Good morning, and welcome to the 21st meeting of the Equality and Human Rights Committee. We have received some apologies this morning from David Torrance, who is going to make the usual request that mobile phones are switched on to silent or airplane mode, and I remind members to keep mobile phones off the tables please. That would be helpful. The first agenda item this morning is the first part of our stage 1 scrutiny of the gender representation on public boards bill. We have two panels this morning, so I am minded to give about 50 minutes for each panel, so hopefully we'll be concise with our questions, and I'll allow you to give us full and detailed answers if you can. That would be incredibly helpful. I'd like to welcome to the committee this morning Talat Y Cwb, who is the chair of Women 50-50. Suzanne Conlin, who is a board member of the Scottish Women's Convention, and Lindsay Millan, who is a policy manager of close to the gap. The broadcasting will deal with microphones, so don't worry about pressing buttons or anything. We'll hopefully have a bit of a free flow of a conversation, but if you want to get in if you can catch my eye, that would be incredibly helpful. I think for the sake of transparency, I should declare an interest. I am a steering group member of Women 50-50, and that's something that I'm very passionate about, so we hopefully should hear good stuff from Women 55 this morning, from all the others too. I'm going to go with an opening question. I know that you've provided us with excellent written evidence, and we have lots of written evidence that have been incredibly helpful in helping us understand this bill and what it does. My opening question to all three of you, because I think that you're coming from slightly different angles than all of us, is why you think that the bill is necessary and where you think that it will make the difference. I think that we could start with you, Tala. Given the fact that I'm from Women 50-50, we're advocating 50 per cent representation of women across all decision-making positions. Our public boards represent key decisions that are being made for the good of Scotland, and that includes 51 per cent of the population, which are women. Although there are only 35 per cent women on public boards, that means that there is a deficit in the decision-making. From my perspective, if we have fairness on our boards, we make for better decisions. You can look at evidence that has been collated by McKinsey, you can look at the private boards and the Davis review, and what it reveals to us is that when there is more diversity around a decision-making table, we have more effectiveness, more productivity and better profitability. It makes sense for people who are making such fundamental decisions about Scotland for there to be diversity around the table when it impacts a diverse population in the first place. I'm very positive about the bill. There are amendments that Women 50-50 has put forward to strengthen it, which will come as no surprise. However, I think that this is an excellent step in the right direction, and it's one of the three campaign asks of the Women 50-50 campaign. For us, we think that the important thing is partly because that women's tell-as is important. Our role is very much about telling politicians and policy makers what women think, and they tell us that this is important to them. Also, because men of these services or decisions that these bodies make, we would argue that they affect women more than men. It's important that women's voices are on the boards of these organisations so that they can influence the decisions that they make. Thank you, Suzanne Lindsay. Obviously, women's employment is our main focus. Occupational segregation, where women and men do different types of work and different levels of work, is a major issue in Scotland's labour market and it's a drag-on growth. Close the gap research has shown that if we address 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 bad for the workplace because it leads to a waste of women's talent, so we want to make sure that women are able to access these roles because we can then create a generation of new role models for young people, young women in particular, who can see that these jobs are for them. Obviously, we agree with Women 50-50 that it's essential that women's voices are represented at all levels of decision making because what we know is that women's voices are included in the context of the discussion changes, the content changes and the decisions that are made changes as well. We are very positive about the bill. Thank you very much. One of the issues that have started some of the debate around this is how we encourage more women to take that step forward. We are looking for ideas on that, so we would be keen to hear your ideas on how we encourage more women to take that step forward. One of the pieces of written evidence that we have is about the Golden Skirts Syndrome, where you have one woman who is on every board because she is incredibly talented and incredibly busy, but how do we widen that out to get a greater diversity from different socioeconomic backgrounds and other backgrounds? How do we do that? Do you have any ideas on how we do that? We can maybe interrogate some of those in the process of the legislation. Just to highlight the Golden Skirts phenomenon is something that is referred to in Norway when there were a number of women who are on multiple boards, but it has been exaggerated to quite an extent. The Golden Skirts is 15 per cent of women, 15 per cent of board members are women who are on more than one board. With men it's 10 per cent, so there's a 5 per cent difference there. It's important that we don't exaggerate that there are multiple women on the same boards. In fact, Norway has gone quite far forward in ensuring that that doesn't happen. 15 per cent of the women who are on boards are more than one board, and it's 10 per cent of men, so it's not a huge concern. I do think that a concern is to ensure that we have a diversity of women who are around the decision making table. It's critical that we have women from different socioeconomic backgrounds, BME women, migrant women, LGBT women. That's critical, because that is part of the diversity that makes good decisions. The way in which we can do that is by ensuring that outreach happens in not just those women who are already well-networked. It requires public boards and public organisations to link up with community groups. For example, whether it was Amna Women's Resource Centre or the equality network, linking up with those groups to ensure that vacancies are advertised at the local level, at the most grass-roots level that it could be at. An example of that is CESTRANS at the moment are doing vacancy recruitment and advertising through Equate Scotland, which is where I'm the director of. That's to ensure that women are aware that they can be board members, and it's 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 a network of their own of community groups and ensure that it's the community groups that are supporting them in the advertising, training and development to then be board members. Excellent. I agree with that sentiment. What women are telling us is that when we ask them about being a board member, the question is, how do I find out? Where do I know these vacancies? How do I reach it? If they're not within existing networks, how do they find out? Additionally, in terms of becoming involved with a lot of women, it's about time. If you work full-time and you have children, your time is already very precious and you probably already struggle with childcare. It's about how we not only encourage them but how we make it accessible to them so that they can feel free to give up their time, often away from their children, to come and be board members. It's not just about how we get to them, it's about how we encourage them and we give them the support to do that. Thank you. I agree very much with what my colleagues have said. There are a number of mechanisms that exist, measures that you can take to encourage women, things like establishing very clear written policies on how the board will plan to increase the number of women on their board, so an overarching strategy, reviewing their strategies and policies on recruitment and also considering, specifying within that, that the women who seek to recruit will be as diverse as possible, creating a national pool of candidates who have been skilled and prepared for public appointments is really important. What we really would like to see is guidance that is prescriptive, that details the steps that must be taken and puts the onus on the appointing person and the public body to encourage women to ensure that they receive adequate capacity building and ensure that they are taking the steps to advance women's equality. It's not just important for that to be done at board level, it's really important that these steps are taken at every level of public bodies because you're not going to get women developing the experience and skills that you need without encouraging that progression throughout the whole organisation. Organisations must ensure that they effectively communicate with women that board memberships are for them. Again, we must consider timing of board meetings, how those are scheduled and access to childcare. That's another consideration. We have done a lot of work on the public sector equality duty, compliance with the duty across public bodies, and there's a lot of overlap with what public bodies are required to do under the duty and what they will be required to do under this bill. A lot of things should already be happening that will contribute to this, but unfortunately what we've seen as part of our assessment over the previous three reporting cycles of the duty is that there's a real lack of evidence of specific steps that have been taken, so it's really important for this bill that the public bodies are required to give evidence that they've taken steps and not just assurances that they're committed to equality. Excellent, thank you very much. Gil, you wanted to come in quick, supplementary? Just a quick step on what we were talking about just now. A lot of the women that I speak to, we were trying to get people to go on a certain board that I was on, and they were unsure of the functions of what a board does. They were quite intimidated because, as we know, they're predominantly male-dominated. It's a culture shift, as well as a legislative change that we have to look at. How do we, as elected members and members of the public, community councils, local authorities, how do we get that message out as to how women can be effective and build their confidence up and apply to those positions? I have a lot of language. You often find that the language is overwhelming, and that women are intimidated simply by that. I agree with you a lot of women are telling us that they don't understand what it means to be a board member. When they talk about it, they don't know what it means. What does it mean in terms of what I have to say, what I contribute, what skills do I need and how much time it will take. I do agree that women are telling us that they need more information about what it is, what we're asking of them, what they're expected to do. We do find a lot of women are telling us about their confidence issue, that women are not confident in their skills and abilities. I think that there's a role to be changed, the culture and how women view their value and how they can contribute. With a different hat on, as director of Equate Scotland, there's a partnership that we have with the Scottish Government, which is evening sessions on training of how to be involved in a public board, what is that public board. Having women who are on public boards come along and talk about why they were involved, what expertise they used while being on that board. Every time we do that event, it is sold out. There's no lack of talent or interest from women to be on public boards, but the events that we do shape the likelihood of them pursuing it further than their enthusiasm. What is critical is that we balance the confidence building aspect of women with culture change. For instance, I could give women all the confidence building that they are required, but if there are cultures that are hostile or cultures that are exclusionary, that confidence won't matter. It's important that we balance the development of women with the challenging of male-dominated boards so that when they're there, they're included. The last thing that you want is for a woman to have gone to the effort and tackled barriers, become a board member and actually experienced exclusionary behaviour whilst we're there. Let's also develop our boards. The board confidence comes up again and again, and whenever it does, I always refer to it as confidence that the system will treat them fairly, that that's the confidence that women should have because they have the ability and the capacity to sit on public boards. Discussions with women to make sure that they're aware of opportunities and aware of what's involved are obviously really important, but we need to be having discussions with men on boards as well about that culture and about how challenging it can be as a woman to come into that culture and to stay there. That's the flipside of what should be happening. Thank you, Alex. Good morning to the panel. Thank you for coming to see us today. In the same spirit of transparency, I should say that I'm also a signatory to women 50-50 and through that to have sought to bring about improvements to the Liberal Democrats party selection process for various all-women shortlists at the last SNAP general election. I have a number of questions just around the tension that will exist when we bring this bill in. I've been very supportive of the bill, but there is a lot of pressure on boards nowadays, particularly to professionalise for want of a better work, where boards, when they are recruiting new members, will seek a mix of skills that fit the challenges facing that board. Those might be expertise in the financial sectors, in business development, in law and the rest of it. We are already asking boards to apply one matrix of filtration on their selection process. Whilst that is absolutely welcome and it is absolutely needed to apply a second matrix of filtration on that, will the panel speak to that tension that exists? A lot of those skillsets that we are asking boards to recruit from are from professions and certainly in the senior management of those professions that have been traditionally dominated by men. It is often quite difficult to find women who are available from very high positions in financial services organisations given the predominance of male domination. How do we address that? How do we keep that skills mix and have the diversity that we are seeking? I suppose that I would argue that it is difficult to find women. I think that women are there, if you look hard enough. I do think that organisations, while I totally accept that they need some professional skills, they have to think as an organisation what they are doing, that it is not just about professional skills, it is about who influences what they do. If you again particularly provide you influence public policy, for example, then you need to represent the public that you are representing. It cannot just be about professionals, it has got to be represent of the whole population. They need professional skills, but they have to look at what other skills are important to their organisation. There is another aspect of this, which is if we want more women to be at the head of finance, if we want more women to be higher up in the legal field, perhaps giving them board membership will give them the experience to get those jobs. There is an aspect here, which is the two are intrinsically linked. In actual fact, surely we want our public bodies to be doing their equalities duty to help in the widest way possible. If we are looking at finance and legal field, the vast majority of middle managers or below are women. The vast majority of law graduates are women. If we are looking for expertise, well, isn't this the perfect opportunity to create expertise, not just in your board, but also in the financial and legal field by providing those experience opportunities? I also think that it is much like what Sian was saying. Our public boards also require lived experience on them. I do not think that we should negate the importance of lived experience in the want for professionalism or somebody who is at the top of their career. That lived experience in public policy making is absolutely critical. That is one of the many things that women can bring to public boards. That is one of the many things that women can bring to public boards. Excellent answer. The meat of this bill is in section 4, paragraph 2 and 3 in terms of consideration of candidates for me. That is where the mechanism of achieving diversity is set out. I am a bit concerned about the fact that we are leaving a lot of that to personal judgment. Personal judgment is influenced by prejudice and culture and patriarchy and all of those things. I wonder if we can explore the issue of selection and the fact that we talked about the things like anonymous sifting where we will take out all the biometric details. I am concerned that that has an inherent bias within it because we know that men will quite readily talk about their own achievements far more often than perhaps women might. Secondly, there will have had opportunities that women might not have had because of the result of the prejudice that is inherent within our system that this bill is trying to break down. How can we improve this bill to make sure that this is not just left a subjective view as to who is best qualified before we get to this time-breaker situation that section 4, paragraph 2 defines? See before the panel come in here. I know that Annie has a line of questions that complements that. I will come to Annie first for you because the two things complement each other and it means that you can answer more fully. Cheers, thanks, good morning. Filling on from what Alex said, when I have read the bill and my understanding of what the bill is when it is looking at consideration of candidates and appointment we are still merit as the underpinning fact of how we achieve the best candidate for the role and a question from me would be that Alex was talking about anonymity of applications and we had a vacancy on an eight person board and there was already four males on it and three females and we had one vacancy but there isn't any way that we can make sure that that board position is filled by a female because at the end of the day if the two candidates are the same then merit is the underlying thing that has got to be the thing that appoints that person and as long as the scrutiny has been there a man can be appointed so how do we achieve 50-50 representation when merit is at the heart of this bill? This is one of the reasons we are absolutely clear that the bill has to be supported by prescriptive guidance that details exactly the steps that must be taken because what we know from performance of the public sector quality duty is that public bodies have said that one of the biggest barriers to performance of the duty 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 and as a result of the lack of specificity what we've seen in performance of the duty is a real homogenisation of equality's work which doesn't really result in positive change for anyone when it comes to the issue of merit I think obviously there's reams of evidence that having a gender diversity quote is bringing merit to boards they increase the overall level of merit because you are drawing candidates from a wider pool than the old boys networks that are typically where we see board candidates coming through from but there's also the question of what we consider as merit and what we consider as the requirements for the role and that comes back to that mix of skills that having gender diversity on boards brings because it's not just about particular skills it's about that lived experience which is absolutely key for excellence in public service delivery To answer the first point about the selection process I appreciate that it will be a challenge to try and remove bias but I think that for organisations that are male dominated at the moment the selection process doesn't influence by that whether it's a can't be an all male panel if they are struggling then they need to be looking at sourcing out our support to get females on the panel so there's a balanced view in terms of merit I suppose we would argue that where there isn't 50-50 then quotas should step in rather than merit if a board doesn't have 50-50 then they should be balanced I think that it's really important and as Lindsay has said there is no shortage of evidence to tell us that those measures do not prevent merit they promote merit time and time again they promote merit because it means that we are looking at a wider talent pool and it means that we are reaching out to the merit that we have not had on boards thus far and that's the point furthermore evidence has shown us that when particularly if you look at private sector boards the vast majority of evidence that we have across European countries is either on political representation of private boards not public boards but if you look at both of those political and private boards what we have seen is that the average merit is increased because women have joined the board so if anything they are increasing the skills base and I think that's critical when we get to a position the entire purpose of that section of the bill is about getting to a point where we are making a decision a tie breaker decision between two people with equal merit so if we are at the point where we are pursuing two people one is a man and one is a woman and we can evidence that they have equal merit I don't think that there is any issue whatsoever in picking the woman who has that equal merit provided you are able to show that they have evidence where they can support and enhance the work of the board I mean that is the very purpose of this particular bill the second part about selection processes one of the things that women 50-50 has put into their response is that we think that it's really important that there's a lot of responsibility on the appointing person and that appointing person needs to be trained needs to be trained in unconscious bias needs to be trained in good outreach and recruitment to ensure that their individual biases and their panel biases are not getting in the way of the decision making and also to ensure that there are no all-male panels when making recruitment decisions I think to that that I forgot to make I absolutely would like to echo Talat's point on the support that must be given to people who have responsibility for recruitment guidance on transparent and robust recruitment and decision making processes are essential that include an equality aspect that detailed to people how these decisions can be influenced by assumptions about women's skills and capabilities and also requiring public bodies of support publicly on the steps that they've taken to encourage and deal with applications from women and I think there was evidence put forward from Muriel Robison and Nicole Busby of the University of Glasgow that the legislation should include a redress mechanism for unsuccessful candidates of the underrepresented sex which means that the organisation is obliged to provide to the unsuccessful candidate on request the qualification criteria on which the selection was based the objective comparative assessment of those criteria and where relevant any considerations that have tilted the balance in favour of the other candidate where there is a 50-50 situation You want to come back in and Alex wants to come back in and Jamie's got a supplementary so Annie I don't think there's anyone here who wants to encourage more women into stem service on to public boards into politics whatever it may be I'm all for encouraging women to do it The other part of my question I was going to ask is then if we have anonymity of sifting at the beginning and it's two males who come out as two best candidates what would you suggest would happen then if there was one place on the board but two males were the two best candidates from the outset The question that I would have is that is this bill pursuing as it's guiding people to have anonymity of the applications so I'm not sure if that is the direction that the bill is going in that would be dependent on what guide comes out of it what I would say is first and foremost before the anonymity of the names if what we're trying to pursue is gender equality it's not the anonymity of the names it's the tackling of the bias so when those names are in front of you you are looking at them objectively I think that that is more critical than having names removed from an application process particularly if the entire purpose is to get more women on and the tie breaker is between a man and a woman or two women or two men whatever that becomes but the tie breaker in this case is about favouring the women so the anonymity of the names might actually get in the way of what it is this bill is trying to achieve I think what's critical is the anonymity might be a way forward but it can't be instead of training, development, unconscious bias tackling and trying to do a lot about predetermined judgments Alex, you want to come back in? Yes, so it's very briefly this touches on something Talant just said and Lindsay said as well in terms of in respect of the guidance that will underpin this legislation my experience as a public policy operative in the voluntary sector for 15 years before getting elected is that often times with the best of intention guidance is where good legislation goes to die unless it's implemented properly unless it has the robust teeth then it means absolutely nothing and will gather dust on the shelf and refreshers of the guidance as many as they may be don't actually help that so in which case I think you're absolutely hit upon this both of you that this is the guidance as to training and the rest of it is so crucial to this bill is there something that actually needs to be escalated from the guidance you would like to see and put on the face of the bill and I think Talant you mentioned there were amendments to delineate them I think this is an opportunity for me to talk about non-compliance sanctions so I think it's critical if you are trying to create a a bill with teeth if you need to have some kind of non-compliance sanctions involved in it otherwise it is a set of recommendations that people can or can't take a perfect example of that is in Spain where there is a 30 per cent a bill to get 30 per cent women on to private boards there are no sanctions on the remains at 19 per cent some change has been made but the change has been slow so one of the things that I would certainly recommend is that there needs to be mandatory reporting and mandatory action plan of what steps you plan to take in the run-up to December 2022 and non-compliance sanctions to ensure that you get to December 2022 with 50-50 just been passed a note by my colleagues here it says that the Scottish Government doesn't in fact intend to publish guidance under this bill which is quite troubling just final question on that considering what you just said in terms of non-compliance sanctions fully support that but how do you police that if a lot of what we are talking about is unconscious bias it is very difficult to evidence that that has benefact here we are not it is not non-compliance on how bias you have been it is non-compliance on the bottom line of whether you have 50 per cent women it is not about what judgments you have taken what steps have you taken to reach 50 per cent and that in itself overcomes some of the bias because you therefore have to make extra effort to get women in the room so the non-compliance is about the numbers not necessarily about whether you were bias in your judgment making that makes sense okay I want to try and get Jamie are you still got a supplementary on this this subject so a supplementary on this because I've got Mary Eskenden from a different angle go for it I'll trust you it's so relevant it probably goes back to Annie's original question around how we approach the perception of selection on merit and how this bill does or doesn't achieve that my understanding coming to this fresh and new in reading the bill as it's currently laid out is that if in a situation where there's a vacancy on board and there's more than one candidate and there's at least one male and one female candidate my understanding is that the process that the appointing person goes through is as follows the first selection criteria is that they make an appointment on the best qualified candidate and if no particular candidate is best qualified then the appointing person identifies candidates who are equally qualified and if there are two candidates who are equally qualified and one is male and one is female the appointing person must give preference to the female in order to achieve the gender representation objective now I may get corrected on that later by the clerks or the bill team but that is my current understanding how does that address the critique of this bill if when it comes down to the wire the appointment is made on the legislation that preference is given to the female candidate not on merit assuming that both candidates are subjectively of equal merit and that's a very vague statement how does somebody determine whether you're the best qualified or equally qualified again it does seem very loosely worded in my view and I find it a little bit confusing if I was the board member making appointment which is my sorry I suppose just to say we talked about the appointing making a decision on the best merit but if we've already established that they are equal merit then the merit discussion isn't really relevant anymore and we have to go back to what the spirit of this bill is and the spirit of this bill is to achieve 50-50 so I would argue that the merit discussion has been had but if you've established that they are of equal merit granted there may be needs support about how you make that assessment but I think the merit discussion has been had at that point and it's about the spirit of the bill being about 50-50 Absolutely I think what you have highlighted there about the vagueness between what is best qualified what is equal merit if anything emphasises why there should be guidance alongside the bill so creating some guidance about how do you establish merit how do you do outreach how do you ensure that you are having the widest possible circle of women to choose from so that you can get the merit you're looking for I think the spirit of the bill is to get women there and I think if you are reaching out to a wide range of women you will get the merit that you're looking for I don't see any evidence that tells me otherwise that there wouldn't be the merit there that you need but I think your point emphasises the need for guidance alongside this bill I think that that obviously shows essential that we have robust recruitment processes that deliver objective comparison of criteria and that that's recorded and on record and that public bodies are required to report on the steps that they've taken Thank you, convener and good morning panel In a way my question follows on from the line of questioning that we've had and my colleagues Alex pointed out section 4 of the bill and section 5 and 6 of the bill I think are equally as important and some of the criticism that we've had in relation to the bill is that it's a positive step but it doesn't go far enough because there are no sanctions in it and I would be 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 language is far too loose and if you leave the language like that and again the next paragraph talks about steps that it considers appropriate and those are words those two words are repeated frequently considers appropriate now what I consider appropriate what you consider appropriate and what someone else considers appropriate could be entirely different so is that strong enough to be strengthened to be far more descriptive and far more explicit in what is expected of boards to encourage women I think that we agree that it should be stronger and if it's not strong within the bill then again back to the guidance being clear on what is appropriate and to be honest it's back to the bottom line that if organisations don't meet 50-50 then they should have to publish it and they should have to be accountable for how they've got there appropriate of what did they do enough it should be subject to more scrutiny because appropriate I think any bill or any guidance is never going to cover everything because again what we view appropriate can be subjective so it's about how you review the bottom line how you review the outcomes and how you review how they got there and how you critique it but it's about supporting them ensuring that we hold them accountable to that I don't think it's strong enough I think appropriate is vague does that mean financial investment does that mean outreach does that mean training and development does that mean taking on your own quotas and what it leaves is those boards that are already close to 50% and have a strategy or an internal wish to be diverse will go further than those boards who perhaps need it and don't know where to begin or have a resistance to it so again this is why there should be guidance what does appropriate considers appropriate actually mean and what I would recommend is that guidance is written with equality organisations like ourselves which says here are five things that you can do which the bill deems appropriate and what that creates is some coherence across recruitment and across action being taken and that means that the compliance and reporting is much more easy to assess because there is something being assessed there being assessed under considers appropriate is too vague a measurement to be able to take any kind of action or any support of a board We also share in gender's concern that that may create an inadvertent loophole that will allow public bodies to appoint men where they should be appointing women and because there's evidence that shows that groups who are adversely impacted by gender quotas like men who are already those leadership positions male incumbents can respond strategically in order to circumvent the impact of those quotas so again this comes back to our point that we want to see clear prescriptive guidance on what steps should be taken because precedent exists of public bodies not complying with equality's legislation the public sector equality duty is a really good example of that or a bad example of that but it's uncommon for public bodies to still at this point in 2017 when the public sector equality duty came into play in 2012 to not be publishing their gender pay gaps and not be publishing their occupational segregation information and those are two things that exist on the face of that legislation so when you look underneath at the steps that they are required to take how they are required to use that information to advance the quality which in this case would be women on to these boards there's even less evidence of that happening so we want to see the steps that are required to be taken or an action plan to be included in the bill itself that public bodies are required to produce an action plan and report it and we also feel very strongly that non-compliance sanctions and robust enforcement are essential I want to come on to talk about the financial implications of the bill in a second and a very brief question before I do that one of the other criticisms that we've had of the bill is that it's a missed opportunity in relation to people with disabilities and while I absolutely accept and understand the ethos of this bill to encourage more women there has been criticism that it's a missed opportunity for disabled people and there has also been criticism that the bill gives a binary definition of gender and there are a section of people that will be completely missed out and I'd be interested in your view on this Women50FT supports the equality networks response which is about ensuring that the pursuit of women on boards is inclusive of trans women particularly I think it's important that when we're talking about 51% of the population we are talking about those who self-identify as women as well who report as women and I think they should be inclusive of that 56% on our boards and 51% of the population identifying as women I think it's quite fair that this bill is about that 51% but it needs to be inclusive of trans women and furthermore I think it goes back to the original point that I made about a diverse set of women being included in the outreach of this so that includes disabled women that includes LBT women that includes women from different socio-economic backgrounds so it's important that when we're talking about guidance again I keep coming back to this but that guidance needs to be about pursuing a diverse audience of women so that you are ensuring that disabled women are engaged through this bill We would agree with that and we think very much when it comes to the reporting aspects then yes it should be not just about women on the board it should be about all the protective characteristics organisations should be very open and clear about who's on the board and who they open up to it shouldn't just be about women or just one group of people there are many different types of women and it's about how the organisations report all the protective characteristics not just gender We've seen again coming back to the public sector equality a real increasing of homogenisation of equalities work which shows little recognition that the causes of inequality experienced by protected groups are different as are the solutions so it absolutely is right that the bill targets the barriers faced by women in the workplace but also the systemic barriers to representation faced by women who share other protected characteristics for instance disabled women experience higher levels of discrimination and stigma in employment and trying to progress and to access positions like this so we absolutely would want to see included in guidance the specification that the group of women that you're targeting goes beyond just the characteristic of being a woman and that you have to strive to have a diverse group of women represented Can I ask now about the financial burden that will be placed on boards if this legislation is passed I want to briefly read a paragraph from the explanatory notes where it says that boards should evaluate and target advertising strategies and outreach events to better reach and appeal to women The financial memorandum itself says that the Scottish Government does not consider there will be a resource 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's through advertising or any other means it would seem to me that there is a cost implication on a board and the greater diversity that we have in a board if we have more women on boards there may be a need to support women through childcare support women through paternity leave, paternity leave for men, whatever so it would seem to me that there is a financial implication on boards mostly at the outset where they are trying to encourage women if you want to promote inclusion you need to do something to do that advertising strategies are not cheap they come with no cost so what do you see will be the financial burden on boards I'm not I suppose the point we want to make is that if you are a public board then it's a duty I would argue that you have to have a diverse board it shouldn't be seen as an extra thing you have to pay for and it's not just about diversity in terms of gender if you are a board that's about having diversity of skills and that should apply to all your board it's not just about saying this is an extra thing we have to do I would argue that it's something that public boards should be doing already that it's a duty to ensure that they represent the people of this country and that that's not just about getting women on the board yes I would argue I would say that the work to encourage applications from women overlaps with the work public bodies should already be doing under the public sector equality duty on the legislative burden if they are already doing the work that they are required to do gathering data on recruitment development and retention analysing that data and developing action plans and equality outcomes that seek to advance equality across their organisation as a whole there is a massive overlap with what they will be asked to do in terms of getting more women on to boards and also when it comes to cost attached we know that greater gender diversity on boards leads to excellence in public service delivery which means efficient use of public funds so it's definitely a quid pro quo if there is a cost involved I think one of the things that I want to highlight is that there may be a financial implication in outreach for example which as Lindsay said should already be happening but one of the things that I don't concede is that it can be called a financial burden and I think I would be really weary of referring to it as any kind of financial burden when it's a financial responsibility from my perspective very helpful thank you so it means just following from Mary's point just before I'll listen to what you say we've got to make sure that we've got diverse group of women be it LGBT women, women with disabilities would we then be looking to make sure that the male appointments on boards are LGBT, BME characteristics so should we be looking to make sure that there's a diverse range of men on boards as well so that they're representative of the society so that's just a and how do we do that is that about a campaign and making sure that we go to different groups of people to encourage that comes back to the point that I made about the beginning about boards having connections with to ensure that they are pursuing diversity across the board I think it is absolutely right and proper that this bill is about 51% of the population who are women who are grossly underrepresented at every level of decision making across Scotland I think it's right that this is focusing on that and I think that it's part of public sector equality duty is you being diverse across the board, across protected characteristics so if that's something that a board is not seeing or white male able bodied street men then there is already imperative on them to pursue diversity this bill is about 51% of the population who are grossly underrepresented but there is already a duty on them to pursue diversity and of course that is something that they should already be pursuing Gail I'm sorry I dumped in earlier on with it saying good morning and welcome and thank you for coming I declare an interest as well I'm also a signatory to women 50-50 we spoke to officials last week and I made the point about how Christina and I spoke to the resolution at the SNP conference about this very issue and I'm convinced that it's needed and the legislation is required but what would you say to such groups as the institute of directors that say that they don't think that we're not in favour of a random proportion being attached to one group and that they would rather see a holistic approach of reporting on diversity as well as action taken to encourage women through training and mentoring which we hear is already happening and we know that the proportion of women on boards is already increasing so in your opinion why is the legislation needed so holistic approaches and whilst welcome is what we've been doing for a long time and we're at 36 per cent I think the data in front of us tells us why this bill is in place voluntary mechanisms that don't come with any compliance non-compliance sanctions that don't come with a bill with a push from government get us to around 30 to 35 per cent which is where we are now evidence tells us again and again that we reach a plateau and are recruited on to boards and whilst I believe that there should be a holistic approach what this bill does is ensure that that holistic approach is being taken that's the purpose of it right now the holistic approach can be taken on or not and that's the purpose there are you can look at particularly on private boards across Europe where we look at what countries have pursued and where there are voluntary mechanisms where there is holistic approaches that are about training and development they tend to put the onus on the women they don't tend to put the onus on the culture change the board change that we have already discussed and they do not get us to 50 per cent again we're talking about decision makers we're talking about fair representation and I think it is right that where holistic measures have not worked training, development soft and gentle approaches have been done for decades and not got us to 50 per cent we would agree with that approach that although holistic approaches have been in place that they're not doing enough and if they were adequate then we would be at 50-50 to be blunt and I suppose I'm going to guess very much from the women that speak to us directly and what they're really saying is why they want this bill because they're saying their barriers and all we're looking for is a level playing field they're not looking for special treatment to access it that's all they want and that's a very simplistic but a clear quote from a women to say why they want this again I think this comes back to what we know about equality's work homogenised equality's work doesn't work you can't do something that will advance equality for all of the nine protected characteristics at the one time without taking specific steps that meet the needs and challenge the barriers that each group faces so that is absolutely right that this group this bill is looking at advancing equality for women final question for me who do you think should monitor it to me essentially a role for the equality and human rights commission in monitoring it because they are already responsible for monitoring the compliance with the public sector equality due to 8 there obviously is a question of resource and it would be essential that if the commission was required to monitor this that they were adequately resource to do so I think Engender and their submission also made reference to public standards commissioner I'm not sure the commissioner for ethical standards in public life is also another suggestion that I've seen and what Engender said on that made a lot of sense but again obviously resource is an issue and whoever is asked to enforce compliance should be given the teeth to do so and the resources to do so okay sorry to tell that I wouldn't have to take completely backs Engender's proposal on this and one of the things that Engender has written in their submission and we have as well is the fact that whatever whoever is monitoring this they should be reporting to Scottish Government and then to Scottish Parliament happening behind closed doors and that the debate takes place in our chamber as well okay thank you very much I don't think that we've exhausted all of our questions but we've exhausted our time and we have a second panel this morning to hear from as well we're incredibly grateful for your contributions this morning and if you go away and you think I should have said this please let us know because we've still got a bit of a way to go on the journey in this bell so thank you so much I'm going to suspend committee for a five minute comfort break so if you could be back in your seats in five minutes good morning and welcome back to the equality and human rights committee and continuing on with our scrutiny of the agenda representation and public boards bill we have our second panel of this morning and I'm delighted to welcome to committee Rory McPherson who is the chair of the law society of Scotland equalities and the law committee the law society of Scotland Professor Susan Deacon who is the chair of the institute of directors good morning and welcome back to Parliament and Professor Muriel Robison who is a guest lecturer at the school of law of the University of Glasgow and thank you so much for coming this morning and I know that you were in the gallery to hear some of the evidence that we had from the organisations this morning and I'm going to do a brief opener and ask because you are three different aspects coming from three different areas and I'm quite keen to get your summarisation of the bill and what you think it means so I don't know if Rory wants to start with you first. Thank you very much convener the law society's response can be summarised that in 2017 across the EU we already have five countries having mandatory quotas and female board membership Belgium, France, Germany, Italy and Norway 10 of either an optional quota or compliance explain best practice such as Denmark, Greece, Austria, Salinia and we in the United Kingdom have some 10 years of voluntary schemes and after at the end of that 10 years we are yet to achieve gender diversity on public boards so against that background the law society is supportive of this legislation looking at other jurisdictions in Europe where the comparable legislation has been used successfully and although Norway might be seen in 2006 I think it was as relatively controversial all the evidence shows that very quickly the discussion moved on and the evidence isn't that in Norway there is simply no debate about the issue now Thank you Uriel I've for a very long time taken interest in positive action and legislation in relation to positive action so I'm particularly interested and pleased to see legislation which essentially takes forward a requirement to undertake positive action measures most legislation of course is just permissive rather than prescriptive it's mostly voluntary rather than a requirement so this is very good to see a bill of this nature I did put in a response with my colleague from the University of Strathclyde to the consultation draft of the bill and what I would say is that there are some very welcome changes I think in the bill as introduced that you have been consulting on particularly the duty to take steps around in relation to the objective the duty to report and the target date these are all good developments I think there are some less welcome changes from my point of view the apparent removal of transgender women from the bill and also the removal of the exceptional circumstances defence and replacement with a justification type defence which we might pick up on later so these are less welcome changes from my point of view seems to me that the bill is however perhaps limited in its scope I think it would be it's a very important that it is as efficient and effective as it can be given that we are restricted in this case to look at non-executive, non-employee members of boards so even if this achieves 100% success we're still not going to have gender balance on our boards as such and it does interest me given the limited scope of the bill that actually everything that is done here could be applied to employees that wouldn't breach European law it wouldn't breach the equality act and I think therefore that it would be permitted by your new other exception section 37 exception which is the broader more general exception in relation to the functions of public authorities so those are some of my opening remarks but happy to follow up on any of those and others thank you Susan thank you very much thank you for giving me the opportunity to be here today I think this is a really important discussion and indeed not just the discussion on the bill itself but a lot of the wider related issues and as you've had a nod to convener having over a period now of some 30 or years of various debates both about how we ensure that more women get into more leadership roles right across business and public life and also how we get good governance of not least our public services then for me this is an area of real interest so I'm very happy to do anything I can to try and help feed in thoughts or ideas to the committee the IOD as an organisation just to briefly explain this many of you will be aware of this the idea was set up by Royal Charterbark in 1906 operates across the UK and has members spanning right across the private public and third sectors organisations big and small commercial not for profit and many other variations in between indeed many members work on board positions across different sectors and organisations which is something that we would actively encourage I chair the IOD in Scotland so it's one of a number of things I do so I'm drawn from among the volunteer membership if you like for a temporary period of time to take on the chairs role and that's where I come from today so I think some of the things that I'd like to comment on today if this is of use to members is some of the wider issues around boards governance considerations and how you achieve the thing that I think all of us want to do not least in our public bodies is get really good effective balanced boards and that I think is a name that all of us share I think that the question is really how to achieve that and as I say anything I can do to contribute to that discussion I will Thank you very much Alex I'm aware that you were sat in on the last exchange and you will have heard some of the arguments deployed in that I think that talking in the margins with my colleagues while we were suspended it was clear to me that we all agree that this is an important board but some of us actually feel that it could be strengthened in the way that the last panel defined particularly around the use of sanctions Scottish law has a range of existing sanctions around recruitment for certain things the most extreme example perhaps is in the protection of vulnerable groups act for example which makes it an offence to knowingly employ somebody who is barred from working with children or vulnerable adults and that's why we have the protection of vulnerable groups scheme but there is a range of spectrum of options in between and I just wonder if we were to strengthen this bill with the use of sanctions what do you think would be available to us in that regard and what would be proportionate to respond to that well certainly I think that I would like to see further sanctions in the bill and that is a weakness of it in terms of what those sanctions might be as you have said Mr Cole-Hamilton that is important that they are proportionate I suppose we have to take account of the fact that we are talking about public authorities aren't we and so that some of the sanctions such as striking off and large fines that we see in Europe would probably not be appropriate or proportionate so that would bring me to think about an alignment as has I think been discussed with the public sector equality duties and the requirements that they have in relation to reporting and the like and so that would if there was to be an alignment with the public sector equality duties it might be then as discussed earlier that the equality and human rights commission can play a role because there is a role that they can play in relation to sanctions or failures in relation to the public sector equality duty so it would be that kind of sanction that so several types of sanctions that I would be thinking would be appropriate if I may come in in the response as you have seen the law society's position is that there is some skepticism as to the effectiveness of the legislation one of the important concepts of legislation is that legislation has an impact and whilst I haven't analysed Muriel's very helpful description of the possible penalties or civil remedies I do make the observation that absent some form of sanction or remedy system that it could be described that the legislation is essentially legislation reflecting the voluntary codes and the reason the law society is skeptical is because we have had the voluntary codes for a number of years and it hasn't achieved that end when we look across Europe there are countries which have regimes for enforcement the most famous regime is the Norwegian regime when the requirement was to have at least 40% of company board members or if essentially the company would be delisted that obviously couldn't apply in a public sector board but one can certainly envisage possible remedies through the court system where the boards don't achieve their gender quotas and in the absence of a sanction one would wonder what other type of legislation would succeed if one looks at other legislation that is socially useful if you don't have a sanction would road traffic legislation operate if there is no sanction for people speeding just on a very simplistic basis and in this sense it would seem logical to have some form of enforcement mechanism and the absence of enforcement mechanism I think the law society's position is as we say that we are skeptical so I think we'd all agree that a reporting duty would certainly strengthen that it concentrates minds, it embarrasses people who are falling behind to pull their socks up you touched also on guidance something around the relation to some of us in the last session that the Government aren't planning to put statutory guidance behind this is that a mistake or does that give the lie to the fact that this is really just as you say reflecting good practice and that's all they want to do with this legislation and if so what teeth could we give the bill under statutory guidance I think it would be helpful in any legislation to provide guidance as to the interpretation of the legislation legislation is a useful instrument for bodies to interpret whether they are the courts or other bodies but guidance around the legislation how the legislation is meant to be interpreted can be incredibly useful and can provide subtle guidance for those who are actually required to implement it on a day to day basis the person who is the appointing person or the board generally in relation to the reports on the operation of the act I think the legislation does provide that the public authority must publish reports I think there has been comment that there are requirements in other legislation the public sector equality duties to publish reports the phrase publication can be a fairly broad concept where those are published and are they readily available to people with the organisation I think it would be critical publication of the report in an internal organisation may not have a useful impact on the same vein my colleague Mary Fee rightly pointed out that the weakness of the language is that an appointing person of a public board takes such steps as it considers appropriate and that phrase is repeated several times in the bill in respect of the duties on those appointing persons does the panel have experience of that phrase working in the past is it strong enough and how can we strengthen it in terms of the language of the bill not that particular phrase but I did in my response say that the problem with that a public authority and a appointing person could say that we have thought about this and we do not think that it is appropriate and that looks as if that would comply with that section if there were sanctions for failure then any court looking at that would say that you have thought about it and that is all that requires you to do so I would say that that certainly needs to be specific provision in relation to what the steps actually are that were discussed by colleagues in the last session it seems to me that there needs to be requirements to report and review and revise which might be in guidance they might even be in a code of practice they might be in regulation so it does not necessarily need to just be guidance it seems to me there could be something even perhaps stronger than that perhaps code of practice perhaps even in regulations that Alex Hamilton raised but come from a different angle I think that the question on any piece of legislation by definition should be precise legislation is precise and I think that the committee is right therefore neuro to think about the detail of the bill I think that that is also one of the challenges of legislating in this area that you are in terrain about culture change and about achieving change across a very wide range of areas and in some respects the more precise you are then the more problems and possibly unintended consequences you could stack up in terms of actually getting to where you want to be and as I say I think the shared objective for everybody is about having good strong balance boards for all our public bodies and forgetting more women to leadership roles so I think I would urge caution and this annual is one of the reasons why you know the IOD in all its work and research in this area both in Scotland and the UK has urged caution on other occasions where legislative proposals have been considered because with the right intent underpinning them sometimes there can be unintended consequences through some of that precision for example I don't think that you should ever underestimate how much reporting transparency in and of itself can be a huge driver for change and actually in the private sector a lot of the work that's been done around FTSE 100 to 50 companies and so on over recent years that transparency shining a light on what's going on has in and of itself driven a lot of change now this is Scottish public bodies that we're talking about here so you know you can increase by a factor of 100 I guess the number of different ways that we can shine a light on what's going on in Scottish public bodies that doesn't require you to put everything into the letter of the law I mean it's nearly 20 years ago now that as Scottish Health Minister I did a review of NHS governance in Scotland much of which is actually still in place even and we spent an inordinate amount of time you know thinking about how we could get that mix of structures and people and practices that were needed for that particular service at that particular time obviously other since have done more and I'm sure done better but my point is most of those types of changes that have been done that have actually delivered changes in culture and practice haven't necessarily been done by legislative measures and the precision that's in legislation but by comprehensive effort to really drive culture change that part of which is reporting transparency and in Scotland through the Parliament through Audit Scotland through various inspectorates through ministers themselves who are the people in question actually in the legislation itself ministers themselves also both through their own actions and also through being held to account by this Parliament you know have enormous capability to really drive change and drive that transparency to make sure there's a really clear and shared understanding of what is going on within our public bodies and if I may just add one other point which perhaps we could come back to more detail it's an a number of people in their submissions including ourselves have made reference to this the bill of course focuses on the non-executive members of the board because that's where the power to legislate exists but every bit as if not more important is what's going on with the executive appointments in our public bodies across Scotland and there is a danger that by focusing on the areas that it's possible to legislate on that actually it displaces energy and attention and effort to really do some of the big change that needs to be done I would argue to get both better gender balance but better balance more generally in many of our executive appointments in Scotland OK, Gil Good morning panel we touched on it when Alacly Hamilton asked about sanctions and Rory you've spoken about what happens in other countries I would just like to it's quite a wide-ranging couple of questions does the bill as it stands meet your expectations how does it compare with what the legislation looks like in other countries in Norway if it's a good example and is there anything that can be done to strengthen it and I know we've touched on some of the areas and there was an interesting point made in the last panel about encouraging women to have the confidence to be on boards because we know that they're there and we know they have the skills that will then have a knock-on effect for role models for younger people to encourage them into other sectors of public life is there any knock-on effect for the private sector as well well if I can say that the legislation is different very different from the norwegian example the norwegian example was quite a stringent imposition of a requirement there was a comparative approach in other parts of other Nordic countries in Sweden where they didn't introduce equivalent legislation in Sweden they achieved as I understand it gender equality without legislation I think in Scotland this legislation builds on the experience of the voluntary codes and usefully builds on the experience of the voluntary codes but also picks up in the area of competence of the Scottish Parliament in the non-executive directors precisely because the experience of the voluntary codes has been that they have not achieved the relatively low levels of gender equality that the voluntary codes aim to achieve there is a different debate beyond governance of public bodies into private organisations and that is I would suggest a slightly different debate where it's not a question of governance of public resources the provision of public provision of support to the Scottish population I would say that one of the comments that was made earlier this morning was about encouraging people to come through to be on public boards the lost site of Scotland as we identify is a body of some slightly over 11,000 Scottish solicitors as well reported more than half of those are women you can identify that there's a pool of slightly over five and a half thousand people who I would suggest are relatively well qualified to be on public boards I would suggest that that would identify that there is the capability of achieving gender equality if only from the legal profession and there are other professions that could equally come up to that kind of standard and many individuals at different parts of their professional career would see the benefit I think being on a public board partially as career advancement but also enhancing their greater understanding of the role of a solicitor in society I'm sorry if I've not answered all of your questions Grant The last part of your question there I'm a zealot these days of encouraging cross-fertilisation across sectors and boundaries and organisations I think that there's an enormous amount of learning to be done in this space across private, public and third sector and across all of them there are examples of really good practice that is really driving sustained culture change and frankly one of the reasons why I'm involved with IOD in Scotland is because it's one of the very few organisations that actually draws a thread across that leadership community in Scotland and people are working across boards in all these different organisations and I believe passionately that Scotland PLC needs to have good boards across all these good organisations so that we do our best for the country and the economy so that there's a lot in this space of actually trying to do that cross-fertilisation and as I said a number of people a growing number of people and I think that this is really healthy are taking on non-executive positions alongside their executive roles and crossing sectors to do that in different directions and I think that the more that we can do to encourage that the better similarly the work that we do and I have to pay tribute to a range of other organisations Enterprise Scotland, Change of the Chemistry and so on are engaged in really systematic efforts to train and develop not just potential board members and much of that focus specifically on women but also critically to train others like board chairs on what they can do to ensure that they get balance boards in place and create an environment that's effective for different people to participate and contribute and to make sure that they get a real genuine mix of skills and experience around the table and that's why I would stress the importance too of sometimes dubbed cognitive diversity that it's really important that we don't just focus on the kind of diversity that is very measurable and tangible in getting a good balance board together but we also think about that diversity of thought and experience that is so important but the more that we can do between any of us to actually drive change across sectors and to learn across sectors I think the better it can be in Scotland's a small country and we can do that at scale in a way that other parts of the UK can't in my view Mr Oughty also asked about what works in other countries and I did mention one or two things about what finds and the like there there's a limit to what can be done here given the powers that the Parliament has but one thing that I could also mention in terms of sanctions is about giving redress to individuals considering that possibility whereby individuals could challenge specifically why the public body didn't apply the gender equality objective on their particular appointment at the very least I think that would focus the minds of the public authority because if you know you're going to be requested for detailed feedback you need to think very carefully why you have made the decision and not used the objective in the particular circumstances and interestingly enough that was suggested in the draft EU directive around increasing diversity on boards and company boards so it says something that's being proposed at European level Can I just follow up on that point? It's a small legal point actually if boards are going to be required to tell people why they weren't suitable for the job and a male applicant finds out that he was overlooked in favour of a female candidate would this legislation then prevent him from taking any legal action? Well it wouldn't prevent him but it would be used as a defence by the public authority the public authority would be able to use the equality act where that was appropriate and this act to explain and justify their position I think also if I may say the converse is also true that the female candidate when boards do achieve gender equality will be able to take that information back I think it's understandable that one can speculate about the hypothetical situation of two precisely equally qualified candidates I don't think the experience in Europe is that there has in fact been such difficulties of identically qualified candidates that has caused the hindrance to other jurisdictions that have brought in mandatory quotas Is it really true then that the person will always get appointed on merit rather than gender? I think my view and I think the Law Society's view is that this legislation encourages appointing out of the 100% of the Scottish population the person best suited on merit I think a question might arise in the gender profile why against the 100% of the Scottish population the profile of public boards seems to represent a smaller group in society Susan Do you want to come back in first? I suspect Mike Is it the same train? It's very similar it's just about probably the anonymity of applications as well because if the anonymity of applications exists potentially you could have two male candidates who come out as the lead candidate for it so therefore it would be quite difficult to achieve 50-50 if we don't have something set in to start with I'm really glad you raised that point again because this was exactly the sort of train that I wanted to comment further on it is incredibly difficult at this kind of discussion to really drill down into how you operationalise some of these kind of practices but I did try quite hard when I was reading through the bill and the various explanatory notes and so on to think through I'm being involved in a lot of board recruitment and so on in my time I tried to think through how I would actually apply that and particularly how it would be married together to the appointments process in Scotland and I think there are a number of if you like operational challenges in there that I don't think can be addressed as I say fully in this type of discussion but I would encourage both the committee and the Scottish Government to test fully and widely just how in practice you would play out some of the questions that you've raised there and whether there are changes that might the current practices around the public appointments process in Scotland to make sure that they actually work in tandem so when I express concern about this bill as it stands it is partly that point about how legislation can just sometimes be a blunt instrument that has unintended consequences but the yarn and terrain here where ultimately people need to apply, be encouraged to apply, want to apply and then to have a sift process and a selection process and ultimately an appointment and a training process and so on that all works to get a good outcome and at the moment it feels to me like there's a lot of these issues in danger of maybe not getting the attention that they deserve because people are rightly very keen to achieve gender balance and it's important I think that these questions are worked through Will you get us up to the mentoring in a question? Thank you and good morning I just wanted to pick up on something Susan that you said in response to Gail when you spoke about driving change and taking a more holistic approach across the areas that you represent and I wonder if you could perhaps tell us currently what is done to share good practice with the different sectors that you represent I don't purport to represent all of them and I would always say that everybody could do a lot more but the Scottish the way I look at it, the way I articulate this is that the Scottish ecosystem if you like partly because we've now had almost 20 years of devolution and all that goes with that there are networks and there's connectivity between organisations and it's really quite special that I think we can build on and do a lot more to learn from so in answer to question in a specific sense some of the things that for example an organisation like IOD Scotland does but as I say often trying to do it in partnership with some of the other organisations that I've mentioned and sometimes with individual companies or indeed even Scottish Government itself we've done stuff with particularly around developing trustees for charity boards and so on so I think it's a good, good, grounded training and development activity some of it is mentoring and many of us who have acted as mentors over the years it's a hugely rewarding thing to do for the mentor as well as hopefully being useful for the mentee if you like the big challenge and I touched on it earlier is how you develop the what's loosely called or generally called the executive pipeline in any organisation and that's the bit you know I've been party to more discussions and events in this and I care to remember over the years and you know I think there are areas where I'm talking very generically here you know there are areas where there's been significant change and progress made and I'm talking here the wider culture shift the gender balance of the diversity within top teams if you like but you know I think there's been a lot of areas where actually many of us of a certain age would have expected greater and better change by this time in our life if you like, if we'd been predicting things 30 years ago and again I'm not sure always that compulsion whether it be through legislation or other measures is necessarily the best way to get underneath what's stopping some of that deeper culture change but I don't report to have the answers but I think organisations like the IOD and some of the others I've mentioned can be hugely effective brokerage organisations to work between different organisations and really to focus I think I forgot to say this at the beginning which is what I meant to do actually one of the core royal charter purposes of the IOD is and I quote to promote the study, research and development of the law and practice of corporate governance so there's a big research capability and there's lots of networks and connections both across the UK and here in Scotland so I think irrespective of where the committee decides to go with this bill in addition there has to be all that wider array of activity that really seeks to drive that change in culture and practice I hope that answers your question sorry I don't know if I gave enough specifics It's been very helpful so if some of the language was a regulatory guidance and there was some kind of reporting or audit mechanism do you then think it would be helpful to put something in the guidance about building and developing on the current shared practice that already exists and building on the networks that are already there? I think we would continue to urge caution about what you actually put into primary legislation or indeed even secondary legislation I think that's really what is one of the main messages that I would want to feed into this committee today Muriel, did you want to come in on that before I ask the question? It's interesting that Professor Dey can say about over 30 years expecting to have greater and better changes and we haven't had them and we've had the voluntary approach over all of these 30 years and much much more and so I think that's why we need to have provision for positive action requirements for positive action like this I wonder if I can pick up on one or two other things in relation to the point about merit that perhaps Ms Wells mentioned because one of the things in my response I said to the consultation draft was about how merit is in fact contested and this is a difficulty and again this comes back to the need for guidance for people to channel people in the right direction really and so issues like no further help with what equally qualified might mean unlike Mr McPherson personally I think that there are very often situations when in fact two candidates are equally qualified and the panel waits some factor or other which suits them, maybe fit with their organisation is what they wait here we say you must wait gender that's what you wait if they're gendered, these are under representation to ensure that people are doing that they're thinking this through and that that's what they are doing I just come back on a couple of points there just my reference to change over 30 years can I just be clear I was talking there about the broad kind of culture change I think many of us would have wanted to have seen it in organisations generally and more widely in society and my point is that that is a really complex mix of factors that feeds into that and we're only really going to get sustained change in the workplace when we have a much more holistic conversation about life and work and family and a whole bunch of other stuff so I just want to be clear because that is all the more reason in my view why you have to be very cautious about quotas of any sort I mean again through my entire life I feel that I've always been involved in these debates around quotas whether it be in organisations, whether it be in politics or whatever and I totally understand why quotas have a place and some boards voluntarily choose to do that they think that's right for their organisation and for the kind of skills mix that they need I worry greatly and again the idea is an organisation about having a quota that applies across a very diverse range of boards and in one area alone and how that might impact on the balance board that you want the other thing I'm going to say is a woman I suppose who's heard leadership roles in my time is I think we have to respect the fact that a number of women are still uncomfortable about being part of a process which involves a quota system now there are very different views among women as there are among everybody about quotas but I just for the record note that I know a number of women are still very uncomfortable about that because no matter how robust the selection process is rightly or wrongly I would argue it creates a climate where it starts to be inferred or suggested that women aren't there on merit and that I think is one of the potential unincended consequences of relying overly heavily on quotas so none of these things are to go against you know as I say that a high level aims that everybody has here is just words of caution along the way we've only got a few minutes left so you need to be very quick because I've got Jamie to come in as well and I want to give him some time I'll be very brief because I asked the same question on the previous panel but I'll shorten it Do you see any financial implications on boards for taking any steps to increase and improve diversity given what the previous panel said about that they should be already doing this? No That was short and sweet, thank you I have to agree and it's partly because again the last panel the public sector equality duty already requires people to be thinking about positive action that's a requirement of it so they should be thinking about positive action across the board in relation to all of the protected characteristics they should already be doing this that this is just focusing on one particular protected characteristic You could argue I was thinking this list into that last discussion that if it's all already happening and therefore there's no cost then why do you need legislation? If you need legislation then you're going to need to spend money too if you're going to really drive the kind of change that's needed Jamie I'm sorry we have not a lot of time left Can I just check a statistic which I'm reading conflicting numbers on In the IOD's submission it says that the current level of female representation public boards is at 42% and increasing Is that my understanding of your submission? I didn't write the submission I did see the 42% figure actually I think it's in the SPICE document That's where it came from The only reason I flag up was because the closed the gap submission was 36% and that's where the confusion has come to me and there is a reason why I asked that not just to be fiddly with the numbers 6 percentage points actually makes quite a difference psychologically 36% to me sounds like a third 42% and increasing sounds like we're heading in the right direction and this is kind of where my dichotomy in this bill is manifesting itself I hear both sides of the argument and you're probably one of the lone voices that we'll have in this room who represents a substantial part of Scotland's economy and business community who thinks that the legislation is not required that's why I want to check that number because I think if you're saying to me that it is 42% and it's increasing in the right we're heading towards 50% anyway therefore the legislation is less required your argument makes more sense but if it's 36% it means that we're still far away from it the 42% is on page 3 of the spice briefing so I presume that's where our people took it from so I guess my question is I did wonder by the way about when reading that number in the spice briefing my question about it was whether that was looking at boards as a whole or just non-executives I thought there needed to be more clarity around that so I think there is more statistical information needs to be flushed out I agree I think there's you can obviously be selective of statistics to show one side of an argument over another but I think what struck me about this bill is how narrow it is what it's actually focusing on is just public boards and not just within public organisations but the non-executive boards within those organisations and it really only applies to situations where there isn't a best qualified candidate so it seems very narrow the conversation in this room about how the bill should be beefened up and strengthened or have more implications in terms of sanctions and reporting requirements and it's been absolutely intriguing to hear somebody in the room say why they don't think there's a need for a quota at all because what you're arguing is that this bill places a mandatory duty which you don't think needs to exist to be clear and I and the IOD as an organisation completely respect the right of the Parliament and working with the Government to work this through to get the best outcome which, as I say, is an outcome that we all want I think both in the written submission from the IOD and in the comments that I've made today I think again what we're saying is just to urge caution as you rightly say legislating across the piece in the same way for all public bodies it's about legislating for one part of each board, i.e. the non-exectives and it's about legislating for one aspect of diversity on a board and what we are really saying is that given that the overarching aim and purpose from a good governance point of view is to get good strong balance boards with that rich mix of skills and experience and diversity within them we're really just posing the question and saying are you sure that this is going to actually deliver that outcome or might there be unintended consequences in a sense putting it back to you as policy makers to then keep working that through having hopefully taken some of those questions and thoughts on board it seems very much that the voluntary measures aren't working because we're not achieving functionality and representation which is why I'm sympathetic perhaps to the objectives of the bill but I do take on board your point around some of the unintended consequences of placing a quota if it diverts attention from where the real issues are around getting proper presentation at executive level across business in the third sector in the public sector I still haven't quite walked away from this meeting with a full understanding of why a quota will do less than a voluntary measure because the voluntary measures to me seems not to be working so I'm still a little bit there's a gap in my understanding of how letting organic processes see through will get as to where we need to be or is it your view that it doesn't need to be 50-50 as perhaps a view in certain boards I must stress again I want to be very clear we're not seeking to be prescriptive here we're seeking to everybody that's involved in work in this area and discussion in this area I think is open-minded to trying to develop the most effective ways of getting to the place that we all want to be so I see it's a bit of a shared learning journey if you like I would hate either an individual or the organisation that I represent for us just to be involved in some kind of black and white yes or no position around this I really want to stress that I think your questioning there has raised exactly some of the things that I would encourage you to look into for that that question about the numbers what as I say that 42% figure is lifted directly from the spice brief and what exactly does that mean how is it the case that the gap is as you say 8% that others have quoted I don't know as I say we've just operated from that information I think I do have to stress this overarching point though about a balance board I just don't divorce the qualities issues here from the governance issues I mean we're talking about boards here that have oversight of hugely complex important public services across Scotland and billions of pounds of taxpayer's money and all of us want to make sure that the mix of people around that table and as I say that diversity comes as the previous panel explored too you know in many different shapes and forms including among the men and the women themselves there has to be that diverse mix and you're actually not talking about boards of thousands of people you're talking about maybe what ten or dozen appointments maybe less in some cases than on executives so it's not a knock on effects with one appointment as a knock on effect with somebody else and you can't afford to leave a big important complex board you know with a real gap somewhere in terms of the skills and knowledge that it needs so those are the things we'd encourage you just to explore further Susan, earlier you mentioned some operational challenges have you got an example of an operational challenge that could maybe face I think it's really the terrain that we've been in some of that discussion it's to work through and you know can probably provide further information on this and I just haven't come across it but you know it's working through if you were really to play out the letter of the legislation is currently proposed alongside the existing public appointments process in Scotland does it actually all hand together and take you to the place that you want it to and will people involved in that process actually be able to manage some of these issues around the numbers and the merit question and the anonymity issues and so on Muriel, at the beginning you had mentioned two things that are now not in the bill and it was the it doesn't include trans women and we will interrogate that as we go along but there's one thing you said about removal of exceptional circumstances can you give us some insight into what it meant by that? It's clause 4 I think where on the consultation draft there was reference to so it was really to ensure that there are circumstances when you might might say the disabled person is equally well qualified and therefore we've got a problem with our diversity in relation to disabled people we'll select that person I think that the language now moving from exceptional circumstances to a much broader justification scenario perhaps gives too much scope to the appointing board in terms of when they can say we're not going to follow this the requirement to achieve the objective That gives us some other avenues to look at Rory, did you want to comment on that? Yes, if I may go back one of the points that Muriel discussed earlier was when there were candidates of equal standing although I essentially responded to what I understood was a hypothetical scenario of two identically qualified scenarios happy to refer to Muriel's expertise in this area I'm happy to concede that there will be instances where there are in fact two identically qualified candidates and I don't have a difficulty with the bill in that context I was simply responding to what sometimes is a hypothetical position that is difficult because what if one gets to identify qualified candidates my own experience is one can often characterise individuals as identically qualified in fact when you look at it in fact they're not identically qualified and I think the bill is useful in identifying an opportunity to look at gender diversity I do think that there are some challenges around the bill around the appointing persons rather subjective assessment and one would hope that the reporting requirements would tease that out on the broader issue as a society commented there may be opportunities and one society would hope to come back in a future date to look at future legislation dealing with other protected characteristics that may however be tied in with legislative competence issues but at present the legislation seeks to achieve an end the society's concern is the absence of a form of penalty or a redress such as saying that duties can be enforced in the court with appropriate remedies providing penalties for non-compliance the legislation may be criticised as a statutory voluntary code and that is the society's concern We have really ran out of time and you have given us lots of questions to ask the Government I suspect and we are really grateful for your contributions this morning and if you go away and you think I should have said something please let us know in the course of the deliberations on this bill we are very grateful to you this morning and thank you very much for your time