 Welcome to the 23rd meeting of 2017 of the Equality, Human Rights Committee. Can I make the usual request that all mobile phones are off the desk and on silent, please? Welcome back to committee this morning, David Torrance. It's good to have you back, David. Welcome. Today, we are continuing with our stage 1 scrutiny of the gender representation and public boards bill. We've got one panel this morning, so we are delighted to have at committee this morning James Morton, who is the manager of the Scottish Trans Alliance, Tanya Castell, who is the chief executive officer of changing the chemistry, Ian Smith, who is the policy engagement team manager of Inclusion Scotland. We'll come back to that side of the table, Ian, and Rebecca Marwick, who is the policy and parliamentary officer of the coalition for racial equality and rights. You don't have to switch on your microphones or anything, the broadcasts and people will all sort that out. I've sort of had a general opening question for everyone and it's why do you think that this bill would be necessary and where do you think you could influence how the bill should operate? I'll just maybe start with Rebecca if we can start at your end. Sorry. That's all right. Hi, thanks very much for having us along this morning. I think CRER is an equalities organization is always in favour of legislation that goes a ways to improving the situation for groups who are underrepresented in public life, and so I'm not here today to call for homogenisation of the bill across the protected characteristics or calling for an introduction of similar quotas for BME groups, but we've just identified a few places we think the bill could be improved so that already disadvantaged groups don't fall further behind, particularly around better defining the characteristics that could be considered to allow preference to be given to a candidate who's not a woman around including wider representation, consideration and encouragement of applications from more protected characteristics than just gender and definitively requiring the things that public bodies need to publish in order to report effectively on their equality monitoring. I think those are relatively simple things that could be done. We maybe also have a less popular suggestion, which is around changing the 50-50 target to a 60-40 target. I think we see potential loopholes and situations in which, for example, a white woman may need to be appointed over an equally qualified black man or a disabled man who would also be able to contribute to the diversity of the board, but might not meet the narrow confines of this bill. I think we're also aware that if a man were to resign from a bill that has a 50-50 balance, the need might be a black woman may be overlooked in that situation, so I guess we're just looking at why we would want to limit, I guess, to 50% when we're talking about a matter of one to two people, and there might be situations in which, especially in sectors that have a high percentage of women in the workforce, it may be even better to have a 60% target, so happy to talk about any of those later. I guess, in summary, we're supportive of the bill, equality initiatives. We're just asking that there be provisions put in place in the bill to make sure that groups who are already quite underrepresented don't fall unintentionally forever behind. Clyda Scotland supports the principles behind the bill in relation to improving the representation of women on public boards. We would question whether the bill is necessary to achieve that, given that all the measures that are proposed in the bill, other than setting the 50% target, can be done by ministers at present. There is nothing in the bill that changes the powers that ministers currently have in order to achieve that 50% balance. However, we share many of the concerns that Rebecca has just raised about the broader diversity of public bodies, and there may be an unintended consequence of that legislation that leads to less diversity rather than more diversity on bills. There will be a legislative requirement on public bodies and ministers to promote the appointment of women, including the bill to encourage more applications for women. That may take away from other efforts to encourage applications from other underrepresented groups, including disabled people. Inclusion Scotland did some work on behalf of the public appointments team in the Scottish Government last year, in which we identified a number of areas where work needs to be done to encourage more applications from disabled people. We are concerned that the consequence of the bill might inadvertently be that work to develop those proposals will be shelved because of the legislative requirement to concentrate on the gender balance issue. Changing the chemistry is about promoting diversity of thought. Ideally, as already echoed, not just about gender diversity. We see gender diversity as a crude proxy for diversity of thought, but it is crude and the danger of putting off other types of diversity clearly is a concern. Why is it necessary? I think that, currently, because of unconscious bias, recruitment is not a meritocracy. All our bosses mean that we are likely to or tend to recruit people who look and sound like us. I think that until it is a norm to have greater diversity on boards, I think that it makes sense to have a bill such as this to help to overcome that. However, you would like to think that, in time, it can become a true meritocracy. Potentially, once whatever that target has been hit for five years, the bill should disappear, because it should ultimately be about meritocracy and having the right people on the board. In terms of the target, I would be interested in the 60-40. For me, I would be tending to say maybe 40-40-20. Therefore, you are 20. You have a bit more flexibility and again can potentially promote that greater diversity of thought rather than exclusively gender diversity. The Scottish Trans Alliance works specifically on transgender equality and human rights. We work very closely with the women's equality sector in Scotland and find them very good allies. We support the bill. We think that there is only 36 per cent currently representation of women on boards when it is 52 per cent of the population. That is a really shameful underrepresentation that needs to be addressed. We welcome any actions like the bill that help to bring attention to that and move it forward. We are keen in here today to try to make sure that the bill does not accidentally produce any barriers for transgender people to be involved in boards. We welcome the spirit of the bill and think that it is not intending to cause any of those difficulties, but we need to make sure that the wording is correct so that it does not accidentally do so. My question falls on nicely from the comments that James has just made, because I am particularly keen to hear a bit more about the issues that the equality network and the trans alliance have around the wording in the bill and the impact that it could potentially have on trans women, but I would also like you to touch on the issue of non-binary, because that is a question that I have asked in previous panels on what the impact will be on non-binary people. However, I would also be grateful if you could give us a bit of a flavour of the barriers to trans people from actually getting to that point where they are on boards. Under the trans umbrella, which is anyone whose gender identity varies from the gender that they were assigned at birth, we would talk about trans men. That is someone like myself who was assigned female at birth but grows up identifying strongly as a man, trans women where someone is assigned male at birth but grows up strongly identifying as a woman and non-binary people where they find their gender identity as more complex and does not fit neatly into the box of male or women. Within the idea of increasing representation of women on public boards, we think that that needs to be very clearly inclusive of trans women. We think that the current wording of the bill is positive in that it says that it is about women and does not try to limit that in a negative way against trans people, but we need to make sure that it is not open to misinterpretation. We would like a bit of extra information for the avoidance of doubt. For the avoidance of doubt, it should say that women include a person with the protected characteristic of gender reassignment who is living in the female gender and B does not include a person with the protected characteristic of gender reassignment who is not living in the female gender. It is about how you live and identify. It is not about whether you have gone through the cumbersome process of getting a gender recognition certificate, because at the moment the vast majority of trans women who have lived many, many years as women do not have gender recognition certificates because it is such a degrading and humiliating process. It is really important that we do not end up with a situation where boards have to scrutinise the histories and backgrounds and gender reassignment statuses of trans people, because it is that fear of having your gender unpicked and questioned, and the humiliation that goes along with people standing in power going, well, do we think that what your life is like meets our criteria for womenhood? That is a major barrier for people applying for boards. It is a major barrier for people even applying for jobs at the moment. It is so important that people are trusted in how they identify themselves. That is how we trust people with all their other characteristics. If you look at diversity monitoring, I am pleased that in Scotland it is already very much about self-declaration. You get asked, how do you identify your gender, and you write that down. That is how it should be. If you had that extra clarification, which we have written carefully so that it is compliant with the Dave Devalde powerset out in section 37 of the Scotland Act 2016, it refers to the protected characteristic of gender reassignment, so it keeps it in that required area. We have used the language of living in the female gender because that is based on the language that is already in use, for example, in the Gender Recognition Act 2004. We think that it is a carefully phrased addition for the voice of doubt. To explain a little bit more about the issues that people can face, one major barrier that trans people have faced around joining boards has been the requirement to store at companies house your previous names. Steps are now being taken to try and sort that out, but that was a major barrier. We had some trans people who had been invited on to boards, but then declined when they realised that it would out them as trans. I will just interrupt you there before you carry on. Can you explain when you say what steps are being taken? There has been behind-the-scenes work about trying to make sure that, although the data needs to be held, it does not necessarily need to be available to anybody randomly who happens to look at companies house, but if you had a particular need perhaps to investigate a crime or something like that, you could access that information. There would still be the safeguards of storing that information, but it would not have the exposure that trans people would be very uncomfortable with. I think that it is really important that, because the bill is focusing on women, that it is focusing on the 50 per cent target for women, including trans women. For trans men like myself and non-binary trans people, we would end up counted in that other 50 per cent. We think that that is acceptable because there is such a small percentage of trans people in society anyway, so you are talking about less than 1 per cent of the population. It is probably 0.3 per cent trans women, 0.3 per cent trans men, 0.4 per cent non-binary folk. It is not going to massively affect your percentages, and particularly when you are looking at boards with maybe 10 people on, it would not really make sense to try and achieve a statistical representation quota for trans people. You would end up with an arm of a trans person or something like that. We are comfortable with that. When it comes to reporting, there will need to be importance of making sure that you do not out non-binary people. We think that in terms of your diversity monitoring of boards, it should ask you a non-binary inclusive gender question, so it should say, are you male, female or do you identify in another way? That is our good practice in diversity monitoring. When it reports at an individual board level, it could say, for example, of our X number of places on the board, that many are filled by women, which is a percentage of such and such in terms of representation of women. It would not need to break down the exact male or other identifications of the other members of the board at local board level. When it comes to Scotland-wide, it would be useful and would have the potential of avoiding risking outing people if you did break it down at national level across all public boards, saying in our total number of places across Scotland, that many are filled by people who identify as women, many by people who identify as men and many by people who identify in another way. That would be helpful to know whether there ever was any non-binary people who made it on boards. You have explained the addition that you would like in the bill to give protection to trans women. Do you think that it would be beneficial in any guidance or policy documents that went along with the bill that there was a further explanation in the guidance of what that definition actually means and what should be done to actively support and encourage trans women? Yes. I think that it is very important that any explanatory guidance makes it very clear that if someone has applied as a woman using female pronouns in their interaction with the other members of the board, then that is all that you need to know. You do not need to be digging into what their birth certificate says or what, if any, gender reassignment medical treatment they have had, that those are very personal and private. What matters is how someone is interacting with you on a day-to-day basis. It is also important that the people who are recruiting are clarified to them. I hope that it is done across the different protected characteristics, the importance of having diversity and of making sure that they reach out not just to non-trans white middle-class women but to make sure that they advertise and try to recruit a really diverse range of women and that they make those proactive steps. I think that encouraging that would be very helpful. Have you had any interaction with the on-board guidance for people who are board members? Has your organisation had any input in that? Not as yet, we have not been involved in that, partly because there are only two transgender-specific equality and human rights posts in Scotland. We have been focused primarily on whether trans people can get into employment at all rather than whether they can be appointed to boards at this moment. It is about our priorities and in the future we would want to be more involved in that. For trans people it is about trying to make sure that you can get to your daily life rather than a massive focus on getting on to boards. One of the things that I would like to touch on today is the financial implications of the bill on the organisations that will be affected by it. The Finance and Constitution Committee put a call-out for submissions on what effect it thought the bill might have financially. Unfortunately, only four responded, and one of those responses is sitting here today, which is great. Of the responses that we received back, three of them were positive, that the estimated financial implications of the bill were around £400,000 and thought they were adequate. Changing the chemistry was the only party out of all the public bodies that were contacted, and the organisations that were interested in the bill thought that it was not enough. I wonder if you could share today why you thought it was not enough and how much it should be. I do not have an exact number, but it depends as articulated. I think that the main challenge that changing the chemistry had was the assumptions in which it was done. The other bodies that responded had not—if you look at what has been done—changing the chemistry worked heavily initially with individual public sector bodies. I think that it was the Visit Scotland response or comment in the actual consultation that talked about the work that Visit Scotland had done with us. I think that what people have underestimated is that for each body, the way that it is set out at the moment, it is not clear how that is going to be implemented such that people are going to find those diverse candidates. Ultimately, the aim of this bill is to partly represent society but also to get better boards. That is the whole point in terms of changing the chemistry where I will want more diverse boards. You need to get the right candidates. At this stage, there has been a lot of work done by both the public appointments team, who have done a great job, plus organisations such as changing the chemistry in terms of reaching out to individuals and encouraging them, people who have not necessarily thought about boards, but most of these individuals have never thought about doing a board. We have been doing this for two years. That is not really enough, two and a half years, to really say, okay, are we going to continue to get that inflow of candidates because we still have all the biases, all the stereotypes, and we still have a number of people who are not necessarily thinking about going to the boardroom. The work needs to continue until you have addressed the stereotypes of people who are thinking about going to boards. For me, it is that outreach piece. Yes, you can carry on and people will advertise and people will apply for roles. You will either get the same people applying, so you are not necessarily bringing that wider diversity of thought in, or you will get people who are not necessarily prepared. I have sat on one panel for the Scottish Government and also Edinburgh College. You need people who understand and have won the process and have had some support on the process, but two are the right calibre. For me, it is about the cost to reach out to those. The way that it was presented, or certainly I understood it from the consultation with the members of changing the chemistry, was how you are going to continue to reach out and get to those. It seemed to be incumbent on the individual boards to find those candidates and to outreach to them. That is, to me, inefficient to say, okay, actually, I say Scottish Canals because I am Vice-Chair of Scottish Canals. I have got to go every time and we are a tiny board with six people, but if we are recruiting, we have got to go and do that outreach. We are particularly focused. We actually are gender balanced, but we are keen to bring greater social diversity and ideally ethnic diversity into our board next time we recruit. Therefore, we would have to go and do all that work. The time taken for doing that and doing that outreach to do it effectively is not taken into account. I think if you rejig that potentially, our challenge was not necessarily the total amount, but the approach. If you centralise that and continue to use the public appointments team, who have done a brilliant job in reaching out to different parts of both socially and ethnically all types to different networks, then I think that if one was to leverage that and use that to support all those public bodies, then potentially the cost wouldn't necessarily be that huge. That certainly wasn't the way that I'd read how the implementation was going to go. Okay, so I guess for a good example, you gave a smaller board, a smaller organisation, which perhaps has less funds available to do proper outreach to get to the target. I mean, you're very lucky in your scenario that you have that quality on the Scottish Canal. However, there may be other organisations with smaller boards who are quite way off the target and will need to do quite substantial amounts of work to get to the target. Do you think that, for example, there should be a central pot to assist all public boards that the Government could create? I'm always written about asking for money without purpose, so I think, you know, is that an idea? Yes, so some of the work that, say, the Scottish Government public appointments team had done and changing the chemistry has helped them. So we, originally, we started doing it individually with public sector boards such as SNH and Highlands and Islands Enterprise. Then for us, given that we're a voluntary organisation and all our members are working in their spare time, we said, okay, that's not practical. So we then went to the public appointments team and they've reached out to various ethnic minority groups. They've reached out to all sorts of different networks to bring people in. They run events. And so, to my mind, having a pot that they could use in consultation with other groups who can, like SEMVO, who are the Council of Ethnic Minority Voluntary Organisations, to reach out to those additional networks to bring those in. So I think they could manage that. And certainly one of the conversations, changing the chemistry, has had with the public appointments system is they've now got that suss. They don't really need us to draw in the diverse candidates. But actually, the next stage is the application process. And the number of applications where people are not used to doing necessarily competency-based applications. And there's a good reason for not having CVs and I personally actually support the process. But, therefore, what we said is actually probably changing the chemistry needs to help some of those diverse candidates in doing the application forms, so then your credible candidates actually get through the process. So it's having a central pot for that to make sure that those diverse candidates get it, find out about the roles, are interested in doing the roles, and then succeed in the process. It's an open question. Do you find that people tend to approach boards that they're interested in? Or do you come across people who think, I would really like to be a non-exec director on a public board, and then go into a sort of central pot, and then they try and perhaps match you up with a board that's relevant to your interests or experience? Is it a very individualised thing at the moment? Or is there room for a much more centralised approach to recruiting people into boards in general, so that that pipeline is constantly fed and the bigger pool is always there? I think it's a bit of both. I think there's also the people who haven't occurred to them that they're good enough to go on a board, and I'm going to generalise horrifically, but generally women underplay them. There is actually quite a lot of research that women will underplay what they've got, and men forgive me overstate perhaps, but there is research there to back that up, so I think there are actually a lot of people I come across and they kind of think, oh well I'm not really, you know, I couldn't go on a board, and so there are also people really underestimating, so it's never even occurs to them. So there's not occurred to them, they're interested in anything, and then it's the particular one, but I think to be a really, really good board member, unfortunately it's really easy for Scottish canals because they're inspirational, you have to have a kind of passion, and you have to have an interest. Now you can sort of grow that interest, but you know, there's certain types of boards that I probably wouldn't be very good at, and other ones which, you know, so I think you can do some pooling, but there's also a bit about a fit and what works for the individual. Thank you. Just a final point that's not relevant to that question line, is I think James in your opening statement, you said that currently 36 per cent of public board members are women, I think just for the point of the clarity on the record, I think last week we heard that was up to 45 per cent, so I just wanted to set the record straight. I think that figure 36 gets used often, but it's a very out-of-date figure, so it's not a criticism. I saw that from the first evidence panel, some of the women's organisations used that as well, so thank you for the clarification. It's gone up, which is good. It's not my specialist subject that bit. More for the record. Update last week from the commissioner, and it was a bang up-to-date figure, and it had been because particular measures had been taken in the past very short time, so that's why that was there. Thanks, Jamie. Alex. Thank you, convener, and good morning to the panel. Thanks very much for coming to see us. I'd like to pick up on remarks made by Ian Smith and Rebecca Marek in their opening salvo about the unintended consequences of the bill. I think that that's always important for any bill committee to consider that. You rightly suggest that one of the unintended consequences is that we might starve out diversity, as you describe it, in our drive to get gender representation 50-50 on the board, so that we might, by exclusion, lose out on other protected characteristics. I just wonder if you thought that the clause in the bill, as we have it, under section 4, paragraph 4, the appointment of a candidate identified under section 2, who is not a woman, is justified on the basis of a characteristic or situation particular to that candidate. My reading of that is that there is a justification there that the appointing person can take. If there is a characteristic, which to me suggests a protected characteristic, they might choose to justify why they chose not to pick in a 50-50 situation a female candidate. Is that not strong enough? I think that we need to go further back in the process than that. It's obviously possible that that clause could be used in that way, although it is not specific and clear that that would be one of the specific characteristics that might be considered. We need to ensure that the bill relates to the overall diversity of the board and boards in Scotland, not just to the gender one. It can then have a specific target in relation to gender in terms of appointments, but I think that there is a need to address at the start of an appointment around the issue of whether a board is sufficiently diverse and what steps need to be taken to address any of the under-represented groups within that. That includes looking at things such as the selection criteria for that appointment, so that there are no barriers, and quite often applications require you to have had previous governance experience or previous experience on a board, and that immediately limits your pool to the already underrepresented groups on those boards. There are questions as to what are essential criteria for appointments, as opposed to that every member of the board has to have, which some members of the board must have, and some things that people might be able to learn on the job. I think that there is a tendency to look at too many things that everybody on the board must have rather than saying that the board as a whole must have those skills and experiences, but not everybody on the board actually needs to have them, partly because some people will be new and will learn those skills on the job. I think that there is a range of things in terms of the selection criteria that need to be looked at to ensure that we are not putting people off. I think that there is an issue about how you attract and identify potential candidates that was touched off in the last question. Again, there is a tendency to either people find out about appointments because they have registered for the appointments for Scotland website and get the alerts, or they see them through some targeted specific advertising, because they tend not to be generally advertised. Now, they tend to be specifically advertised for particular boards. Again, that might limit your pool because the evidence that we have from the work that we did last year was that, for example, disabled people tend not to be aware, a, that public appointments exist and, b, that they could actually apply for them, because there is a view out there that public appointments are for the traditional people, the white middle class males and females who tend to be the people appointed. I think that there are issues about how the Scottish ministers identify the selection criteria, go about the advertising and go about promoting bodies that need to be addressed before they even get anywhere near the appointment stage. That touches on things like accessible communications and support to people who might need help with filling in application forms. For example, people with learning disabilities who may have a lot to contribute to a board but may find the process very daunting. We would like to see the bill amended to have that general requirement to look at the overall diversity of the board, not just specifically the gender representation. In particular, we would like section 5 to be amended to look at how boards can try to identify and promote applications from all underrepresented groups on the boards, not just from women. At the moment, the unintended consequence is that, because that will become a legislative requirement, that is all that boards will focus on. If they have got limited money, which they will have, that is all they will be able to afford to do. They will not be able to go out and reach to other underrepresented groups, such as disabled people or black and ethnic minority candidates. On the subject of which, Rebecca. I think that I agree with a lot of what Ian was saying. I think that we find in our quality work that if a requirement to engage groups with protected characteristics is not explicitly laid out in legislation, and even sometimes if it is, it is often overlooked. I think that it would be our opinion that referencing characteristic is not strong enough or particular enough and not narrow enough. In some cases, a board could justify an appointment based on someone having a characteristic of having worked for the body that it is now applying for a board for, or having some connections that would be useful at characteristics. I think it is quite a wide-ranging thing. Whereas a protected characteristic narrows it to the nine defined characteristic, ties it into legislation, and I think also opens it up for wider quality considerations. I think it is just, we see time and time again with even the public sector equality duties that if it is not laid out and it is not made explicit, it is just not done. I think that we would want to see that strengthened and maybe tied specifically to the protected characteristics as defined in the Equality Act. I agree with you. I think that the clauses above that suggest that the appointing person needs to pick the best qualified candidate for the boat. To me, that would suggest that anyone who you describe as having perhaps worked for that body before or the relevant experience would qualify them in a way that others did not. I think that that is captured in the earlier section, and because they define the characteristic as they describe it that is particular to that candidate, it makes me wonder if that is what the bill drafters are driving at. I think that that comes up back to the fact that we are missing an element of this in the legislative process. That is the intimation from the Scottish Government that there is no plan for statutory guidance behind this bill, so we have to interpret it just on the letter of the law. I think that that is a problem, because we can assume or infer that we are talking about other protected characteristics here, but unless we get that clarified, that will be misapplied by the appointing person and the board. That takes me to my next question, if I may. Tanya, you talked very eloquently about the sort of demands on public boards in terms of encouraging women to apply, and that is certainly true. Aside from reporting, that is really the only duty that the bill puts on the public board, because the appointing person—we are told that we uncovered at the last meeting—is the minister, and I think that we need to clarify that more in the bill than we currently do. However, if there is an equal duty on boards and ministers to encourage the appointment, why do you think that we are assuming that all of the costs should fall to the boards to that end, and shouldn't we make provision in this bill for ministers to find some way or to generate resources to that end? I agree. To have it fall on all the bodies just means that you are going to spend a lot more money, whereas having something centrally that promotes and encourages people—if I understood your question correctly—is what I think to continue and probably expand on what the public appointments team do today, supported by organisations such as Change in the Chemistry. All the work that Change in the Chemistry has done with the public appointments team that we haven't charged for—we do this because we have a group of very passionate people who believe very strongly in improving diversity of thought. Frankly, the money tends to be spent on things like booking locations and having tea and coffee, so we are not talking a major expense. However, to my mind, if you then distribute that to all the bodies, one, you won't necessarily have the skillsets to do that. They won't necessarily have the time to do that. They are already trying to do a lot more with a lot less. It doesn't make sense to me to then try and get everybody to do the same thing and replicate it in all the different bodies. To my mind, having something centrally in this particular case is hopefully short-term. Ultimately, when you've got enough people up there, you've got the role models there and everybody wants to do it, so it's not a long-term thing. That's great. Ian? The appointments process involves not just the minister and the public body, but the sponsoring department. The sponsoring department should have a responsibility to ensure that the board has the resources that it needs to widen the applications. For example, when we did work with the mobility and access committee for Scotland, Transport Scotland funded the seminar that we ran, the event that we ran, to promote those appointments with disabled people in Scotland. It was not mobility access committee Scotland that they paid for that. It was Transport Scotland's sponsoring department with the support of the public appointments team within the Scottish Government. I think that there should be a responsibility within the bill on the sponsoring department to ensure the compliance with the requirements, not just on the board itself. My final question is to James. James, you have delineated the issue around gender definition very well. It is something that the committee has agonised over in respect of our consideration of the bill. If we win the argument with the Government that we need statutory guidance on the bill, would that be sufficient to deal with the issues that you have identified in terms of issues around non-binary, issues around trans in general, or do you think that we need a material change to the face of the bill? I think that it would be much, much better if there was the clarification for the avoidance of doubt in the actual legislation. Sometimes people read statutory guidance, sometimes they feel like they have understood the bill enough from reading it. I just do not want it to end up being quibbled over. Having it in the actual legislation would be very beneficial. It would remove that doubt and it would have a stronger, clearer focus than putting it into the depth of more detailed guidance. I was interested in changing the chemistry submission. I am going to go back to the reporting aspect. You laid out very succinctly what you think reporting should cover. However, you put in at the end that one suggestion is that the number of women being appointed to chair positions should also be appointed on. We have not touched on that in any of the evidence sessions that we have spoken about. I would just like you to expand on that a bit. One of the things—I suppose that is a centralised thing, because clearly in each board there is only one chair—that is another piece where I have not got the latest statistics, so you clearly have much more up-to-date information. I know that it was hovering around 21 to 22 per cent women chairs, but that is maybe a year out of date. I know that there is a programme, because I am part of that, to mentor diverse candidates, because I do not think that they are all women, to aspire to be chairs of public sector bodies. However, I think that that is another area where, again, potentially bias can creep in in terms of those appointments. People can be a little bit uncomfortable with a candidate who looks a bit different from the past. That is another area where it would be worthwhile to have greater transparency so that people can see the progress. How do you think that the boards or the bodies that the boards represent should approach the training? We have spoken in evidence sessions in the past about being a confidence issue for women to step forward and put themselves forward for those positions, explaining a lot more of what a board does, what their role would be on it, how they would be fantastic and their skills would be used. How would we then go about taking that next step up into a chairperson position? I think that the mentoring programme that is under way is a very good start in terms of helping individuals to think about it. I suppose that my view, focusing on women and clearly I meet an awful lot in terms of what changing the chemistry does, is that I meet a lot of very confident women. I think that the way I tend to describe it is that we undervalue ourselves, so we do not necessarily appreciate what we have got to give. I think that it is very much about, certainly once individuals have got onto boards, helping them. One, understand the board dynamic and get comfortable in it, but two, particularly for people coming from different backgrounds, be it third sector or private sector, so my background is private sector. For me, the bit that I have wanted to get comfortable with is how to interact with government. How does that relationship with your sponsor team work? If I want to influence and get the right for my board to do the right things, to have the right communication and build the right relationships, how is that different to what I have seen in the past? I think that it is probably doing more of and developing some of the training programmes to be what are those different aspects such as a different type of board to be on a public sector board, and then developing the chairing techniques, how you manage a board, for example, even the order that you ask questions can frankly manipulate the answer around the boardroom. It is having some of those workshops to encourage and again help people to realise that they are very capable of doing that. I think that it is well getting the language correct and it is not a chairman anymore, it is a chair person. Rebecca, you started off by addressing the 60-40 or 60-20 aspect of it. Can you maybe explain a little bit more about how you think that would work and how it would help? Sure. I guess that when we consider the size of boards, we are really looking at a difference of one to two people, maybe between a 50 per cent and a 60 or 40 per cent. I guess that over a period of time, it is likely that might fluctuate. I think our human is why should it not be 60 per cent women for some boards, especially in sectors in which women are overrepresented. For years, it has been 70, 80, 90 per cent men, so I do not think we should cap it at 50 necessarily for women, but I think we are also looking at, I guess we just see a lot of room for loopholes in terms of needing to, feeling required to promote a woman over a black man or a disabled man and sort of almost prioritizing one characteristic over another, which I do not think is the intention behind the bill, but might be the result. I think you are tiptoeing into territory where you could almost create an unintentional ceiling for women who may, in terms of a 50 per cent cap, but then also unintentional barriers for people from more underrepresented characteristics on board. If someone is aware that a woman has vacated a position on a balanced 50-50 board and is aware that the board will probably be keen to point another woman to sort of keep that balance there, then I think we could assume that a black man might hesitate to apply for that. If there is a lot of strong rhetoric around gender representation, then I think people from other characteristics who struggle a bit more than women do in terms of representation might that throws up another barrier for them in a way. I think that that was our kind of thinking behind it. I guess another issue that we touched on is that this doesn't pertain I guess to executive members. If your executive members tend to be your chief executives, your chief financial officers, oftentimes those are men, so a 60 per cent allowance, I guess, offers the potential that the entire board bringing in executive members might then achieve a 50-50 balance, but if it's kept at a 50-50 for those non-executive members and executive members are overwhelmingly men, then that's another potential for unbalance. So I guess we just find that a strict 50-50 target maybe creates additional barriers or limits potential in some ways or discourages groups from other protected characteristics, so a 60-40 suggestion, but I guess we just wanted to highlight the issues that we saw with that. Is it your perception in reading the bill that you think there's a 50 per cent cap or that it's a strict 50-50? Because our interpretation is that it's at least 50-50, so there is some of that flexibility in there, but if your perception is reading it another way and we're not seeing that, then we need to deal with that as well. I guess maybe that is the way that we read it, and I apologise if we've gotten the wrong things. No, no, I'm not saying our way or your way is the right or wrong way, it's just that if there's a perception out there, we need to deal with that perception, because then we're building in a barrier there that maybe that's unintentional. I guess they will say that is the way that we perceived it, and maybe that is another way in which statutory guidance would be immensely helpful in this area, is laying that out a bit further, but I guess even if it's a 50 per cent minimum that doesn't totally remove the issues that we also spoke about where black men, disabled men, might hesitate to apply because of a 50 per cent minimum, so I guess still other issues, but I guess perhaps the language used on a 50-50 does complicate the situation. Gail, before I let you back in, Jamie's got a quick supplementary. I'll keep it quick. I guess I'll maybe ask the question that Annie might have asked if she was here, but she's not here. Given the situation at the moment, if we end up in a scenario where we're going through the recruitment process, there are two candidates that are of equal merit in the words of the bill. At the moment, the bill dictates that the preference should be given to the female candidate in order to meet the quota. How do you think that would affect a situation where you had a female candidate and a male candidate with another protected characteristic? At the moment, the bill will give preference or says that the board should give preference to the female candidate. What do you think that might have on that scenario? It's a very unique scenario because how do you define equal merit, but if you end up in that situation, I'm worried that boards might be nervous about how they deal with those situations. I definitely agree that that could create some tension and some confusion in boards. I guess maybe that's one of the reasons we were arguing for that change in section 4 where characteristic is a bit better defined and maybe specifically references the protected characteristics to sort of go away to addressing that issue. I think that's another area where statutory guidance could go away to offering further clarity that it's not just about balancing your board in terms of gender, but it's about looking at other areas in which your board lacks diversity and the importance of bringing that into your consideration with appointment. I do think that's a difficult issue and one which might not be able to be addressed fully on the face of legislation and guidance would go a ways towards looking at, as well as defining what we mean by a characteristic. I'm just going to add that, of course, it would actually be the minister making that decision, because he would have both of those on the list. As the appointing person? Yeah. If it's a regulated post. Yeah, if it's a regulated. Yeah, Scottish Canals actually isn't regulated. Gail, do you want that? Yeah, thanks. Ian, can you maybe give some insight into your opinion on the 64A or 602020 example? And how do boards go about recruiting more disabled people? How long have you got? Just jump in there a wee bit, because I've got on my wee list of things here that we need to tick off is about person specifications and how do we ensure that person specifications don't have it in built unconscious bias? That's something that we've been following through for the past few weeks, but I've had it on my list just in case nobody, but it ties in really nicely with Gail's question. I think that there has to be flexibility at the margins, and that's really where the section 4.4 that Alec referred to comes in and perhaps needs to be reworded to make sure that that is there. You could get the situation, for example, that you have a board that currently has 45 per cent white middle-class women and 55 per cent white middle-class men. The two applicants with equal merit are another white middle-class woman and a disabled ethnic minority gay man. The minister decides that in order to meet the target, they have to appoint the middle-class women, and that doesn't do much for the diversity of the board, frankly. The bill needs to be changed to include an overall look at the diverse nature of the boards and boards in general. The person specification issue is very important, because there is a serious risk that the person specifications simply repeat what is currently on a board. If your board is not particularly diverse at present, the chances of you putting the same person specification down will end up with the same people applying for the board. It is important that we look carefully at the person specifications. One of the issues there is, as I mentioned earlier, looking at the overall requirements of the board, not necessarily the requirements of an individual point. All boards will require somebody who has some understanding governance and finance, but not everybody on the board will need to have that, because there will be people who can advise and support them, and they will learn on the job. By having traditional previous experiences in governance and finance, you tend to limit your pool of people to traditional characteristics such as middle-class lawyer types or accountant types. By definition, people who have come from disadvantaged backgrounds are less likely to have built that experience up because they have had less opportunities, rather than disabled people who may have not had the opportunities through education or who have faced barriers in other parts of their life and who have not had an opportunity to develop that experience and skills. You need to have other ways in which people can demonstrate that they have the qualities that are needed to be a good board member, which are not necessarily the traditional qualities that people tend to think about in the tick box exercises. Your specification grids, your matrix that you use to analyse the qualities, needs to be more imaginative, needs to have less. You must have this particular skill unless you are looking forward to somebody with a particular requirement for a particular job, but for a board you have probably got a better mix than that. There are ways of doing that. We had a look at that in the exercise that we did with the Mobility and Access Committee Scotland, and we found that there were some problems about defining what was an essential skill and what was a desirable skill and what was something that you might learn on the job. Those are areas that need to be examined in general in terms of public appointments, not just in terms of gender representation, but for all diverse groups. Fonnie, have you changed your chemistry? Have you done some of this work? If you could enlighten us, please. It is certainly changing the chemistry, but I know that the public appointments team has also done a lot. I know that some of the ones that changed the chemistry worked with, say, when we were looking at the Visit Scotland and some of the more recent ones, they massively softened down some of the criteria. Rather than saying that you have to have been on a board, it is, have you supported a board, have you advised a board, but also some of it around team-working. In terms of the general guidance that the public appointments team gives out to sponsor teams, they have tried to soften that wording and to give a much wider set of examples. Having said that, I do think that it is when I look at some of the notices that go out, I do think that there is also something about selling an organisation. I looked at one, it might have been quite close to home, and I looked at it and thought, well, that really does not describe the organisation, and I would not apply for that. There are some amazing organisations. What is that organisation about? It is not, as you say, about governance or whatever. I am not an ex-accountant or a lawyer, but I am an ex-banker, so I definitely sit in the white middle class, went to a nice university and everything else, so I am not very diverse, I accept that. It is very much about getting that, so it is getting the wording softer, and there is a lot of research about how you word it to be inclusive. I think that, quite often, more context can help people who are less familiar with what this is about, but it is also getting that specification to the individuals and finding those individuals persuading that this is really actually great fun. Rebecca. You must do person specifications, but on the subject of measures that can be taken to help at the appointment stage, I think the work that the Equal Opportunities Committee did last year in there, removing barriers report, put forward a lot of useful suggestions for employment that I think could also be applicable to boards. I think we definitely find that when the interview panel has a BME representative on it, it is much more likely that BME people make it through to interview stage and are successfully appointed. I think for BME groups, we are not operating on a deficit model. The groups outperform their white Scottish peers in attainment and going on to positive destinations is not a lack of qualifications. It is, again, an issue of discrimination and conscious or unconscious bias. I think, again, this is beyond the scope of the legislation, but I just wanted to put forward that there is a need to look at where discrimination has an effect and what evidenced measures can go to counter that. I just wanted to cite that report as a good resource to look towards. Gail, do you want to come back? I just want to touch very quickly on something that I read in Rebecca's report. I was really interested in it and it is about getting underrepresented groups on to boards when they are already underrepresented in the workplace. You used the words underlying racism and discrimination and I wondered if that applies to the workplace in some instances for some protected characteristics. Would that apply to boards as well? Do you think that some people with protected characteristics at the moment are maybe put off applying because they feel that there is these underlying tensions in some way? I definitely would agree. I think that, just as an example, one of the few sectors in which BME people hold quite high positions is the health sector. I think that, in some instances, people have faced discrimination and racism in the workplace and might have a hesitation to apply for a board because they think that that is just opening the door for that to happen again. Despite their qualifications, they do not look like the people on the board. What is the point of sort of applying? I guess that maybe goes back to one of our worries with if the focus remains solely on gender, those groups feel like that is another barrier thrown up. Talking about person specifications and the qualifications people need to have to be on a board and to achieve an emeritocracy. I think when BME groups are underrepresented in employment, underrepresented in higher level positions, they are less likely to have those qualifications that get them through to those boards. The issue is with the entire pipeline. I guess with this piece of legislation, we are really looking at five to six hundred positions and people who are already quite well along in their careers and have achieved a good amount. For BME groups, I think the problem lies much further back. The Equal Opportunities Committee last year found it is not an issue of qualification or it is an issue of discrimination that is present in public bodies and the need to address that. I do think it is an issue of boards. If we go to the Scottish Attitude Survey and find that some twenty percent of Scottish people still think it is appropriate to discriminate against people, then I think it is fairly fair to assume that that twenty percent exists in the workplace and in some cases that twenty percent exists on boards and that discrimination is present at that level. Does that answer your question? I guess that that leads me on. Gender representation on boards, Bill, do you think that we are missing a trick by just making it gender? I do think so. I think that quotas are hard to do for BME groups in the latest census. You know it is four percent of the population. We anticipate it doubling by the time the next census comes around. I think quotas are tough to do for race, but I do think there are definite places in the bill in which it could be extended to other protected characteristics in a way that would make it clear that diversity in all its forms is valuable in something that we should try to achieve on our public boards. I guess that is what the amendments that I put forward in our supplementary legislation are about. It is not about quotas across the board and I understand why that is an important measure for gender, but it is about having some cognisance about what that might mean for other protected characteristics. The only thing that we have not managed to cover this morning, and we took lots of evidence on it last week, was on sanctions and whether they should be sanctioned. We had some evidence last week that suggested that a sanction too far could have that scatter effect, where people would not touch the board because of the sanctions that are maybe involved, but there are obviously some sanctions that need to be put in place in order to make sure that there is no rollback from progress made. I just wonder if you have any opinion on sanctions and what they should be. I am not entirely sure what the purpose of sanctions would be. The danger of sanctions, of course, is that you then focus solely on the target of 50 per cent plus of women on boards, and you do not actually look at any of the other diversity issues, and you ignore clause 4.4 about possibly using it to support other protected characteristics. I think that the most effective sanction is effective reporting and monitoring by this Parliament and by this committee to examine whether or not the ministers who were responsible are meeting the requirements of the bill and the wider diversity of public bodies. That is the most effective sanction. I am not entirely sure what other sanctions you would have, because you would have to examine every single appointment and find out if, in any single appointment, the minister has failed to take account of the bill. In fact, the Public Appointments Commissioner already has that power. He was very clear about that last week. Mine is something more of a comment, but there are a few reflections of the panel on the convener's point about sanctions. I admit to having done something of a vault fast in the sense that, as my understanding of the bill has improved, so too has my view on sanctions changed. If the only duties on public authorities are to encourage female candidates to apply and to report to ministers in respect of that first duty, I do not see A, how any public authority is going to fail in that duty, and B, what sanctions you could hope to do. If ultimately the buck stops with the appointing person, then the only person you should sanction is the appointing person. If that is Scottish ministers, that is a whole different story. Does the panel agree? I mean, I guess there is one other bit. Having put these diverse candidates who almost certainly have not been on boards before, there is also a bit on the boards to support those individuals. I do see at least one of the boards—I am on a range of boards, so on one of the boards I am on—where it has become more diverse and that has caused more challenge. There is research out there that shows that more diverse boards, one, they take longer, because, of course, you have to hear all the different perspectives. There is a little bit more tension. Actually, that is good. As long as the tension does not go to conflict, that is the whole point of having that diversity of thoughts. You want some of that tension, but it also means that it is a harder job for the chair to do. You have people who have not necessarily seen a board before. All my boards that I am on are different. At different times, each one of them has got a moment where I feel like going in the corner and crying, frankly, sometimes. It is hard. It is really difficult and you have to be incredibly strong. Human nature is also to conform. We are much more comfortable conforming. It can be painful not to conform. There are all these different dynamics that will bring people who are not necessarily used to that environment. I think that there is another piece—I guess that this has evolved possibly since changing the chemistry—to put our response in terms of thinking about some of the experiences that I have seen in boardrooms over the past couple of years. There is an onus on that body to make sure that people who are new to the boardroom are fully supported and encouraged and that you take time to build the connections and the relationships to make that diversity, which, by definition, brings a little bit more tension, if it is going to add value, on how to make that work. That is an important point. One of the things that we believe is necessary is that boards and indeed selection panels need to have proper equality training, disability equality training and general diversity training in order to ensure that there are no or that they minimise the number of unconscious bias that they may have in them. There are other things that can be done to support new applicants. For example, you could have pointed somebody well in advance of the match of taking the appointment, who can now sit and shadow the board in a sort of apprenticeship way for a while to get used to the procedures, understand how it works and, therefore, when they can come to taking power on the board, have a better understanding of what is going on. You can have mentoring and peer support systems in place, a whole range of other things that can help to support people from diverse backgrounds and with less experience become available. I am confident in ensuring that all the proceedings of the board are fully accessible in terms of the types of documents that are produced around accessible formats and so on. A very important point is ensuring that you do not want to get down to this sort of quota business because you end up with the concern that disabled people have that they are on boards in a tokenistic way. They are just there to make up the numbers and are treated in a tokenistic way. They have to be full, participating members of the board and not just tokenistic. Those are all very important things. Returning to the sanction issue, I suppose that the ultimate thing is that the board is failing to do those things. It is failing to provide support to encourage diversity. The ultimate sanction is that the minister does not reappoint the chair when the next time they come up for renewal or, indeed, sacks the chair, which is an option that is available to ministers. That is interesting. I think that we have well over time this morning because we have heard some excellent evidence. We are incredibly grateful to you for your evidence this morning and the written evidence that you have given us. I will make the usual proviso as convener. If you go away and you think that I should have said that or should have mentioned this, please let us know. We have still got another couple of weeks before we get the minister in front of us before we get to the end of stage 1 of this inquiry. Much on that ends our public section of the committee this morning. I will move into private.