Hansard

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.