I51Gender representation objective

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.

I12Key definitions

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—

    1. a

      that is not an excluded position,

    2. 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—

    1. a

      if the public authority is a company, the directors,

    2. b

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

    3. 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.

I63Duty when appointing non-executive members

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.

I74Consideration of candidates

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).

I85Encouragement of applications by women

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.

I96Duty to take steps towards achieving objective

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.

I27Guidance on operation of Act

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.

I38Reports on operation of Act

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).

I109Power to modify schedule 1

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.

I1110Application of Act to certain public authorities

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

I1211Equality Act 2010

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.

I412Regulations

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.

13Commencement

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.

14Short title

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