 Good morning, and welcome to the 24th meeting of the Equality and Human Rights Committee in 2017. Can I make the usual request that mobile phones and electronic devices are switched on to silent and mobile phones off the desk, please? Moving on to agenda item 1, which is our final session on stage 1 of this bill, the agenda representation and public board's bill. To begin with this morning, we have the Cabinet Secretary with us, Angela Constance, who is the Cabinet Secretary for Communities, Social Security and Equalities. Good morning, Cabinet Secretary. We have Eileen Flanagan, the Equality Policy Manager, Leslie Cunningham, the Gender Equality Policy Officer, and Lucy Galloway, who is the Solicitor for the Scottish Parliament. Good morning, and thank you so much for coming along to this final session of the stage 1 of this bill. We're very grateful to have you here this morning, and we're really interested to hear your thoughts. I hope that you've followed the evidence that I expect you to have that we've taken over the past few weeks on the bill, and some very interesting threads have arisen from that. Cabinet Secretary, I'm going to kick off with an opening question to allow you just to set the scene a bit, and it's essentially the question that's been asked by some through the process of the bill is, what's the purpose of the bill and what do you expect it to do in the future? Well, the purpose of the bill is to redress an on-going imbalance in the representation of women on public boards in Scotland. We know that we have made fantastic progress. Over recent years, if you look at the figures historically, from around 2004-05 to 2014-15, the representation of women on public sector boards in Scotland hovered in the mid-30s between 34 and 38 per cent, so progress was quite slow. Over the past few years, we've made substantial progress, which has to be very welcomed, and I know that you heard in your evidence that the representation of women on public boards in Scotland is now in excess of 45 per cent. I have to point out, convener, that women are not a minority, they are 51.5 per cent of the population in Scotland, so we still have further progress to do. We have to be aware that, although that aggregate figure of 45 per cent is a really strong, powerful story, women are better represented in Scotland's public sector boards than ever before, but that 45 per cent isn't universal, some boards will be doing better than others. It's always important that we dig beneath the headlined figures and scrutinise where exactly we're making progress and where we need to redouble our efforts. All the evidence shows us that improving diversity and the representation of women on public sector boards actually leads to better decision making. Fundamentally, for me, convener, is that we need to protect progress. We're not there yet, but we need to protect progress. We need to lock in the gains. We need to use the new quality powers that we've got to maintain the momentum and future-proof progress. One of my favourite quotes is from Zairi Smyth, who talks about the fact that progress doesn't stand still, that you have to be proactive and protect in progress. You have to always redouble your efforts, reimagine how you're going to do things to ensure that you protect progress and that you build upon it. Felly, on behalf of the areas that have arisen over the past few weeks, most of the members have got something that they've been working on. I'm going to come to Gail Ross first because Gail's got some areas that she wants to discuss on guidance. Good morning, panel. Good morning, Cabinet Secretary. Thank you for coming along. The Scottish Government has said that it doesn't intend to publish guidance along with this bill, and the EHRC and the Commissioner for Ethical Standards in Public Life have said that there is already a range of guidance for bodies to draw on. A number of witnesses have suggested that guidance would be needed and, indeed, desirable, sometimes necessary for them to move forward and make sure that they're getting it right. Can you tell us why, initially, the Government said that it wasn't going to publish guidance and now that we've had the evidence, is there any way at all that the Government will change its mind on that issue? Thank you very much for that question. I think that it's important that I clarify what the Government's position actually is. We currently have existing guidance, existing guidance that we would certainly wish to update and consult upon the guidance that we wish to update. There is a ream of other guidance documents from others, whether it's the Commissioner for Ethical Standards, the Equality and Human Rights Commission. We do have guidance. We accept that you do need guidance. We would want to update the existing guidance, accept that guidance is important. I suppose that my understanding of the debate in terms of the evidence that the committee has been presented with is whether that guidance should be statutory or non-statutory. Our plan at this point in time is to update our existing guidance and to be fully transparent and consultative in terms of how we go about that. It's important to me that I have that dialogue with the committee and others, because I want this bill to be the best bill and I want it to be effective. Will the updated guidance then be relevant particularly to the bill? In terms of the actions that people need to pursue to achieve the gender representation objective that's laid out in the bill, in many cases people are already undertaking that action. That's why we've had significant progress over the last two to three years in increasing the representation of women. In terms of updating existing guidance, it would be in relation to the specifics in and around the bill. Alex Cole-Hamilton. Good morning, cabinet secretary and to the officials joining us today. I've arranged your questions specifically initially pertaining to the appointing person. First of all, we understand as a committee that that's largely the Scottish ministers who would have made the final appointment. Are there any circumstances where the appointing person wouldn't be Scottish ministers? If that's not the case, should we not just define that appointing person as Scottish ministers on the face of the bill? We'll certainly look at that issue, Mr Cole-Hamilton. Eileen will correct me if I'm wrong, but in terms of the boards that come under the scope of the bill, 6 per cent of those boards' appointments are made by Scottish ministers. There are other appointing persons out there in the wider public sector, but largely this is activity undertaken by Scottish ministers supported by civil servants, which obviously has its advantages in terms of knowing who's doing what, in terms of scrutiny of that activity. We'll look forward with a fair and open mind to any suggestions that members have come forward with, particularly as we move towards stage 2. Moving to section 4, in which we believe really is where the teeth of this bill lies and the meat of it lies in respect of the balance between meritocracy and, I don't want to say, affirmative action, but action to improve the representation of women on public boards. Do we have that balance right? It's quite clearly the decision first rests on merit that will give the role to somebody who is best qualified. There are contingencies, particularly in section 4 clause 4, where the appointing person—whether that is a minister or somebody else—can make a determination to appoint somebody who is not a woman on the basis of, quote, unquote, a characteristic. There's been a lot of debate and lots of evidence from people who want to see additional protected characteristics as clauses for appointment, which might override the thrust of this bill to increase gender representation. Can we clarify what we mean by our characteristic in that section? Indeed, absolutely. Can I just say firstly, and I think that this is a really important broad message that we continue to hammer home, is that this bill will mean that we continue to appoint on merit and that taking positive action and appointing on merit is not mutually exclusive. We need to be really clear on that point. Mr Cole-Hamilton is right that, in terms of what he described as the tie-breaker situation, we are looking at sections 4, 3 and 4, 4 of the legislation here. That is where we have to operate within the confines of our competence. A lower competence over equality legislation has increased. It is a somewhat partial legislative competence that we have and very specific. More germane to the question you raised is that we are operating in the confines of EU legislation. In terms of the actual term protected characteristic, we have not used that term, we have spoken about characteristics or situations. The reason for that is that, to use the term protected characteristic, we would have a narrowing effect in terms of the tie-breaker situation. In the points that you have raised with regard to people of other backgrounds. Our language around characteristics or situations includes protected characteristics, as we are required to do under the Equality Act. It could also include, for example, a socio-economic background, whether someone is a carer, a parent or things such as geographical locations. In terms of if we had to use the phrase protected characteristic, that would have a narrowing effect. Crucially, it would be potentially outwith the law. The tie-breaker rule, there is not a blanket tie-breaker rule in the context of EU law. The tie-breaker rule says that we must have, as a condition, guarantees on objective assessments which take account of specified personal situations of all candidates. As I said, the narrowing use of protected characteristics in this circumstance could take us outwith EU law and our competence. It is an area that we have looked at very closely and will continue to do. There is a supplementary to that. This bill is about improving diversity of boards. My anxiety about having that ambiguous term characteristic without qualification would arguably take us in the other direction and dilute the thrust of this bill. As you say, it could be a range of other characteristics. I accept that. I think that there is merit to try and reflect that on the face of the bill. Those might be socio-economic or rural or geographical or whatever it is. Without having that clarified on the face of the bill or statutory guidance underpinning that clause, ministers 20 or 30 years from now might read that very differently and see that as a means of appointing as we have been for many decades and not reflecting that diversity on boards. I guess that this is something that we will need to tease out through the parliamentary process. Take your point about the content of guidance. I think that there is another point about the added value of whether guidance is statutory or not statutory and we will continue to reflect on that. I take your point about how the content of guidance needs to be rooted in real life and needs to be practical and needs to be that go-to guide to enable people to know what it is that they need to be doing and how they go about the mechanics of applying the law. As you would expect, as a Government, we have to operate within the confines of our legal competence and the law, whether that is the broader thrust of equality legislation, the Scotland Act, the EU legislation. We are being clear that there is no get-out clause. I know that you have not used that language, but it is very important that we say that there is no get-out clause. S section 43 says that, if you have two equally qualified candidates, you can appoint the woman who would be the expectation that you would appoint the woman if that helps you meet your gender representation objectives. Of course, legislation has a habit of doing this rightly and has to be balanced with other considerations to all candidates, given that the thrust of EU legislation is about fairness and equality. The teeth of the bill, I would suggest, is the duties to encourage applications. I think that that is where guidance is important, although it exists. I think that people largely know what they can and should do. The duty to report and the risk of reputational damage if people are not making as much progress as they should or making decisions that are less than ideal or that do not stand up to scrutiny. That brings me neatly to my last area of questioning, which is around the teeth of the bill, as you describe it. In section 5, in terms of the duty on both the appointing person and the public authority to quote-unquote take such steps as it considers appropriate, I have anxiety about that language because it is very subjective that, 50 years from now, with a less progressive administration, that that might be paid lip service to and it would not really stand up to any kind of justiciable scrutiny. I wonder if you could give us your reflection, cabinet secretary, as to whether you think that language is strong enough. Without immediate statutory guidance underpinning those clauses, whether that will be worth the candle as a piece of legislation? Two things in response to that, Mr Cole-Hamilton. One, we absolutely do want to future-proof and lock in the progress that we've made. I'm accepting of the point, notwithstanding our on-going deliberations around the nature, the legal basis or not of guidance, that guidance needs to be rooted in the practicalities of life. Where there's a balance is that I'm conscious that different boards have different circumstances and different challenges in which to meet their obligations. In the one hand, we want to be crystal clear about what people can and should do because the evidence is there. I don't want to be crude, but this isn't rocket science in terms of how you improve diversity on boards. There's now a substantial body of evidence about what you need to do and what works. There doesn't need to be more progress or more research or evidence in terms of some very specific challenges. I would just be a wee bit concerned that we have a one-size-fits-all approach or that it becomes a tick box exercise. We're more than happy to be discussing with committee or MSPs how we get that balance right. There could be a danger of being over-prescriptive, but we don't want to have a lack of clarity given that we know what works. We know that people have to be out there and being involved in different ways to reach in to different communities. We know that people need to be thinking imaginatively about how they recruit and not just rely on the same old advert and the same newspaper publication. We know in terms of how people are interviewed and how people look at applications and not making the same old assumptions about the skills and attributes and the knowledge that you think you need on your board. I notice in your evidence that someone had mentioned the importance of having people with that lived experience being represented on boards. We know that application processes need to be simplified. We know that there needs to be inclusive language. We know that people have to have a clear view of the competencies that are required and to be thinking out with the box about the knowledge and skills and attributes that will meet those competencies. We know what works. There is further research on things that we need to bore into. Why is it that we don't get as many applications from people under 50, for example, we suspect, to do with the demands of working life and being parents? There are other things that we need to do, but we know by and large what works. This bill is about making sure that people do it. We have accountability in the bill as we have it before us in respect of the reporting duty, but there is no sanction for either public authorities or the appointing person should they fall foul of their obligations to section 5 or 4. Do we need sanctions and what would they look like if we did? I mean, I suppose that we would refer to my earlier remarks around the issue around reputational damage and that duty to report. For an organisation or a public body where there is a lack of women in roles of leadership, that runs the risk of reputational damage. That can be particularly powerful. I think that the issue of sanctions is an interesting one. I have heard and listened to a lot of the evidence where it has been explored. There is a lot of ruminations. I suppose that I have not heard really specific examples of how a sanction would operate and what the sanction would specifically be, but we will continue to listen with an open mind. My expectation is that public authorities can meet their obligations. I do not expect or anticipate people not meeting their obligations. Given that 60 per cent of the ports are subject to ministerial appointments as well, while I note that some voices in the university sector have a different view on that. I do not have a view to minds on whether they should be subject to the bill, whether they should be listed as a public authority. If I am asked about that, I will answer that specific question. However, I have no doubts that, if the bill passes, the university sector will meet its obligations. I think that the reporting requirements and transparency around the reporting requirements that are in regulations are powerful and the risk of reputational damage would be a significant risk for any public sector organisation if they were not operating. I suppose that I was conscious that the equality and human rights commission was quite cautious about a sanctions regime. I hope that I am not putting words in their mouth. They spoke about how a sanctions regime could potentially push point persons or public sector boards into more unlawful positions. That is positive action. Cabinet secretary, I want to add a supplementary on sanctions. I was in Strasbourg last week at the Council of Europe committees and there was a debate on women's representation in public and political life. It was interesting to hear from across different parts of Europe the methods that they use. Some do use sanctions, some financial penalties. Others that seem to be the ones that were making the most progress were ones that offered an accreditation type system where companies were praised and accredited and given value attached to that and the process that they took. It seemed to be the balance in success was more the credits rather than the sanctions. I wonder if you have an opinion on that? I suppose that, instinctively, I would have an opinion that positive reinforcement and positive encouragement tends in many walks of life to be more effective where people are incentivised to behave positively than in an area that is quite hard to define and could be less effective. We will certainly have a very close look at the evidence that the conveners point to across Europe. That seems very interesting indeed. He mentioned the main driver of a sanction being the reputational damage. I wondered how that would be reported. Would that be an annual report to the Parliament, for instance, where some of the commissioners will report to Parliament with a list of things that people have not audited to do? Would that be something that would be attractive to Government in order to put on record a board that is not performing? Transparency is imperative. The reporting duties are imperative. The regulations that will be brought forward around reporting will be crucially important in this area. Given that close consideration, transparency is absolutely crucial. This is the public sector that we are talking about. All its dealings have to be transparent. It is transparency that drives performance. I think that people in the public sector guard their reputation closely and carefully. The universities that are world-leading are very fortunate in Scotland. We punch above our way in terms of world-class higher education institutions. Their reputation is crucially important to them. Eileen, do you want to scope out a bit in terms of what we envision? We also have to consult on the regulations as well. Again, it is a two-way street, but we have had some initial thoughts about the scope and shape of regulations. We are considering the reporting cycles, whether we should tie that more into the public sector quality duty reporting cycles as well. Again, we are conscious that we do not want to overburden people, but the duty to report on progress and performance and the transparency of that is absolutely crucial. As the cabinet secretary said, we were very mindful that we did not want to add an additional bureaucratic burden on to boards in relation to how they tell us about their moving towards 50 per cent women. We are also mindful that the majority of the boards that are fit within the public sector quality duty, specific duties for Scotland, involves already reporting on their work around equality. Putting those together, a logical way forward, which came out through the consultation on the draft bill, was to use the mainstream reporting cycle as a way for boards to tell us about their progress. That is a two-yearly cycle. The first reporting opportunity would be 2019. After the deadline that we have set for the achievement of 50 per cent is 2022, the next cycle would be reporting on that. There is a lot of time for boards to meet the requirement and to tell us about it in their mainstream report. There is a small cohort of boards that are not within that reporting regime just now. We will be looking at how those boards can tell us about their progress. There is a lot of work to do with the boards in a consultative way to make sure that that works and that is proportionate, but, as the cabinet secretary said, it is transparent so that people can see that progress is being made. There is also the commissioner for ethical standards in public life in Scotland's annual report, which shows us about what is happening in the boards in Scotland for the ministerially appointed boards. There is that extra level of scrutiny. We are very mindful that, going forward, we need to look at a system that gives the transparency that the cabinet secretary has mentioned. It also works and is proportionate within the board's structure for reporting. It is also mindful that it is already working around succession planning and using that as a way forward for how it strengthens its board across equality and other skills that it needs. We will be working towards, if the bill passes, working with all the relevant people to have a reporting structure that works and to let us know where we have achieved the bill's objective. On that point, if you have the regulations under section 11, section 11.3, regulations under section 7 and 8 are subject to the negative procedure, would there be any scope to change that to an affirmative procedure? Our position, convener, still remains that a negative instrument is proportionate given that what we are looking at is largely important but that the power to make technical changes. Those are things that we will have an open mind and an open ears in terms of the views and feelings of committee and parliament. The Delegated Powers and Law Reform Committee has made that recommendation, so you are mindful of that. Before I go on to the next question to Mary, I want to make sure that we have received apologies from Jamie Greene this morning. There are a couple of areas that I want to explore with you. The first is the definition of gender in the bill, because it is a non-binary definition. We have heard concerns from the Transgender Alliance when they gave us evidence that the bill, I suppose inadvertently, may not include transwomen. They have suggested a very small change to the bill to include a definition of women, which would be inclusive of transwomen. Is that something that you have considered? Would you be open to do something to protect transwomen? We are certainly considering it and we are certainly open to making improvements in terms of how the bill is currently drafted. We had made some earlier improvements, which I believe enabled us to address the issue around people that are non-binary. One of the reasons why we moved away from a gender representation objective that was 50 per cent women and 50 per cent men was that there were some legal issues around that, but that excluded non-binary. In terms of only having a gender representation objective around women, that is inclusive of people that are non-binary. Moving on to the issue for transwomen, when we use the term women, we want that to include all persons who self-identify as a woman and irrespective of the sex that was assigned at birth and crucially irrespective of whether or not they have a gender recognition certificate. We are exploring that again within our legislative competence. The 2016 Scotland Act amends the reservations under the original Scotland Act. As I said earlier, our inroads in equality legislation is partial. There are some wrinkles that we need to try and iron out, but our intention absolutely is to resolve it. We are looking closely at the suggestion from the Scottish Transgender Alliance. We want it to be sorted for this bill. If, for some reason, we cannot, we have also got a consultation around our plans for a gender recognition act. We are working very hard to address that. We absolutely want to address that, but we are working through a number of the legal issues just now and we will keep the committee fully informed. That is very helpful. The biggest concern that the transgender alliance has is that there is a potential for the bill to be misinterpreted. I suppose, including a definition, it is almost taking a Belt and Braces approach. It leaves in absolutely no doubt what we mean when we say a woman so the cabinet secretary's words are very welcome. Can I touch on the financial implications of the bill? The financial memorandum says that there are minimal costs attached to the bill. While some of our witnesses have agreed with that, some of our witnesses have said that there is the potential for costs to be attached. In addition, the chemistry has said that the Government has underestimated the cost of finding diverse candidates. Inclusion Scotland and the EHRC have also raised concerns. I wonder what you would be on that. While the majority of boards are moving in the right direction, there are some boards that are still finding it difficult to find that broad range of candidates. There may be a cost attached to trying to identify more candidates. There potentially could be a cost of training for the whole board after they achieve that more diverse board. However, if there are more women on boards, there could potentially also be an additional cost for boards in relation to childcare. I wonder what your thoughts are on reviewing the financial memorandum or looking at costs as the legislation progresses. I think that the point that for different boards, depending on where they are, they may well have to incur different costs. The financial memorandum is generous, I would suggest, given that the vast majority are already on this journey. If you look at the margin, the financial memorandum goes from a minimum to a maximum. Has that flexibility been covered already? I would suggest a range of potential situations. If you look at the upper scale of the lower scale of the financial memorandum, I think that from memory it was around £30,000, and it goes up to a quarter of a million pounds. That is a big category. My view would be firmly that the financial memorandum is arguably ample and generous. I have looked at the four submissions that went to the Finance and Constitution Committee. In my reading of that, there was only one organisation that was taking a bit more exception to the financial memorandum. I can reflect to the committee that the financial memorandum is fine and that my focus will be on other aspects of the bill. Child care was indeed factored into the financial memorandum. That is a good point. Thank you very much, convener. Good morning, Cabinet Secretary. Good morning, panel. I have one question, so I will not last as long as anyone else. In positive action in sections 5 and 6, we have got the term considered appropriate. It takes such steps as it is considered appropriate. A lot of the witnesses had said that it was quite subjective, and was there any other way that we could look at how that could be described? I suppose that it picks up on the points that Mr Cole-Hamilton raised and my response to him on that. What we want to avoid is some sort of list or tick box exercise or a one-size-fits-all when the public sector landscape in Scotland is quite diverse. It is quite complex in terms of the nature of the boards, in terms of how they are configured, but we are open to suggestions. Given that we know what has worked, I gave quite a full answer on that point about the evidence and what we know what those steps could and should be. I do not want to repeat that at the risk of incurring the wrath of the convener. There may be ways that we could explore a non-exhaustive list within the bill. We have had to do similar things in other legislation that is currently going through Parliament. In terms of the child poverty bill, we had a debate with the social security committee around what needed to be in the face of the bill in terms of what was covered in the delivery plan. I am happy to have that discussion. Alex Cole-Hamilton, do you want to comment on the idea of a non-exhaustive list? I think that we would welcome that, because there would not be any malice in the fact that some people might not be entirely sure how they were to discharge the duties on them under the act. I think that we probably have to have a discussion in the margins about what that might look like. I am not entirely sure. Hearing you speak there is quite interesting. Child care is very important. I also want to look at the structure of board meetings. Many boards meet in the evenings and sometimes they are prohibitive around parenting responsibilities, which culturally still act as a barrier to women, even though we would rather have a more egalitarian style of co-parenting. That is more of a comment than a question, but has there been work within the bill team or other officials to sort of hypothesise what such steps they consider appropriate might look like in terms of drafting guidance and support? I think that this is where we really have to get the balance right, because if we have a list of steps that even our non-exhaustive could be taken, the danger is that we get people coming out with a pen and ticking things off, and those steps may or may not be appropriate to a particular board in a particular location of the country in a particular service area. While I absolutely get the point about board meetings in the evenings, or indeed board meetings during the day when many of the under 50s are at work, we do not necessarily want to be specifying to every board in the country when they have their meetings, so we do need to proceed carefully with the level of detail. I am open to that discussion bearing in mind the extensive work that has been done by Scottish Government officials and ministers over the past few years, the evidence that exists across Europe in terms of what works. There is a good, solid international base of evidence as well. As I said, in terms of the success of application processes, recruitment, interviews, meetings and how you upskill people, there is good, solid evidence about what works. I suppose that it has been able to articulate that and perhaps more about maybe guiding principles, so sometimes it is better to have maybe some principles or a little bit of a framework in a bill and then the detail being in the guidance. Cabinet Secretary, I have worked together in my days as a voluntary sector lobbyist in terms of the design of guidance around other pieces of legislation. I think that there are mechanisms whereby you give narratives and examples as to what that might look like, which do not form a non-exhaustive list, which could in the form of time become an exhaustive list, whereby you give examples of board setups and steps that boards have taken in the past, the cross-fertilisation of best practice, that kind of thing. I suppose that comes from the reporting duty as well, that the duties under section 7 in making reports to government about the application of the act should not just be how many women have we appointed but what steps have we taken to make that possible and that will then allow other boards to sort of pick up on that. I think in terms of the examples in the dissemination of good practice, that is the purpose of guidance, but we will want that link between the legislation and the guidance and we will give consideration to a form of words. As I am sure members, I am very conscious that members as individual MSPs at the end of the day are legislators and will be perhaps formulating their own ideas and amendments as well. Gail Ross. Just to pick up something that Alex Cole-Hamilton had just mentioned, there was a reference to the golden skirts phenomenon in one of our evidence sessions, but women 50-50 said that it is exaggerated, saying that 15 per cent of women on boards hold more than one position and 10 per cent of men do. I would just like to mention that there are three very high profile boards in Scotland at the moment that are chaired by the same male. I have absolutely no doubt that he is there on merit, but what do we do to not just encourage women from different backgrounds to go on boards but once they are on boards encourage them then into office bearer positions? I think that there is a broader point that we do not want the same small group of people circulating around these many public boards in Scotland. A lot of the work that we commenced in terms of improving representation of diversity across the piece was about expanding that pool of talent. One way to expand into that pool of talent is to take proactive action to reach in to different communities. I am conscious that if women are 51 per cent of the population it goes without saying that we are not a homogenous group and neither are men. I think that there is something about always trying to expand that pool of people that are serving on public sector boards. Specific initiatives around the Public Appointments Improvement programme has been around role models, outreach, working with chairs in terms of that pipeline of talent. Succession planning, mentoring opportunity schemes, toolkits. Some of that is focused on particular groups in terms of the BME community, disabled people and the number of people that are under 50. I suppose that what I am trying to say is that addressing underrepresentation of women has gains for other people and for other groups. We do not want to be pitching one group of people against others. I want to say this with gentleness and kindness. I certainly do not want it to be understated, because I do believe that if we can get it right for women, that will help us to get it right for other groups. There are positive gains for other people who may get the representation of women and the quality of women. Do we always look at the issues of women and gender through the lens of other issues as well? For ever and a day, we have the situation where in terms of the positions of power across Scotland, more than 70 per cent of those positions are occupied by men. When we are recruiting men, we are not saying, what about, how do we improve the representation of people with disabilities or people from BME communities. There is a danger that we are always looking at the issues of women through that lens of how we tackle everything else as well. Let me stress that when we get it right for women, we will get it right for other groups as well. I think that it was Ban Ki-moon that always used to talk about equality for women and progress for women being progress for everyone. We heard in the course of the evidence of, in the tie-break situation, if a disabled man lost out to enable bodied women, would that be a dangerous line to take? We did hear some evidence about someone with another protected characteristic who was a male losing out to a woman just because she was a woman. Those are complex situations. As I said earlier, the law is finally balanced, but the action that we are having to take, or have taken to improve the representation of women in public boards, is action that will broadly benefit other groups of people as well. We need to avoid getting into this pitch in women against BME community or people with disability. I absolutely accept that, as well as there has been underrepresentation of women, there is underrepresentation of people with disabilities, people from the BME community and people that are under 50 on boards. That will require some specific action. I sit here in front of you today to talk about a specific bill that is focused on gender equality. I make no apologies for that, but I am conscious that I am also the Equalities Secretary, but there is nothing in this bill that prohibits work in other areas. We have the race equality framework. We will be bringing forward the race equality action plan. If you look at the work that the Minister for Social Security is doing in the disability action plan, there are specific actions around there about outreach work to increase the representation of people with disabilities on public boards. While over the past 10, 15 years, it has increased, but it is still underrepresented. The more recent figures show a decrease. We have an obligation and a duty there as well. Section 1.1 in the bill said that the gender representation objective for a public board is that it has 50 per cent of non-executive members who are women. In the written evidence, the EHRC said that changing the target to 40 per cent would make it a lot more flexible. Do you have an opinion on that? I suppose that I should have declared an interest at the start of this. I signed up a member of the 50-50 campaign. Women are 51.5 per cent of the population. The voluntary measures that a lot of boards have had to increase representation of women to around 40 per cent have been effective. The bill is rightly focused on non-executive members. That is where we can act. I am conscious that, given the complexity of the public sector landscape, there are other people who sit on board who are elected because they are elected or their ex-officio. The bill does not address the representation of women in terms of ex-officio positions or elected members. That is why the bill is one measure. There are broader issues that need to be tackled in and around gender inequality and other inequality in society that we are not demuding from. This is a focused bill that is taking targeted action in response to our new powers. I would argue that it is decisive action to walk in the gains that we have made by building that momentum. However, there are other issues that the Government and society have to tackle and wrestle with. Why is it that in councils elected members are 29 per cent of women? There are 100 wards in Scotland where there are no women elected. 35 per cent of MSPs are women. That is a real salutary lesson because this Parliament started off with nearly 40 per cent women. It has went down as a stalemate between this election, the 2016 election and the last election. For me, that is one of the biggest lessons about why we need to guard against complacency. It is all very well and very proud of the fact that we have more than 45 per cent of women on our public sector boards. In terms of non-executive members, 45 per cent of them are women. I am really proud of that. You look at the history of the Scottish Parliament and you need to guard against complacency when you walk in that progress in building it. I would like to take you back to the point that you made earlier about universities. Universities Scotland is supportive of the bill and you will be aware that they do not think that you should apply to them because they are autonomous non-profit institutions. How will you ensure that they abide by the legislation? How will you ensure that they make changes to their board structures? It is very clear that universities are considered to be public authorities under equality legislation. They are a listed public authority under the Equality Act 2010 in schedule 19. It would be utterly inconsistent if they were not considered to be a public authority for the purpose of this bill when they are considered to be a public authority for the purpose of this bill. How will you ensure that they make changes to their board structures? How will you ensure that they make changes to their board structures when they are considered to be a public authority for the purpose of this bill when they are considered to be a public authority for other equality legislation? I understand, as a former education secretary, that they are indeed autonomous, that they are unique, that they are a special sector, that they are not for profit. I understand all of that, but, like the rest of us, they are accountable. Like other public sector boards, for the purposes of equality legislation and for this bill, they are considered to be a public authority. How will you ensure that they make changes to their board structures when they are considered to be a public authority for other equality legislation? While I have strong views about the views that are expressed by some in the university sector, I think that even I have to concede that I do not, for one minute, envisage the university sector not complying with the law. Thank you, convener. That sparked a memory in my head of a question that I wanted to ask. In respect of the duties of appointing person and public authority, it is clear from your earlier answers who we mean by an appointing person, but in the discharge of that duty to take steps as they deemed necessary to encourage applications by women within the public authority, whom are we talking about? Is it the people who have the executive function in that organisation, perhaps the chief executive, the paid members of staff, or is it the existing board? To whom does that duty actually apply and do we need to specify that more clearly on the face of the book? That is a good question, because it will vary depending on the board. As I indicated earlier, 60 per cent of the boards are subject to ministerial appointments. Ultimately, ministers have a responsibility, and many of the duties underpinning ministerial responsibilities are taken forward by civil servants. We, of course, are subject to the full glare and scrutiny of committees and Parliament, as well as a wider civic society. I wonder whether, Eileen, you could talk about some of the other examples of who the appointing person would be in other boards, because the landscape is complex and variable. The main cohort is universities who absolutely have no connection to ministers in relation to their appointing process. They have a code of governance in relation to their process, which I think mirrors quite closely the Commissioner for Ethical Standards and Public Life in Scotland code. It is about that good practice about how you should conduct your rounds. Colleges, some of the appointments are made by ministers, but the majority are independently run. Again, they follow a code of governance on how they should do that. There is a lot of information in there about good practice. Recently, colleagues in our public appointments team have been transforming their process using that good practice—I think that the cabinet secretary talked about that sharing—of what works in the college sector and university sector, looking at ways that they can learn from our recent experience. They are the biggest group outwith the ministerial appointed boards. There are lots of different individual ones that are listed. I might be wrong, Lesley, in the schedule, but there are individual ones where it might be part ministerial appointed and other appointing authorities. It gets very bitty. If the committee were interested, we could list those out. The main cohort are universities and colleges outwith ministerial appointments. Perhaps, in schedule 1, we need a third column in terms of the authority-excluded positions. We could define who the appointing person is for each authority. If it is not 100 per cent ministerial appointments, we need to clarify that in schedule 1. The second part of my question was in respect of the duty on public authorities themselves. I just want people to be clear in the application of this legislation with whom the buck stops so that we cannot have an authority saying, Oh, it wasn't really clear who in our organisation was responsible for taking such steps as they deemed necessary, because I know the landscape is complex, duties are different and responsibilities are different from authority to authority, but it's about who is ultimately responsible to this act for that recruitment process and in ensuring that then is it the chief executive or the paid members of staff. I just think that we probably need to be a bit clearer on that. While individuals working in particular organisations will have particular individual responsibilities as an employee, I'm thinking in particular around individuals that are working in human resources departments and there would be expectations that they are working in accordance to best practice and the best available advice and evidence. There is a corporate responsibility here to boards as a whole and to chief officers as well. There is a corporate responsibility and a leadership role, but if there are ways that we can flush that out a bit better because we want to be in the business of clarity as in crystal clear clarity where possible. We will endeavour to do that. I should say that the numbers that are not either college universities or ministerial appointed are very small, so we're not talking a lot of boards that come out with those bigger groups. Across the beast for all public authorities, we need to be clear from the authority side who within that organisation should be taking the steps or at least delineate. It's not just the responsibility of the current board chair to work and to make those appointments happen. It's also the chief officer, the HR department or whatever. The point about senior leadership is important. This doesn't all rest on the shoulders of the HR department. The point about senior leadership, whether that's in terms of Government Minister, senior civil servants or senior leadership in the wider public sector, I think that's a point well made. Cabinet Secretary, can I shift you away from universities who think that they shouldn't be part of this to some evidence that we heard of a group of individuals who think that they should be? That was joint integration boards. We heard from Fiona Moss Glasgow City, an integrated joint board, who was concerned to see that they weren't listed, and that may be because they're not listed on the schedule. Would that be something that we could remedy to make sure that they are listed on the schedule, given the size of joint boards, the function that they give and the huge amount of public money that they're responsible for? I was really interested in Fiona Moss's evidence, and I am not unsympathetic. The issue is the how. There are some complexities around the integrated joint boards, and there isn't an obvious solution in terms of how we could include them in the bill. The difficulty is that members of integrated joint boards are specified in law, or some of them are so in terms of a doctor, a nurse, chief social work officer and their employees. Then there are other members of integrated joint boards that are nominated from local authorities and they are elected members. The bill is about non-executive directors, and, as it stands, it doesn't deal with people who are employees or, indeed, elected. That's the real naughty issue, I'm afraid. Although I didn't notice that the Glasgow and the Great Joint Board is gender balanced. It just seems to be that you've got organisations there who are really keen to be part, and they've demonstrated very clearly that they want to do this. If we can work through a remedy for that, that would be helpful. I don't think that we would be unresponsive to some pressure being put on elected members to ensure that when they appoint to boards that they have a recognition for gender balance, then that appointment is being made, because in some cases it's not. The integrated joint board issue takes us into equality in the law and in practice around employment and, indeed, who's elected and not elected in Scotland. One in four of chairs in Scotland are women. How do we ensure that—I know that you touched on chairs earlier, cabinet secretary, with some of my colleagues, and how do we encourage that? You mentioned the pipeline, but in some cases what we see is a leaky pipeline where women get so far and they just drop off for all different types of reasons. I've heard some anecdotal evidence of a woman who got to a chair position to be told that she would only be there for a year because they would make sure and they would give her the normal contractual period, which was four years. It was a one-year and a two-year, then a one-year routine. How do we fix that? How do we ensure that more women are encouraged to go, but the actual barriers of things like that are taken away to allow them to progress? The issue of chairs is one that we've been working hard on for a few years now because we're conscious that we've been able to make good progress in terms of the representation of women as non-executive members. Of course, chairs ultimately are non-executive members, so having more women on boards will give us a bit of a springboard to address further the issue of who chairs boards. We've completely acknowledged that, in terms of the broader issue of women in leadership positions, there are women missing and women are underrepresented in those positions of leadership, in this instance, chairs of boards. The work around the improvement programme is quite focused on working with existing chairs around succession planning. Again, it's about that reach into communities, it's about looking at the talent pipeline as well. There are specific actions and activities. It can be dropped by a fuller note on what we're doing around improving representation of women as chairs in public sector boards, but there is a concerted effort on that point. That's very helpful indeed, and I think that that does exhaust all of our topics this morning, Cabinet Secretary. We're very grateful for you to come to committee this morning and your officials too, and we will now get on with drafting our stage 1 report, and no doubt we'll hear back from you and you'll hear back from us in due course. Thank you, convener. I look forward to receiving your report. Thank you very much, committee, and I'm going to move into private.