomic background or the fact that they are a carer. A lot of that will be laid out as clearly as possible in our guidance but I think that what will happen in such a situation, which will of course be very rare, is clear.

Elaine Smith

I thank the cabinet secretary for taking a further intervention. Does she agree that we should also bear it in mind that women are diverse and could have various other protected characteristics?

Angela Constance

Indeed. Women make up 51.5 per cent of the population and are not homogenous. I can come back to other issues in my closing speech if further clarity is required around the tiebreak situation.

The committee has made a number of constructive suggestions to strengthen the bill. As I set out in my response to the committee’s stage 1 report, should the general principles of the bill be agreed to this afternoon, the Scottish Government will lodge amendments at stage 2 in response to the committee’s recommendations.

We will publish new statutory guidance to support the implementation of the bill, in consultation with public authorities and other relevant parties, including the Commissioner for Ethical Standards in Public Life in Scotland. We will ensure that the guidance provides clarity in the areas highlighted by the committee.

On the recommendation of both the Equalities and Human Rights Committee and the Delegated Powers and Law Reform Committee, we will lodge an amendment at stage 2 so that regulations under section 8 of the bill will be subject to the affirmative procedure.

I also absolutely agree with the committee’s position that the requirement to report is central to the bill’s effectiveness. Section 7 makes provision for Scottish ministers to introduce regulations requiring the publication of reports on the operation of the legislation and we will work with the committee ahead of stage 2 to lodge an appropriate amendment.

I was very interested in the committee’s suggestion of introducing an aggregate gender representation objective for chair positions. I absolutely understand the committee’s argument for doing so—the percentage of women in chair positions lags significantly behind the position in relation to non-executive members generally. Although I appreciate the reasoning behind the suggestion, for the reasons that the committee itself acknowledges, creating an aggregate chair objective across all the public boards to which the bill extends would not be workable in practice. However, I commit to ensuring that we keep a close eye on that area.

The Scottish Government public appointments team is already taking action. We have established a future chairs mentoring project, which pairs experienced chairs with serving board members. The project targets groups who are currently underrepresented at chair level—they include, but are not limited to, women. We are also looking at our overall package of support for current board members to ensure that we support them to grow their skills and confidence. Just this autumn, we appointed two new female chairs—to the Scottish Fire and Rescue Service and the Scottish Police Authority.

I agree whole-heartedly with the committee’s position on the inclusion of trans women in the bill, and I reassure members that the Scottish Government is actively looking at how we can ensure that the bill is as inclusive as it can be. I will of course provide the committee with an update as soon as I am able to do so.

The committee raised the question of how the bill will impact on groups of people who share other protected characteristics—Mr Greene raised that question, too, and it is an important one. In order for boards to truly reflect Scotland’s communities, we need to take action to improve the representation of ethnic minorities, disabled people and younger people.

Although the bill relates to women, I believe that it can be a catalyst that drives us forward towards greater diversity beyond gender, in relation to groups of people who share other protected characteristics—diversity in the widest sense. It will do so because the bill puts a spotlight on current processes, challenging everyone involved in public appointments—including ministers—to ask themselves whether existing approaches are truly maximising our ability to attract the most diverse, talented people to Scotland’s public boards. How we word person specifications and where we advertise appointments are very practical considerations but we know that they make a big difference.

I want the bill to be as strong and successful as it can be. Given that ambition, I look forward to hearing members’ views this afternoon.

I urge members to support the general principles of the bill.

I move,

That the Parliament agrees to the general principles of the Gender Representation on Public Boards (Scotland) Bill.

14:45  



Alex Cole-Hamilton (Edinburgh Western) (LD)

It is a privilege on behalf of the Equalities and Human Rights Committee to open the debate on our stage 1 report on the Gender Representation on Public Boards (Scotland) Bill. I offer the apologies of our convener, Christina McKelvie, who cannot be here for personal reasons.

I thank all those who provided evidence to the committee to assist us in our deliberations. As always, the opportunity to discuss issues with experts was vital to our understanding, and we hope to have reflected those opinions fairly and accurately in our report. I pay tribute to my fellow committee members for their close scrutiny of the measures that are contained in the bill. Although it is regrettable that we were not all able to agree the general principles of the bill, all committee members contributed thoughtfully to our consideration of the issues, which I am sure will be given a full airing today.

I also thank the cabinet secretary, who expressed her will to work with the committee as the bill progresses through Parliament and whose response to our stage 1 report was positive and considered. I welcome that approach, and I am sure that, at stage 2, members from across the chamber will offer constructive improvements to the bill that have not already been committed to by the Government.

Bill Thomson, the Commissioner for Ethical Standards in Public Life in Scotland, summarised the legislation best when he described it as trying

“to ensure that there is no backsliding and we do not lose the gains that have been made.”—[Official Report, Equalities and Human Rights Committee, 28 September 2017; c 11.]

In a nutshell, that is why a majority of our committee supports the bill.

The percentage of non-executive board members who are women has risen from 35 per cent in 2013 to 45.8 per cent in September 2017, but that has been the result of dedicated, targeted and prioritised work on the part of the Scottish Government and related bodies. We believe that enshrining a target in law, alongside appropriate monitoring and reporting mechanisms, is the necessary change to ensure that public boards reflect the population that they serve without either being prescriptive or falling foul of positive discrimination.

I would like to tackle some of the myths that have surrounded the bill. The bill does not establish quotas or ask public bodies to appoint on any basis other than merit. Positive action is not the same as positive discrimination. Positive action will ensure that we are able to aggressively tackle the problem of the underrepresentation of women on our public boards. The evidence speaks for itself: positive action works, positive action does not preclude appointing on merit and diverse boards beget better outcomes.

In addition to the 21 written submissions that we received, the committee held four separate evidence sessions with six different panels. We heard from equality groups representing different protected characteristics, some of the public bodies that will be covered by the legislation, trade unions and legal experts as well as the cabinet secretary. The overwhelming message was that now is the time and the bill is a step on the right path if we are to lock in the gains that we have made.

Having said that, there are some areas in which we feel that improvements could be made. The bill sets what it describes as the gender representation objective, which is that, by 31 December 2022, 50 per cent of non-executive members of public boards will be women. It aims to achieve that objective through positive action measures. It is crucial that we distinguish positive action, which involves offering targeted assistance to disadvantaged or underrepresented groups, from positive discrimination, whereby an individual is chosen solely on the basis of their protected characteristic. The bill does not introduce positive discrimination, which is illegal.

When considering the objective, some witnesses asked—as my colleague Mike Rumbles just did—whether the 50 per cent target is an exact target or a minimum percentage to reach. Colleagues will notice that issue to be a theme throughout my speech, because the committee considered that the target could be a source of confusion, although we expected that the matter could be clarified in guidance. It is therefore welcome that the Scottish Government has confirmed in its response to our report that—as the cabinet secretary has just confirmed—the figure of 50 per cent is not an exact target or cap and does not preclude a public board from having more than 50 per cent female representation. It is also welcome that the Government has confirmed that that would mean that the tiebreaker provision would not apply when a board had already met the 50 per cent target and that the issue will be clearly reflected in guidance.

Although we are close to meeting the gender representation objective as drafted, colleagues may be shocked but not surprised to learn that only 25 per cent of board chairs are women. Board chairs are important in setting the culture, the strategy, the tone and the direction of their organisations, and there is little point in rearranging the deck chairs if the captain of the ship is steering towards an iceberg. Since session 5 started, we have seen examples of how the boardroom can be a cold house for women members, and it is vital that we take action to address that situation, too.

Our suggestion is to set an aggregate target for board chairs that matches the ambition for board members. Although we appreciate the Government’s view that that may be difficult to apply practically, we hope that the Scottish Government will take on board our suggestion in the spirit in which it is intended and find a mechanism through which to take it forward at stage 2.

I have mentioned the bill’s tiebreaker provision. Some committee witnesses argued that, were there a need to apply the tiebreaker provision that is included in section 4 in the recruitment process, a white woman may be appointed over a disabled man or a man from the black and minority ethnic community in order to meet the target, thereby resulting in the board being less diverse than it could have been. Although section 4(4) includes an exception for a tiebreaker to go in favour of a candidate who is not a woman on the basis of a characteristic or situation particular to them, some witnesses felt that the wording is unclear. We therefore welcome the manner in which the Scottish Government has clarified section 4 in its response to our report and its commitment to provide a clear explanation in supporting guidance. I am sure that that is helpful reassurance to the committee and to the wider public sector landscape.

One of the few areas of potential disagreement concerns how protected characteristics other than gender could be legislated for. The bill seems to be something of a missed opportunity to cover all protected characteristics in some way. Perhaps the Scottish Government will reflect on whether those who are disabled, from an ethnic minority community or young require similar legislation to lock in board diversity if that is not done through amendment to the bill at stage 2.

In addition to those wider concerns, groups representing one particular protected characteristic have raised specific issues with the definitions in the bill. My colleague Mary Fee was diligent in questioning every set of witnesses on whether the language that is used to define women in the bill is inclusive of trans women, and the common message was that the wording could be improved. The Scottish trans alliance made a compelling argument for change, even helpfully suggesting how the language could be changed so that the objective would cover those living in the female gender, with trans men and non-binary trans people included in the proportion outside the objective. That small but sensible change would help to avoid the tragic irony of a bill that was designed to improve diversity using non-inclusive language. In both oral evidence and the Government’s response to the committee, the cabinet secretary committed to looking at the language that is used in the bill to ensure that it is inclusive of trans individuals, and we look forward to seeing those changes proposed by the Government at stage 2.

Throughout our scrutiny of the bill, my colleagues and I have asked witnesses how we can ensure that the bill could be enforced through monitoring and reporting. It became clear to us very early on that financial sanctions would be counterproductive, given that any financial penalty would take money away only from public bodies or the services that they provide. Many witnesses made the valid point that public naming and shaming of recalcitrant bodies would, in many cases, be just as powerful and that the carrot is often better than the stick. Given that about 60 per cent of appointments are made by ministers, the case for financially punishing non-compliant boards becomes even less coherent.

However, as most of the appointments that are made to public boards are, in the final analysis, made by Scottish ministers, the committee was strongly of the view that Parliament should have a role in monitoring the progress that is being made through such reports. We therefore recommended to the Government that there should be a reporting duty in the bill, and I am pleased to see that the cabinet secretary has confirmed that an amendment to that effect will be lodged at stage 2.

Gail Ross (Caithness, Sutherland and Ross) (SNP)

Does Alex Cole-Hamilton agree that the reporting process could help to support boards that are not reaching their 50:50 goal?

Alex Cole-Hamilton

I absolutely agree. We can also disseminate best practice through the reporting process, so that people can see the steps that appointing persons are taking to encourage women to come forward for board membership. We hope that the proposed amendment on reporting will reflect the role of Parliament in holding the Government to account and that parliamentarians will have the opportunity to press the Government, should progress be found wanting.

Schedule 1 lists all the public authorities that will fall under the auspices of the legislation. The public sector landscape in Scotland is complex, so it was welcome that the Scottish Government was able to provide us with definitions of the types of body that are included in the bill and detail why certain bodies were or were not covered.

Only two potential areas of contention arose in that regard: integration joint boards and higher education institutions. In evidence, Universities Scotland argued against the inclusion of HEIs on the basis that they are not public bodies but autonomous, not-for-profit charitable institutions. However, the cabinet secretary pointed out that universities are considered to be public authorities under equality legislation and said that not to include them in the bill, which covers only non-executive board members, would be inconsistent. Indeed, University and College Union Scotland made the point that universities receive £1.5 billion of Scottish Government money. Given that the argument was made on the principle of inclusion rather than the merits of the bill itself, we agree with the Scottish Government that HEIs should be included in schedule 1.

The bill as drafted provides for any new bodies to be added to the schedule by regulation, which would be subject to the negative procedure. We are pleased that the Government has accepted the view of the Equalities and Human Rights Committee and the DPLR committee that the affirmative procedure should be used.

All members will recognise the importance of closing loopholes in bills that might be used to avoid obligations. The committee considered that it is important that the Scottish Government defines the appointing person for each authority in order to leave no wriggle room if there is a lack of progress. The Government’s argument, however, is that such an approach would require amendment to the legislation every time that a body sought to change its governance or make-up, which is a reasonable point. We hope that such detail can be provided in guidance, which is not subject to a legislative process.

The need for guidance was a consistent thread during our stage 1 consideration. In our view, guidance is vital to the success of the bill. As I have mentioned, the Scottish Government has agreed to clarify in guidance the 50 per cent target, the tiebreaker situation and the appointing person for each authority.

Our major concern about the guidance is twofold. First, we think that the guidance should be statutory. Secondly, we think that the guidance should flow from the pre-existing guidance on public appointments, to ensure that there is minimal confusion about the process for public bodies and appointing persons. We are sure that the Government’s promised consultation on the guidance will highlight the need for it to provide examples of best practice and set out, for example, steps that boards can take to ensure that their working practices do not deter potential candidates or lead to new board members having to leave at an early juncture. We are delighted that the Government has agreed that the guidance should be statutory and that amendments to that effect will be lodged at stage 2.

I reiterate the Equalities and Human Rights Committee’s majority support for the general principles of the bill at stage 1. We look forward to continuing our scrutiny of the bill at the next stage of the process, when we will consider the aforementioned proposed Government amendments and any amendments that have been lodged by members of the Parliament.

14:59  



Annie Wells (Glasgow) (Con)

The aims of the Gender Representation on Public Boards (Scotland) Bill are altruistic, but for me the bill boils down to one issue, which is whether gender quotas are the real marker of progress for women.

From my early days as a member of the Scottish Parliament, I have spoken openly in the chamber, in panel debates and on the television about my views on gender quotas, and I have been consistent in my approach. Yes, I want equality for women—of course I do. I want to see 50:50 representation of women and men in all spheres, whether in politics or the FTSE 350 companies, or among the non-executive board members whom we are discussing today. However, I do not want statutory quotas to be the means of bringing that about, which is why I cannot support the Government’s motion.

I recognise that support for the bill, which has the legislative objective of seeking to ensure that 50 per cent of non-executive public board members are women by the end of 2022, is unanimous among the other parties.

Alex Cole-Hamilton

I have listened to the first minute of Annie Wells’s speech, which suggests that the bill is all about quotas, when it is not—it is about merit. During an evidence session on the bill on 28 September, Annie Wells said:

“As far as I can see, merit sits at the heart of the bill.”—[Official Report, Equalities and Human Rights Committee, 28 September 2017; c 12-13.]

I agree with Annie Wells on that. Why does not she?

Annie Wells

I did say that, because I believe that merit is key to everything. I have said that on many occasions in debates and on panel discussions, and I have been put down for using the word “merit”. Although I said that merit is at the heart of the bill, if Alex Cole-Hamilton listens to the rest of my speech, he will find out why I cannot support the bill at stage 1.

Despite developments in gender equality across the United Kingdom, women remain underrepresented on boards and more widely across the decision-making bodies in our society. Although women constitute more than half the population, they account for just 32 per cent of members in the House of Commons and 35 per cent of members in the Scottish Parliament. In the FTSE 100 companies, women make up just 7 per cent of chairs, and in the FTSE 350 companies, they make up 16 per cent of corporate executive committees. Of course we want vast improvement to be made, because those figures are truly uncomfortable to read and they mark just how far we still need to go to achieve equality for women.

Although I whole-heartedly believe that more needs to be done, there are a number of questions that we need to answer. Do we believe that quotas will truly address the cultural and societal barriers that prevent women from applying for board positions in the first place? Will they identify and rectify the obstacles that prevent women from reaching top board positions, or will they serve as a misleading marker of progress?

The bill is already limited in scope in that it relates only to certain public sector bodies and to colleges and higher education institutions in Scotland; it does not extend to private companies or charities. At the time of the bill’s introduction, the percentage of non-executive female board members stood at 42 per cent, but that figure is now 45.8 per cent. Further to that, the Scottish ministers are already responsible for around 60 per cent of appointments to the boards that come within the scope of the bill.

As a member of the Equalities and Human Rights Committee, I have been present at the many evidence sessions that have taken place to discuss the issues and practicalities of the bill. The bill is loaded with ambiguities and although I recognise that, as this is a stage 1 debate, all that is sought is broad agreement on its general principles, it is important to acknowledge the issues now.

The main principle of the bill is that it aims to achieve 50:50 representation by using positive action measures. It is stated that, where there are two candidates—a man and a woman—who are equally qualified, preference must be given to the woman, but it is difficult to understand how that will work in practice. How will those who are responsible for appointing board members interpret what is meant by “equal measure”? How will guidance ever be clear enough not to allow for loopholes?

As the Law Society of Scotland points out, without clear guidance, the bill runs the risk of encouraging positive discrimination to meet targets, which would run contrary to European Union legislation. In addition, there is an issue with non-compliance, which has been raised consistently since the bill’s conception. Compliance will not be mandatory. Although authorities will have to report on the operation of the bill as enacted, there will be no sanctions or penalties. As the committee pointed out in its report,

“a Bill without the appropriate teeth risks the appearance of legislation for legislation’s sake.”

I reiterate that.

Throughout the committee’s consideration of the bill, questions have rightly been raised about the fact that the bill’s sole focus is on gender. As a result, it has become unclear exactly what the bill seeks to achieve. Although I want public boards to be more reflective of our population, that aspect of the bill has brought with it more questions and has added another layer of confusion. How will the exception, whereby positions can be given to someone who is not a woman when that can be justified on the basis of

“a characteristic or situation particular to that candidate”,

work in practice?

How will that significant addition, which was not present at the bill’s conception, work within the framework of a gender-focused bill?

I return to my earlier point about underlying barriers for women in the workplace. I repeat my concern that the bill may distract us from the bigger task at hand. Women face barriers to getting on public boards that are similar to those that they face in employment generally.

Gail Ross

On the contrary, does Annie Wells not agree that encouraging women to go on public boards would have a knock-on effect on the other situations that she suggests or on private businesses, as they would be role models as powerful women on boards?

Annie Wells

We should absolutely encourage women, but I do not think that targets do that. We should encourage women in all walks of life to step forward, but targets are not the way to go.

The barriers that are often cited are a lack of flexible working, a lack of affordable and quality childcare, and occupational segregation. As Colleges Scotland has pointed out, there is a whole raft of barriers to women being recruited as non-executive board members. Most significantly, there is a limited pool of interested candidates.

We should be pushing the wider moral and legal imperatives to achieve equality between men and women and showing why there is a clear business case for increasing diversity and encouraging women to seek those positions. Statistics show us that there is a 53 per cent higher return on equity for companies with a higher percentage of female board members, and it is widely accepted that diversity is good for the workforce in general.

I have seen at first hand the work of companies such as the FDM Group in Glasgow to get more women into their ranks at both graduate and executive level. They recognise the value that women bring to business. As a FTSE 250 company that specialises in information technology, gender equality is a huge part of the FDM Group’s ethos. Fifty per cent of its management team is female, it has a median gender pay gap of 0 per cent, and this year it launched its getting back to business programme, which is aimed at bridging the gap between women taking a career break and re-entering the workforce at the level at which they left.

The FDM Group was among the first companies to provide a report on their gender pay gap in response to a UK Government initiative that requires companies with more than 250 employees to report on their gender pay gap. By publishing those figures, the initiative aims to shine a light on sectors that do not do so.

That is not the only root-and-branch initiative that the UK Government has pushed ahead with. As I indicated earlier, we are still a long way from equal representation of women, but I want to highlight initiatives that have been shown to have had an impact without the use of quotas.

Between 2011 and 2015, the number of women on FTSE 100 boards more than doubled to 26 per cent in less than five years and, in 2016, as part of the Hampton-Alexander review, the UK Government set a voluntary target for FTSE 350 companies to increase female board representation to 33 per cent by 2020.

Of course I acknowledge that we still have a long way to go, but those are the kinds of initiatives that we need to promote. We need positive action, but that should not be fixated on quotas for women; instead, there should be bold measures surrounding childcare, educational reform and inspiring young woman through role models, as we can do in the Parliament.

I will remain a champion of promoting progress for women, but I will never see the way forward as being the introduction of statutory quotas in everyday public life. That is why I cannot support the motion.

15:08  



Monica Lennon (Central Scotland) (Lab)

I am pleased to open for the Scottish Labour Party in this stage 1 debate and to set out our support for the principles that underpin the important Gender Representation on Public Boards (Scotland) Bill.

I am pleased that the Scottish Government has introduced the bill and I pay tribute to the many amazing campaigners who are champions of improving women’s representation and rights and have led the charge behind getting the bill to the stage that it is at. I pay tribute to Women 50:50, Engender, Close the Gap, the Scottish Women’s Convention and many more organisations. The fight to increase women’s representation in public life and to convince others of why that is required is a long, hard and sometimes lonely journey, so we all owe a debt of gratitude to the committed and tenacious women and men who have argued the case for positive action for many years and, in some cases, decades. We believe that the passage of the bill will be a positive step in confirming Scotland’s commitment to gender equality.

Scotland’s public boards make many decisions that affect the running of our services and all of our daily lives, so it is only right that women should receive fair representation in the places where those decisions are made. A statutory target for women to make up 50 per cent of non-executive board membership by 2020 is necessary to ensure that the progress that has been made so far does not slip backwards. At the most basic level, those in positions of power in Scotland should reflect the society that we seek to represent. It is a simple issue of fairness and equality. If women make up more than 50 per cent of the population, as we do, we should also make up at least 50 per cent of the decision makers, but that is not the case.

It is not only on public boards that women are underrepresented. Earlier this year, Engender’s “Sex and Power in Scotland 2017” report revealed that women are largely posted missing from almost every area in Scottish public life. Women make up only 35 per cent of members of the Scottish Parliament, 29 per cent of local councillors, 16 per cent of council leaders and 28 per cent of public body chief executives. To put it another way, that means that men account for 65 per cent of parliamentarians, 71 per cent of councillors, 84 per cent of council leaders and 72 per cent of public body chief executives. Looking at those figures, it is baffling to me that anyone can continue to conclude that we live in a meritocracy.

The overrepresentation of men and underrepresentation of women are rooted in structural inequality that results in women still being valued less than their male counterparts. It is the same structural inequality that allows a culture of sexual harassment and violence against women to flourish. Earlier this week, colleagues debated in the chamber the Scottish Government’s “Equally Safe—A Delivery Plan for Scotland’s Strategy to Prevent Violence Against Women and Girls” and the need to end violence against women. Violence against women is the most extreme end of a continuum of behaviour that is underpinned by sexism and structural inequality. Smashing that structural inequality requires us to make changes, and increasing women’s representation and voices in public life is part of that solution. The bill that we are debating will start to go some way towards addressing that.

We know that women and men often experience life differently because of cultural gender roles. Women make up the majority of unpaid carers, lone parents, low-paid workers and survivors of abuse and sexual violence. Women are also disproportionately affected by austerity. Policies and services that affect women’s lives in areas such as education, healthcare, justice and housing must be informed and shaped by women.

Some, especially Conservative MSPs, question the need to legislate for gender equality at all and prefer to rely on voluntary measures. However, voluntary measures are not enough to address the gender imbalance in public life, because of the structural inequality that exists throughout society. It is positive that the proportion of non-executive women members of regulated public boards has increased to 45 per cent but, if we rely only on voluntary measures, there is always a danger that that progress can slip backwards. We believe that the bill is essential if we are to ensure that that does not happen, which is why we support its principles.

Alex Cole-Hamilton

Will the member take an intervention?

Monica Lennon

Certainly.

Alex Cole-Hamilton

I am grateful to Monica Lennon for letting me intervene on what is an excellent speech. Does she agree that the Conservative Party, in its opposition to the bill, seems to fundamentally misunderstand the difference between quotas, as Conservative members have put it and which the bill is not about, and targets, which the bill is actually about?

Monica Lennon

I thank Alex Cole-Hamilton for his work on the Equalities and Human Rights Committee. There was some confusion in Annie Wells’s remarks. I know that the Conservatives do not support the bill but, at the end of her speech, Annie Wells said that she supports positive action. I think that there is a bit of confusion, although I will gladly take an intervention from Annie Wells if she wants to intervene.

Annie Wells

We all want positive action, and I stood here and said that I do. Does the member not think that we should be looking at encouraging women? We do not need legislation to encourage them to step forward. Does she not agree that there are other fundamental issues, such as quality child care, as well?

The Deputy Presiding Officer (Linda Fabiani)

I can allow you some extra time, Ms Lennon.

Monica Lennon

Thank you, Presiding Officer. If Annie Wells and her colleagues support positive action, then they should support the bill. It is not a case of one or the other. We can encourage women while promoting policies and UK or Scottish Government decisions that do not harm women’s life chances. However, more women are needed around the table, and the Conservatives have not proposed anything to speed that up, though they have time to change their minds.

The argument against positive action is misguided. The Tories say that it is unfair that we are creating an artificial disadvantage in what would otherwise be a free system of competition, but that ignores the obvious. The current system offers an unfair advantage to men and the purpose of positive action is to redress that balance. Positive action and quotas enhance, rather than hinder, equality. Research and academic studies show that, far from damaging the so-called meritocracy, positive action promotes women who are qualified and, therefore, promotes the principle of merit rather than undermines it. There are more than enough qualified women with a wealth of experience and knowledge throughout the country who are capable of filling those roles. The legal duty to consider gender representation is about giving women an equal chance to access those roles. I also acknowledge that valid concerns were raised with the committee, particularly by Inclusion Scotland, such as the need to promote the representation of other protected characteristics, such as people in the trans community, ethnic minorities and disabled people.

Scottish Labour agrees that robust and diligent guidance must be forthcoming to accompany the bill to ensure that due consideration is given to the inclusion of other underrepresented groups and that the case is made for increasing women’s representation in Scotland through an intersectional lens. Increasing women’s representation is about improving the representation of all women, including disabled women, women of colour and working class women.

We are proud to support the bill at stage 1. We thank the Equalities and Human Rights Committee for its work. The bill is a landmark event in how Scotland approaches the issue of women’s representation, and it is a positive step in the right direction towards achieving a society in which we have true equality of representation throughout public life.

The Deputy Presiding Officer

We now move to the open debate. Speeches should be for six minutes but there is a little time in hand, so I can allow leeway for interventions.

15:17  



Tom Arthur (Renfrewshire South) (SNP)

I am grateful for the opportunity to contribute to the debate. I was disappointed to read in the Equalities and Human Rights Committee’s report that its two Conservative members, Jamie Greene and Annie Wells, do not support the general principles of the bill, though being from a party whose Scottish branch office has more MPs named David than it does female MPs, it is hardly surprising.

Jamie Greene

Will the member take an intervention?

Tom Arthur

I would like to make progress. I raise that point because I had hoped that this debate would be a moment when Parliament would speak as one, but, alas, we must once again make the case for the principle of gender balance in public and civic life and the case for action to achieve that. Given that that is the situation, I will focus my remarks on the broader context of why the bill is needed and why it should progress.

It is a fitting time to discuss balanced gender representation in civic life. Next year will mark the 90th anniversary of the Representation of the People (Equal Franchise) Act 1928, which gave the vote to all women over the age of 21. That ensured parity with the terms enjoyed by men since the Representation of the People Act 1918, which had enfranchised only women over the age of 30 who met a property qualification. Prior to that, women had been explicitly prohibited in statute from voting. In the period between those two acts of the interwar period, an increasing number of women entered politics in the UK and Scotland, including the first female MP and renowned figures at municipal level such as Mary Barbour, who was born in Kilbarchan in my constituency.

Despite those early advances, progress since has at times been painfully slow. For example, between 1918 and 2015, a total of 400 women were elected to the House of Commons, while in the 2015 United Kingdom general election alone, 459 men were elected. Women account for barely one in four members of the House of Lords. In the century since the first women were enfranchised, all but two out of 19 UK Prime Ministers have been male; out of 35 foreign secretaries, only one woman has been Britain’s top diplomat; of 40 home secretaries, women account for three, which is also the number of male home secretaries in that period who were named Sir John. No woman has ever been head of the UK home civil service, and there has only ever been one female speaker of the House of Commons.

I highlight all that because, until May of last year, the power to enact the provisions of the bill rested at Westminster. Had the people of Scotland not elected SNP Governments that are committed to bringing powers to this Parliament, there would have been no Scotland Act 2016 and we would not now have the opportunity to propose the measures in the bill, which, if enacted, will ensure that our public bodies better reflect those whom they serve.

The Tories’ failure to support the bill is sadly not surprising. After years of rebuffing calls for greater devolution and demanding that the Scottish Government use its existing powers, the Conservatives now want us to sit on our hands. Just as with powers over taxation, the Tory position is to do as London says. It is no wonder that the opinion polls now show them trailing in third place. Whether it be the racists and bigots whom they deem fit to be councillors or the mindless marionettes of their front bench in this place, it is clear that the people of Scotland are seeing through the Tory charade.

The moral case for equal gender representation on public boards is unimpeachable and in itself is enough justification for the bill. However, there is also a powerful business case. Research commissioned by the Scottish Government on greater diversity for private boards highlighted benefits that include

“lower labour turnover, higher levels of commitment and motivation amongst employees, improved reputation ... better understanding of customer needs and more flexibility and creativity within the business from the increased range of perspectives, skills and capabilities.”

That research speaks to the broader international evidence regarding the negative impact that an imbalance of gendered power has on a range of equalities outcomes. Engender refers to that in its “Equal Voice, Equal Power” publication, which states:

“having women around the table changes the substance and outcomes of discussions: increased numbers of women in leadership positions enriches perspectives and increases prospects for public gender-sensitive services. Representative public boards also contribute to challenging gender stereotypes and perceptions around public authority, and send an important message to young women and men within their respective fields.”

The point about changing the substance and outcomes of discussions is so important because the substance and outcomes can all be improved by balanced gender representation.

Perhaps that explains why the gender-balanced Cabinet of the Scottish Government functions with such efficacy and competency compared to Theresa May’s cabinet of chaos, of which women make up barely a quarter, with just six out of 23 members, and which is dominated by the grasping, fevered male egos of Johnson, Fox and Gove.

In concluding, I reiterate my support for the general principles of the bill and I commend the Scottish Government for bringing it to the chamber. I also recognise the work of the Equalities and Human Rights Committee and the important points raised in its report. As with all bills at stage 1, this is a work in progress and I trust that the Scottish Government will continue to engage as thoroughly with stakeholders at stage 2 as it has done to date.

I encourage colleagues from across the chamber—including Conservatives, because it is not too late to repent—to back the bill this evening, and I look forward to its progression.

15:24  



Alison Harris (Central Scotland) (Con)

The Gender Representation on Public Boards (Scotland) Bill has at its core an aspiration that I am sure that everyone in this chamber shares: to ensure that people, regardless of gender, have an equal chance to take senior roles in important public bodies. A review for the UK Government pointed out that boards that have strong female representation perform better than those without it, and that gender-diverse boards make better decisions because a range of voices, drawing on different life experiences, can be heard. The Institute for Employment Studies points out that diversity assists

“greater innovation and creativity, and helps organisations compete in an increasingly globalised ... and ... diverse ... marketplace.”

In addition, I very much agree with Engender when it highlights that

“having women around the table changes the substance and outcomes of discussions”

and sends

“an important message to young women”.

As others have said, the aim of a 50:50 gender split in many areas of public life is positive and to be welcomed. Public bodies need to reflect the make-up of modern Scotland, whether that is in councillors, providing vital local services; parliamentarians, both here and at Westminster; or those who serve on public boards. Our disagreement with the bill’s proposals is about the means of getting there. The Scottish Conservative Party fully recognises the need to encourage more women into public life. In 2016, we adopted in Scotland the Women2Win initiative, which was set up to boost female representation throughout the party by identifying suitable potential candidates and giving them support and mentoring.

It is early days and, as Ruth Davidson recently acknowledged, we still have far to go. However, I believe that it is vitally important that every female Conservative candidate knows that they have got there on their own merit and not because of the need to meet a quota.

Monica Lennon

There are a number of women in this Parliament who, through their political parties, became candidates on the back of positive action. Does Alison Harris agree that they got there on merit?

Alison Harris

I am referring to true merit. We can call something positive action or whatever in order to dress it up, but when we drill down or boil it down, it ultimately means a quota. I believe that merit should refer to merit alone.

Already, without quotas, progress has been made towards gender equality, and I applaud the fact that women currently make up almost 45 per cent of public board membership. They are women who have got those positions because they were the best applicants for the roles, and they are women who rightly consider themselves to be every bit as good as men and, through the selection process, have proven that fact.

James Dornan (Glasgow Cathcart) (SNP)

Will the member give way on that?

Alison Harris

No. I am going to continue.

That willingness to prove our worth comes through from an early age. I recently gave a talk at one of the local high schools in Falkirk and I asked the girls present whether they felt that they needed the help of quotas to get on in life. Not one of those students did; every young woman there was more than confident that they could compete on equal terms without the need for any special treatment and, what is more important, they expressed their desire to be chosen on merit.

James Dornan

Will the member give way?

Alison Harris

No. I am going to continue.

No tiebreaker clauses or wrangles over the interpretation of “equally qualified” or “best qualified” are needed, and certainly there should be no toothless legislation for legislation’s sake, which even the report warns against. I agree that the bill has aspiration, but it is so vague in many respects about how to meet that aspiration other than through the deeply flawed idea of quotas.

In some ways, the bill’s proposals appear to be from the “We have new powers, we must use them” school of government. Without the legislation, progress towards equality has been gathering pace. As I mentioned earlier, almost 45.8 per cent of members of public boards are women and partnership for change has seen more than 200 organisations moving towards the 50:50 target, with a number having already achieved that. We have seen progress as public bodies actively seek ways to ensure that suitably qualified women know about and are encouraged to apply for board positions. In 2015, more women than men were appointed to public bodies, and the ratio of women appointed to those making applications has steadily increased. In 2016, 43 per cent of applications for public boards were from women, a figure higher than the target set out in the diversity delivers strategy. That is good, but not good enough. No one on the Conservative benches is complacent or denying that more work needs to be done on equalising gender opportunity.

I spoke recently in the chamber about the need for more young women to be encouraged into well-paid roles in engineering and technology, to help to address the gender imbalance in those traditionally male-dominated areas. Many glass ceilings have been broken in recent times. We have had two women Prime Ministers—both Conservative—a woman First Minister and numerous female party leaders. Many leading women have proven that they can succeed in what were once considered male-dominated roles. We have much to be hopeful about; fears that that progress may stall or even be reversed display a lack of confidence in the fact that women have now proven themselves capable of meeting the challenge, whether it is in politics, in business, in our armed forces or on the boards of public bodies.

The principle that appointments should be made on the basis of merit, integrity, diversity and equality must continue to be upheld. I believe that favouring one candidate over another on the basis of gender-defined quotas threatens how that will be perceived.

Clare Adamson (Motherwell and Wishaw) (SNP)

Will the member take an intervention?

Alison Harris

I am sorry—I am on my last sentence.

No matter how altruistic the aims of the bill, at its core is the assumption that women cannot succeed without quotas. People can call it what they like—positive action, for example—but, as I said to Monica Lennon, when we drill it down, it is quotas by the back door. That is why I am unable to support the bill.

15:31  



Mary Fee (West Scotland) (Lab)

I am grateful to the Presiding Officers for their co-operation in allowing me to conclude a meeting before attending the chamber for the debate.

As a member of the Equalities and Human Rights Committee, I am grateful for the opportunity to contribute to the debate. I thank my fellow committee members, and I thank the committee clerks, who were of great assistance in arranging evidence sessions and producing the very informative stage 1 report. I also thank all of the witnesses who gave evidence to the committee. Their constructive comments, criticisms and reflections on the Gender Representation on Public Boards (Scotland) Bill are a vital part of the legislative process, which will ensure that the legislation can be improved and strengthened.

I want to touch on two important points about the bill. First, I will touch on the general principles of the bill and the rationale behind the decision to legislate; secondly, I will pick up on the lack of a definition of “woman” in the bill.

As has been outlined by my colleagues, Scottish Labour fully supports the general principles of the bill. However, it is clear that the bill will need to be amended in response to the evidence that was given by witnesses to the Equalities and Human Rights Committee and the recommendations that are outlined in the committee’s report.

Men continue to dominate positions of power in Scottish society. Men are in the majority in our boardrooms, in our Parliament and on our public boards. The bill rightly seeks to redress that imbalance. Women make up more than 51 per cent of our population in Scotland, so it is only right and just that women take up at least 50 per cent of the seats on our public boards. We must encourage and empower women, and employ more women in senior positions, where they have the ability to act as senior decision makers.

Furthermore, I believe that it is critical that our effort to promote more women to positions of power and influence includes all women. That is why it is vital that the bill provides a definition of a woman. In its evidence to the committee, the Scottish trans alliance proposed that the bill should contain a definition of “woman” to include a person with the protected characteristic of gender reassignment who is living in the female gender. I entirely support that suggestion and I am glad that the Scottish Government has stated its willingness to consider an amendment on the issue at stage 2.

There has been a clear consensus in this afternoon’s debate—if we discount the contributions from the benches across from me—over the bill’s general principle of promoting gender parity on Scottish public boards as part of a wider framework to promote greater gender equality in Scotland.

There has also been an emerging consensus throughout the debate over the need to amend the bill, reflecting the evidence that was given to the Equalities and Human Rights Committee, to ensure that the legislation is comprehensive and effective. Two important areas that will need further consideration are sanctions against non-compliant boards and the use of the tiebreaker.

Concerns were raised in the committee about the practical application of the tiebreaker provision and the need to ensure that no ranking of protected characteristics occurs. We cannot allow unintended consequences to damage the positive aspects of this legislation. Guidance relating to the use of the tiebreaker and training and support for individuals who use the process might be required.

No doubt the strength of the bill will be in its practical application and the success that it achieves. The committee grappled with carrot and stick approaches, and discussed which approach is the most useful and brings most benefit. A requirement for public boards to lay a report before Parliament may well be a sufficient stick, especially if part of that report requires boards to explain or rationalise the reasoning behind appointments where the tiebreaker is used and a woman is not appointed.

It is clear that the bill is well intentioned in its effort to redress the gender imbalance of representation and power on public boards in Scotland. There are clearly some issues that the Scottish Government needs to give extra consideration to and in relation to which it should propose amendments and work to strengthen the bill.

It is vitally important that the bill acts as a comprehensive, effective and robust lever to promote gender parity on public boards in Scotland. My colleagues and I are happy to support the bill.

15:37  



Patrick Harvie (Glasgow) (Green)

I am pleased to have the opportunity to contribute to the debate and to put on record the support of the Scottish Green Party for the general principles of the bill. I thank the committee for the work that it has done in its stage 1 scrutiny and everyone who has given evidence as part of the process.

There are, no doubt, some specific details of the bill where we can all agree that there might be some room for improvement, and I am pleased that the Scottish Government has indicated its willingness to consider some of those. For example, there have been discussions around the definitions of when exemptions to the general approach of the bill might be taken and how best to balance different equality strands and protected characteristics. There is a case for discussing how the legislation can go beyond the simple letters on the page and can give leadership to wider Scottish society. I think that, in an intervention, Elaine Smith was the first speaker to make the point that the legislation should not only be about public boards but should give leadership in achieving the same objectives across wider society.

Further, obviously, there will be on-going discussion about specifically which bodies should be listed in schedule 1. I happen to agree with the Delegated Powers and Law Reform Committee that it is a bad idea to use negative instruments for any future changes to schedule 1 and that the use of positive instruments would be better. I tend to think that negative instruments are always a bad idea. It might be that, if I ever have the privilege of serving in government, I will suddenly be convinced that negative instruments are great and that we should use them all the time. However, from the point of view of a member of the Opposition, I will certainly argue in favour of affirmative procedure and proper scrutiny if changes are needed.

In particular, it struck me that the Scottish Parliament is not listed as a public authority in schedule 1. I understand that there are complex legal arguments about why it is not. However, over recent months in particular, we have been aware that the ways in which appointments in the Parliament take place internally do not adequately reflect the principle of gender balance to which the vast majority of us are committed. If future changes are needed—whether in relation to this legislation or in relation to other ways in which internal appointment processes in the Parliament can be improved with regard to the application of gender balance principles—we might take advantage of the opportunity that the bill provides to debate how we can advance that argument, even if amendments to the legislation itself are not specifically required. As a member of the Standards, Procedures and Public Appointments Committee, I think that we all bear a responsibility to make sure that the way in which internal appointments are carried out in the Parliament is in line with the duties that we are now applying to public boards and authorities.

Finally, on tweaks and changes to the bill, I agree with Mary Fee’s comments about how we should improve the way in which trans people are recognised in the system—others have referred to that as well. That may be simpler and more straightforward than the more challenging question of how people with a non-binary gender identity are represented within the general policy approach.

That is something that the Green Party has wrestled with, discussed and not yet resolved. Monica Lennon mentioned political parties in that respect, and I have to recognise that I have the privilege of speaking about the bill as a representative of a party that knows that good intentions alone do not result in gender balance. We have demonstrated good intentions by achieving gender-balanced candidate selection, making sure that we have gender balance at the tops of our regional lists, not just throughout them, and ensuring that our women’s network contributes actively to the life of the party and the development of its policies, practices and culture.

However, elections do not always work out the way we would like. The public boards and authorities that are affected by the duties in the bill are likely to have a similar experience. Good intentions alone do not always work out the way you hope they will—they are not enough to achieve gender balance. Sometimes, we need to look at our mechanisms and ask ourselves how those can be improved. That is something that my party is committed to and that our society needs to do as well. Passing the bill will be one way to achieve that. We can all do better—my party and our society.

In the last moments of my speech, I have to respond to challenges to the general principles of the bill and to the idea that it is not needed. We have been asked to consider the prospect that Theresa May is an example of how women can succeed on merit. There may be more compelling and convincing examples out there than Theresa May. Annie Wells told us that she wants to see 50:50, but she does not like targets and quotas. Well, 50:50 is a target.

Jamie Greene

I am sorry to say that I find Mr Harvie’s comments on Theresa May quite distasteful. He may not agree with her politics, but he should not put her down as a woman politician.

Patrick Harvie

I seek to put her down not as a woman politician but as a politician—full stop.

On the idea that targets and quotas must be rejected, if, as we have been told, they were the wrong way to achieve equality, the critics of the bill would have a long list of evidence showing where targets and quotas have failed to achieve that objective. They have no such evidence, because targets and quotas work—they are successful, not just in examples in this country but around the world. We should be clear that we want to continue to ensure that those approaches are successful.

There was also the idea that we should oppose the bill because it does not cover everything, but that would be to say that, because we cannot solve every problem with a bill, we should do nothing. Another idea was that appointments should be made on merit only, regardless of equality characteristics, but the idea that appointments to positions of civic authority and power in our society are distributed on merit is as bizarre as the idea that economic power is distributed on the basis of hard work or that educational opportunities are distributed according to academic ability. They are not—they are distributed on the basis of privilege.

I need to acknowledge that I am part of that, as an able-bodied, white, middle-class and—although I might like to deny it—increasingly middle-aged man in our society. I have the ability to stand here for more than my allotted time and speak because of that privilege, so I should sit down and stop doing it, Presiding Officer.

The Deputy Presiding Officer

Gail Ross, you can have seven minutes.

15:44  



Gail Ross (Caithness, Sutherland and Ross) (SNP)

Thank you, Presiding Officer. Before I go any further, I want to declare that I am here as a product of an all-female selection process, and I look forward to anybody telling me that I am not here on merit.

I reiterate the deputy convener’s thanks to our witnesses. The hard work, dedicated effort and length of time that go into each public appointment should not be underestimated. I pay tribute to all those who ensure that the process of selecting those who work hard to provide vital public services goes smoothly and that the right choices are made.

That is what the bill is about: how we support people who have a contribution to make to public life. The bill does nothing to change the fact that appointments will be made on merit and that the best person for the job will be selected. If anything, the bill helps to lock in the merit-based approach by widening the net for new talent to join our public boards and increasing competition for places.

In the opening speech on behalf of the committee, the deputy convener mentioned integration joint boards, or IJBs. As members will be more than aware, the governance arrangements of IJBs are complex. IJBs are not included in the bill, but we heard from Glasgow city IJB, which would like to be included in schedule 1. I think that the Government will agree with the committee that IJBs, which receive significant amounts of public money, should in principle be included, but we recognise that that might not be possible. However, we hope that the debate on the bill will encourage local authorities and health boards to consider the gender balance when appointing their members.

I also want to touch on the financial implications of the measures in the bill, which the Scottish Government estimates to range between £30,000 and £250,000. Our colleagues on the Finance and Constitution Committee issued a call for evidence on the financial memorandum to the bill and, although that received only four responses, the response from Changing the Chemistry was helpful for our understanding of the issue. Changing the Chemistry argues that the estimated costs are not accurate as they do not take into account the cost of time for staff or the support that is provided by organisations such as Changing the Chemistry. However, at our evidence session with the cabinet secretary, she assured us that the costs have been taken into account, along with potential extra childcare costs. We were told that the progress that has already been made by many boards and the pre-existing work that has been done in this area is reflected in what the cabinet secretary described as an “ample and generous” financial memorandum. We are content that that is the case, but we welcome the Government’s assurance that it will monitor those costs.

I will give members and anybody who is watching the debate a few quotations from people who gave evidence to the Equalities and Human Rights Committee. Some members questioned and, as we heard today, are still questioning the need for the bill, but we must remember that soft measures have allowed advances to be made only in some sectors. Yes, we are currently at more than 45 per cent for women on public boards as a whole, and that is an encouraging figure, but it is still not 50 per cent and some boards have no women on them at all, which is what we have to bear in mind. As a whole, the boards are not representative of public life.

Suzanne Conlin from the Scottish Women’s Convention said:

“One of the reasons why we think the bill is important is that women tell us that it is.”

Lindsey Millen from Close the Gap said:

“We want to ensure that women can access the roles on public boards, because we will then be able to create a new generation of role models for young people—in particular, young women, who will be able to see that those jobs are for them.”

Talat Yaqoob from Women 50:50 said:

“Soft and gentle approaches involving training and development have been done for decades, and they have not got us to 50 per cent.”

Rory McPherson from the Law Society of Scotland said:

“after 10 years of voluntary schemes, we are yet to achieve gender diversity on public boards. Against that background, the Law Society supports the bill”.—[Official Report, Equalities and Human Rights Committee, 21 September 2017; c 2, 2, 17 and 19.]

Liz Scott from Highlands and Islands Enterprise said:

“It is also an important way of raising awareness, not just in public bodies but across Scottish society, about the place that women, in this case, can take on public boards.”

Stephanie Millar from the Equality Challenge Unit said:

“While recognising the huge progress that has recently been made, we believe that legislation would show a clear direction and not only provide national leadership but enable local leadership.”

Mary Senior from the University and College Union said:

“We believe that the legislation is necessary.”—[Official Report, Equalities and Human Rights Committee, 28 September 2017; c 15, 28-29 and 28.]

The Scottish Government is working on increasing diversity on public boards through its disability and race strategies. The public boards and corporate diversity programme continues to drive forward improvements in diversity by developing outreach activity with disabled people and minority ethnic communities.

I thank the Government for its constructive approach to the scrutiny of the bill. The clarification letter that we received ahead of our stage 1 scrutiny and the Government’s response after the publication of our stage 1 report were both helpful not only for our understanding of the bill but, I am sure, for that of the wider public sector and the public as a whole. It is vital that the Government continues to speak openly and plainly about the measures in, and intent of, the bill to dispel any misconceptions about what it is trying to achieve.

A committee’s role in the legislative process is to scrutinise the merits of a bill, suggest improvements and prevent bad law from being placed on the statute book. The majority of our committee believes that the bill will secure for future years the progress that has been made in recent years. It is a positive step towards better diversity of thought and experience on our public boards. We know that better diversity brings better decision making. That is why we support the general principles of the bill at stage 1.

15:51  



Alexander Stewart (Mid Scotland and Fife) (Con)

As many colleagues have indicated, no one can fault the primary goal of the proposed legislation that we are discussing. We all want public boards that better reflect the society in which we live, and ensuring that more women are appointed to them is important. I am not a member of the committee but I pay tribute to it for the work that it has done and to everyone who gave evidence during the stage 1 inquiry.

Although equal representation on public boards is obviously desirable, it is worth noting that their gender balance is far more representative than that of other public institutions. Women currently make up 45.8 per cent of the membership of public boards but account for only 34.9 per cent of members of the Scottish Parliament, for example. That raises the question of whether quotas are the right way to tackle the root cause of gender inequality.

There are still significant barriers for women who want to enter the workplace, including the lack of affordable childcare or flexible working, and the bill does not address those issues. It goes some way, but we still require to support women by ensuring that they have the opportunity to become part of the institutions of which we wish them to become part. If they do not have affordable childcare or flexible working, that is a barrier to their getting into that position.

Angela Constance

I hear Mr Stewart saying that he is supportive of boards reflecting the composition of our society. He will, of course, be aware of the Government’s endeavours—despite not having employment powers—to support flexible working, and I am sure that he is well aware of our work to expand early years provision and childcare. Will he point to an action that we are not doing that he believes would help to achieve a better balance on boards?

Alexander Stewart

The cabinet secretary makes a valid point. We all have to engage. The Government has gone some way towards trying to tackle some of the problems, but there are others that we all need to try to tackle.

I acknowledge that the cabinet secretary is talking specifically about boards, but I maintain that there are other opportunities that we can and should take, and the Government is best placed to ensure that we engage and that flexible working happens. We still have a long way to go to ensure that that takes place. I know that the Government has great aspirations, but it does not always come up with the goods at the end of the day.

Of course, we want society to move forward with equal representation. We have to ensure that we go some way—and we already have gone some way—but other groups require support as well. We do not believe that positive discrimination through statutory quotas is the right way to achieve this and, therefore, we cannot support the bill as it stands.

If, for a moment, we put to one side the idea that quotas are an appropriate method of achieving the objective of gender balance in the workplace, there are a number of problems with how the bill has been drafted that mean that it is likely to become unworkable. We have heard about the main method in the bill—positive action—and we have talked about the tiebreaker case, which states that if there are two equally qualified candidates, preference must be given to the woman. That raises a number of questions—

The Deputy Presiding Officer

Excuse me, Mr Stewart. The cabinet secretary has left the front bench empty. Can we make sure that the seat is filled again, please? Thank you.

Please continue, Mr Stewart.

Alexander Stewart

Although the bill has clearly been drafted to avoid being in conflict with EU legislation, the wording is quite vague and woolly in places. Whether two candidates are “equally qualified” is likely to be open to interpretation by those appointing the individuals to a board. Without a set of specific guidelines, as suggested by the Equalities and Human Rights Committee, the bill runs the risk of being in breach, and we do not want legislation to fall into that category.

In addition, the bill has consistently grown in scope from what was originally mooted. When we look at qualifications in the future, women will have to be given priority as candidates. We acknowledge that and understand it, but my colleagues Annie Wells and Alison Harris made some valid points about quotas and about rectifying the culture as we move forward from stage 1. Although well-intentioned, the additions undermine the bill’s objective regarding gender equality on public boards.

The Law Society of Scotland has rightly highlighted concerns that the voluntary nature of the bill means that it is unlikely to be effective. It acknowledges that there have been some successes with similar schemes in some EU countries but it argues that voluntary quotas are likely to be ineffective as a process. We must understand the bill and we must talk about the legislation. We do not want legislation that is confused or that can be challenged, and the Law Society has talked about the opportunities for the bill to cause that.

There is unanimity in the chamber in support of the bill’s aims, and we understand what it is trying to achieve. However, we in the Scottish Conservatives believe that statutory quotas are the wrong way to go about achieving the aims and so we will not be able to support the motion.

15:58  



Elaine Smith (Central Scotland) (Lab)

I thank the Equalities and Human Rights Committee for its scrutiny of the bill. The report seems to take a reasoned approach to the bill, which is designed to tackle an institutional problem of discrimination against women in public life, so it really is a pity that the report was not unanimously supported.

We should keep reminding ourselves that women make up more than 50 per cent of the population; that statistic should be reflected on our public boards, in our Parliaments, in councils and in senior appointments in the public sector. It is hardly unreasonable to expect equal representation—as a minimum—for women on all the decision-making bodies in our society. That, in turn, should send a message to the private sector and to society at large—a point that I raised with the cabinet secretary earlier, and which Patrick Harvie also raised.

This is a massively important issue because unless we have fair representation of women in public life and on our boards, we will continue to see policies and practices that discriminate against more than 50 per cent of the population. That helps to underpin a society in which inequality, sexual harassment and violence against women are still prevalent and commonplace. That point was made by Monica Lennon in her opening speech and in the debate earlier in the week on violence against women and girls. The Scottish Government is tackling that issue.

I want to pick up on a point made by Alison Harris. I grew up in the 1960s and 1970s and I had strong female role models—my mother, in particular. I did not feel myself to be particularly discriminated against as a woman at school, as a student or at teacher training college. However, my eyes were opened in the 1980s when I was in my early twenties and I started working in a council housing department. It was then that I noticed that all the main promoted posts in the authority were filled by men and all the clerical posts were filled by women.

I was the union representative and I job-shared the equal opportunities officer post, so I decided to do a bit of work on the issue. Computers were just beginning to come into workplaces and I was helped by the computer manager to run a graph—it sounds funny, but it was a new thing then—that showed that women were overrepresented in clerical and lower administrative grades, but the position changed around the middle of the administrative grades, so that among principal officers there was one woman, and that the chief officials were all men, as were most of the councillors. Although there has been some movement in the intervening 30 years, it has simply not been enough. As members from across the parties have pointed out, in some areas, such as the Parliament, we have regressed.

We cannot keep waiting for women’s equal representation and equality in the workplace to happen all by themselves because they are not going to, and the same is true for public boards.

Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

Does Elaine Smith agree that recent events have taught us that quotas do not go far enough in addressing the issues that women face—in the Scottish Parliament, for example—such as sexism and sexual harassment?

Elaine Smith

I made that point earlier. We need women’s representation to ensure that we tackle all those issues in society. Women’s experiences and their contribution are necessary to ensure that we tackle such issues and to ensure that we have equitable delivery of public services, which is vital.

We will not get rid of gender discrimination in areas such as health, education and housing if we do not have women in positions of power and influence. I point to public boards in particular, because we can influence those directly.

In its “Gender Matters Roadmap”, which was published recently, Engender points out the significant vertical occupational segregation that exists in public sector professions that are staffed predominantly by women but are managed predominantly by men. For example, men account for 81 per cent of national health service board chairs, yet 71 per cent of the total NHS workforce comprises women. Engender goes on to make the point that that

“highlights the need for targeted action to tackle barriers to women’s leadership in public life, in line with broader strategies to address gendered occupational segregation and the gender pay gap.”

Specifically on the committee report, although the committee supports the bill at stage 1, its support is qualified, and the committee intends to consider improvements at stage 2. The committee considered whether focusing on one protected characteristic of the Equality Act 2010 ahead of others would help or hinder in making public boards more diverse. I have sympathy with that issue. I would like to see boards that are much more diverse and representative of all protected characteristics as well as social class. However, as we address the serious issue of underrepresentation of women in public life, we should remember that women themselves are diverse—as I pointed out earlier in an intervention on the cabinet secretary. I personally come under the definition of having additional characteristics, including disability.

Positive steps should be taken to ensure that women are recruited from a wide range of backgrounds and with different and multiple protected characteristics, as defined by the Equality Act 2010.

Overall, it is about time that women’s representation—or rather, underrepresentation—was seriously addressed. The bill helps with that by taking a commonsense approach to fixing that injustice. That is what it should focus on.

Concerns were raised both in the committee report and by the Law Society that the bill as introduced might not have appropriate teeth. Alexander Stewart mentioned that point. The Law Society points out that the lack of progress achieved in the United Kingdom through voluntary schemes leaves it sceptical about the effectiveness of the bill in its current form. Engender said:

“Robust enforcement is essential, and without a meaningful recourse for lack of compliance there is significant probability that gender balancing measures will not be taken seriously by those charged with implementing them.”

That issue needs further consideration should the bill be supported tonight at stage 1 and, if so, as it progresses.

As Annie Wells mentioned, recruiting and retaining women on boards is an issue. What underpins that and the barriers to female participation must be tackled. That means looking at the timing of meetings, childcare support and training for applicants, as well as assessing the screening and shortlisting processes to make sure that they are fit for purpose.

Women make up more than 50 per cent of the population. It is a travesty that public boards do not reflect that in their membership. I support the bill at stage 1, and I look forward to following its progress.

The Deputy Presiding Officer

We are back to six minutes for speeches, please.

16:05  



James Dornan (Glasgow Cathcart) (SNP)

Discrimination against the men, Presiding Officer—I am just not happy with that at all.

Recent events have highlighted the barriers that women often still face when trying to achieve the positions that their male counterparts achieve. If we accept, as we surely do, that young women achieve better at school and that women constitute more than 50 per cent of the population, how can it be acceptable for them not to be fairly represented on public boards, or in politics or any other sphere? Perhaps when they reach a certain age their brain goes to mush because of their love for Justin Bieber, or whoever is the fad of the day. That is just nonsense, is it not? There is no one in here who does not owe a huge debt of gratitude to intelligent, smart and strong women—I know that I do.

When I was a kid, my gran—my dad’s mum—was the family matriarch. She was all those things that I have described, and much, much more. As well as running a big and extended family, she had time to be involved with local campaigns and local politics. She was—this bit embarrasses me—the secretary of the local Labour branch. [Laughter.] I know, I know. Despite that, I later realised that I had learned a lot from her. However, I got my love of politics, my fire and my detestation of people being mistreated from my mum. She was the one who filled me full of indignation and taught me what was right. All my politics come from her, except for independence—although I eventually persuaded her of its merits.

My point is that if my gran had been my grandda, or if my mum had been my dad, I do not believe for a second that I would have been the first elected politician in my family. That is how it has always been for women. Although there is no doubt that things have changed, recent events have highlighted just how diligent we must be to ensure that everyone sees not a woman or a girl who is fit only for certain roles in life, but a person who is, based on their abilities and skill set, as capable as any other. However, how many women here can honestly say that it is a level playing field, or that they do not consider that the game is still unbalanced in favour of the male?

As a male, I am happy to be speaking in the debate, so that I can add my voice to all the others who are looking to ensure that we will soon have equality not just on the boards, but across the board. The evidence clearly shows that everyone benefits from having more gender equality on boards. Engender has been quoted a few times today. To repeat a quote used by another member, Engender said:

“increased numbers of women in leadership positions enriches perspectives and increases prospects for public gender-sensitive services. Representative public boards also contribute to challenging gender stereotypes and perceptions around public authority, and send an important message to young women and men within their respective fields.”

That is very important. This is not just about examples for women to follow, but about examples for men to see that women have to be taken seriously, because some men, with some of the cultures today, do not appear to take women seriously as they definitely should do.

As convener of the Education and Skills Committee, I was delighted to see that universities and colleges are included in the bill, because education is an opportunity that is open to all, although students and young people have needs that are dependent on their gender. As we endeavour to encourage all our young people to be the best that they can be and to study—whether at home or in other parts of the country—we are increasingly aware that young people must be supported not just in their educational issues, but in their personal issues as they grow into rounded adults and become an integral part of our society. Gender-equal boards would help to change the culture. I have heard too many upsetting reports about women being targeted in some educational establishments but the culture of the establishment not recognising the dangers and the stress that those women have gone through.

Rachael Hamilton

Does the member agree that the objective of

“Improving opportunities and experiences for all learners, with a focus on reducing gender imbalance on course take-up”,

which is set out in “Developing the Young Workforce—Scotland’s Youth Employment Strategy”, is a good way forward?

James Dornan

Of course I do. There are lots of good ways forward, and the bill is one of them, which is why I am surprised and disappointed that the Conservatives will not support the principles of the bill at stage 1. A message that has been coming across regularly in Conservative members’ speeches is, “We know that something has to be done but let’s just do a wee bit more of what we’ve been doing and hope that it gets better.”

We cannot wait that long for things to get better. We have to do something more radical, and not conservative—with a small c. We have to take action such as we are taking through the bill. The bill might well be strengthened by amendment during the parliamentary process, but members should agree to the general principles of the bill at stage 1.

I talked about how, for women, there is still a bit of a way to go. That is not just the case in education and on boards. Let us take the Scottish Parliament. We have Nicola Sturgeon as the First Minister and two female Deputy Presiding Officers—including your own superbly intelligent and magnificent self, Presiding Officer—[Interruption.] I have to try to get one of the Presiding Officers on my side. After the most recent election, the leaders of the three main parties were women. I am blessed with a cohort of extremely talented female colleagues, many of them young, who will go on to great things.

However, if I am honest, that is not enough. Women have to put up with a level of scorn and disapproval that we do not have to put up with. They have to worry about how they look in a way that we do not. They have to worry about not being taken as seriously as they should be, in a way that we do not.

It is time that we accepted that this is a problem that has been created by men, who generally do not want to give up power and privilege. It is time that we took responsibility for our actions and recognised that we will sometimes have to miss out when we think that we are the better candidate, because in the long run a fairer, more representative Parliament, and fairer and more representative boards, can only benefit the people. After all, is not that why we are all here in the first place?

16:12  



Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

I point out to members that I was elected on 8 June fairly and squarely and on merit. All four candidates were female, and there had been no all-female selection process and no zipping.

My colleague Annie Wells made a great speech and highlighted the key reasons why the bill is not a solution to the gender imbalance on public boards or indeed in the workplace. For the reasons that Ms Wells set out, we cannot support the bill.

That is not to say that we are against equal gender representation—far from it; that is an ambition that we share. The difference is our approach to the objective. The Scottish Government seeks to impose quotas from above and force through equal gender representation. Statutory quotas are a blunt instrument and do not address the underlying issues that result in women being underrepresented in the workforce.

Mike Rumbles

I have the bill in front of me. I am not a member of the Equalities and Human Rights Committee, and I have just read the bill, but I cannot find talk of quotas anywhere in it. Will the member point out those provisions to me?

Rachael Hamilton

I have the bill in front of me, too. There has been some dispute in the debate about targets and quotas, but if the aim of the bill is to legislate for gender balance, surely a quota and 50 per cent representation are exactly the same thing. However, why do we need legislation to do that? Why do we need legislation?

Instead of taking a top-down approach, we should approach the issue from the bottom up, focusing on the root causes, which are the issues that females face as they grow up, in nursery, in school and at university. In those environments, we can address and target stereotypes and the deep structural issues in our society. In those environments, ambitions, ideals and perceptions of what one can and cannot do are formed. The problem is systemic; it is ingrained in everyday living and it needs to be challenged.

“Developing the Young Workforce—Scotland’s Youth Employment Strategy”, set about to address the issue. The strategy’s main objective is:

“Improving opportunities and experiences for all learners, with a focus on reducing gender imbalance on course take-up”.

That is an ambition that I support.

The success of voluntary measures, such as the partnership for change 50:50 by 2020 campaign, shows that they are working, so the purpose of the bill is already being addressed. With the strategy set to conclude in 2021, it seems rather odd that the Scottish Government wishes to push through legislation before seeing whether it is required.

A rather large reservation that we have about the Government’s approach is the lack of scrutiny associated with it. There are countless examples of legislation that has been forced through and has then not been the subject of post-legislative scrutiny. The same is true of strategies. Is it working or is it not? Has it worked or has it not? Nobody seems to know, because the SNP would rather not say. As with all pieces of SNP legislation that have been passed, it remains unknown whether the outcome of the bill, if passed, will be explored. Worse yet, the bill might cover up the problems at the root of the gender imbalance. Damaging stereotypes might be overlooked because the outcome of equal gender representation, which will be mandatory by law, will no longer identify a problem in any given workforce.

James Dornan

Will the member give way?

Rachael Hamilton

I would like to make some progress.

As a result, efforts to challenge the misconceptions and perceived limitations that are ingrained in girls and boys at a young age might go unchallenged.

Further problems lie in the impact of the bill on other groups. Colleges Scotland was right to say:

“it is important that a focus on gender does not become discriminatory against other protected groups or characteristics, or that the best candidate is disregarded in order to meet a legislative requirement.”

It also raised concerns about the potential risk of candidates being unfairly discriminated against, which would be in conflict with the Equality Act 2010. The tiebreaker clause is therefore cause for concern, as it means that if an organisation is presented with two candidates with the same experience and qualifications, the female must be chosen. That provision seems to be worded in a way that suggests positive discrimination.

Another problem that Colleges Scotland highlighted is the fact that public bodies can appoint only from candidates who have shown an interest in applying. As I understand it, that means that, if there is no female candidate, the candidate cannot be chosen. Can the cabinet secretary confirm that? That point is important, because it leads us to ask why there was no female candidate. Was it because the culture that perpetuated an outdated stereotype of what can and cannot be achieved went unchallenged? Was it because, at some point, limitations were put in place? I suggest that that might well be the case.

James Dornan

Does Rachael Hamilton not think that having 50:50 representation on public boards would send out the message that behaviour in other areas of the kind to which she has referred is not acceptable? It would not cover up issues; it would shine a light on them. It would show that, if it is possible to have 50:50 representation on public boards or in Parliament or wherever, it is possible to have 50:50 representation on private boards and in the rest of society.

Rachael Hamilton

I believe that progress has been made and is continuing to be made through voluntary measures. It is the culture that underlies gender imbalance that we need to get to the bottom of, and legislation will not do that; it will mask gender imbalance.

That is why the bill is not only unnecessary but misdirects our attention. Our attention should be focused on challenging the culture, challenging stereotypes and challenging false limitations. Those are the root causes of the gender imbalance that exists. For that reason, I cannot support the bill.

16:18  



Monica Lennon

It is a privilege to speak for the second time in the debate and to close on behalf of the Scottish Labour Party. It has been an interesting and lively debate, but one that has been quite frustrating at points. Everyone has spoken with passion, and we can take a lot from the discussion.

There is general consensus on the Equalities and Human Rights Committee and in Parliament that the bill is necessary and is the right thing to do. As expected, the Conservative Party does not support the bill, and we have heard mixed messages on the reasons for that.

A consistent thread has been concern about the so-called tiebreaker. The worry appears to be that giving consideration to gender representation will somehow have a detrimental impact on other protected characteristics. The most common example that has been given is that a white middle-class woman will, or could be, given preference over a man with a disability or a man from an ethnic minority, which would not contribute to increasing the overall diversity of boards.

I agree with the cabinet secretary that we must be careful not to get into territory on which we set one particular characteristic against another. Women are a diverse group—several members have made that point well. Elaine Smith said that women are different and can have multiple protected characteristics.

It is clear to me from speeches that there is widespread agreement among Labour and the SNP that the intention is that the bill will be inclusive and intersectional. I welcome the cabinet secretary’s saying that the Government will work with the committee ahead of stage 2 to introduce statutory guidance that will support the implementation of the legislation.

It is deeply disappointing, but not surprising, that the Tories do not support the general principles of the bill. Unfortunately, some members continue to make the mistake of confusing the issues of quota and merit, and of perpetuating a myth. Alison Harris and I get on very well outside the chamber, but I think that she said that positive action is somehow special treatment and is not about promoting people on merit. That argument fails to acknowledge that there is not a level playing field. The arguments that have been made against positive action are deeply flawed.

Gail Ross made an excellent speech in which she declared quite proudly that she was selected by her party as a result of positive action. Quite a few of us—including me—can say the same. I was first elected as a council candidate in 2012 on an all-women shortlist. The party put forward two candidates, and at least one would be a woman as a result of the process. To become a candidate to be an MSP, Elaine Smith and I were zipped candidates on the list for Central Scotland. That meant that, from our group, two men and two women came to Parliament last May.

I defend the idea that all of us are here on merit. I do not really understand the concerns of members on the Conservative’s front bench. Although we might all have different opinions on policy and ideology, there is a healthy respect among members. I do not think that Gail Ross needs me to defend her corner, but I whole-heartedly agree that she is here on merit—and good luck to anyone who wants to take her on.

I do not know whether Annie Wells, Alison Harris and Rachael Hamilton will change their minds at any time, but they seem to be wrestling with some of the arguments, so I remain optimistic that, by the end of this session, the Conservatives will have taken another look at the matter.

Another point that is worth making to Tory front-bench members is that its party lags behind on gender equality. We can see that when the Tory seats are full. Perhaps there are things that the parties can learn from each other—especially from the Scottish Labour Party and the SNP, when it comes to selecting candidates.

On the need for positive action, I know that Talat Yaqoob has been quoted already. Talat is one of my heroes: she is the chair of the women 50:50 campaign and is an amazing campaigner on women’s rights. She puts the case so well, and has said:

“There is not an equal footing in politics for men and women. The status quo favours men. If you really want to do something about equality, saying the right words and reassuring yourself that you really care isn’t enough.

Change doesn’t come from warm words, it comes from progressive action. Quotas are the only truly progressive action.”

Other members have pointed to evidence from all around the world that quotas are the only thing that works.

I think that I have six minutes altogether, so I will finish up. The bill’s purpose is very clear: it is to increase the representation of women on public boards and to ensure that our decision-making processes are truly representative of the society that they seek to represent. There is very little to argue with in that.

I welcome the clarifications on a number of points from the cabinet secretary. I think that, with the committee’s very capable scrutiny, issues will be smoothed out and amendments will be lodged that will, I hope, mean that we can all support the bill.

16:24  



Jamie Greene (West Scotland) (Con)

All members have greatly emphasised the importance of gender equality in our society. The cabinet secretary opened the debate by saying that she hopes that Conservative members will support the proposed equalities legislation. I start by saying that, although we do not support the mechanics of the bill, there is no doubt—certainly in my view—that we support equality, and we will support her on that.

I recently joined the Equalities and Human Rights Committee, and the bill is one of the first substantive pieces of proposed legislation that we have addressed. I have taken an active role in the evidence sessions and have listened earnestly to the witnesses, quizzed them and taken notes. It has been a learning curve for me, for sure. Despite political differences, the debate has been mostly respectful, with members making arguments with much conviction and belief. Although Conservative members ultimately dissented from the stage 1 report, I appreciate the fact that other members of the committee valued our opinions and views, and that they helped to shape the report. Indeed, some of our constructive suggestions seem to have been taken on board by the cabinet secretary.

Alex Cole-Hamilton

Will the member take an intervention?

Jamie Greene

I would like to make progress.

We support the end goal of more diversity, but we do not support the methods in the bill. As has been discussed greatly, the first main problem with the bill is its focus on a target: the bill seeks to introduce a 50 per cent quota. I understand that there is antipathy towards labelling it as a “quota”, because that is a polarising term in the debate, but setting a mandatory target of 50 per cent is a quota by any other name. The bill does not look at the underlying issues that face women and, in our view, gender equality is not, and should not be, a numbers game. A mandatory quota will not address the underlying issues that working women face. The focus has become the target and the number rather than the person or the quality of the candidate.

Gender parity in all aspects of life is a good thing.

Alex Cole-Hamilton

Will the member take an intervention?

Monica Lennon

Will the member give way?

Jamie Greene

I will take an intervention from Monica Lennon.

Monica Lennon

Given the proportion of men to women on boards, in local authorities and, indeed, in Parliament, I am intrigued to know whether the Conservative Party’s view is that everyone in those positions is there on merit.

Jamie Greene

I very much like to think that everyone in the chamber from all parties is here on merit, although we all got here by different avenues. As a matter of principle, we do not think that mandatory quotas are the way to make progress. In fact, as my colleague Alison Harris pointed out, many organisations in the public, private and third sectors are making active progress towards parity by changing their organisational culture in order to improve gender equality. We should encourage that sort of behaviour.

Patrick Harvie

Will the member give way?

Jamie Greene

I would like to make progress.

Alison Harris’s speech was heartfelt and, despite some of the heckling that she received, it was an honest view from a female politician. She reiterated the point that, if the direction of travel is improving organically, the bill might be legislation for legislation’s sake, and that that will be more the case if it lacks effective enforcement.

I heard the argument that the bill is required to stop future regression in Government, but perhaps I have more faith in organisational and behavioural shifts, which are far more positive than quotas. Indeed, some people could argue that setting a 50 per cent target might divert attention from true progress, because once a quota is reached, it is perceived that the job has been done, which goes no way towards addressing the underlying lack of applicants from a diverse pool of talent.

Patrick Harvie

Will the member take an intervention?

Jamie Greene

I have a lot to get through and I want to turn to some of the speeches that were made, but I will give way if Mr Harvie insists.

Patrick Harvie

Jamie Greene argues not only that quotas and targets are unnecessary but that they could be harmful. I assume that he has some evidence to demonstrate the harm that takes place when quotas and targets are used. The people who are following the debate, including the women 50:50 campaign, have clearly made the point that there is overwhelming evidence that quotas promote merit and actually increase the level of merit overall. Quotas and targets are successful.

The Deputy Presiding Officer

I can allow you the time back for that intervention, Mr Greene.

Jamie Greene

I guess that I am asking whether there is a risk that, if a board achieves the 50 per cent target, it might take its foot off the pedal, and so we might divert attention away from achieving greater diversity and a wide range of protected characteristics on boards, which is where I think we should be heading.

I would like to touch on some of the other contributions—in particular, Mary Fee’s comments on the inclusion of trans women. It is encouraging that the cabinet secretary said that that is lacking in the bill and that the Government is approaching the bill with an open mind, in that respect.

Patrick Harvie raised representation of non-binary people, while my colleague, Rachel Hamilton, spoke of her worries about the somewhat one-dimensional definition of “diversity”, which came up frequently and which many stakeholders have pointed out. The stage 1 report says that boards should

“reflect Scotland’s rich tapestry of life”,

but a rich tapestry is about lesbian, gay, bisexual, transgender and intersex people, black and minority ethnic people and disabled people. It not just about men and women. Focusing on one protected characteristic over another will not promote true diversity. Moreover, as the bill stands, it would not be effective in promoting gender equality simply by forcing recruiters or ministers to choose one gender over another. The bill is also incredibly ambiguous and unenforceable. That is a valid criticism, regardless of whether one agrees with the principle of quotas. I acknowledge that we are just at stage 1 and that there is room for improvement.

Alex Cole-Hamilton

I am grateful to Jamie Greene for taking my intervention. I am baffled as to why he and Annie Wells are standing in opposition to the bill. In the foothills of our consideration of the legislation, they grappled with it enthusiastically only to return from a group meeting ashen-faced to say that they would oppose it. If Mr Greene is opposing it under duress, he should please just blink twice for “Yes”.

Jamie Greene

I confirm to Mr Cole-Hamilton that I am under absolutely no duress whatsoever. The reason was that Annie Wells and I had a long discussion about the bill. She has consistently opposed quotas. I have also spoken to other female colleagues, including Rachael Hamilton, Alison Harris and Ruth Davidson, about their views on the bill, which I respect.

I was a little troubled by the response to an intervention, which the cabinet secretary could perhaps address further when she sums up. When a board is faced with two candidates, one of whom is a man and one of whom is a woman, preference will be given to the woman, unless the appointing person can prove why they chose otherwise. There is much ambiguity in the bill, with phrases like “best qualified”, “equally qualified” and, in particular,

“justified on the basis of a characteristic or situation particular to that candidate”.

Those phrases are not strong enough to give adequate guidance in law, and secondary guidance will not be sufficient to give comfort to boards that they are making correct decisions.

Rachael Hamilton mentioned the lack of provision for post-legislative scrutiny and the lack of analysis of the experience of other countries that have introduced quotas. It would be worth analysing the effect that it has had on boards and on women’s ability to move within companies. Alex Cole-Hamilton pointed out that the bill does not address issues including lack of childcare and care for the elderly, inflexible working hours and workplace harassment, which discourage women from applying for board positions.

I would like, finally, to highlight the excellent speeches that were made by Monica Lennon—in particular, the way in which she has conducted the debate on behalf of her party. We may disagree on the outcome, but I am thankful for the Labour Party’s input.

Equally, I should mention Elaine Smith’s comment that the bill lacks teeth in many ways. I acknowledge the evidence on both sides of the argument and I hope that members trust that I approach the subject with an open mind. However, I am minded to listen to the somewhat persuasive views of my Conservative female colleagues and their genuine belief that the bill is not the best way to achieve the desired outcome.

16:34  



Angela Constance

Perhaps Mr Greene would be a wee bit less in the dark if he had been at committee on the day that I gave evidence or, indeed, had accepted my generous invitation—I am a busy woman—to meet to discuss the bill further. We still have not managed to arrange that date in the diary.

We have had a free and frank exchange of views. It has been a debate in the fullest meaning of the word, and there were many interventions, which was great. We had a wee bit of a tour down history lane from Tom Arthur and, to a lesser extent, Alison Harris.

Thinking of history, I recalled the Duchess of Atholl and I was surprised that none of our Conservative members mentioned her. She was the first woman member of Parliament and she was a Conservative, elected in the general election of 1923 to serve Kinross and West Perthshire. David Lloyd George encouraged her to stand, but King George V tried to discourage her because she had to carry out her domestic duties first and foremost. Her husband was, however, quite sympathetic.

The really interesting thing about the Duchess of Atholl is that she was an unlikely candidate for Scotland’s first woman member of Parliament because she was opposed to women’s suffrage. When listening to some of our Conservative colleagues, I was reminded that she decided to put herself forward and stand for Parliament because she thought it would help Conservative men to become accustomed to women in politics. Members will come to their own conclusions about whether the Duchess of Atholl succeeded in that quest.

There has been something a little bit quaint or old-fashioned around the edges of what our Conservative colleagues have said today, and it is certainly on the wrong side of progress. There is absolutely nothing in the bill that will prevent action on advancing women’s equality in the broadest sense, whether it be through the youth employment strategy “Developing the Young Workforce”—I am proud of and attached to the work that I led on that—through the work on the science, technology, engineering and mathematics strategy, through the massive expansion in early learning and childcare or through the work that we are doing to encourage employers the length and breadth of Scotland to adopt family-friendly, flexible working.

We accept that nothing can be taken in isolation. One bill alone will not solve the issues around women’s equality in all their complexity and scale, but that does not mean that we should not act and take the bill forward. My fear is that the Conservatives are in danger of missing the moment when we have all been reminded by recent events and when the lid has been well and truly lifted to show that this country of ours is nowhere near as equal as it should be or as some of us thought it was. I make a plea to members across the chamber for us not to miss the moment.

Mike Rumbles

Does the minister agree that the Conservatives seem to be using something of a smokescreen in their constant use of the word “quota”? Quotas would mean that people could not apply for a job. Will the minister confirm that nothing in the bill says that people would be excluded from applying for posts? The bill is not about quotas; it is about reaching an objective.

Angela Constance

Yes. I agree that the bill sets a gender-representative objective. It is, indeed, positive action, but it is positive action based on merit. Mr Rumbles and other members have touched on the fact that the Conservatives, as well as being in danger of missing the moment, are in danger of missing the point.

Alex Cole-Hamilton articulated the committee’s conclusions when he said that positive action and appointing on merit are not mutually exclusive. We are not allowed not to appoint on merit; it is against the law. The committee went further than that and said:

“We welcome the decision to legislate in this area, and appreciate the efforts made to ensure that the Bill encourages positive action and appointment based on merit rather than encroaching into positive discrimination.”

Gail Ross was absolutely right when she said that the bill is about widening the net and finding better ways to tap into all the talent of 51.5 per cent of the population. She was also right to say that, although that will increase competition among women, it will also certainly increase the competition for the men.

I say to Jamie Greene, Annie Wells, Alison Harris and Rachael Hamilton that actions from the ground up underpin the aspirations of the bill.

As well as having a gender-representative objective, the bill contains a duty to encourage applications and to take actions to ensure that we are reaching into that talent pool of suitably qualified women and other individuals. There is a duty to report, and we are taking on board the very fair observations from the committee and other stakeholders about how we could enhance that duty.

It is not just about the end result, because the bill encapsulates how we get there and, once we get there, how we sustain progress and do not inadvertently turn the clock back. For the record, I say that I do not know any woman in the chamber who is not here on merit. We will all have had different routes and journeys at different times, but I do not know any woman in this chamber who is not here on merit. We should not try to imply, either directly or indirectly, that there are women who are not here on merit.

When we have talked about cultural change and voluntary measures, no one has been able to point to what we are not doing already or what else we should be doing. No Opposition member has addressed that point today.

Rachael Hamilton

We have talked about Scotland’s youth employment strategy. A survey for the developing the young workforce programme was recently carried out in a primary school in my constituency. The primary 1 children were asked what they would like to be when they grew up, and they said fairies and dinosaurs. However, by the time that children got to primary 7, the boys wanted to be firemen and the girls wanted to be nurses. What initiative would the cabinet secretary introduce to change the culture from a very young age and educate young people to change their attitudes in order to attain gender balance?

Angela Constance

It was only two days ago that I stood in the chamber and spoke about the importance of tackling gender stereotyping. Indeed, I made an announcement about the funding that the Scottish Government is putting into a whole-schools approach to tackle the gender stereotyping around gender-based violence. I am not going to take any lectures from anybody on the Conservative side of the chamber about the importance of tackling gender stereotyping. What the Conservatives fail to understand is that the fact that the bill is not tackling gender stereotyping cannot be an excuse for not supporting it.

The Equalities and Human Rights Committee said that it was heartened to learn of the number of initiatives that exist and the level of support from the Scottish Government’s public appointments team—and, indeed, from the Commissioner for Ethical Standards in Public Life in Scotland—in seeking to make our boards more representative of society as a whole. I make no apologies for introducing a bill to the Parliament that is firmly focused on gender, given that we have a programme for government and a manifesto commitment to do that and given that women are not a minority but 51.5 per cent of the population.

As we have tried to explain repeatedly throughout the process of addressing the gender imbalance that exists on public sector boards, there are also wider benefits for people in other communities. We see that through the work that has been undertaken in the public appointments improvement programme and the new equality outcome that is about tackling the underrepresentation of disabled people and young people on public sector boards.

Jamie Greene

Will the cabinet secretary take an intervention?

Angela Constance

No. I have been more than generous with my time.

There is also outreach activity to reach into the disabled community and the black and minority ethnic community to encourage more applications for public sector appointments, and we have the disability delivery plan and the race equality framework. There is absolutely nothing in the bill that prevents further work to address the underrepresentation of disabled people, young people and ethnic minority people on our boards. I am reminded of what Ban Ki Moon said eloquently and succinctly:

“equality for women is progress for all.”

I am grateful to all members for their speeches in the debate and their scrutiny of the bill. I very much hope that Parliament will back the general principles of the Gender Representation on Public Boards (Scotland) Bill, which is an example of Parliament using its new powers to take decisive action to redress the imbalance that is the underrepresentation of women on public sector boards despite women being the majority of the population, not the minority. We want to lock in the gains that we have made thus far and maintain and build on that momentum. We want to future proof the progress that we have made, because we do not want to take backwards steps—that surely cannot be an option.

The evidence is clear that addressing the underrepresentation of women on public boards is not just the right thing to do but the smart thing to do. It will lead to better decisions and better performance in public sector boards.

Vote at Stage 1

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Vote at Stage 1 transcript

The Presiding Officer (Ken Macintosh)

There is one question at decision time today. The question is, that motion S5M-09257, in the name of Angela Constance, on stage 1 of the Gender Representation on Public Boards (Scotland) Bill, be agreed to. Are we agreed?

Members: No.

The Presiding Officer

There will be a division.

For

Yousaf, Humza (Glasgow Pollok) (SNP)
Wightman, Andy (Lothian) (Green)
Wheelhouse, Paul (South Scotland) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Smith, Elaine (Central Scotland) (Lab)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Robison, Shona (Dundee City East) (SNP)
Rennie, Willie (North East Fife) (LD)
Neil, Alex (Airdrie and Shotts) (SNP)
McNeill, Pauline (Glasgow) (Lab)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lochhead, Richard (Moray) (SNP)
Lennon, Monica (Central Scotland) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Hepburn, Jamie (Cumbernauld and Kilsyth) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Fee, Mary (West Scotland) (Lab)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Bibby, Neil (West Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Against

Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Tomkins, Adam (Glasgow) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Scott, John (Ayr) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mason, Tom (North East Scotland) (Con)
Lindhurst, Gordon (Lothian) (Con)
Kerr, Liam (North East Scotland) (Con)
Harris, Alison (Central Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Corry, Maurice (West Scotland) (Con)
Chapman, Peter (North East Scotland) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Carlaw, Jackson (Eastwood) (Con)
Cameron, Donald (Highlands and Islands) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Briggs, Miles (Lothian) (Con)
Bowman, Bill (North East Scotland) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)

The Presiding Officer

The result of the division is: For 71, Against 28, Abstentions 0.

Motion agreed to,

That the Parliament agrees to the general principles of the Gender Representation on Public Boards (Scotland) Bill.

Meeting closed at 16:47.  



MSPs agreed that this Bill could continue

Stage 2 - Changes to detail 

MSPs can propose changes to the Bill. The changes are considered and then voted on by the committee.

Changes to the Bill

MSPs can propose changes to a Bill  these are called 'amendments'. The changes are considered then voted on by the lead committee.

The lists of proposed changes are known as a 'marshalled list'. There's a separate list for each week that the committee is looking at proposed changes.

The 'groupings' document groups amendments together based on their subject matter. It shows the order in which the amendments will be debated by the committee and in the Chamber. This is to avoid repetition in the debates.

How is it decided whether the changes go into the Bill?

When MSPs want to make a change to a Bill, they propose an 'amendment'. This sets out the changes they want to make to a specific part of the Bill.

The group of MSPs that is examining the Bill (lead committee) votes on whether it thinks each amendment should be accepted or not.

Depending on the number of amendments, this can be done during one or more meetings.

First meeting on amendments

Documents with the amendments considered at this meeting held on 21 December 2017:

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First meeting on amendments transcript

The Convener

Agenda item 2 is the first of our two substantive items this morning: the Gender Representation on Public Boards (Scotland) Bill. I welcome the Cabinet Secretary for Communities, Social Security and Equalities, Angela Constance, who is the minister in charge of the bill. Our aim is to complete stage 2 consideration this morning, so members should be mindful of that.

Before we move on to consideration of amendments, it would be helpful if I set out the procedure for stage 2. Everyone should have with them a copy of the bill as introduced, the marshalled list of amendments that was published on Monday and the groupings of amendments, which sets out the amendments in the order in which they will be debated.

There will be one debate on each group of amendments, and I will call the member who lodged the first amendment in each group to speak to and move their amendment and speak to all the other amendments in the group. Members who have not lodged amendments in the group but who wish to speak should indicate to me in the usual way. If the cabinet secretary has not already spoken on the group, I will invite her to contribute to the debate just before I move to the winding-up comments.

As with a debate in the chamber, the member who is winding up on a group may take interventions from other members if they wish. The debate on each group will be concluded by me inviting the member who moved the first amendment in the group to wind up. Following the debate on each group, I will check whether the member who moved the first amendment in the group wishes to press their amendment to a vote or to withdraw it. If they wish to press ahead, I will put the question on that amendment.

If a member wishes to withdraw their amendment after it has been moved, they must seek the committee’s agreement to do so. If any committee member objects, the committee must immediately move to the vote on the amendment. If any member does not want to move their amendment when I call it, they should say, “Not moved.” Please remember that any other MSP may move such an amendment. If no one moves the amendment, I will immediately call the next amendment on the marshalled list.

Only committee members are allowed to vote at stage 2. Voting in any division is by a show of hands. It is important that members keep their hands clearly raised until the clerk has recorded the vote. The committee is required to indicate formally that it has considered and agreed to each section of and schedule to the bill, so I will put a question on each of them at the appropriate point.

We move to stage 2 consideration.

Section 1 agreed to.

Section 2—Key definitions

The Convener

We come to section 2 and the meaning of “woman”. Amendment 10, in the name of Mary Fee, is in a group on its own.

Mary Fee (West Scotland) (Lab)

Amendment 10 in my name seeks to alter the definition of “woman” in the bill to ensure that the eventual legislation is as inclusive as possible.

The amendment provides a guarantee for people who have the protected characteristic of gender reassignment, who live as a woman and who are proposing to undergo, are undergoing or have undergone the process of becoming a woman.

Without the amendment, the inclusivity of the bill would be limited. The definition of “woman” in the bill as introduced only covers trans women who have a full gender recognition certificate. The gender recognition certificate enables trans people to be legally recognised in their affirmed gender and to be issued with a new birth certificate. However, it is worth noting that not all trans people choose to apply for a gender recognition certificate, as such a certificate is not required for individuals to change their gender markers at work or to legally change their gender on other documentation, including United Kingdom passports.

Agreeing to amendment 10 would ensure that the Gender Representation on Public Boards (Scotland) Bill promotes equality and inclusivity by adopting that broad definition of a woman, recognising that not all trans women possess a gender recognition certificate.

I move amendment 10.

The Convener

I welcome the cabinet secretary. Would you like to contribute?

The Cabinet Secretary for Communities, Social Security and Equalities (Angela Constance)

Yes, indeed—thank you, convener.

I thank the committee for its consideration of the bill during stage 1. I have found the engagement between committee members and the Scottish Government to be very helpful and constructive. That is one reason why I wanted to ensure that the committee was fully apprised of the Government’s intentions at stage 2, as outlined in my letter to the committee last week. I am confident that, at the end of our stage 2 session this morning, we will have a bill that is better and stronger than that with which we started.

I very much welcome the co-operation of Alex Cole-Hamilton and Mary Fee in regard to the amendments in their names, and I am pleased to be supporting them today.

As I am sure that many of us will agree, it is quite simply not acceptable that, in 2017, women continue to be underrepresented in decision-making positions across Scotland, including in the boardroom. The Gender Representation on Public Boards (Scotland) Bill seeks to redress that underrepresentation on public boards and to lock in the gains that have been made to date, ensuring that women’s voices are heard where it matters.

Although the bill is not a panacea for all aspects of women’s inequality, it is absolutely the right thing to do and the smart thing to do. If the bill can be a catalyst for the equal representation of women in other decision-making spaces, I for one am all for that.

I turn to Mary Fee’s amendment 10. We have worked with Mary to ensure that the amendment realises the policy intent and is within the competence of the Parliament. I would very much like to thank Mary for her work with us on this area. She has advocated passionately throughout stage 1 that the bill should be inclusive of trans women, and that has always been the Scottish Government’s intention, too.

I also put on record my thanks to the Scottish trans alliance, whose members have afforded the Scottish Government their time, expertise and support, not just in relation to the bill but more generally. That is greatly appreciated.

I am therefore pleased that we have reached the point that we have reached today of having a suitable amendment to ensure that, when we talk about women in the bill, that includes trans women.

I confirm that I support amendment 10 in Mary Fee’s name.

Mary Fee

I am grateful for the cabinet secretary’s comments, and I thank her for the help and support that she has given me. It is helpful for me to put on record the help and support that the Scottish trans alliance has given me.

I have no further comments.

Amendment 10 agreed to.

Section 2, as amended, agreed to.

Schedule 1—Public authorities

The Convener

Amendment 2, in the name of the cabinet secretary, is in a group on its own.

Angela Constance

Amendment 2 is a technical amendment that adds a small number of members who are nominated to the boards of regional transport partnerships to the excluded positions in schedule 1. That is consistent with the exclusion of nominated positions on the boards of other public authorities covered by the bill.

I move amendment 2, and I encourage members to support it.

Amendment 2 agreed to.

Schedule 1, as amended, agreed to.

Section 3 agreed to.

Section 4—Consideration of candidates

The Convener

Amendment 1, in the name of Alex Cole-Hamilton, is in a group on its own.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I am proud to speak to amendment 1 in my name. I put on record my thanks to the Scottish Government’s special advisers in the bill team for their collaboration on this matter and for the open discussion and the access that they gave me in compiling the proposed provisions.

The reason behind my lodging amendment 1 was to increase the strength of section 4. I believed that, as the section stood, in the tie-break situation that it defines, whereby there are two equally qualified candidates, one of whom is a woman, the reasoning for allowing an appointing person to give the job to the person who is not a woman was based on the idea that there was a characteristic particular to that individual.

When we legislate in this place, we must do so with a view to less enlightened times ahead. I thought it important to delineate exactly what we meant by “a characteristic” in that regard. It is fair to say that the intent of the bill and of the bill team was for a characteristic to improve the diversity of the board or some specific relevant factor that might increase it. My amendment 1 is merely to spell that out.

During our consideration in the foothills of stage 1, we heard a lot of evidence from a range of stakeholders who were anxious that other protected characteristics were missing from the bill. My amendment is intended to address that.

The intention is also that, if we find ourselves in less enlightened times, no subsequent Administrations or appointing persons could choose to appoint individuals over a woman on the basis of particular characteristics that were nefarious, such as whether someone was friendly with the appointing person.

Although I understand that the matter will be underscored by statutory guidance, I thought it important to have a reference to protected characteristics in the bill, so that future Administrations and committees will understand that the bill was about improving diversity. That would also signal a direction of travel in appointing people to public authorities.

I move amendment 1.

Jamie Greene (West Scotland) (Con)

I thank Mr Cole-Hamilton for what would be a welcome addition to the bill. However, I have a question that he may wish to address in summing up. My concern is whether the additional wording to include “protected characteristic” could create a scenario where the appointing person could be in any way confused as to whether preference or precedence should be given to the appointment of a woman, or to someone with another protected characteristic. I am not sure that the amendment addresses that potential dilemma that the appointing person may face. Although I appreciate that that may be detailed in guidance, which we will discuss later in the debate, by not making it clear in the primary legislation, are we opening ourselves up to a scenario where it is unclear whether the gender characteristic has greater or less weight than other protected characteristics?

Angela Constance

I am pleased that we have been able to work with Alex Cole-Hamilton on amendment 1, which provides clarity about the operation of section 4(4).

As Alex Cole-Hamilton has set out, when section 4(4) mentions

“a characteristic or situation particular to that candidate,”

that includes a protected characteristic as defined by the Equality Act 2010.

If an appointing person is making a decision between two equally qualified candidates, one of whom, for instance, is a woman and one of whom is a minority ethnic or disabled man, the appointing person could give preference to the man if they consider that to be justified. That will be discussed further in guidance. That is not an automatic preference. The appointing person does not automatically have to give preference to the ethnic minority or disabled man, but they may do so if they consider it to be justified.

I confirm that I support Alex Cole-Hamilton’s amendment 1, and I encourage other members to do likewise.

09:15  



Alex Cole-Hamilton

I wish to press amendment 1. I am grateful to the cabinet secretary for her remarks and her support.

I am also grateful for Jamie Greene’s question, which gives me the opportunity to clarify the matters that he asks about and the reasoning behind the amendment. Jamie Greene’s question was about clarity and about whether the proposed wording would confuse things. As they stand, the provisions in section 4 are open to misinterpretation. We may find, many years hence, that we needed clarity behind the provisions. The reasoning is that, in the legislation before us now, prior to amendment, we talk about a characteristic particular to an individual being the factor according to which an appointing person could choose an equally qualified candidate over a woman. To me, that feels far more opaque than just saying that we need to be clear as to what kind of thing we are talking about. It is a matter of including the term “protected characteristic” alongside the other provisions.

Originally, prior to discussion with the Government, my amendment was just to specify “protected characteristic”. However, that could have had unintended consequences of ruling out additional groups that might well improve the diversity of a board—for instance, people with care experience.

The measure will be complementary to the statutory guidance that will underpin the bill, which will make it clear that the only reason for an appointing person to choose somebody who is not a woman over an equally qualified woman would be to improve the diversity of the board.

To my mind, the proposed measures improve the clarity of the bill and will give a statement of intent to future decision makers in this place as to what we had in mind.

Amendment 1 agreed to.

Section 4, as amended, agreed to.

Section 5—Encouragement of applications by women

The Convener

Amendment 11, in the name of Alex Cole-Hamilton, is in a group on its own.

Alex Cole-Hamilton

Again, I am very proud to speak to amendment 11 in my name. I will explain the reasoning for the amendment. I found the evidence that we received from stakeholders, and indeed private representations from stakeholders, to be compelling. In the spirit of avoiding unintended consequences, we should agree to amendment 11 so that, for both appointing people and the public authority, the duty to take such steps as they consider necessary to encourage applications by women should not prejudice their efforts to encourage applications by members of other diversity groups.

The amendment speaks for itself. I do not think that it in any way detracts from the overarching aim of the bill, which I hope we would all support, to increase the representation of women on public boards. Amendment 11 merely ensures that we do not do so at the expense of efforts to encourage applications by members of other equalities groups.

I move amendment 11.

Angela Constance

I am pleased to support amendment 11 in Alex Cole-Hamilton’s name. I thank him for giving me notice in advance of his lodging it.

I put on record earlier my thanks to the Scottish trans alliance. At this juncture I also thank stakeholders such as Women 50:50, Engender, the Scottish Women’s Convention, the Commission for Ethical Standards in Public Life in Scotland, the Equality Challenge Unit, University and College Union Scotland and Colleges Scotland.

In essence, the bill is about improving the representation of women: women of all ages and all ethnicities, heterosexual women, gay women, bisexual women, transgender women, disabled women and those who are not disabled.

Women are not a minority—they are more than half the population—and it is perfectly acceptable, in my view, to take targeted action to address inequality. That does not mean that we do not need to take action in other areas, too, including to address the underrepresentation of other groups of people on public boards. In relation to ministerial public appointments, the Scottish Government’s public appointments team are already pursuing a range of activity including in relation to outreach.

There is nothing in the bill that precludes action being taken in other areas or in respect of other groups, so I can confirm that I support amendment 11 in Alex Cole-Hamilton’s name.

Alex Cole-Hamilton

I have no further remarks to make in winding up, other than to say thank you to the various stakeholder groups who helped us get to this point, and who gave illuminating evidence at stage 1.

Amendment 11 agreed to.

Section 5, as amended, agreed to.

Section 6 agreed to.

After section 6

The Convener

We now come to guidance. Amendment 3, in the name of the cabinet secretary, is in a group on its own.

Angela Constance

The committee said clearly in its stage 1 report—and members stated during the stage 1 debate—that guidance is needed to support the operation of the eventual act. The committee also said that it thinks that guidance should be statutory and should apply equally to regulated and non-regulated public boards.

In stating that, the committee has reflected the views of those who submitted written evidence and gave the committee oral evidence during stage 1. The Scottish Government has listened to the evidence presented in favour of guidance and accepts the committee’s recommendations. Amendment 3 states:

“The Scottish Ministers must publish guidance on the operation of this Act.”

It also sets out certain aspects of the bill that guidance must cover in particular, as the committee requested—for example, the provisions of section 4(4).

I reassure the committee that we will draft guidance in consultation with public authorities and others, including the Commission for Ethical Standards in Public Life in Scotland and the Equality and Human Rights Commission, and I fully expect that guidance to be shaped by what they tell us during that process.

I move amendment 3 and urge members to support it.

Jamie Greene

May I confirm or clarify a few points? I refer to subsections (3) and (4) of the proposed new section that would be introduced by amendment 3—in particular, the wording in subsection (3), that

“An appointing person must have regard to the guidance in carrying out its functions”.

I appreciate that such language is used in other areas of legislation, but I feel that what “have regard to” means and what the consequences of not having regard to the guidance might be for the appointing person are open to interpretation. My concern is about whether the provisions would place any additional statutory obligations on appointing people within organisations to demonstrate that they are having regard to the guidance and to ask about any potential negative consequences of its being proven that they have not had regard to the guidance. I would appreciate clarification of that point before we decide whether to support amendment 3.

Angela Constance

Mr Greene is correct in saying that the wording of amendment 3 is very much the norm. You will see it in countless other examples of legislation that has been passed by the Parliament. Guidance gives you the opportunity, in consultation with stakeholders, to explore all the nuances in further detail. Looking at the bill in the round, particularly with regard to the reporting requirements, that is the route by which people are held to account. That provides a link between outcomes and actions as regards how people have responded to the statutory guidance.

I have nothing further to add. I encourage members to support amendment 3, which was requested by the committee. Very strong representations were made to the Government in evidence and, in particular, during the stage 1 debate.

Amendment 3 agreed to.

Section 7—Reports on operation of Act

The Convener

We now come to section 7 and the subject of reports. Amendment 4, in the name of the cabinet secretary, is grouped with amendments 5 to 7.

Angela Constance

The Scottish Government’s amendments to section 7, on reporting, are a direct response to the committee’s recommendations. We have introduced a requirement on the Scottish ministers to report to the Scottish Parliament on the operation of the eventual act in accordance with regulations at intervals of no more than two years.

The committee asked for annual reports but, when I considered the amendment, I took the view that biennial reporting would ensure that reporting requirements for the eventual act would align with those of the Equality Act 2010 on Scotland-specific duties.

I have strengthened the provisions on reporting to make it clear that the Scottish ministers, other appointing persons and public authorities will be required to publish reports on the carrying out of their functions under the future act. That includes the steps that have been taken to encourage applications from women under section 5, which I know the committee was particularly keen to see and in support of which Alex Cole-Hamilton made representations to the Scottish Government.

The Scottish Government agrees whole-heartedly with the committee and with those who gave evidence at stage 1 that reporting is crucial to the bill’s effectiveness. There must be transparency, both on the numbers and on whether the gender representation objective has been met as well as in the steps that have been taken: the practical, tangible action that will help us to achieve the bill’s objective.

I move amendment 4 and urge members to support amendments 4 to 7.

Alex Cole-Hamilton

I will speak to amendment 5, in particular. I am again grateful to the cabinet secretary for the discussions that we had on the matter.

At stage 1, everyone agreed that the committee had an anxiety around the phraseology—necessary as it is for the legal requirements for legislation—specifying that a public board or appointing person should

“take such steps as it considers appropriate to encourage women”.

Adopting a reporting duty on this will concentrate minds in both camps as to how they pursue and execute that duty. I hope that it will also disseminate best practice when the reports are published, such that boards that are perhaps not doing as much as they could to encourage applications by women or that do not know how to go about that will pick up on the experience of other boards that are delivering that by way of best practice.

I support the amendments in the cabinet secretary’s name.

Jamie Greene

Although my party did not support the bill at stage 1, I have made a conscious decision to engage actively in stage 2 proceedings so that, in the event that the bill passes, it is in the best shape that it can be in. It is the duty of all MSPs to do that, regardless of their stance on the objectives of the bill.

Many of the points on the rationale behind our being unable to support the bill were extensively outlined in the stage 1 debate. No doubt, they will also be addressed at stage 3.

Any objections to any of the amendments 4 to 7 are largely technical and concern their relation to sections 4 and 6 of the bill in its current form, which my party does not support. I would add, however, that section 5 is welcome. There are many welcome amendments and additions to the bill today, which I am pleased to support.

On amendment 4, I feel able to support proposed new subsections (A1) to (A3), which place a duty on the Scottish ministers to report. However, I am unable to support proposed new subsection (A4), which places a duty on the appointing person to publish reports on the carrying out of its functions under sections 3 to 6. That includes sections 4 and 6, which we are unable to support in principle. Our position on amendment 5 is in a similar vein. Amendment 6 is a technical amendment relating to amendment 4, so it would seem odd not to group that with amendment 4, which we oppose.

Amendment 7, however, seems to be a largely technical tidying up of the language of the bill to include new “subsections (A1) to (1)”, and we would be happy to support that amendment.

Angela Constance

I suppose that we should be grateful for Mr Greene’s continuing interest. I hope that, as we progress with stage 2 and approach stage 3, he and his colleagues can have a change of heart. I am absolutely convinced that the bill is the right thing to do.

I have nothing further to add on the substantive issues. I encourage members to support the amendments that I have moved or will move: amendments 4 to 7.

09:30  



The Convener

The question is, that amendment 4 be agreed to. Are we agreed?

Jamie Greene

No.

The Convener

There will be a division.

For

Ross, Gail (Caithness, Sutherland and Ross) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
Fee, Mary (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)

Against

Greene, Jamie (West Scotland) (Con)

The Convener

The result of the division is: For 4, Against 1, Abstentions 0.

Amendment 4 agreed to.

Amendments 5 to 7 moved—[Angela Constance].

The Convener

Does any member object to my putting a single question on amendments 5 to 7?

Jamie Greene

I object.

The Convener

I will, therefore, put the questions on each amendment in turn. The question is, that amendment 5 be agreed to. Are we agreed?

Jamie Greene

No.

The Convener

There will be a division.

For

Torrance, David (Kirkcaldy) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
Fee, Mary (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)

Against

Greene, Jamie (West Scotland) (Con)

The Convener

The result of the division is: For 5, Against 1, Abstentions 0.

Amendment 5 agreed to.

The Convener

The question is, that amendment 6 be agreed to. Are we agreed?

Jamie Greene

No.

The Convener

There will be a division.

For

Torrance, David (Kirkcaldy) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
Fee, Mary (West Scotland) (Lab)
Cole-Hamilton, Alex (Edinburgh Western) (LD)

Against

Greene, Jamie (West Scotland) (Con)

The Convener

The result of the division is: For 5, Against 1, Abstentions 0.

Amendment 6 agreed to.

Amendment 7 agreed to.

Section 7, as amended, agreed to.

Sections 8 and 9, schedule 2 and section 10 agreed to.

Section 11—Regulations

The Convener

We come to section 11 and the procedure for regulations. Amendment 8, in the name of the cabinet secretary, is grouped with amendment 9.

Angela Constance

Amendments 8 and 9 have the effect of making regulations under section 8 subject to the affirmative procedure rather than the negative procedure according to the bill as currently drafted. The proposed change is as recommended by this committee and by the Delegated Powers and Law Reform Committee.

I move amendment 8.

Amendment 8 agreed to.

Amendment 9 moved—[Angela Constance]—and agreed to.

Section 11, as amended, agreed to.

Sections 12 and 13 agreed to.

Long title agreed to.

The Convener

That ends stage 2 consideration of the bill. Thank you very much.

I will suspend the meeting for five minutes to allow for a quick comfort break. I ask everybody to be back in five minutes, as we do not have a lot of time left this morning.

09:34 Meeting suspended.  



09:38 On resuming—  



Delegated Powers and Law Reform committee report at Stage 2

Gender Representation on Public Boards (Scotland) Bill with Stage 2 amendments

Additional related information from the Scottish Government on the Bill

Stage 3 - Final amendments and vote

MSPs can propose further amendments to the Bill and then vote on each of these. Finally, they vote on whether the Bill should become law

Scottish Parliament research on the discussion on the Bill

Debate on the proposed amendments

MSPs get the chance to present their proposed amendments to the Chamber. They vote on whether each amendment should be added to the Bill.

Documents with the amendments considered at this meeting on 30 January 2018:

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Debate on proposed amendments transcript

The Presiding Officer (Ken Macintosh)

The next item is stage 3 proceedings on the Gender Representation on Public Boards (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, which is Scottish Parliament bill 16A, the marshalled list and the groupings. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Members who wish to speak in the debate on the group of amendments should press their request-to-speak buttons as soon as possible after I call the group.

Amendment 1, in the name of the Cabinet Secretary for Communities, Social Security and Equalities, is grouped with amendments 2 to 5.

The Cabinet Secretary for Communities, Social Security and Equalities (Angela Constance)

I am pleased to have reached stage 3 of the Gender Representation on Public Boards (Scotland) Bill with only a small number of technical amendments to be considered. The bill sets a gender representation objective for public boards that 50 per cent of their non-executive members are women—an objective that, I am pleased to say, has met with almost unanimous cross-party support. That support speaks to what is at the heart of the bill, which is equality for women.

The amendments that I am speaking to this afternoon are all technical amendments to schedule 1 and are intended to ensure consistency and to add one public authority.

Amendments 1, 3 and 5 amend the entries in schedule 1 for health boards, the National Library of Scotland and special health boards, to ensure that the excluded positions for those boards are consistent with those for the boards of other public authorities. There is a great deal of variation in the composition of the boards of our public authorities and in the arrangements for determining their membership. In some instances, a board will require that people holding certain positions in another organisation or forum are members, or it may include members who are directly elected or nominated to the board. Those positions are excluded from the bill in order to avoid interference in elections or other selection processes.

Amendment 2 adds the Independent Living Fund Scotland to the list of public authorities that are covered by the bill.

Amendment 4 is a minor technical amendment that adds a Scottish statutory instrument number to the entry for the Scottish Social Services Council—again, for consistency.

I ask members to support amendments 1 to 5, and I move amendment 1.

Mary Fee (West Scotland) (Lab)

I am happy to support all the amendments in the group. As has been previously stated, amendments 1, 3 and 5, along with amendments 2 and 4, are minor amendments that will improve the clarity of the Gender Representation on Public Boards (Scotland) Bill. By explicitly excluding individuals and including organisations, they add further clarity to the legislation.

Amendment 1 amends the provision for health boards to exclude specific members, and amendment 3 amends the provision to exclude specific members from the National Library of Scotland. Amendment 5 would also amend the bill to make an exclusion. Amendment 2 adds the newly established Independent Living Fund Scotland to the list, and amendment 4, as the cabinet secretary has said, is a small technical amendment relating to the entry for the Scottish Social Services Council.

During the Equalities and Human Rights Committee’s evidence sessions, there was a call from many witnesses for the bill to be as clear as possible, to ensure that it was well enforced. These minor amendments strengthen the bill and improve its clarity by providing greater detail in the wording, so I am happy to support them.

Jamie Greene (West Scotland) (Con)

My only brief comment is that Conservative members will support the amendments, as they are largely technical in nature.

The Presiding Officer

Does the minister wish to make any comments in winding up?

Angela Constance

No.

Amendment 1 agreed to.

Amendments 2 to 5 moved—[Angela Constance]—and agreed to.

The Presiding Officer

That ends the consideration of amendments.

As members will be aware, at this point in the proceedings I am required, under the standing orders, to decide whether any provision in the bill relates to a protected subject matter—that is, whether it modifies the electoral system or franchise for Scottish parliamentary elections. If it does, the motion to pass the bill will require support from a supermajority of members. In my view, no provision of the Gender Representation on Public Boards (Scotland) Bill relates to a protected subject matter, and therefore the bill does not require a supermajority at stage 3.

Final debate on the Bill

Once they've debated the amendments, the MSPs discuss the final version of the Bill.

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Final debate transcript

The Presiding Officer (Ken Macintosh)

The next item of business is a debate on motion S5M-10159, in the name of Angela Constance, on the Gender Representation on Public Boards (Scotland) Bill at stage 3.

14:40  



The Cabinet Secretary for Communities, Social Security and Equalities (Angela Constance)

I am delighted to open this afternoon’s stage 3 debate on the Gender Representation on Public Boards (Scotland) Bill. The bill will make Scotland the only country in the United Kingdom to have a statutory objective for women’s representation on public sector boards.

It is unacceptable that women are still underrepresented in senior positions in the boardroom, paid less than their male counterparts and subjected to sexual harassment and violence. Young women who are growing up in Scotland today should not have to accept those things as inevitable. Women are not a minority; at nearly 52 per cent of the population in Scotland, they represent the majority. Our voices should and need to be heard in decision-making spaces, whether in the boardroom, on the floor of this chamber or elsewhere. We know that greater diversity in the boardroom leads to better performance by encouraging new and innovative thinking and better decision making. In other words, it is the smart as well as the right thing to do.

The Gender Representation on Public Boards (Scotland) Bill sets an objective for public boards in Scotland of 50 per cent of non-executive members being women, and it places a duty on Scottish ministers and public authorities to encourage women to apply for board positions. The bill also requires that, if there are two or more equally qualified candidates for a position, a woman should be appointed if doing so will help the board to meet its 50 per cent objective.

One of the most common arguments that I have heard from those who do not favour the legislation is that appointments should be made on merit. I want to make it crystal clear that appointments to our public bodies are made on merit and will continue to be made on merit. We want the very best people with the right skills and experiences to sit on Scotland’s public boards, and that means ensuring that we reach out to and attract diverse and talented people, women included. It is when boards do not reflect the diversity of Scotland’s communities that we should be concerned about merit. Let me also make it clear to those who have wrongly portrayed the bill as seeking to impose quotas—which it does not—that it sets out a 50 per cent gender representation objective and requires steps to be taken to meet that objective.

I am grateful to the members and clerks of the Equalities and Human Rights Committee, which scrutinised the bill at stages 1 and 2. Our engagement with the committee has been constructive and helpful, and the bill that we have before us now is stronger as a result of that engagement. I thank all those individuals and organisations, such as Women 50:50 and Engender, who provided written and oral evidence to the committee. I also thank the Delegated Powers and Law Reform Committee and the Finance and Constitution Committee as well as the Commissioner for Ethical Standards in Public Life in Scotland.

We are in an enviable position in Scotland right now with regard to the gender balance of ministerial public appointments. A lot of positive progress has been made. In 2004-05, 34.5 per cent of regulated ministerial appointments were held by women, and that figure has now increased to more than 45 per cent. The change has not happened by accident; it is down to the shared ambition and action of all those involved in public appointments, including ministers, the commissioner’s office, the Scottish Government’s public appointments team and public authorities.

I know that a number of stakeholders have been instrumental in challenging us and helping us to make our appointments process more inclusive. We also benefit greatly from applicants taking the time to give us their feedback. Our approach has been shaped by the progress that has been made to date and by the commitment and energy of public authorities and others.

Jamie Greene (West Scotland) (Con)

On that point, I welcome the significant progress that has been made to date, but why does the cabinet secretary feel the need to use legislation to go 4 percentage points further to get to 50 per cent? It is a genuine question and I will be happy to hear the response.

Angela Constance

The strength of our commitment and this Parliament’s willingness to legislate will send a strong message about how much we value equality of opportunity and how it should be embedded in our culture, in our aspirations and in how we do business. Legislating in this area is important because it means that our direction of travel is firmly secured for the future. The bill is about locking in the gains that we have worked hard to achieve and working harder to achieve further progress. I often quote Zadie Smith, who said:

“progress is never permanent, will always be threatened, must be redoubled, restated, and reimagined if it is to survive.”

Legislation is the only way that we will achieve and maintain women’s equal representation on public boards.

At stage 2, the Scottish Government lodged a number of amendments directly in response to the committee’s recommendations. We have introduced a new duty on the Scottish Government to produce statutory guidance to support the implementation of the bill and to report to Parliament on the operation of the act every two years as a minimum.

I am pleased to say that we also accepted Mary Fee’s amendment to add a definition of “woman” to the bill so that it was inclusive of trans women without needing them to provide a gender recognition certificate. We did that because we want the bill to break down barriers and not create them. I am grateful to Mary Fee, who has advocated passionately for the bill to be inclusive of trans women, and to the Scottish trans alliance for its support and expertise.

I was also pleased to accept two amendments from Alex Cole-Hamilton, both aimed at making it crystal clear that the bill is not intended in any way to inhibit action to tackle the underrepresentation of other groups of people on public boards. I remain confident that the positive impact of the legislation will be felt not only by women but by other groups who are underrepresented, including disabled people, minority ethnic people and younger people. We want our boards to reflect the myriad of people’s backgrounds and experiences.

Of course, no element of gender inequality exists in isolation. The lack of female representation on boards is a symptom as well as a cause of wider gender inequality. All the steps that we are taking to promote gender equality across society more generally, such as tackling violence against women—both through legislation and by challenging and changing culture—addressing gender stereotyping, investing in childcare, tackling persistent pregnancy and maternity discrimination and appointing the First Minister’s new advisory council on women and girls should support actions that enable women to play an equal part in businesses, the boardroom and the workplace.

Kezia Dugdale (Lothian) (Lab)

The cabinet secretary has laid out clearly the strength of the bill and what it will do to deliver equality for women. Will she share with us any understanding that she might have of why the Tories are so steadfastly against the bill?

Angela Constance

I am disappointed to say to Ms Dugdale that I can share no understanding of why the Tories have refused to support the bill. I have said before that I think that it is misguided of the Tories. I think that they have misunderstood what the bill is about and how the actions in the bill will proceed. I do not know whether that is misguided or malicious, but I hope that, during the debate, the Tories will have cause to reflect. It would be a great message to send out—particularly to women and girls who are growing up in Scotland today—that, when it comes to advancing gender equality in Scotland, the Parliament stands united.

During the stage 1 debate, we talked about the bill being a moment, and I believe that it is. Is it a panacea for women’s inequality? Of course not. Does it mean that we can all now sit back and stop fighting for equality? Absolutely not. I whole-heartedly believe that this is a moment that the Parliament can be proud of. That is especially true as we think of the women who campaigned, almost 20 years ago, to make sure that women played an equal part in the new devolved Parliament. The Scotland Act 2016 gave us a tiny part of equality legislation, but it gave us a big opportunity to show how we can use the powers that are at our disposal to create a fairer and more equal country. I believe that we have done that this afternoon.

At moments like this, it is right to look at where we have come from and what we have achieved. This is an important year for women’s history. It is the centenary of women in Britain first getting the vote and being allowed to stand for election to Parliament. During this year, we will celebrate and reflect on the historical importance of those firsts, the events that led up to them and the women who helped to make them a reality. Without their sacrifices and tenacity, we would not be having the debate at all.

This is a time to reflect, but it is also a time to act, and the best way of honouring those women is to make damn sure that we keep believing in equality for women, that we keep fighting for it and that we move from those firsts to a last—the last time that we need to take action to remedy or mitigate the inequality that women face—so that women can take their rightful place in a society that values their contribution equally.

I move,

That the Parliament agrees that the Gender Representation on Public Boards (Scotland) Bill be passed.

The Presiding Officer

I call Annie Wells.

14:52  



Annie Wells (Glasgow) (Con)

Thank you Presiding Officer. I wanted to take part in today’s debate but, as you can hear, I might struggle.

During the stage 1 debate, I outlined the reasons why I could not support the Gender Representation on Public Boards (Scotland) Bill—[Interruption.]

The Presiding Officer

Would you like to take a drink of water and see if that helps?

Annie Wells

I think that I have actually lost my voice.

The Presiding Officer

Do you want to keep trying?

Rhoda Grant (Highlands and Islands) (Lab)

On a point of order, Presiding Officer. Would it be acceptable for somebody else to read Ms Wells’s speech for her?

The Presiding Officer

Thank you for that point of order. I was just about to ask the same thing. Ms Wells, would you like to continue, would you like someone else to open, or would you like me to move to the Labour speaker and then come back to the Conservative speakers?

Annie Wells

I really want to take part in today’s debate but I do not think that I am going to be able to. Could I ask Alison Harris to speak on my behalf?

The Presiding Officer

Ms Harris, I will give you a few moments. I will take the Labour Party opening speaker and I will come back to you.

Ms Wells, it is on the record that you wished to speak in the debate and that, despite personal difficulties, you persevered.

I call Monica Lennon.

14:53  



Monica Lennon (Central Scotland) (Lab)

I have had a quick sip of water and I seem to be speaking fine. I hope that we hear from Annie Wells through the medium of Alison Harris very shortly.

I am pleased to speak in support of the Gender Representation on Public Boards (Scotland) Bill. I begin by paying tribute to the Equalities and Human Rights Committee for its diligent work. I thank all the stakeholders and the cabinet secretary for her leadership on this important issue.

I firmly believe in the effectiveness of positive action to increase women’s representation. The Scottish Labour Party’s record on using positive action to further women’s representation is strong, and includes our use of all-women shortlists. It has consistently been shown that positive action is the only measure that works to substantively increase the number of women in politics. Voluntary measures simply do not have the same effect, and they preserve the status quo.

Like many colleagues across the chamber, I am a proud supporter of the Women 50:50 campaign, which was co-founded by my colleague Kezia Dugdale.

As I set out in my contribution to the stage 1 debate on the bill, it is a sad and stubborn fact that women remain underrepresented at practically every level of public life in Scotland—in the Scottish Parliament, the UK Parliament, our local councils, the media and, yes, on our public boards too.

Women make up half the population; we are not a minority. It should not need saying that we should also make up half the decision makers. The move to make it a legal obligation for Scottish ministers and public bodies in Scotland to improve the gender balance of our public boards is, we believe, a welcome step. The bill is far from being the panacea for women’s inequality, but nonetheless it is important to ensure that the public bodies that oversee our taxpayer-funded services reflect the citizens whom they serve. Good governance can occur only if public bodies are accountable to and representative of those whom they are appointed to serve.

It is also clear that, aside from the Conservatives—although they have time to change their minds—there is widespread agreement among the parties on the need for the bill.

I will focus the remainder of my comments on the substantive content of the bill and the work of the committee at stage 2. Having read the committee report and the bill as amended, we are reassured that the issues that were raised during stage 1 have been satisfactorily resolved.

Specifically, I congratulate Alex Cole-Hamilton on his amendment clarifying the tiebreaker concern. We shared the concerns that arose during stage 1 that a potential unintended consequence of the bill could be the elevation of gender at the expense of other protected characteristics. During the stage 1 evidence sessions, groups, including Inclusion Scotland, expressed the valid concern that those with disabilities or other protected characteristics under the Equality Act 2010, including race and religion, would run the risk of being forgotten or sidelined by the bill unless the language was clarified.

The bill now clarifies that “protected characteristics” refers to those listed under the 2010 act, and that if there are two equally qualified candidates, the position may be given to a candidate who is not a woman if they have another protected characteristic. Improving women’s representation means very little if the women who are being appointed are mainly middle-class, white women who have similar backgrounds and a similar outlook. Improving representation needs an intersectional approach and will lead to meaningful change only if boards are committed to changing the culture.

In the chamber today, there has been further scrutiny of Police Scotland and the Scottish Police Authority. I am mindful, from my time on the Public Audit and Post-legislative Scrutiny Committee, of the example of Moi Ali, a black or minority ethnic woman who sat on the Scottish Police Authority board. By all accounts, Moi was a very experienced and respected board member, but she was treated quite awfully during her time on the SPA. In evidence to the committee, she agreed that she had been bullied. When I asked whether all the things that had happened to her would have happened had she been a man, she said no. She gave examples of male colleagues taking similar actions to those that she took, but she was the only one who was treated a certain way.

That is an example of a high-profile woman’s voice on a public board not being valued. Although that has not been the experience of every woman on a public board, it draws attention to the risk that the culture can discourage women from applying for such positions in the first place. In my view, a lot more work needs to be done to ensure that boards are leading inclusive recruitment processes and that increasing the representation of protected groups leads to meaningful culture change.

The cabinet secretary has already paid tribute to my colleague Mary Fee and the Scottish trans alliance. A further strength of the bill has been the clarification of the term “woman”. At stage 2, amendment 10, in Mary Fee’s name, added a definition to the bill to ensure that the legislation is inclusive of trans women, including those who do not have a gender recognition certificate. That is important.

The stage 2 amendments in the name of the cabinet secretary were very welcome. They included an amendment on guidance for public authorities on how to deal with the tiebreaker issue in the appointment of candidates following the amendment of section 4. The commitment from the Government to report on the progress of the legislation is reassuring and will allow Parliament to scrutinise the legislation’s effectiveness.

In light of the stage 2 amendments, we are more than satisfied that the concerns raised during the stage 1 evidence sessions have been addressed. The bill is sensible and necessary, and I have to admit that I am baffled as to why Conservative members persist with their opposition to it. Even at this late stage, I urge them to reconsider their position. Maybe Annie Wells could nod—we could take that as a yes. If Conservative members care about fairness and improving the representation of protected groups, they should vote for the bill.

I am delighted to have the opportunity to reaffirm my support and that of the Scottish Labour Party for the bill. Creating legislation that gives women greater rights to representation is a bold move, and I hope that it is the first step towards creating an equal playing field for all women at all levels of public life.

As the cabinet secretary said, next month will mark 100 years since some women in this country first gained the right to vote. That is a landmark to be celebrated, yet it is a reminder that, despite how far we have travelled in 100 years, the slow march towards true equality of representation for women still has some way to go.

Unfortunately, measures such as the bill are still required. At the heart of the Gender Representation on Public Boards (Scotland) Bill is the aim of promoting equality in Scotland; for that reason alone, I am proud to support it.

The Presiding Officer

Thank you. I now call Alison Harris. I am grateful to her for giving voice to Annie Wells’s words.

15:01  



Alison Harris (Central Scotland) (Con)

During the stage 1 debate, Annie Wells outlined why she could not support the Gender Representation on Public Boards (Scotland) Bill. She wants to again stress that although we can agree on a vision for gender equality, it will not always be the case that we agree on the means of achieving it.

Annie Wells truly appreciates that the bill is well intentioned but she cannot be persuaded that it will address the deep-seated societal, economic and cultural barriers that prevent women from applying for such positions in the first place; nor can she be persuaded that, following the stage 2 amendments, the bill will be an effective and clear piece of legislation.

The Scottish Conservatives have worked constructively throughout the bill process to ensure that the bill is in the best shape that it can be in. We have agreed to all the stage 3 amendments, as they are minor changes to schedule 1 and relate to affected public authorities. However, based on its basic principles, we will be voting against the bill as a whole.

As a member of the Equalities and Human Rights Committee, Annie Wells was pleased to see positive changes being made at stage 2, although unfortunately she was unable to attend the stage 2 proceedings due to ill health. In particular, she was pleased to see the committee agree to Mary Fee’s amendment 10, which sought to broaden the definition of “woman” so that the legislation would be as inclusive as possible, recognising that not all trans women possess a gender recognition certificate.

Annie Wells was also pleased that the Scottish Government, having listened to the concerns of the committee, committed to issuing guidance to support the operation of the legislation. She welcomed Alex Cole-Hamilton’s amendment 1, which highlighted the need to address the tiebreaker situation whereby two candidates of equal measure, one a woman and the other a man with a protected characteristic, may compete for the same position. That was an important addition to the bill that recognised feedback from the committee evidence sessions.

Despite wishing the bill to be in the best shape that it can be in, Annie Wells is still of the opinion that remaining ambiguities will prevent the bill from being a robust piece of legislation.

How the bill will operate in practice is key, and despite her support for the bill including other protected characteristics, Annie Wells remains unconvinced that there can ever be true clarity over the tiebreaker scenario, although there has been a significant addition to the bill. She appreciates that guidance will cover that issue, but as our colleague Jamie Greene pointed out at stage 2, how will the guidance be able to state clearly to whom greater weight is to be allocated? The cabinet secretary stated in response that there will be no automatic preference and—using a term that is as subjective as “equal measure”—that

“the appointing person could give preference to the man if they consider that to be justified.”—[Official Report, Equalities and Human Rights Committee, 21 December 2017; c 6.]

Annie Wells is also unclear about the effectiveness of a bill that sets legislative targets that require mandatory reporting yet does not impose sanctions or penalties for non-compliance.

Much was said in the stage 1 debate about language and whether it is appropriate to use the terms “quota” or “statutory quota” in relation to how the bill will operate. This is where Annie Wells finds the bill’s objectives confusing. It sets out a legislative objective of having women make up 50 per cent of non-executive members of public boards by the end of 2022, and it goes as far as it can go within the parameters of European Union law. If it set out mandatory quotas, that could be construed as positive discrimination and therefore unlawful.

Although the target is aspirational, at stage 2, the Scottish Government strengthened the provisions on reporting so that there will be a statutory duty on public authorities to report on their progress, which makes the objective more than merely aspirational.

Monica Lennon

Will Alison Harris take an intervention?

Alison Harris

No. Sorry—I am just reading this on behalf of Annie Wells.

On the flip side, if there is no statutory quota and we are merely setting aspirational targets, why are we creating legislation? As highlighted in the committee’s report, with no sanctions and penalties in place, we run the risk of having

“a Bill without the appropriate teeth”

that

“risks the appearance of legislation for legislation’s sake.”

Looking more broadly at what the bill is trying to achieve—gender equality—Annie Wells of course wants vast strides to be made. Women face similar barriers to getting on to public boards as they do in relation to private boards and employment generally, so we should be focusing on the deep-seated issues. For example, just two of Scotland’s 40 London Stock Exchange listed trading companies have at least 33 per cent of board positions filled by women and only five of the 103 executive directors at those businesses are female.

In a 2015 podcast, the Chartered Institute of Personnel and Development explored whether businesses should have mandatory quotas for women in senior positions and listened to the opinions of female business experts. As well as the issue of tokenism—companies creating non-executive roles that do not do anything useful just for the statistics—the experts highlighted the need for well-thought-out organisational designs that enable women to be brought through the pipeline in ways that break institutional barriers. As Annie Wells has said previously, companies that are doing that, such as the FDM Group, are the exemplary models that we should push.

In project 28-40, a United Kingdom-wide survey that looked at the barriers that women face in the workplace, improved childcare and flexible working were cited as central to enabling women’s career progression. Legislative changes are all well and good, but our cultural expectations about gender run deep and they need to be addressed in tandem with any legislation. That includes creating transparency on the gender pay gap and ensuring that, in education, women get the best start in life.

To conclude, Annie Wells would like to reiterate her support for achieving equal representation of women in all walks of life, but she does not believe that statutory quotas are the right means to achieve that. She has questions over how effective the bill will be in practice and is concerned that its existence could potentially delay the long-term change that is required to promote gender equality, on public boards and more widely.

Although we may go back and forth over semantics and what exactly a statutory quota is, in essence, the bill sets a legislative target. Annie Wells believes that, instead of getting drawn into creating legislation when many people still have questions over its operation, it is absolutely essential that we focus on tackling the issue of gender inequality more broadly. Positive action does not have to mean putting through legislation for legislation’s sake. We need to promote educational reform and make improvements in childcare and society’s attitude more generally if we are to make a real difference for girls growing up in Scotland today.

The Deputy Presiding Officer (Christine Grahame)

Thank you very much—heroic stuff. Getting somebody else to read your speech is actually a good way to avoid being challenged—I will remember that one.

15:09  



Christina McKelvie (Hamilton, Larkhall and Stonehouse) (SNP)

As convener of the Equalities and Human Rights Committee, I can say that the committee was pleased to have the opportunity to scrutinise the Gender Representation on Public Boards (Scotland) Bill and to seek the views of interested parties. I express my gratitude to all the committee members for their contributions, and to the many agencies and witnesses that submitted written and oral evidence. We have paid close attention to that evidence. Our gratitude also goes to the clerks, who put in a heroic effort.

Unfortunately, not everyone has agreed on a determined way ahead, but the majority are clear and the objections are more about form than they are about matter. I must say, however, that I am now more confused about the Scottish Conservatives’ position. Are they suggesting that they would support the bill if there were sanctions and if the bill were to be extended to private boards? Perhaps they can address that in their closing speech.

At stage 2, a number of amendments were lodged by members of the committee and the cabinet secretary to address concerns that had been raised in the stage 1 inquiry. I am glad to see their inclusion in the bill. When the bill was introduced, the latest data showed that women made up 42 per cent of public boards’ membership: women now make up 45.8 per cent of their membership. That is serious progress by any measure, but we need to do more. We need a statutory target that enshrines our commitment to gender equality. The bill will allow us to do that.

The word “quota” makes some people nervous. It need not, because what we are trying to do will work to everyone’s advantage. There will be no losers. Private sector boards are generally responding enthusiastically, although some continue to try to remain in the past. However, if they fight against the prevailing trend, they are the ones that will suffer. They may find that their clients seek other suppliers and that their boards will be disadvantaged by a lack of female representation.

As Engender pointed out to the committee:

“Research by Close the Gap found that employers who take concrete steps to address women’s inequality in work led to several benefits, including: 1) reduction in costs through lower turnover; 2) improved employee morale and motivation; and 3) higher levels of productivity.”

There are no losers. It goes on:

“In their paper ‘Gender Equality Pays’, Close the Gap reports ‘The business benefits of increasing the gender diversity of the workforce lie in better decision-making and problem-solving capacity, as a variety of perspectives are brought to the table, and companies benefiting from women’s ‘market proximity’.”

There are no losers, under the bill.

Engender also said that

“By reflecting the people they serve, gender-balanced boards can drive excellence and efficiency in public service delivery.”

That will put more pressure on private companies to be convinced by the public sector lead that is being taken through the bill.

I am convinced that only a statutory quota will promote a situation in which equality becomes the norm. Equality is not the norm. I want the Scottish Government to be a leader, and to seek to move forward on an issue that sits at the heart of the Scottish National Party’s agenda and, I hope, the Scottish Parliament’s agenda.

The Representation of the People Act 1918 began the process of women being eligible to vote—albeit that they could do so only as long as they were landowners and had their husbands’ permission. How we have moved on. It has taken only 100 years, but I am not prepared to wait another 100 years. I sometimes think that a terrifying number of people still think that the 1918 act should be the case and that for them the idea of an independent woman is not only strange but totally inexplicable—a bit like the Tory position on the bill.

In its evidence, Engender told us:

“A contributing factor to occupational segregation and men’s overrepresentation in senior positions, including public boards, are assumptions made about women’s and men’s capabilities and preferences. However, research from Catalyst, a non-profit organisation working to accelerate progress for women through workplace inclusion, found that 55 percent of women aspired to be in a senior leadership position.”

We should create the opportunities for that 55 per cent and, I hope, more.

Engender added:

“Achieving gender balance on public boards has the potential to influence occupational segregation through challenging gender norms and perceptions around public authority, and providing children and young people with a more diverse range of role models. Equal representation will also drive excellence in public service delivery as decision makers better reflect the populations they serve.”

There are no losers under the bill.

Finally, Talat Yaqoob from the smashing organisation Women 50:50, of whose steering group I am a member, told the committee that

“Soft and gentle approaches involving training and development have been done for decades, and they have not got us to 50 per cent.”—[Official Report, Equalities and Human Rights Committee, 21 September 2017; c 17.]

I agree with her.

Rory McPherson from the Law Society of Scotland told us:

“after 10 years of voluntary schemes, we are yet to achieve gender diversity on public boards. Against that background, the Law Society supports the bill”.—[Official Report, Equalities and Human Rights Committee, 21 September 2017; c 19.]

So does the committee.

I believe that what the committee—and the Government—has come up with, and what working together has brought us, have moved us forward. The bill sets out clear ambitions genuinely to get rid of outdated notions—some of which we have heard today—and to replace them with new traditions that are built on equality and fairness.

I will support the Gender Representation on Public Boards (Scotland) Bill when it comes to the vote at 5 o’clock.

The Deputy Presiding Officer

I advise members that there is time in hand, so I can be generous with speeches. Members will not hear me say that very often.

I call Alexander Stewart, to be followed by Mary Fee.

15:15  



Alexander Stewart (Mid Scotland and Fife) (Con)

No one can fault the intention of the bill. The ambition to make public boards more representative is something that, I am sure, we all support. However, the problem with the bill is that it is unlikely to achieve its objectives, and I do not believe that it will make a meaningful difference to girls and young women who are growing up in Scotland today. It is yet another example of legislation that has not been completely thought through.

There is undoubtedly an issue that needs to be addressed. At the moment, women make up only 45.8 per cent of the membership of public boards, despite accounting for half of Scotland’s population. For all its faults, the bill has at least highlighted that issue and given it the attention that it deserves, which is something that should be welcomed as we move forward.

However, the bill’s sole focus on public boards might lead one mistakenly to think that the problem relates only to them, which could not be further from the truth.

Alex Cole-Hamilton (Edinburgh Western) (LD)

I am grateful to Alexander Stewart for giving way. I was struck by his remark that the bill will not achieve anything, which came hot on the heels of Annie Wells’s speech—delivered by Alison Harris—which said that the issue is about legislative quotas. Either the bill will not do anything or it is about legislative quotas. It cannot be both. Which is it?

Alexander Stewart

The bill will not fix the underlying problem. It will take us some way on the journey, but it will not take us to where we want to be and where Alex Cole-Hamilton wants us to be, so—as I have said—quotas are not the way forward

The situation is, in fact, much worse in the private sector. Recent figures show that just two of Scotland’s 40 Stock Exchange listed trading companies are hitting the already not-very-ambitious target of having at least a third of company board positions filled by women.

Christina McKelvie

Will the member take an intervention?

Alexander Stewart

I would like to continue.

Staggeringly, 13 of those businesses have no women executive directors whatsoever. The fact that the issue occurs in both the public and private sectors to a worrying degree makes it clear that there must be other fundamental factors that act as barriers to women getting on to boards, other than unacceptable discrimination with regard to gender.

The lack of ability to work more flexibly, the lack of affordable and high-quality childcare, and specific barriers that make it difficult for women to enter some occupations all contribute to underrepresentation of women on boards.

Gillian Martin (Aberdeenshire East) (SNP)

I am very grateful to Alexander Stewart for taking my intervention. Does he agree that one of the problems around the culture of attracting 50:50 representation to boards is that women cannot see themselves in such positions? If you can’t see it, you can’t be it. That goes way back to when women were children looking at situations that they could not access.

Alexander Stewart

The world is full of women who lead in all sectors. The ambition of women is very much there, and has happened because we have created the opportunity for them to move forward. However, as I said before, creating quotas is not the right way forward.

That is not to say that businesses are not trying to tackle the situation. They are attempting to break down such barriers, which has been focused on by many organisations and individuals. Businesses that are taking such positive steps have recognised that there is both discrimination and a clear opportunity to work within the workforce.

Nevertheless, the issue of making public boards more representative still needs to be addressed, but the bill is very confused in terms of how it would achieve that aim. It mixes a variety of different approaches that seem to contrast with what it is trying to achieve. Although the bill sets a voluntary target that 50 per cent of all non-executive board members should be women by 2022, it also includes a mandatory quota and places duties on public authorities in an effort to achieve that objective.

The requirement on public authorities to report on the actions that they have taken to meet the target will not be enough. There is, effectively, no sanction for non-compliance. That is poor, and will make the law difficult to enforce. What is the point of the duty if it is difficult to enforce?

Gail Ross (Caithness, Sutherland and Ross) (SNP)

Will the member take an intervention?

Alexander Stewart

No. I would like to make some progress.

Even if we assume that the duties on public bodies will be enforceable, situations in which two candidates are exactly equally qualified for a role are likely to be few and far between. It is therefore still unclear whether the tiebreaker measure will make a meaningful difference to the promotion of women on public boards.

There is a more fundamental issue, which is that the bill does not even set out to make public boards fully representative of Scotland as a whole. Women are, of course, not the only group that is underrepresented on public boards. It is estimated that disabled people make up 19.6 per cent of the population, but in September 2017 they made up only 7.9 per cent of the membership of public boards. Moreover, ethnic minorities make up 4 per cent of the population, but that is not reflected in their membership of public boards. Furthermore, young people do not have the opportunity to sit on public boards. The bill does nothing to address those issues of discrimination. That was highlighted during the consultation on the bill.

In conclusion, I am happy to support the amendments to the bill, because they improve it with regard to the issues of equality. However, like my colleagues, I cannot support the bill in its entirety. All of us want to see equality with regard to the representation of women on public boards and in employment generally, but I do not think that that cause will be advanced by the use of statutory quotas, which are not the right way to go about achieving the bill’s aims and objectives.

15:21  



Mary Fee (West Scotland) (Lab)

As my colleague Monica Lennon said in her opening remarks, the Scottish Labour Party fully supports the bill.

During the stage 1 debate, members from across the chamber recognised that there was a need to amend the bill, and I am glad that that need for change was recognised at stage 2. At stage 1, I highlighted the need for the definition of a woman in the bill to be amended to include a person who has the protected characteristic of gender reassignment who is living as a woman. I would like to take this opportunity to thank the cabinet secretary and Scottish Government officials for their willingness to engage constructively at stage 2 with the Equalities and Human Rights Committee in order to amend and improve the bill. I am particularly grateful to the cabinet secretary for supporting my amendment to ensure that the bill is inclusive of all women, including trans women who do not possess a gender recognition certificate. I would also like to take the opportunity to thank the Equality Network, Stonewall and the Scottish trans alliance for bringing the issue to my attention.

The vital importance of ensuring that the bill is inclusive of trans women is highlighted by the research that Stonewall published last week, which highlights that more than half of trans people have hidden their identity at work for fear of discrimination. In addition, I would like to thank my colleagues on the Equalities and Human Rights Committee for the important role that they played in scrutinising the bill and strengthening it at stage 2 through their amendments.

The importance of the bill cannot be overstated: it is one important step towards achieving gender parity. It will act as a comprehensive, effective and robust lever to promote gender parity on public boards. Voluntary measures to promote gender parity on public boards have closed the gap somewhat, but the bill will introduce a duty to ensure by 2020 that women make up 50 per cent of non-executive board members. In the centenary year of the extension of the franchise to some women—I repeat that only women over 30 years old were given the vote—the bill highlights that, despite the gradual and hard-fought-for improvements over the past 100 years, women in Scotland still have to fight for equal representation.

The bill is not simply about having token women in the room or around the meeting table: it is about real and tangible equal representation. Furthermore, it is about equal representation for decision making, authority and power. The fight for gender equality endures. In Scotland today, men continue to hold the power in decision making and to dominate public life, and men continue to be the majority in our boardrooms, in our Parliament and on our public boards. The bill will empower women by promoting through 50:50 gender representation the redistribution of decision-making authority on our public boards.

I welcome the Scottish Government’s amendment to the bill at stage 2, which requires Scottish ministers to report on the operation of the eventual act to the Scottish Parliament. That level of parliamentary scrutiny is essential, given the role that is played by Government ministers in making appointments to public boards. The ability of Parliament to question Government ministers is good for the bill, for Parliament and for democracy as it promotes greater accountability and transparency in decision making.

I reiterate my support for the Gender Representation on Public Boards (Scotland) Bill, which will ensure gender parity on public boards by 2020. We must remember the importance of representative public boards, because when women are seen to succeed, more women engage and participate in the public sphere. I believe that the promotion of 50:50 gender representation on public boards can signal a symbolic shift in all areas of society to empower more women to become engaged in public life in Scotland and to hold positions that have decision-making authority.

15:27  



Gillian Martin (Aberdeenshire East) (SNP)

I am not just happy but delighted and proud to be speaking on the bill, which is hugely important in its context and has implications beyond the actual legislation. The bill should have a number of positive knock-on effects that go beyond its remit that I think are equally important and that underpin its importance. In my speech, I will draw on the work done by the Economy, Jobs and Fair Work Committee on the gender pay gap, which concluded last year, and on the on-going work being done in the cross-party group in the Scottish Parliament on women in enterprise, which I convene.

In a wider sense, targets are essential in encouraging gender representation, and they have been shown to work. One piece of evidence that we heard in the committee’s gender pay gap evidence sessions touched on that issue. Professor Ian Wall spoke about efforts to increase gender diversity in science, technology, engineering and mathematics research in higher education. He said that the uptake of the programme by women was slow until funders began to make gender diversity a prerequisite to achieving certain types of funding. It meant that they went out to attract women in and put measures in place to allow women to access the research. Professor Wall made this statement, which I will always remember:

“encouragement is good, but compulsion works.”—[Official Report, Economy, Jobs and Fair Work Committee, 7 March 2017; c 22.]

Ultimately, within the constraints of the Scottish Government’s powers, we must deal in both encouragement and compulsion. They can work in tandem and must do so, which is why I disagree with the suggestion in Annie Wells’s speech that they are either/or. We are able to legislate on the matter, but the legislation can inform or encourage a change of culture.

The oft-quoted Kinsey report on the gender pay gap shows that diverse boards lead to better business performance in the private sector too. Tanya Castell from Changing the Chemistry gave evidence to the committee that went deeper than that. She noted that it is not only gender representation on boards that matters but an organisation’s wider culture. An organisation with a more diverse board might perform better, but that might be a result of an inclusive culture throughout the organisation rather than just at its highest levels.

The move today, with this bill, is hugely important, because it will allow a conversation to take place about gender representation on all boards across the public and private sectors.

The bill can be seen as one part of a wider initiative by the Scottish Government. The other initiative that is relevant is the Scottish business pledge, which includes nine ways for Scottish businesses to be more fair and progressive. One of those is about developing a balanced workforce by having gender parity on boards, and there is a commitment to eradicating the gender pay gap. That is not just about equal pay; it is about giving women the opportunities for promotion that their male counterparts get.

Before I go on, I want to say that the phrase “token woman” really upsets me, because it suggests that there are no women with enough talent to be put in at board level. I would like to pay tribute to the overlooked women of generations who had that talent—who would never have thought of themselves as a token woman—but were never fortunate enough to get a seat in the boardroom.

Members across the Parliament recognise that better and more equal gender representation is an economic issue, but I would emphasise that women’s representation is also an intersectional issue, as the business pledge recognises. To develop diverse businesses and reap the benefits of diversity, we must consider women’s representation—by women of all ages and from all backgrounds—at all levels of work. Then we will do better business, make better products and give better services, our country can realise its potential and, ultimately, companies and organisations will make better decisions.

One way in which increasing women’s representation on public boards will help us to achieve cultural change is through the development of a new generation of women mentors. From my work as convener of the cross-party group on women in enterprise, I know that mentoring regularly comes up as a topic of discussion. Research conducted last year by Women’s Enterprise Scotland showed that 43 per cent of women who owned businesses identified mentoring as the main support needed to grow their business.

Changing the culture by bringing more women with experience on to public boards in Scotland will encourage women to take their place on private sector boards as well. That is a significant opportunity that this bill engenders.

I welcome the bill, both for its effects on public boards in Scotland, which are significant, and for the message that it sends across the country and beyond. l hope that the message will be an important part of changing our general culture of work to achieve gender equity across Scotland, in both the public and the private sector.

I am not just supportive of the bill; I will be voting at decision time with huge pride at what has been put before us.

15:32  



Alison Johnstone (Lothian) (Green)

I would like to apologise for missing the beginning of the debate due to a misunderstanding on my part. I regret missing the cabinet secretary’s opening speech. I appreciate that she has a deep personal commitment to the issue, for which I am grateful.

I am glad to have the opportunity to confirm the Scottish Green Party’s support for the bill. I thank the committee, for the work that it has led to bring the bill to this stage, the clerks, the Scottish Parliament’s information centre, all those who gave evidence and the stakeholders who worked to improve the bill.

As a co-founder of Women 50:50, campaigning for at least 50 per cent representation by women in our Parliament, in our councils and on public boards, I believe that passing this bill today brings us an important step closer to achieving that. I take the opportunity to thank Talat Yaqoob and all my colleagues on that excellent group as we continue to work together.

We know that targets and quotas are successful. The international evidence, highlighted by Engender and others, is clear that targets and quotas can be used to great effect to bring about change. That is really important.

In November in this Parliament, I hosted an event that focused on the disproportionate impact that austerity is having on women. Austerity is gendered. That night, we heard from organisations, including Engender, Scottish Women’s Aid and One Parent Families Scotland, from academic experts, including Dr Morag Treanor of the University of Stirling, from the women’s budget group and from the University of Glasgow’s social support and migration in Scotland research team about the impact that cuts are having on women—70 to 85 per cent of cuts in public spending on benefits, taxation, pay and pensions have impacted on women.

I cannot dissociate that from the way that our national life is managed.

Christina McKelvie

Does the member agree that a two-child family cap and a rape clause are also serious barriers to women’s progress in Scotland today?

Alison Johnstone

Absolutely. They are wholly discriminatory and absolutely appalling, and I know that that is the majority view in this Parliament.

We have heard that women have borne the brunt of welfare reform. Changes to vital social and economic support are typically not planned with women’s needs and interests in mind. Women still carry out the majority of hidden domestic work, caring and emotional labour, if you like—work that is hard to quantify in any economic analysis, but which is hugely valuable.

When women are not adequately represented on public boards, it minimises opportunities to create more gender-sensitive public services and it is a declaration of our indifference to that wider lack of representation. I have said this before and I will say it again: as a councillor in Edinburgh, when schools and nurseries were being closed, my surgeries and the meetings were full of women, but when it came to taking the votes, where were they? Largely, they were absent because they are not represented in the numbers they should be in all chambers.

The bill is a really important step, but we should recognise it as being a starting point for further action to improve diversity on public boards and in public life more generally. Patrick Harvie, in the stage 1 debate on the bill, said that, as a party, the Greens know that

“intentions alone do not result in gender balance.”—[Official Report, 30 November 2017; c 66.]

We have gender-balanced candidate selection mechanisms in place and we make sure that we have gender balance at the top of our regional lists as well as throughout them, but I am in Parliament with five male colleagues, so there is more to be done.

Where I will agree with the Conservatives is on the fact that this is not all about legislation. Culture change and support in the background are essential too, because if someone is a candidate at the top of the list and is a single parent with caring responsibilities—92 per cent of whom happen to be women—how can they possibly go out and canvass and campaign if they do not have adequate childcare support, for example? We have to look at the issue in the round, but I am absolutely determined that the bill is a very positive and important step.

Globally, almost 77 per cent of parliamentarians are men. Are we actually suggesting that they are all there purely on merit? Gillian Martin rightly pointed out that we refer to “token women”. Has anyone ever referred to “token men” in a quota?

We have a limited set of statistics that show changes in the demographic profile of some boards, but they do not give us great insight into how gender intersects with other protected characteristics. We must acknowledge that many people face multiple barriers to making their voices heard and taking up public leadership positions. We know from the available statistics that the percentage of disabled people on boards reduced from 15.3 per cent in 2013-14 to 7.9 per cent last year, and even that higher figure of 15.3 per cent was not representative, as disabled people make up nearly 20 per cent of Scotland's population.

As Engender stresses,

“It is extremely important that the full diversity of women in Scotland be represented in public office.”

We need strategies to enable the representation of women from minority ethnic, minority faith and refugee communities and women with different sexualities. We have to make sure that we are striving towards being truly representative in public life, because that will bring significant benefits. As bodies develop and strengthen their strategies to encourage women to become members of public boards, it is crucial that those strategies consider that intersectional approach, and I warmly welcome Mary Fee’s comments.

The Conservative approach, if I understand it, is that we should just wait until this Parliament is properly gender representative. At the rate that we are going at, that would take 50 years. That is too slow for me. I warmly welcome the progress that we are making today.

15:39  



Gail Ross (Caithness, Sutherland and Ross) (SNP)

As a member of the Equalities and Human Rights Committee, I begin by once again thanking everyone who gave evidence to our committee, either in writing or in person, the clerks, SPICe and my fellow committee members.

Like Gillian Martin, I am delighted to be able to speak in this important debate at stage 3 of the Gender Representation on Public Boards (Scotland) Bill. The bill introduces the “gender representation objective”, which aims for 50 per cent of non-executive members on public boards in Scotland to be women. To me, that is a step forward for common sense. Women represent 52 per cent of the population, but we still find ourselves vastly underrepresented at every step of the decision-making process in public organisations and private companies.

To take politics as an example, women make up 29 per cent of local councils and only 17 per cent of members of the European Parliament, and only 35 per cent of members of this Parliament are currently female.

Addressing the underrepresentation of women on boards is a key priority of the Scottish Government. I thought that it would be a key priority of the Scottish Parliament as well, but unfortunately we are not agreed, either as a committee or in the chamber.

The Scottish Government has been working to improve gender balance in public life for a number of years. Our cabinet has a 50:50 gender balance and our manifesto committed to continue to support the work of Women 50:50. In her opening remarks, the cabinet secretary also laid out many other initiatives that we support.

We need to support people who have a contribution to make to public life, whether they are male or female. We have to use encouragement, education, confidence building and everything else at our disposal to achieve a gender balance, but we now need to go further. As the convener of our committee, Christina McKelvie, has already mentioned, Talat Yaqoob from Women 50:50 said:

“Soft and gentle approaches involving training and development have been done for decades, and they have not got us to 50 per cent.”—[Official Report, Equalities and Human Rights Committee, 21 September 2017; c 17.]

Public boards will have to provide evidence through a reporting system to show how they have altered their criteria for membership to reflect the skills and attributes that women have to offer. Concerns have been raised that having perceived “quotas” runs the risk of putting a candidate in a position for the sake of satisfying a target, but I reject those concerns because the merit is undeniably there. We must take action to remedy the factors that impede women from reaching the positions that they undoubtedly have the knowledge, qualifications and experience to hold.

The bill does nothing to change the fact that appointments will be made on merit and the best person for the job will be selected. However, the stipulation of targets, such as this one, leaves less room for the things that have precluded women from these roles in the past, such as gender stereotyping, which plays a harmful role, unconscious and unquestioned bias, which are prevalent, and many women’s lack of confidence in their own abilities. That obstacle coincides with other issues that discourage women from these roles, such as caring responsibilities, the gender pay gap and the sexual harassment crisis that we currently face in all walks of life.

Although welcome advances have been made in achieving gender equality, we are not there yet. I hope that the bill, when passed, will move us closer to reaching that aim. It matters, because data show that fairness in gender balance leads to better, fairer decisions and better outcomes for organisations and public service delivery. I truly believe that the bill is significant not just in the positive impact that it will have on practical decision making, but in its symbolic value in promoting gender equality. Gender balance needs to be fixed in many other walks of life; no one is saying that it is a panacea, but it is a start.

The Conservatives say that the bill is no use without sanctions, but there is no explanation of what those sanctions would be. Public boards are responsible for millions of pounds of public money. Would the Conservatives have us fine them? On the one hand, the Conservatives advocate voluntary measures but, on the other, they want to impose sanctions. Which one is it?

Jamie Greene

To clarify—as a few members have raised that issue—we are not proposing that there should be sanctions on public boards. However, if there are no sanctions—if the bill does not provide the ability to enforce its objectives on public boards—what is the point of the bill?

Gail Ross

I am quite confused by that intervention. He asks, if there are no sanctions on public boards, how can we realise the objectives of the bill? My question is: what sanctions on public boards would you want to see? How would you sanction them?

We want to see a reporting mechanism that shows how public boards have encouraged women to apply for positions that are currently dominated by men. I hope that by shining a light on the public sector, as we hope to do, we can encourage gender equality in the private sector as well.

In my speech in the stage 1 debate, I mentioned several pieces of evidence that the committee heard. I will not repeat them all, strong as the evidence was, but I leave members with a quotation from Suzanne Conlin, from the Scottish Women’s Convention, who said:

“One of the reasons why we think the bill is important is that women tell us that it is.”—[Official Report, Equalities and Human Rights Committee, 21 September 2017; c 2.]

A great deal of thought and scrutiny, in the committee and in this chamber, have gone into the bill. We think that the bill is the best mechanism for promoting gender equality on public boards that we can currently provide. I am glad that the stage 3 amendments were agreed to. Like Gillian Martin and everyone on the Scottish National Party benches, I will be proud to support the bill today, and I urge other members to do likewise.

15:45  



Alex Cole-Hamilton (Edinburgh Western) (LD)

I, too, thank the clerks, SPICe and all the witnesses who helped our committee to get the bill into the form that it is in this afternoon. This is a first for me: it is the first time that I have spoken in the stage 3 proceedings of a bill that I helped to steward though every part of the parliamentary process. That experience has set a standard against which I will measure every bill with which I am involved during my parliamentary career.

Given the hugely important nature of the bill and the cultural change that it seeks to foster, it was gratifying that, in the main, the members of the Equalities and Human Rights Committee, of which I am deputy convener, were able to set aside their party differences and come together to make the bill as good as it could be.

I am grateful to the cabinet secretary, her advisers and the bill team for the access and fair consideration that they gave me in respect of the changes that I sought to bring about at stage 2, in particular the inclusion of references to protected characteristics. Members have been kind in recognising those changes.

In the earlier iteration of the bill, section 4(4) left open to interpretation the means by which an appointing person could disregard the imperative to appoint a woman in the event of a tie. It suggested that the appointing person could decide to select a man over a woman in the event of a tie if there were

“a characteristic ... particular to that candidate”,

other than merit, that commended his appointment.

To my mind, and in the view of many stakeholders, the subjective interpretation of the subsection offered a loophole that could entirely undermine the spirit of the bill. An appointing person might say, “I appointed him because we’ve been friends for years and he deserves this”; theoretically, a friendship could have been the characteristic that was cited as a reason to disregard the gender representation objective.

The amendment that I lodged, which provided that section 4 would explicitly refer to “a protected characteristic”, addressed the issue. It also answered the significant concerns that other minority groups had raised throughout the committee’s consideration. Minority groups feared that leaving the bill unamended would threaten efforts to increase diversity in other ways. They argued that if the sole focus were on appointing a female candidate in the event of a tie, the opportunity to appoint someone with a disability or from an ethnic minority background might be closed off. The wording of the amendment, which was arrived at in collaboration with the Government, answered both issues and I am grateful for the fair hearing that was afforded to me.

On sanctions, I have listened with interest to the Conservative line of attack. The amendments in relation to the reporting duty, which I helped to draft, created an imperative for organisations to consider how they will deliver on their duties under the bill. That is a tried-and-tested technique. In addition, I point out to the Conservatives—often the self-styled guardians of the public purse—that if we imposed sanctions we would financially penalise public organisations. I see no sense in that.

I acknowledge my colleague Mary Fee’s work to amend the bill to ensure that the definition of “woman” in the bill recognises trans women.

It is fair to say that the bill was stewarded through our committee in a spirit of consensus across all parties—that is, until the Conservative members came ashen faced to our meeting before the stage 1 debate to reveal that, after all their efforts to help to scrutinise and improve the bill, their party would not be supporting it.

As we heard, the principal controversy for members of the Tory party has been to do with the view that the bill will lead to affirmative action, with the establishment of the gender representation objective somehow equating to the imposition of a quota. Their suggestion is that, once enacted, the legislation will impede a male applicant of higher calibre than a woman. That is nonsense. By any stretch of the imagination, the bill has nothing to do with quotas. Indeed, the section that covers the issue—the very heart of the bill—could not be clearer. It states:

“(1) The appointing person must determine whether any particular candidate is best qualified for the appointment.

(2) If no particular candidate is best qualified for the appointment, the appointing person must identify candidates it considers are equally qualified.”

It goes on to make provision for the appointing officer to select a woman in the event of a tie, if that board has not achieved the gender representation objective.

If that first section on merit did not exist, that would not be acceptable, nor would it be legal. The phrase

“best qualified for the appointment”

trumps everything and holes below the waterline any assertion that boards would be compelled to put a 50:50 target ahead of talent, so I am baffled by the position taken by the Conservatives. No other interpretation of the bill can take us away from the reality that merit has supremacy over gender in the bill that we are debating today.

Jamie Greene

Will the member take an intervention?

Alex Cole-Hamilton

I was about to ask Jamie Greene to come in, actually. If he will hold on for just two seconds, I will invite him to answer that point. During the committee’s consideration of the bill, Annie Wells herself stated that gender did not trump merit when she said:

“As far as I can see, merit sits at the heart of the bill.”—[Scottish Parliament, Equalities and Human Rights Committee, 28 September 2017; c 12-13.]

I would therefore welcome an intervention from Jamie Greene to speak on behalf of Ms Wells on that point. As I told her at stage 1, I agreed with what she said in September, so why does she not?

The Deputy Presiding Officer

Mr Cole-Hamilton is extending an invitation to you, Mr Greene.

Jamie Greene

I accept the invitation to intervene. I cannot comment on behalf of Annie Wells, although I will try to elicit from her before my closing remarks her view on that specific point.

I guess that I want to ask Mr Cole-Hamilton a question about the definition of the terms “best qualified” and “equally qualified”. On the face of it, those seem like subjective terms, and I wonder how an appointing person will address those very issues in the event of a so-called tie-break, when preference in that situation will be given to a woman candidate. I have concerns that those terms are unclear, unspecified and undefined.

Alex Cole-Hamilton

I thank Jamie Greene for that slightly long intervention.

The Deputy Presiding Officer

We have time in hand.

Alex Cole-Hamilton

Thank you, Presiding Officer.

I am not sure how the Conservative Party goes about appointing people, but I hope that there is some system to it. Usually, when one is involved in an appointment process, one scores people against a person specification and gives them a ranking, which can sometimes be very sophisticated with hundreds of points awarded, and then one can calibrate that against two equally qualified people and identify them by their scoring. I certainly hope that the Conservatives take that seriously when they appoint people within their party.

I find both Annie Wells’s conversion against the bill and that of Jamie Greene, presumably at the hands of their whip, singularly depressing. The bill may represent just a light touch on the tiller in terms of the actual impact that it will have in the make-up of public boards right now—on which, as we have heard, we are making significant progress towards parity, which is gratifying—but it is absolutely vital. It is as necessary as it is welcome. It builds in a mindset that will ensure that our struggle towards parity in gender representation in the engine rooms of our society is both continuous and lasting.

Next week, we will celebrate the centenary of women’s suffrage. One hundred years on, we see in every aspect of our lives the frontiers that we must still contend with if we are to bring about full gender equality, whether that is in the struggle around equal pay, in sexual harassment or in gender stereotypes. I am proud to have played just a small part in this Parliament’s efforts to push back on at least one of those frontiers in the bill that we debate this afternoon, and I urge members to support it.

15:53  



David Torrance (Kirkcaldy) (SNP)

I welcome this opportunity to speak in today’s debate on the Gender Representation on Public Boards (Scotland) Bill in order to raise the importance of the issue of gender equality and make equal representation a statutory duty. Throughout history, Government institutions have suffered from unequal gender representation, and that continues to this day in most advanced democracies. On average, globally, the representation rate of women in national Parliaments is less than 20 per cent and the percentage is significantly smaller at lower levels of government. Despite the general picture, there are some exceptions, such as Rwanda, Sweden and South Africa—key countries that we are lagging behind significantly. In essence, one half of the world’s population is underrepresented and that is unacceptable.

Throughout history, Governments have achieved little in promoting diversity and actively supporting minority ethnic, faith and refugee communities, women from working-class backgrounds, disabled women, younger and older women, and lesbian, bisexual and transgender women. Therefore, I am proud that this Parliament and Government have made unprecedented progress. If we are to progress as a democracy, the female 52 per cent of the Scottish population should be given equal representation in our elected bodies and public boards, as well as in the private sphere.

Recent research highlights some key facts that support the bill. Globally, women generate 37 per cent of world gross domestic product while making up 50 per cent of the global working-age population. They are underrepresented in all areas of the economy, which highlights the underlying gender imbalances in our society, as well as in our global and national economies.

The facts are well known. Evidence from all over the world has shown that all forms of diversity are central to a productive workforce, which has knock-on effects for the population as it leads to better democratic practices by addressing the debate about who governs. Research has shown that the gender gap in this country’s councils has shrunk; female representation on Scottish councils has increased from 24 to 29 per cent since 2012. However, women continue to represent less than one in three councillors as of the May elections in 2016 and, at present, 76 per cent of local councillors in Scotland are men. Equal gender representation leads to vibrant cultures, greater innovation and creativity. To do that, we need to change our government representative system that discourages rather than applauds that key initiative.

One of the main shifts in the equal representation of genders has been attributed to the adoption of positive measures that aim to improve women’s representation and participation. Benefits of the bill mirror the benefits from the results that have been achieved by those actions. They have been proven to create diversity through the women who are elected to office, to bring women’s issues to the heart of policy making, to change the gendered nature of the public and private spheres, and to set examples for those interested in politics.

I have been a member of the Equalities and Human Rights Committee since the beginning of this parliamentary session and we have heard hours of evidence. Evidence from Engender suggested that a gendered power balance in the wider public domain has a major impact on equality of outcomes across Government. We found that women stop putting themselves forward for positions on public boards following multiple unsuccessful attempts to secure interviews for positions for which they are clearly qualified, and it is believed that that is due to gender discrimination. Increasing the number of women in positions of power, including on public boards, is one step towards combating that, but it must be accompanied by supporting measures.

By encouraging equal representation of genders in public bodies, we challenge normative gender roles and stereotypes and perceptions of public authority. Positive measures have proved to be successful in several countries around the globe. Uganda, which stands out as an example of that, has a representation rate of 35 per cent, which rose from a rate of 3 per cent before the implementation of quotas. South Africa adopted voluntary gender quotas and, although they were optional, the representation rate in the South African National Assembly rose from 4 to 25 per cent. Similarly, Bolivia’s legal candidate quotas symbolise a step forward in equal gender representation by requiring political parties to nominate an equal number of women and men as candidates in elections.

The trends are similar in advanced democracies, especially with regard to public bodies. International evidence has demonstrated that equal representation of genders adds different perspectives to policy making and increases the prospect of gender-sensitive public services. The Nordic model, for example, applies equal gender representation laws to all public commissions, committees and boards. The knock-on effect is that the public sector is encouraged to change organisational cultures in order to increase the demand for women on boards and chairs.

The role of political parties will be crucial in levelling the playing field if we are to adopt the legislation. Legally binding measures are a must in order to break down obstacles to women’s participation. Although we are making steady progress, the pace of change remains slow.

Over the past few months, the committee carefully drafted a report that made several recommendations to improve the details of the bill. They included ensuring that the law would be understood and accessible, that there would be adequate monitoring of progress and that the bill would be applicable to trans women. The bill is designed to tackle a variety of economic, cultural, social and political factors that discourage women from applying for certain positions. We need to ensure that the laws are being properly implemented so that the bill’s aims are achieved. The Scottish Government is committed to enforcement and will hold our public officials to account. We must compensate for institutional and cultural obstacles as a result of gender imbalances to assess systemic discrimination.

I welcome the support of members in the chamber today for this vital piece of legislation. It is our job as policy makers to promote justice and women’s interests in public life and to ensure incremental positive changes. We must continue to work with organisations that play a direct or indirect role in enforcing gender equality laws, including women’s organisations, grass-roots institutions and the courts, as well as individuals in our daily lives.

The bill will lead to unprecedented opportunities by uncovering barriers to social and economic resources, training opportunities, quality employment and career progression. At decision time today, I will support the bill.

16:00  



Rachael Hamilton (Ettrick, Roxburgh and Berwickshire) (Con)

I am pleased to speak in the debate. The Scottish Conservatives agree that there should be more women on public boards, but this bill is not the way to do it. The bill has ambui—ambiguty—I cannot say it.

Gail Ross

Ambiguity.

Rachael Hamilton

Thank you. As my colleagues have highlighted, can there ever be true clarity over the tiebreaker scenario? Alex Cole-Hamilton gave us his subjective view on the process of point-scoring applicants to overcome the tiebreak situation, but that is not exactly a solution.

There is no doubt that there should be a drive for equal representation on public boards. As we have heard, Scotland is getting there, with women making up 45.8 per cent of public boards’ membership. Day by day, month by month and year by year, improvements are being made, albeit slowly, and it is important that we see such improvements.

Nevertheless, the bill risks covering problems in society. It may create a false impression that everything is fine when, in reality, it is not. I hope, as we all do, to see 50:50 gender representation on public boards and in other walks of life, too. However, the bill may make it harder to identify the root causes of gender discrimination, because we would no longer have an outcome to measure progress against. The focus must be on the root causes. I, too, pay tribute to the fine and able women who have fallen through that net.

Monica Lennon

We have heard a lot from the Conservatives about their technical concerns about the bill, but it has not escaped my notice that the Women 50:50 website, which lists the MSPs who have signed up to the campaign’s objective of women representing 50 per cent not only of public boards but the Parliament and our councils, shows that not a single Scottish Conservative MSP has backed the campaign. Why is that?

Rachael Hamilton

Monica Lennon will know that I am part of the women2win initiative in the Scottish Conservative Party, in which my colleague Annie Wells is instrumental. Through the initiative, we are seeking to improve the gender balance in our party.

How do we eliminate weak male attitudes that gender stereotype women? Many such attitudes start at the grass roots and not on boards, in those environments where prejudices are formed and gender stereotyping is perpetuated. It is those stereotypes and prejudices that we must challenge daily.

As politicians and as a society, we must question our actions, and, to make that progress, we need to continually challenge unacceptable attitudes. That is happening—the end of last year and the beginning of this year have highlighted that. The #MeToo movement has uncovered sexist and misogynist behaviours in Hollywood. Last year, those same behaviours were exposed in Parliament, and this year they were exposed in the business community. There is no longer a place for such attitudes and behaviours to hide, and there should not be. Our own Parliament has just carried out a survey and will take action shortly to ensure that those attitudes are stamped out.

The bill will also not address what is happening in the private sector. Despite the positive progress on public boards, the situation has worsened in the private sector. Just two of Scotland’s 40 listed trading companies have hit the target of having at least 33 per cent of their board positions filled by women. Only five of the 103 executive directors at those businesses are female—down from eight last year.

Christina McKelvie

Is Rachael Hamilton saying that the Tory position is that the bill should be extended to private boards? Instead of dancing around the daffodils and being here in 50 years’ time, saying the same things, that is the only way that we are going to deal with this.

Rachael Hamilton

May I ask Christina McKelvie whether she believes that it is acceptable that the Scottish ministers recently appointed one woman member to a board of seven at Crown Estate Scotland? Was that because it was an interim measure or because they are not dealing with their own ingrained attitudes?

Gail Ross

Will the member take an intervention on that point?

Rachael Hamilton

I would like to make some progress.

That is evidence that there is still something very wrong at the grass-roots level. Do these organisations provide an environment that promotes equal opportunities, that offers flexible working hours and that supports women who are returning to work?

More work needs to be done to explore solutions to barriers to women entering the workplace. Women are still underrepresented in our workforce, which can be because of a lack of flexible working hours, a lack of affordable quality childcare, occupational segregation or a lack of opportunities for men and women to network. Those issues are the same ones that prevent women from appearing on public boards. They should be focused on, and an innovative and dynamic approach to work culture should be evaluated and addressed. We should move to an approach that works for everyone, including private and public boards. With developments in technology, a solution that works for everyone should be easy to find.

The bill might be supported, but I fear that it would not do anything to tackle the issues that have resulted in a gender representation imbalance. The contrast between public and private boards highlights a huge issue in respect of approach. We must therefore explore further the reasons for that difference and understand where things are going wrong. When we uncover the causes, we can work towards a solution.

My colleague Annie Wells highlighted another issue with the bill in that it might create issues of positive discrimination. The evidence that has been gathered has highlighted that some people feel that mandatory quotas are discriminatory. If the bill sets out mandatory quotas, it could be construed as supporting positive discrimination, which is unlawful.

It is that ambiguty—ambigu—

Gail Ross

Ambiguity.

Rachael Hamilton

—thank you—that the bill has the potential to create. Legislation should not be passed while those issues are still prevalent and questions are being asked about whether the bill will do harm.

The Scottish Conservatives cannot support the bill because it is not the right way to achieve 50:50 representation. That does not mean that we do not want to see gender balance—of course we do, and of course we must work towards that goal. However, to do that we must focus on root causes and not on this ambiguous bill.

16:07  



Jenny Gilruth (Mid Fife and Glenrothes) (SNP)

I thank the members of the Equalities and Human Rights Committee for all their work on the bill.

It is a privilege to speak in today’s debate, particularly in a week that will see two pieces of landmark legislation change the lives of women in Scotland for the better. As the cabinet secretary said, it is a moment that the Parliament can be proud of.

Outwith the Scottish National Party, there is an assumption that to sit on these benches requires an initiation ceremony consisting of running a Braveheart marathon, chasing a haggis while clad in a kilt and bellowing “Freedom” into the abyss. For me, as a 21-year-old with no political party of preference, it was women’s representation that consistently informed my political beliefs. I saw the inequality that underpins a Scottish Parliament in which 65 per cent of all MSPs are male; the unfairness that allowed an all-male corporate body to exist; and the sexism that continues to this day in this place, given that the average salary of a female staff member at Holyrood is 11 per cent lower than that of her male counterpart.

Equal opportunity was, of course, one of the founding principles in the establishment of Holyrood. I suppose that I should declare an interest as a token woman on the SNP benches—as opponents of the bill have argued. I was elected in 2016 alongside some extremely talented colleagues including Gail Ross and Gillian Martin, following my party’s decision to take action to tackle the underrepresentation of women in the SNP. The issue has been contentious in my party historically. Therefore, the Labour Party must be given due credit for the fact that, in 1999, it twinned its candidates, because of which Holyrood has always been regarded as having a more equal number of women political representatives.

In 2005, the SNP did not have a great record on female representation. Out of our 27 MSPs, only nine were women. Across Holyrood, however, female membership stood at 39 per cent because of Labour’s use of positive discrimination—indeed, during session 2, 56 per cent of all Labour MSPs were women. At Westminster, however, the picture was markedly worse. Following the 2005 general election, only one in five of all members of the Westminster Parliament was a woman. In early 2006 the annual “Sex and Power” report found that it could take another 200 years for women to reach political equality in UK politics.

Here we are in 2018, 100 years on from when most women were first bequeathed the power to vote but less than a year after Muirfield golf club finally decided that perhaps it was time to allow women to join—only, of course, after losing the right to hold the Open golf championship. I am sure that the two events were unconnected.

According to SPICe:

“The aim of the Bill is to improve the representation of women in non-executive positions on public boards. It sets a target for public boards, the ‘gender representation objective’, that women should be 50% of non-executive board members. There is a duty to try and achieve the objective by 31 December 2022.”

In some instances, that might mean that a woman is chosen over a man if—and only if—they are equally qualified. However, as fellow members of the lesbian, gay, bisexual, transsexual and intersex community here know well, we do not start from a level playing field. If we did, men like Harvey Weinstein would not exist.

Across the water, in Fife, the national health service board comprises five men, five women and—how could I forget?—a female chair in the Rt Hon Tricia Marwick. Fife College’s board is relatively similar, with seven women, eight men and a male chair.

Critics could argue—and they have argued today—that the situation is not really that bad and that we do not really need legislation to fix something that is not broken. Indeed, as Alexander Stewart—who is not in the chamber—commented at stage 1:

“Women currently make up 45.8 per cent of the membership of public boards but account for only 34.9 per cent of members of the Scottish Parliament ... That raises the question of whether quotas are the right way to tackle the root cause of gender inequality.”—[Official Report, 30 November 2017; c 70.]

However, as Alex Cole-Hamilton argued, the bill has nothing to do with quotas. Indeed, that argument misses the point entirely, because all it takes is a change in membership or another election to impact on any organisation’s equality credentials. I am sure that I do not need to remind Mr Stewart and his Conservative colleagues of his party’s dismal record on female representation, with only 19 per cent of their MSPs and just over 20 per cent of their MPs being women. That is simply not good enough for the party of opposition or, indeed, of government. As Annie Wells commented during the stage 1 debate:

“At the most basic level, those in positions of power in Scotland should reflect the society that we seek to represent.”—[Official Report, 30 November 2017; c 55.]

I agree with Annie Wells.

The bill will make Scotland the only part of the UK with a requirement for gender parity on public boards. It is a step in the right direction. As Gail Ross said,

“no one is saying that it is a panacea, but it is a start.”

We should also remember that the Government is limited by the powers of this Parliament. As the cabinet secretary said last November:

“with our current powers, we have legislative competence and ability only in relation to public sector boards.”—[Official Report, 30 November 2017; c 42.]

We are limited by the powers of this Parliament to fully progress gender representation. Imagine the possibilities if we had more powers.

We should not forget the sexual harassment allegations that rocked Holyrood to its core at the end of 2017. The Scottish Parliament Corporate Body has now been dragged into the 21st century as a result. The Deputy First Minister set a precedent by stepping up and responding as the most senior male member of the Scottish Government at the time. He said:

“it is the conduct and behaviour of men that need to change if we are to end the sexual harassment and abuse of women, whether in their workplace, their social life or their home.”—[Official Report, 31 October 2017; c 3.]

Sexual harassment is about a power imbalance. For sexual harassment to flourish, all that is needed is the conditions that enable inequality. Those conditions occur in this building every day, with all-male witness panels, women being paid less than men and a parliamentary committee with 10 male members and one female MSP—Gail Ross, who is now sitting beside me. The bill will be pivotal in tackling societal structures that prevent women from contributing fully to the wider civic life of our country.

Two weeks ago, in Glasgow, I heard the cabinet secretary address a room full of women at a Scottish Women’s Convention event on sexual harassment. She described this as “a watershed moment” in Scottish politics and said, “Let’s seize it.” That is what the bill is about. Time is up.

16:13  



Kezia Dugdale (Lothian) (Lab)

Like other members, I welcome the opportunity to speak in a very important debate on a significant bill that I hope we are going to pass at decision time. I put on record my thanks to all the organisations and groups that have fed into the committee process and that have, indeed, fought for decades to get us where we are today.

It is a very welcome bill and one that Women 50:50—of which I am a co-founder with Alison Johnstone—has been fighting for. It is one of the three things that we exist to do, and we are pleased to tick it off today.

Today will represent the end of the beginning rather than the end itself. If I needed any reminder of that fact, I would only have to look to the evidence that was given to the Economy, Jobs and Fair Work Committee this morning, from which we learned that the Scottish Government spends £2 billion every year on economic development of which just £400,000 goes towards women in enterprise. That reminds us of how important it is to have a balance of gender in our decision making, so that we make decisions that reflect women’s needs and the needs of wider society.

When we pass laws, they have two purposes: they are either symbolic and are intended to drive cultural change or they have a practical effect on some existing injustice. The bill does both of those things—it is symbolic because it sends out a message that gender equality is good business but it will also have a practical effect because it will overcome the existing inequality in the composition of our boards.

In order to make sure that that happens, we need really good guidance, we need that guidance to be on a statutory footing and we need it to be well understood. I know that Engender has made those points to the cabinet secretary. As welcome as the bill is, we need to make sure that the desire to make it work in practice continues after today. I know that the cabinet secretary will offer leadership on that, as she has done up to this point.

In the time that I have left, I will tackle some of the persistent arguments against the bill that I have heard, mostly from Conservative members. I am sick to the back teeth of those arguments and they need to be faced down. The first group of arguments is around the whataboutery that the bill faces—the idea that, if we are going to address gender inequality, we should be doing something about inequalities around race, disability or sexuality. There is no hierarchy of inequality in society, and I am not going to stand for any suggestion that we should hold back the progress of women because we are not doing enough for disabled communities or for people of a different colour or religion. We do not set groups who are unequal against each other; that is not what constitutes progress. However, that is somehow the argument that we are hearing from the Tories today.

Neither are we saying that the solution for those other underrepresented groups is quotas or targets. We are not here to suggest that we should apply quotas in relation to people with disabilities or, indeed, around race. The solutions for increasing the representation of those groups are complex and should demand our parliamentary time, but what we are talking about today is the historical underrepresentation of women in positions of power. We have an opportunity to address that today, and the Tory members should take it.

The other thing that the Tories need to recognise is that women are also black, disabled and lesbian, gay, bisexual, transgender and intersex. In progressing more women into these positions, we are diversifying our boards in the roundest possible sense.

If we want to pick a fight about groups with protected characteristics and whether we should set one group against another, what about all the other disadvantaged groups in society that we are not talking about? What about carers? What about care-experienced young people? What about class and sociodemographics? How are we going to address those other underrepresented groups when it comes to the composition of our boards?

There are other arguments that the Tories make against the bill. Time and time again, the one that we have heard today is that they want equality, just not now. When they are pushed to say what they are going to do about it, the answer is nothing.

At stage 1, we also heard the argument from the Tories that they made it against the odds, so why can everyone else not do so? Sometimes, we also hear an argument from the Tories that we need some sort of free market when it comes to the representation of women in public life. They seem to misunderstand the situation. We do not exist in a free market just now, because the status quo is skewed towards the advantage of men. With this bill, we are trying to create a free market whereby people of skill and merit can get to the top. That is how we can tackle the institutional barriers that women face.

The other argument that we have heard from the Tories, which we heard right at the start of the stage 1 debate, is that we should just do more on the structural roots of women’s inequality—on childcare, flexible work and access to education—as if it is the Tories who have the answers to those problems. It is the Tories who argue against resources for our local authorities, which provide the childcare; it is the Tories who argue against regulations to curtail zero-hours contracts and the impact that they have on women; and it is the Tories who will attack bursaries for students in further and higher education, which are needed to help women to access the education that they need.

I will end by picking up on one small part of Christina McKelvie’s speech—the one area where I disagreed her. She said that there are no losers with this bill. I am afraid that Christina McKelvie is wrong; there are losers with this bill. They are middle-class, middle-aged white men who have held power for far too long. Perhaps that is why the Tories are against the bill.

16:19  



Clare Adamson (Motherwell and Wishaw) (SNP)

I add my thanks to the committee for its extensive work.

Last week, I was very upset because one of my feminist heroes passed away. Ursula K Le Guin was an American author. She was the daughter of an American anthropologist who taught at Berkeley and she grew up surrounded by intellectuals, scientists and First Nation friends of her family. That gave her a unique position and enabled her to challenge cultural norms, which she did throughout her writing career. The New York Times described her as an

“immensely popular author who brought literary depth and a tough-minded feminist sensibility to science fiction and fantasy”.

Last week, someone posted online a note that she wrote on being asked to write the foreword to a collection of new fantasy short stories. It said:

“I can imagine myself blurbing a book in which Brian Aldiss, predictably, sneers at my work, because then I could preen myself on my magnanimity. But I cannot imagine myself blurbing a book, the first of a new series and hence presumably exemplary of the series ... the tone of which is so self-contentedly, exclusively male, like a club, or a locker room. That would not be magnanimity, but foolishness. Gentlemen, I just don’t belong here.”

It struck me how prescient that was. She talked about the locker room long before Trump’s infamous comment. She mentioned the gentlemen’s club, and we have just had the scandal of the Presidents Club. The fact that she wrote that in 1987 brought home to me how far we have come in some ways, but also how far we have still to go on representation of women and equality in our society.

A few members have said that they object to the bill because of its subjective nature, but they completely forget—

The Deputy Presiding Officer (Linda Fabiani)

Excuse me, Ms Adamson, but your microphone went off. It is back on again.

Clare Adamson

A few members have said that they object to the bill because of its subjective nature, but they completely forget that the current situation is all about subjectivity. My colleague Gail Ross mentioned unconscious bias. Anyone who does not accept the importance of unconscious bias is denying the situation that we live in today. There is science on it—we can actually see unconscious bias in the brain when people undergo experiments on it. In 2012, Moss-Racusin and others did research that involved applications for science positions that were identical in every respect apart from the gender and name of the applicants. Science faculties were likely to rate male candidates as being better qualified than the female candidates, to want to hire the male candidates rather than the female candidates, to give the male candidates a higher starting salary than the female candidates, and to be willing to invest more in development of the male candidates than in that of the female candidates.

That unconscious bias has an impact not only on women who are in the final stages of their careers, as they reach the boardroom, but on women in every single position throughout their careers. Understanding that will allow us to make a difference to what happens. In the creative industries for example, orchestras have introduced blind auditions, which has seen an increase in the percentage of women in some of the world’s major orchestras to almost 48 per cent, the amount having started from a really low base.

Unconscious bias affects not just the boardroom: it affects every aspect of our lives. Does it affect grant applications? Does it affect applications to the European Research Council for research money? Does it affect the way in which women are judged on the screen or in other aspects of life? The crux of the issue is that everything that is happening is subjective and is part of our culture, so challenging that culture in the way that we are doing today is important.

We know that the bill is not a panacea, as has been said many times. However, it is a measure of leadership in the area. Although we understand and know about the barriers to women getting on in all aspects of life, and which are no longer acceptable, we are putting down a marker in one area where we have control and influence. I hope that the message that comes out from passing the bill, which I fully support, is that women belong—they belong in the boardroom, they belong in every aspect of public life and they belong in our industries and commerce. If that is what comes out of today, I will be extremely happy.

16:25  



Rhoda Grant (Highlands and Islands) (Lab)

The debate has been really good, and I hope that the bill is another step in the journey towards equal representation for women. It seems strange that, as we approach the centenary of women’s right to vote, we still have battles about gender equality. I wonder how long it will take before we stop having to intervene and true equality is the norm.

I share Monica Lennon’s pride that the Scottish Labour Party uses positive action to encourage women into politics. That creates more equal representation. However, we have to continue year on year. That is the only way to embed it in practice.

We need women not only on boards but in all key positions. Despite advances that have been made on the number of women on boards, we are still falling way behind on key positions such as the chairpersons of boards. Women make up only 25 per cent of such positions on regulated boards.

Members have talked about merit. If appointments to public boards were already made on merit, we would not be debating the bill: public boards would already reflect the communities that they serve. If members follow through to its conclusion the argument that appointments are made on merit, it follows that they also believe that women have less merit than men, because if they were equal in merit, they would already have equal gender representation on boards.

Alison Johnstone talked about how appointments have been made not on merit but on the basis of male positive discrimination. People appoint other people in their own image—often unintentionally. Like appoints like. Until we have positive action, we will never overcome that because men in suits will appoint men in suits. We all do it: we immediately form a bond with people who look like us and to whom we can relate, but not with those who are markedly different from us.

The people who work against positive action are often those who lose their place and the entitlement that they have unfairly gained by dint of their gender. I assure members that there are many women who merit appointment and are better qualified than the men that they would replace, if only they were given the same opportunity. Claire Adamson’s example of blind auditions for orchestras shows that gender balance can be achieved based on fair criteria without any bias in an area in which male bias was very much in operation up until the blind trials.

As many speakers in the debate have done, I pay tribute to Mary Fee and her stage 2 amendments to ensure that the bill is inclusive of trans women. She rightly paid tribute to the work of the Scottish trans alliance and the other organisations that brought the matter to our attention at stage 1. As elected representatives, we depend on stakeholders to bring issues to our attention. That is how people can influence and improve legislation that goes through Parliament.

Members have also talked about Women 50:50, to which Monica Lennon paid tribute and which was co-founded by Kezia Dugdale, Alison Johnstone, Talat Yaqoob and others—women who fight for equal representation. It is not party political; it impacts on all women and it shows that women working together can make a huge difference.

Many members talked about the benefits that the bill will bring. They include not only getting women into their rightful place, but the greater benefits to society. Boards will reflect all of us in society, will have a much broader base of experience and knowledge and will be able to lead the way in making change.

Alison Johnstone spoke about cuts impacting disproportionately on women, as did Kezia Dugdale. If more women were making the decisions, those impacts would be much fewer and would be gender sensitive. If we had to have them at all, such cuts would be borne fairly across society and not just by those who are less able to fight for themselves.

Alex Cole-Hamilton spoke about his amendment, and others paid tribute to his work at stage 2 on what there was concern might be a tiebreaker provision. He made it very clear that other protected characteristics must be looked after and that the bill should not harm people or lessen their chances because of their ethnicity or disability. If we look at the statistics, we can see that representation of women on public boards is increasing, as is representation of people of minority ethnic origins. However, sadly we can see that representation by people with disabilities is falling. We need to challenge that, because it shows huge disparities. It is sad that we came from quite a high point on that but are now dropping, so it is very important that we deal with that.

The bill will also require people to take positive action to encourage women to come forward—for example, by making sure that boards are family friendly and that caring responsibilities are taken into account. Those are things that make it much easier for women to step up and take on such roles. However, what is most important is that women see other women in those roles and that they know that such roles are open to them.

Labour members support the bill, because it will make a difference. The Conservatives appear to be unclear about whether they are against the bill because it will do nothing at all or because it will do too much. We do not share their view. We hope that the bill will go some way towards redressing the discrimination that women face and that it will make sure that all our public boards are more reflective of our society. By passing the bill, we will lead by example.

16:32  



Jamie Greene (West Scotland) (Con)

I start by thanking Alison Harris for stepping in to assist my colleague Annie Wells. There is a little bit of me that secretly hoped that I, too, might have laryngitis today. In a debate such as this one, it is never easy to be the white, somewhat middle-aged and arguably middle-class man who is tasked with the job of speaking about a bill that seeks to address gender inequality in representation on our public boards.

Nonetheless, it is important that bills that pass through the Parliament are given due scrutiny and that members on all sides of the argument are given an opportunity to share their views and thoughts in a respectful manner. We also have a duty properly to scrutinise legislation and ask whether it meets the objectives of the policy behind it and whether it will create any unintended consequences once it has been passed.

In the stage 1 debate on the bill, I made it clear the Scottish Conservatives intended to work constructively with members throughout the bill process, and we actively participated in the stage 2 proceedings in committee. I thank those who responded to the consultation and who gave evidence to the committee, to whom I listened with interest. Conservative members did not use our votes against any useful or constructive amendments to the bill, in the spirit of allowing the legislation to be tidied up.

One does not need to be a mathematician to see that there is majority support for the bill and the concept behind it. It will come as no surprise that our position has been clear throughout and has not changed. However, it is not just the party’s view that there should not be statutory targets; that is also the view of individual Conservative members, including our female MSPs, whom I consulted and whose opinion on the issue I value.

The cabinet secretary opened today’s debate by stating that the bill is very much about the message that it gives out. However, the problem is that legislation also has consequences. It is not just symbolic; it becomes law. The argument is not so much about whether we, as a Parliament, want to see more diversity on our public boards as it is about how that can best be achieved and whether this specific—for it is specific—and narrow piece of legislation will help us to achieve that.

Christina McKelvie

Will the member take an intervention on that point?

Jamie Greene

I want to make some progress first.

The argument over whether organic change will suffice or whether Government—and therefore the law—needs to intervene is one that plays out in not just Scotland but many countries, and it is our view that legislation is not required.

Christina McKelvie

Jamie Greene says that the bill will not address any of the issues that we are talking about. If the bill will not do that, can the Conservatives please tell us what they think would achieve the result that we want?

Jamie Greene

That is a very decent question to ask. As a Parliament, we—and, indeed, the UK Parliament—should be looking at a wide range of measures to address inequality across society, and I will come on to some of the specific issues that the bill does not address. It is important to identify what the bill does not do, rather than imagine what we think it does.

It is important to state that the issue is not, as it has been depicted as being, whether Conservative members want more equality. That is an oversimplification. Being anti-quota is not the same as being anti-equality. Anyone who knows me will know that, as a politician and a parliamentarian, I go out of my way to promote equality in Scotland. There has been much debate about whether the bill contains a quota. The point has been made that there cannot be positive discrimination. In that respect, the bill says that appointing persons have a duty to take steps to meet the objectives of the bill and to report on their actions and decisions.

However, we are at stage 3 and we are still discussing the lack of clarity on whether the bill provides for voluntary or mandatory targets. If what the bill provides is not a quota, what is it providing? It has long been our view that using mandatory targets or quotas as sticking plasters will distract us from tackling the underlying problem of why there is not greater diversity on boards—

Monica Lennon

Will the member taken an intervention?

Jamie Greene

I want to make some progress.

Although members might like to think that the bill is about symbolism and messaging, the problem is that its narrow focus on gender balance does not do the wider diversity issue any justice. For example, the bill goes no way to addressing the problem of the continuous pipeline of female candidates that will be required to meet the needs of such a wide and diverse range of public boards. Many of the 69 public bodies to which the bill will apply are traditionally light in female representation in their general workplaces, and the bill does not seek to address that, nor does it address the issue of how we can nurture and develop opportunities for women in particular industries and in management positions.

It is also worth taking note of where we are today in the context of the objective of the bill. In 2013-14, women made up 35 per cent of public board members in Scotland. By last September, that figure stood at 45.8 per cent. I appreciate that that is a snapshot in time, but it is also a trend. There must be underlying reasons for why the trajectory has been positive. Good work is undoubtedly already being done on our public boards.

I have heard the argument that legislation is required because we need to future proof in case of future regression, but instead of addressing the bigger picture, we have created a backstop, whereby the focus is on achieving a numerical percentage. The bill does nothing to address how the management and executive arms of our public bodies will achieve greater gender balance, nor does it seek to address the wider issue of people with other protected characteristics being underrepresented on public boards.

My worry is that the drafting makes the bill something of a tick-box exercise. If, as a Parliament, we felt that Government intervention was required to ensure that we had diverse public boards, it could be argued that we should be debating a bill about diversity on public boards.

Monica Lennon

Will Mr Greene take an intervention now?

Jamie Greene

I am in my closing seconds.

Regardless of whether members agree with the principle of the bill, we have an important duty to pass legislation that is watertight and, in its current form, the bill could throw up a range of legal issues. For example, the bill does not address a number of issues that discourage women from going on public boards and from taking up non-executive roles.

The Scottish Conservatives will always champion gender equality. [Interruption.] We believe that there should be no barriers to women achieving the very highest levels in public office. [Interruption.] I think that the heckling does a disservice to the good work that my female colleagues on the Conservative benches have done on the issue.

Where we differ on the issue of gender equality relates to the approach that the bill takes. The bill is narrow, too focused and subjective in its wording. For that reason we are unable to support it this afternoon.

The Deputy Presiding Officer

I call Angela Constance. Will you take us up to 10 to 5 please, cabinet secretary?

16:40  



Angela Constance

There have been some great contributions to the debate this afternoon. There was a particularly thoughtful speech from Clare Adamson and a particularly feisty one from Kezia Dugdale, to name but two.

The young Malala Yousafzai was particularly insightful—insightful beyond her years—when she said:

“We cannot all succeed when half of us are held back.”

Despite being nearly 52 per cent of the population, women in Scotland today are underrepresented on our public boards or quite simply missing from decision-making positions. Throughout the debate, we have been reminded of the causes and consequences of women’s collective lack of power and influence, so the position of no change has to be entirely unacceptable.

I said in my opening speech that, in my view, the Tories had completely missed the point of the bill and, as a consequence, had missed the moment. They have opposed the bill from the very start, but they brought forward no amendments at stage 2. Here we are at stage 3 and they have decided to become obsessed with technicalities. In fact, there were very important stage 2 amendments around strengthening guidance and around reporting requirements, particularly for ministers.

The Conservatives keep using the word “quotas”, which is the best example of how, at best, they have misunderstood the point of the bill. Quotas are about fixed proportions, but the bill seeks to bring in a gender representation objective if women are underrepresented, which is quite significantly different. We cannot select a woman to a position on a public board simply because she is a woman; to do so would be discriminatory, and positive discrimination is prohibited by EU law. The parliamentary process does not permit me to bring forward legislation that would not be compliant with the various safeguards that we all have to comply with.

Although it is not customary for ministers to talk about legal advice, I point out that there are processes around legislation that involve the Scottish Government’s legal department. There is also a role for the Presiding Officer, committee scrutiny, the Lord Advocate and, indeed, the office of the Advocate General for Scotland. To come to stage 3 and imply that our legislation is somehow inadequate, or indeed unlawful, is shameful and points to people not doing their homework or not being awake throughout proceedings. The Conservatives also have the cheek to complain about there being no sanctions associated with the bill, but if they had been awake, they would have been alert to that debate and to the fact that neither the committee nor the Equality and Human Rights Commission recommended sanctions.

There are many reasons why I am confident that the bill will work. I am confident that public authorities will comply with the law. For the avoidance of doubt, I point out that the Crown Estate Scotland is subject to the legislation and is specifically mentioned in schedule 1. I am confident that the public sector will build on the progress that it has made thus far and will work harder to tap into the talents of the majority of our population. I am also confident that the public sector will follow the guidance that Parliament issues, pay heed to the legislation and report on progress, and that ministers will report on progress and, indeed, be accountable to the Parliament. I do not believe that any part of our public sector that is subject to the bill would risk the reputational damage that would be caused by not complying with the law of the land.

We have been reminded time and time again by Christina McKelvie and others that the Tories have failed to say what action they would support; indeed, they have failed to say what action they would support that we are not currently taking.

I have news for Conservative members. We are currently undertaking reform and a revolution in early learning and childcare. We also have our science, technology, engineering and mathematics strategy; our developing Scotland’s young workforce work; the work that we are doing on gender stereotyping; the world-leading work on tackling violence against women and girls; and our promotion of flexible working.

Rachael Hamilton

Will the minister take an intervention?

Angela Constance

Not just now.

If not this bill, what? If not now, when?

Perhaps Rachael Hamilton can answer this. The lack of progress in the private sector is most certainly not an argument against the bill.

Rachael Hamilton

Would the cabinet secretary comment on the college statistics today that show that the number of enrolments in college by women has dropped by 47 per cent—as opposed to a drop of 25 per cent for men—since the SNP came into power?

Angela Constance

The last time that I looked at the statistics, I was not aware that women were underrepresented in terms of the make-up of college students.

Perhaps Rachael Hamilton, who shifted the issue from using the private sector and its underperformance in terms of gender equality as a reason not to support the bill, could say whether the Scottish Conservatives would support the Scottish Government in seeking additional legislative competence over the private sector to allow us to legislate on women’s representation on private sector boards. Conservative members have spoken a lot about private sector boards without seeming to realise that we do not have legislative competence in relation to corporation law or employment law.

Alexander Stewart made what I can say was an interesting contribution about leading women. I hate to remind him, but there has never been a woman Secretary General of the United Nations. There has never been a woman governor of the Bank of England—Mark Carney is the 120th man to hold that position since 1694. There has never been a woman Secretary of State for Defence. There has never a woman President of the United States of America. Women are still underrepresented in this Parliament, in local government and in the private sector.

By introducing a legal requirement for a gender representation objective, we will drive change across the public sector, where we have powers. We will improve recruitment methods, making organisations work harder to find the most talented women and men to sit on our public boards.

There is nothing in the bill to prevent action to promote wider diversity on boards. The Scottish Government accepted an amendment from Alex Cole-Hamilton that stated that

“For the avoidance of doubt”.

Christine McKelvie, Kezia Dugdale and others spoke about how the advancement of women is good for other people who have protected characteristics. After all, women are not some homogeneous group.

We are doing work to improve diversity with our public appointments improvement programme. The Scottish Government has equality outcomes to improve diversity, with a focus on age—we do not have enough young people sitting on our public boards—and we need to address the underrepresentation of the black and minority ethnic community and people with a disability.

The bill seeks to redress the underrepresentation of women on our public boards, ensuring that women’s voices are heard where and when it matters so that they can shape services and decisions. Public bodies, colleges and universities touch every aspect of people’s lives—they touch every aspect of women’s lives. Women’s voices need to be heard and women’s voices must be heard.

We know that greater diversity in boardrooms leads to improved performance. I say to Jamie Greene that we have made good progress, in that 45 per cent of public appointments are of women. Surely the history of the Parliament demonstrates that we need to lock in progress and make sure that there is no complacency and no backsliding.

I end with a quote from Sheryl Sandberg:

“A truly equal world would be one where women ran half our countries and companies and men ran half our homes.”

We know that the bill may not be a panacea for every aspect of women’s inequality, but it is a very important step forward to a fairer Scotland and to shattering the glass ceiling once and for all. With the bill, we are implementing our new powers to make a difference by ensuring that women’s voices are no longer missing but are fairly heard and represented on public boards. It is not just the right thing to do; it is the smart thing to do.

As many members have reflected this afternoon, there is also a bigger picture in that, if we all put our shoulders to the wheel, the bill, in this important year of the centenary of women’s suffrage, could indeed be the catalyst for further change. It could be the catalyst for equal representation in other areas of society and life.

Final vote on the Bill

After the final discussion of the Bill, MSPs vote on whether they think it should become law.

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Final vote transcript

The Presiding Officer (Ken Macintosh)

There is one question to be put as a result of today’s business. Because this is a final vote on a bill at stage 3, we will move straight to a division.

The question is, that motion S5M-10159, in the name of Angela Constance, on the Gender Representation on Public Boards (Scotland) Bill at stage 3, be agreed to. Members should cast their votes now.

For

Yousaf, Humza (Glasgow Pollok) (SNP)
Wightman, Andy (Lothian) (Green)
White, Sandra (Glasgow Kelvin) (SNP)
Wheelhouse, Paul (South Scotland) (SNP)
Watt, Maureen (Aberdeen South and North Kincardine) (SNP)
Torrance, David (Kirkcaldy) (SNP)
Todd, Maree (Highlands and Islands) (SNP)
Swinney, John (Perthshire North) (SNP)
Sturgeon, Nicola (Glasgow Southside) (SNP)
Stewart, Kevin (Aberdeen Central) (SNP)
Stewart, David (Highlands and Islands) (Lab)
Stevenson, Stewart (Banffshire and Buchan Coast) (SNP)
Somerville, Shirley-Anne (Dunfermline) (SNP)
Smyth, Colin (South Scotland) (Lab)
Sarwar, Anas (Glasgow) (Lab)
Russell, Michael (Argyll and Bute) (SNP)
Ruskell, Mark (Mid Scotland and Fife) (Green)
Rumbles, Mike (North East Scotland) (LD)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Robison, Shona (Dundee City East) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
McMillan, Stuart (Greenock and Inverclyde) (SNP)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
McKee, Ivan (Glasgow Provan) (SNP)
McArthur, Liam (Orkney Islands) (LD)
McAlpine, Joan (South Scotland) (SNP)
Matheson, Michael (Falkirk West) (SNP)
Mason, John (Glasgow Shettleston) (SNP)
Martin, Gillian (Aberdeenshire East) (SNP)
Maguire, Ruth (Cunninghame South) (SNP)
Macpherson, Ben (Edinburgh Northern and Leith) (SNP)
Mackay, Rona (Strathkelvin and Bearsden) (SNP)
Mackay, Derek (Renfrewshire North and West) (SNP)
MacGregor, Fulton (Coatbridge and Chryston) (SNP)
Macdonald, Lewis (North East Scotland) (Lab)
MacDonald, Gordon (Edinburgh Pentlands) (SNP)
MacDonald, Angus (Falkirk East) (SNP)
Lyle, Richard (Uddingston and Bellshill) (SNP)
Lochhead, Richard (Moray) (SNP)
Leonard, Richard (Central Scotland) (Lab)
Lennon, Monica (Central Scotland) (Lab)
Lamont, Johann (Glasgow) (Lab)
Kidd, Bill (Glasgow Anniesland) (SNP)
Kelly, James (Glasgow) (Lab)
Johnstone, Alison (Lothian) (Green)
Johnson, Daniel (Edinburgh Southern) (Lab)
Hyslop, Fiona (Linlithgow) (SNP)
Haughey, Clare (Rutherglen) (SNP)
Harvie, Patrick (Glasgow) (Green)
Harper, Emma (South Scotland) (SNP)
Griffin, Mark (Central Scotland) (Lab)
Greer, Ross (West Scotland) (Green)
Gray, Iain (East Lothian) (Lab)
Grant, Rhoda (Highlands and Islands) (Lab)
Grahame, Christine (Midlothian South, Tweeddale and Lauderdale) (SNP)
Gougeon, Mairi (Angus North and Mearns) (SNP)
Gilruth, Jenny (Mid Fife and Glenrothes) (SNP)
Gibson, Kenneth (Cunninghame North) (SNP)
Freeman, Jeane (Carrick, Cumnock and Doon Valley) (SNP)
Forbes, Kate (Skye, Lochaber and Badenoch) (SNP)
FitzPatrick, Joe (Dundee City West) (SNP)
Finnie, John (Highlands and Islands) (Green)
Findlay, Neil (Lothian) (Lab)
Fee, Mary (West Scotland) (Lab)
Fabiani, Linda (East Kilbride) (SNP)
Ewing, Fergus (Inverness and Nairn) (SNP)
Ewing, Annabelle (Cowdenbeath) (SNP)
Dugdale, Kezia (Lothian) (Lab)
Dornan, James (Glasgow Cathcart) (SNP)
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
Dey, Graeme (Angus South) (SNP)
Denham, Ash (Edinburgh Eastern) (SNP)
Cunningham, Roseanna (Perthshire South and Kinross-shire) (SNP)
Crawford, Bruce (Stirling) (SNP)
Constance, Angela (Almond Valley) (SNP)
Cole-Hamilton, Alex (Edinburgh Western) (LD)
Coffey, Willie (Kilmarnock and Irvine Valley) (SNP)
Campbell, Aileen (Clydesdale) (SNP)
Brown, Keith (Clackmannanshire and Dunblane) (SNP)
Bibby, Neil (West Scotland) (Lab)
Beattie, Colin (Midlothian North and Musselburgh) (SNP)
Beamish, Claudia (South Scotland) (Lab)
Baker, Claire (Mid Scotland and Fife) (Lab)
Baillie, Jackie (Dumbarton) (Lab)
Arthur, Tom (Renfrewshire South) (SNP)
Allan, Alasdair (Na h-Eileanan an Iar) (SNP)
Adamson, Clare (Motherwell and Wishaw) (SNP)
Adam, George (Paisley) (SNP)

Against

Whittle, Brian (South Scotland) (Con)
Wells, Annie (Glasgow) (Con)
Tomkins, Adam (Glasgow) (Con)
Stewart, Alexander (Mid Scotland and Fife) (Con)
Smith, Liz (Mid Scotland and Fife) (Con)
Simpson, Graham (Central Scotland) (Con)
Scott, John (Ayr) (Con)
Mundell, Oliver (Dumfriesshire) (Con)
Mountain, Edward (Highlands and Islands) (Con)
Mitchell, Margaret (Central Scotland) (Con)
Mason, Tom (North East Scotland) (Con)
Lockhart, Dean (Mid Scotland and Fife) (Con)
Lindhurst, Gordon (Lothian) (Con)
Kerr, Liam (North East Scotland) (Con)
Harris, Alison (Central Scotland) (Con)
Hamilton, Rachael (Ettrick, Roxburgh and Berwickshire) (Con)
Halcro Johnston, Jamie (Highlands and Islands) (Con)
Greene, Jamie (West Scotland) (Con)
Golden, Maurice (West Scotland) (Con)
Fraser, Murdo (Mid Scotland and Fife) (Con)
Davidson, Ruth (Edinburgh Central) (Con)
Corry, Maurice (West Scotland) (Con)
Chapman, Peter (North East Scotland) (Con)
Carson, Finlay (Galloway and West Dumfries) (Con)
Burnett, Alexander (Aberdeenshire West) (Con)
Bowman, Bill (North East Scotland) (Con)
Ballantyne, Michelle (South Scotland) (Con)
Balfour, Jeremy (Lothian) (Con)

The Presiding Officer (Ken Macintosh)

The result of the division is: For 88, Against 28, Abstentions 0.

Motion agreed to,

That the Parliament agrees that the Gender Representation on Public Boards (Scotland) Bill be passed.

[Applause.]

Gender Representation on Public Boards (Scotland) Bill as passed

This Bill was passed on and became law on
Find the Act on www.legislation.gov.uk

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