Gender Representation on Public Boards (Scotland) Act 2018

Valid from 29/05/2020

1 Gender representation objective S

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

(2) Where a public board has an odd number of non-executive members, the percentage mentioned in subsection (1) applies as if the board had one fewer non-executive member.

2 Key definitions S

In this Act—

• “appointing person” means, in relation to the function of appointing a non-executive member of a public board, a person who has that function,

• “excluded position”, in relation to a public authority, means a position mentioned in the second column of the table in schedule 1 which corresponds with the public authority mentioned in the first column,

• “non-executive member”, in relation to a public authority, means a position on its public board—

  (a)

  that is not an excluded position,

  (b)

  that is not held by an employee of the authority,

• “public authority” means an authority listed, or within a description listed, in the first column of the table in schedule 1,

• “public board” means—

  (a)

  if the public authority is a company, the directors,

  (b)

  if the public authority has a statutory board or other equivalent statutory management body, that board or body,

  (c)

  in relation to any other public authority, the membership of the authority,

• “woman” includes a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female.

Commencement Information

I1 S. 2 in force at 1.12.2018 by S.S.I. 2018/340, reg. 2

Valid from 29/05/2020

3 Duty when appointing non-executive members S

(1) Subsection (2) applies where there is—

(a) a vacancy in a position of non-executive member of a public board,

(b) more than one candidate for the position,

(c) at least one candidate who is a woman, and

(d) at least one candidate who is not a woman.

(2) The appointing person must, in making the appointment to fill the vacancy, act in accordance with section 4 with a view to achieving (or making progress towards achieving) the gender representation objective immediately after the appointment takes effect.

(3) When an appointing person is making more than one appointment—

(a) both or all of those appointments must be taken into account in identifying the number of non-executive members, and

(b) the appointing person must act with a view to achieving (or making progress towards achieving) the gender representation objective immediately after all of those appointments have taken effect.

Valid from 29/05/2020

4 Consideration of candidates S

(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.

(3) Subject to subsection (4), the appointing person must give preference to a candidate identified under subsection (2) who is a woman if appointing that candidate will result in the board achieving (or making progress towards achieving) the gender representation objective.

(4) 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.

(5) In subsection (4), “characteristic” includes a protected characteristic (within the meaning of section 4 of the Equality Act 2010).

Valid from 29/05/2020

5 Encouragement of applications by women S

(1) An appointing person for a public board must take such steps as it considers appropriate to encourage women to apply to become non-executive members of the public board.

(2) A public authority to which a public board relates must take such steps as it considers appropriate to encourage women to apply to become non-executive members of the public board.

(3) For the avoidance of doubt, nothing in subsections (1) and (2) prevents an appointing person or a public authority from taking such steps as it considers appropriate to encourage persons with other protected characteristics (within the meaning of section 4 of the Equality Act 2010) to apply to become non-executive members of the public board.

Valid from 29/05/2020

6 Duty to take steps towards achieving objective S

(1) This section applies whenever the gender representation objective is not achieved in relation to a public board.

(2) An appointing person for the public board must, in addition to anything done under sections 3 to 5, take such other steps as it considers appropriate with a view to achieving the gender representation objective by 31 December 2022.

(3) The public authority to which the public board relates must, in addition to anything done under section 5(2), take such other steps as it considers appropriate with a view to achieving the gender representation objective by 31 December 2022.

7 Guidance on operation of Act S

(1) The Scottish Ministers must publish guidance on the operation of this Act.

(2) The guidance must in particular cover—

(a) an appointing person's functions in—

(i) appointing non-executive members under sections 3 and 4,

(ii) encouraging applications by women under section 5(1),

(iii) taking any steps under section 6(2),

(iv) reporting under section 8(4),

(b) a public authority's functions in—

(i) encouraging applications by women under section 5(2),

(ii) taking any steps under section 6(3),

(iii) reporting under section 8(5).

(3) An appointing person must have regard to the guidance in carrying out its functions under this Act.

(4) A public authority must have regard to the guidance in carrying out its functions under this Act.

Commencement Information

I2 S. 7 in force at 1.12.2018 by S.S.I. 2018/340, reg. 2

8 Reports on operation of Act S

(1) The Scottish Ministers must lay before the Scottish Parliament reports on the operation of this Act in accordance with provision made in regulations under subsection (6).

(2) Regulations under subsection (6) must ensure that reports under subsection (1) are laid before the Scottish Parliament at intervals of no more than two years.

(3) The Scottish Ministers must publish reports on the carrying out of their functions under sections 3 to 6 in accordance with provision made in regulations under subsection (6).

(4) An appointing person (other than the Scottish Ministers) specified in regulations under subsection (6) must publish reports on the carrying out of its functions under sections 3 to 6 in accordance with provision made in regulations under subsection (6).

(5) A public authority specified in regulations under subsection (6) must publish reports on the carrying out of its functions under sections 5 and 6 in accordance with provision made in regulations under subsection (6).

(6) The Scottish Ministers may by regulations—

(a) specify appointing persons for the purposes of subsection (4),

(b) specify public authorities for the purposes of subsection (5),

(c) make further provision about reports mentioned in subsections (1) to (5).

Commencement Information

I3 S. 8 in force at 1.12.2018 by S.S.I. 2018/340, reg. 2

Valid from 29/05/2020

9 Power to modify schedule 1 S

The Scottish Ministers may by regulations modify schedule 1 so as to add an entry, vary the description of an entry or remove an entry.

Valid from 29/05/2020

10 Application of Act to certain public authorities S

Schedule 2 makes provision about the application of this Act in relation to certain public authorities.

Valid from 29/05/2020

11 Equality Act 2010 S

(1) Sections 158 and 159 of the Equality Act 2010 (positive action) do not apply to any action taken under this Act.

(2) Part 5 of the Equality Act 2010 (work) does not prohibit any action taken under this Act.

12 Regulations S

(1) Regulations under sections 8 and 9 may—

(a) include incidental, supplementary, consequential, transitional, transitory or saving provision,

(b) make different provision for different purposes.

(2) Regulations under section 9 may modify this Act.

(3) Regulations under section 8 are subject to the negative procedure.

(4) Regulations under section 9 are subject to the affirmative procedure.

Commencement Information

I4 S. 12 in force at 1.12.2018 by S.S.I. 2018/340, reg. 2

13 Commencement S

(1) This section and section 14 come into force on the day after Royal Assent.

(2) The other provisions of this Act come into force on such day as the Scottish Ministers may by regulations appoint.

(3) Regulations under this section may—

(a) include transitional, transitory or saving provision,

(b) make different provision for different purposes.

14 Short title S

The short title of this Act is the Gender Representation on Public Boards (Scotland) Act 2018.