Equalities and Human Rights Committee

Meeting date: Thursday, December 21, 2017

Official Report 577KB pdf

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Gender Representation on Public Boards (Scotland) Bill: Stage 2

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

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.

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.

I welcome the cabinet secretary. Would you like to contribute?

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.

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

Amendment 2, in the name of the cabinet secretary, is in a group on its own.

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

Amendment 1, in the name of Alex Cole-Hamilton, is in a group on its own.

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.

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?

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  

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

Amendment 11, in the name of Alex Cole-Hamilton, is in a group on its own.

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.

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.

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

We now come to guidance. Amendment 3, in the name of the cabinet secretary, is in a group on its own.

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.

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.

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

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.

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.

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.

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.

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 question is, that amendment 4 be agreed to. Are we agreed?

No.

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)

Against

Greene, Jamie (West Scotland) (Con)

The result of the division is: For 4, Against 1, Abstentions 0.

Amendment 4 agreed to.

Amendments 5 to 7 moved—[Angela Constance].

Does any member object to my putting a single question on amendments 5 to 7?

I object.

I will, therefore, put the questions on each amendment in turn. The question is, that amendment 5 be agreed to. Are we agreed?

No.

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Torrance, David (Kirkcaldy) (SNP)

Against

Greene, Jamie (West Scotland) (Con)

The result of the division is: For 5, Against 1, Abstentions 0.

Amendment 5 agreed to.

The question is, that amendment 6 be agreed to. Are we agreed?

No.

There will be a division.

For

Cole-Hamilton, Alex (Edinburgh Western) (LD)
Fee, Mary (West Scotland) (Lab)
McKelvie, Christina (Hamilton, Larkhall and Stonehouse) (SNP)
Ross, Gail (Caithness, Sutherland and Ross) (SNP)
Torrance, David (Kirkcaldy) (SNP)

Against

Greene, Jamie (West Scotland) (Con)

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

We come to section 11 and the procedure for regulations. Amendment 8, in the name of the cabinet secretary, is grouped with amendment 9.

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.

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—