Education, Children and Young People Committee
The following changes to the membership of the Committee took place during its Stage 1 scrutiny of the Bill—
Miles Briggs (Conservative) - 10 October 2024 - to date
Stephanie Callaghan (SNP) - 17 June 2021 - 6 November 2024
Jackie Dunbar (SNP) - 6 November 2024 - to date
Liam Kerr (Conservative) - 29 June 2023 - 10 October 2024
Douglas Ross (Conservative) - 10 October 2024 - to date
Sue Webber (Conservative) - 26 May 2022 - 10 October 2024
The Education (Scotland) Bill was introduced by Jenny Gilruth MSP, Cabinet Secretary for Education and Skills, on 4 June 2024.
The Bill will establish and set out the functions of—
Qualifications Scotland
His Majesty's Chief Inspector of Education in Scotland.
Qualifications Scotland will take on functions currently undertaken by the Scottish Qualifications Authority (SQA) and the Chief Inspector will lead a new independent inspectorate to take forward the education inspection functions that currently sit within Education Scotland.
The Bill has been introduced to respond to a range of reports and reviews, including the OECD Review of the Curriculum for Excellence and Professor Ken Muir’s report, “Putting Learners at the Centre. Towards a Future Vision for Scottish Education”, and the commitment made by the then Cabinet Secretary for Education and Skills, Shirley Anne Somerville MSP, in June 2021 to replace the SQA.1
The Policy Memorandum that accompanies the Bill states—
The objectives of the Bill are to provide the legal underpinning to support the design and delivery of a national organisational infrastructure for education in Scotland that more effectively supports the system to deliver the vision for education in Scotland.2
The Education, Children and Young People Committee was designated as the lead committee for Stage 1 of the Bill. The Committee issued two calls for views – a shorter call for views and a detailed call for views - on the provisions of the Bill on 28 June 2024. These ran until 30 August 2024.
The Committee took oral evidence from individuals and organisations including—
Professor Ken Muir
Barry Black, Post Graduate Researcher
Professor Graham Donaldson
Professor Mark Priestley
Gillian Hamilton, Interim Chief Executive, Education Scotland
Janie McManus, Interim His Majesty’s Chief Inspector of Education for Scotland
Fiona Robertson, Chief Executive, Scottish Qualifications Authority
Laurence Findlay, Vice President, Association of Directors of Education (ADES)
Anne Keenan, Assistant Secretary, Educational Institute of Scotland (EIS)
Graham Hutton, General Secretary, School Leaders Scotland (SLS)
Stuart Hunter, President, Scottish Secondary Teachers Association (SSTA)
Megan Farr, Policy Officer, Children and Young People's Commissioner for Scotland (CYPCS)
Gavin Yates, Executive Director, Connect
Garvin Sealy, Interim Executive Director, Intercultural Youth Scotland
Ken McAra, HM Inspector of Education and Convenor of FDA Education Scotland Section, FDA
Sharon McGuigan, Accreditation Manager, Scottish Qualifications Authority, and Unite the Union Workplace Representative
Pauline Rodger, Understanding Standards Project Manager, Scottish Qualifications Authority, and Unite the Union Workplace Representative
The Committee also took evidence from Jenny Gilruth MSP, Cabinet Secretary for Education and Skills, accompanied by supporting officials.
The Committee is very grateful to all those who provided evidence.
Part 1 of the Bill, along with Schedule 1, establishes a new body, Qualifications Scotland. This body will have substantially the same functions as the Scottish Qualifications Authority (SQA). As such, the Education (Scotland) Bill mirrors much of the legislation which currently underpins the SQA, namely Part 1 of the Education (Scotland) Act 1996 ('the 1996 Act') and the Scottish Qualifications Authority Act 2002 ('the 2002 Act'), with some notable differences, which are explored in more detail below.
The SQA has two principal functions—
developing and awarding qualifications (up to but not including degree level)
accrediting qualifications.
There are two other statutory functions. The quality assurance function gives the SQA the power to determine the suitability of establishments offering SQA qualifications. The SQA also has the function of advising Scottish Ministers on matters relating to its functions, such as the delivery, assessment and awarding of qualifications.
The proposals in the Bill to set up Qualifications Scotland differ from the current legislative structure in relation to the SQA in broadly two areas. The first is that the Bill legislates for structures and mechanisms designed to increase the influence of educators and learners in the work of Qualifications Scotland, including interest committees, charters, the Strategic Advisory Council and places on the Qualifications Scotland board. The second is to create greater independence of the accreditation function.
Although legislation would not be required to bring about changes to qualifications and assessment, the fact that this Bill has been introduced ahead of any such changes is seen by some as problematic. This is discussed in more detail in the sequencing section of this report.
Over the past decade there have been a number of reports which have criticised the siting of both awarding and accreditation functions within the same body. They have also criticised and sought to improve the way in which the SQA communicates with teachers and learners, and responds to concerns. Respondents to the calls for views have described the SQA as defensive, lacking transparency and lacking the trust and confidence of learners and educators.
A key part of the rationale for the Bill is to create greater independence of the accreditation function and to create an improved culture in Qualifications Scotland compared to the SQA.
In relation to accreditation, the Policy Memorandum stated that the existing separation of the accreditation and awarding functions could be strengthened in Qualifications Scotland through additional legislative measures. As a result, the Bill "provides a package of measures that ensures the accreditation activity of Qualifications Scotland is not directed or influenced by the decisions taken on its awarding functions."1
In relation to improving the culture, the Policy Memorandum stated that the Bill is “an opportunity to reset the culture and engagement arrangements with all stakeholders, ensuring the national qualifications body’s governance structures reflect, represent and are accountable to the range of stakeholders it serves and users of its services.”1
In their evidence, the SQA confirmed that the Bill "creates a new organisation that has the same functions, not just in broad terms but in quite specific terms, as the existing organisation."3
Given these similarities, many contributors - including individuals, local authorities and organisations such as the National Autistic Society Scotland, the Education Committee of the Royal Society of Edinburgh (RSE) and the Stirling Centre for Research into Curriculum Making, raised concerns that Part 1 of the Bill could result in a mere re-packaging of the SQA as Qualifications Scotland, rather than a significant change in the way the new qualifications body will operate.
Comhairle nan Eilean Siar stated—
The proposed reform that creates this new agency seems to offer little more than a rebrand of what went before and the addition of a few concessions to consultation through charters. There is no sense of real reform in respect of all the recent reports that advised and recommended far more significant change.4
The RSE Education Committee said—
It is not clear how the remit and functioning of Qualifications Scotland, as outlined by the Bill, will be materially different from the agency that will have preceded it 5
In her evidence to the Committee, the Cabinet Secretary for Education and Skills explained that "over a number of years, teachers have been frustrated by some of their engagement with the SQA, and that situation has to get better" but "fundamentally, we still need a qualifications body to deliver the exam diet".6
She stressed that, given the issues with the SQA, the new body "must look different and must interact with people differently." The Cabinet Secretary stated that embedding learner and teacher voices within the governance structures "will be hugely important to driving a difference".6
The SQA’s accreditation function is where the SQA accredits an awarding body and their qualifications. This includes:
Scottish Vocational Qualifications (SVQs)
regulatory and licensing qualifications
other qualifications.
The SQA does not accredit degrees.
The SQA states—
SQA Accreditation is responsible for approving awarding bodies to deliver qualifications of social, economic, environmental or cultural benefit to Scotland. In addition, SQA Accreditation accredits and quality assures qualifications, and regulates approved awarding bodies, thereby safeguarding the interests of learners, employers, parents, funding bodies and government.1
The Muir review, Putting Learners at the Centre, recommended that the accreditation function be separated from the awarding function under new arrangements. Professor Muir said that it was inappropriate to have the functions together as it appeared to some that SQA was "marking its own homework".2
The Government initially agreed with this recommendation but subsequently revised its approach. The Policy Memorandum accompanying the Bill states—
The location of accreditation functions has been fully considered and the Scottish Government believes the functions should remain at arms-length from government and that they should sit within Qualifications Scotland. It is how these functions are exercised, through changes to governance, that will be the key difference in the new body.3
As with the current situation with the SQA, the Bill provides that the accreditation function will be overseen by an Accreditation Committee. However, the Bill provides that—
the work of the Accreditation Committee cannot be directed by the overall Board of Qualifications Scotland and is operationally independent
Scottish Ministers appoint the convener of the Accreditation Committee and this person sits on the Board of Qualifications Scotland
the Accreditation Committee develops a separate corporate plan and annual report.
The Policy Memorandum explained—
Continued separation between the two functions is essential. The Scottish Government is committed to ensuring that the policy, strategy and processes for accrediting qualifications and regulating awarding bodies in Scotland are robust, fair, proportionate and importantly, as independent from the awarding functions as possible, without the expense of creating a new, separate organisation. An accreditation service with integrity in its processes and without undue outside influence will inspire trust and support in qualifications in Scotland that gives all learners, education and training establishments, employers and other stakeholders, confidence in the qualifications they use.3
Several respondents, including the Stirling Centre for Research into Curriculum Making, raised concerns that the new qualifications body will retain both awarding and accrediting functions. They stated that there were potential conflicts of interest inherent in such a situation.
Professor Mark Priestley, who leads the Stirling Centre for Research into Curriculum Making, told the Committee—
an awarding body should not be regulating other awarding bodies; instead, a third party should be regulating them to ensure that we have equivalence and quality across the suite.1
The Policy Memorandum states that the Bill sets out several functions that enable Qualifications Scotland to guarantee the quality and integrity of its qualifications and assessment services, and that they are being used appropriately by others.
However, the Scottish Credit and Qualifications Framework (SCQF) Partnership was unconvinced, stating—
we can see no mechanisms for assuring the quality and integrity of the agency’s qualifications, which is [a] vital part of assuring trust in the new body.2
The SCQF Partnership highlighted that, at present, they maintain assurance through a shared confidence agreement with all other Credit Ratings Bodies. SCQF added that they were keen to ensure that such an agreement is secured with the new agency.2
Professor Graham Donaldson, Skills Development Scotland and Professor Ken Muir all highlighted that Scotland takes a different approach compared to other countries and other parts of the UK. Professor Muir commented—
In other jurisdictions, I think that there are much clearer boundaries between regulation, accreditation and the awarding functions, and I felt that that was appropriate here in Scotland.1
NASUWT believed the decision to keep the functions within the same body to be primarily a financial one. Along with the EIS and Unite the Union, they called for the accreditation function to be moved to a separate body, as originally suggested by Professor Muir.5
In her evidence, the Cabinet Secretary for Education and Skills stated—
I do not think that we are in the financial market for creating new bodies, at the current time.6
However, she explained that the Scottish Government had looked at moving the accreditation and regulation function to another body, with the SCQF Partnership, Scottish Funding Council, the new inspectorate and Education Scotland all considered and discounted.6
In his evidence to the Committee, Professor Muir noted that the Bill does not incorporate all of his review's recommendations, stating—
The Bill does not take account of all the recommendations relating to the replacement of the SQA, specifically the decision not to separate the awarding function from the regulation and accreditation functions.1
Barry Black concurred—
Something that is missing in the Bill is the scope for or consideration of what a national agency would look like if the functions of the SQA were split, and what the framework for that would be. That is disappointing. Expectation was raised that that matter would be part of this legislative reform process, and I am surprised to see it missing from the Bill.1
Professor Muir suggested that this element of the Bill ought to be reconsidered, stating—
I still think that the principle of separating the awarding function and the accreditation and regulatory functions should be looked at.1
During the oral evidence sessions, the suggestion of moving the accreditation and regulation function to the new inspectorate was discussed. Although he did not think that the inspectorate was necessarily the best place for the accreditation function to reside, Professor Muir thought it preferable to it staying in the qualifications body. 1
Ken McAra, an HM Inspector of Education and FDA Convenor of Education Scotland Section, did not agree that moving the function to the inspectorate was a solution—
Potentially, you would be creating another problem. ... it is difficult to see how it would work in practice.12
Many queried the ability of the proposed arrangements to provide sufficient separation of the two functions - both in terms of stakeholders' understanding of the different functions and ensuring the independence of the Accreditation team and their work.
Several organisations, including the Chartered Management Institute stated that there was insufficient clarity in the differentiation between the awarding function and the regulatory responsibilities of the qualifications body.13
The Federation of Awarding Bodies and Institute of the Motor Industry agreed, stating that, under the current arrangements, stakeholders often misunderstand the dual functions of awarding and regulation. They suggested that the accreditation function operate under a different name or brand, instead, to make the separation clearer.14
In their evidence, COSLA concurred, describing the arrangements to ensure separation between the functions as "complex" and advocated that these be made clearer.15
In their evidence, an SQA staff member, who is also a Unite the Union workplace representative, agreed that the identity of the accreditation function, and the staff delivering it, is "very much tied to the identity of the awarding body and staff are concerned about that."12
Clarity was also sought, by organisations including West Dunbartonshire Council and School Leaders Scotland, regarding who would be appointed to the Accreditation Committee. Both called for the inclusion of "people who have regard to the needs and interests of learners, teachers and lecturers involved in Qualifications Scotland’s assessment processes."17
In their submission, Unite the Union noted that the members of the current Accreditation Committee are not paid, and are not required to have specific knowledge of regulation. They added that—
The voluntary nature of these positions does currently produce difficulties in bringing this group together to make decisions – this will only be exacerbated by the increased responsibilities for AC [Accreditation Committee] in the Bill without any change to the voluntary nature of the role.18
During the meeting of 2 October, it was highlighted that the budget for the Accreditation team had remained static for 13 years.12
Professor Donaldson described accreditation and regulation as a "big and difficult job" and, regardless of whether the function remains within Qualifications Scotland or is moved elsewhere, "if the function requires extensive investment, that must be taken into account". However, he expressed concern about potential tensions between the delivery and regulation arms of Qualifications Scotland, should the Accreditation Committee remain within the organisation and need additional resources.1
He compared this with the situation in Wales where, he noted, that the regulatory body, Qualifications Wales, has "a very large budget and a lot of staff."1
Unite the Union and the EIS both argued that the Bill does not increase separation between the functions enough, and largely maintains the current situation. Unite the Union highlighted the proposal to place the Accreditation Committee Convener on the Board of Qualifications Scotland as an example of this.
To improve separation and underline the independence of the Accreditation function, SQA staff, who are also Unite the Union workplace representatives, suggested that Accreditation should have its own Board of management and governance structures.12
The Committee recognises the challenging nature of the current financial climate in terms of creating a new stand-alone body to deliver the accreditation function, however, it considers that this cannot undermine the delivery of the intentions of the legislation or, specifically, the accreditation function.
The Committee shares concerns that, at present, there is insufficient separation of, and distinction between, the awarding and accreditation functions.
The Committee believes the accreditation function should sit separately from Qualifications Scotland. However, at the very least, the Scottish Government must ensure accountability and independence of the function through appropriate structures and sufficient resourcing.
The Committee recognises that confidence in the national qualifications body is crucial and that, at present, the body is not attracting the confidence expected or hoped for such an organisation. The Committee therefore believes that all steps should be taken to ensure this. As part of this, the Committee asks the Scottish Government to explore more fully the options of where else the accreditation function could sit, including within the Scottish Credit and Qualifications Framework Partnership.
At present, with the exception of Scottish Vocational Qualifications (SVQs), licence-to-practise qualifications and some security industry qualifications, the regulation of qualifications is voluntary. This will continue, under the provisions in the Bill.
Unite the Union represents the majority of staff who work within the SQA Accreditation team. They expressed disappointment that the Bill, in their view, "does nothing to strengthen the regulation of qualifications in Scotland", describing it as a "missed opportunity."1
The Chief Executive of the SQA told the Committee that she would like regulation "not to be voluntary", adding that the "quality and integrity of all qualifications that are offered in Scotland, irrespective of provider, are critical."2
Unite the Union stated that, at present, the Accreditation team is under-resourced.3 It was noted that, should the scope of accreditation be expanded, additional resource would be required.4
Skills Development Scotland noted that a significant volume of the qualifications available across Scottish schools and colleges are unregulated. While they acknowledged that it made sense "in theory" to expand the volume of regulated qualifications, Skills Development Scotland urged careful consideration of the potential unintended consequences of such an expansion.4
In their evidence, Universities Scotland, Edinburgh Napier University and the University of Stirling welcomed the fact that Qualifications Scotland would not, as is the case at present, accredit degrees, given the "rigorous quality arrangements"6 already in place.
They all noted that, in addition to degrees, universities also award a range of other qualifications and credits, for example the PG Cert HE/PG DipHE. Universities Scotland explained that these qualifications are "included in the same rigorous quality arrangements". As such, they asserted that it is "imperative that there is no requirement to accredit all non-degree qualifications."7
In their evidence to the Committee, the Cabinet Secretary for Education and Skills and Scottish Government officials highlighted that the Scottish Government is chairing a short-life working group which is considering the role of quality assurance across education and in the qualifications system, and the scope of accreditation.8
The Committee urges the Scottish Government to clarify what it considers the scope and function of regulation should be. It is essential that the structure and resources for accreditation match the scope of that ambition. The Committee notes that the Scottish Government has established a short-life working group to consider the scope of accreditation. The Committee asks for more details about its work, including its remit, membership and when it will report.
The Bill seeks to improve governance of the new qualifications body by increasing the influence of educators and learners within the organisation. It seeks to do this by establishing—
places on the Board for registered teachers and college teaching staff
a Strategic Advisory Council which the Scottish Government envisages will be comprised of representatives of educators, learners and their parents / carers but also other key stakeholders including industry, further education and higher education
an interest committee for learners and another for teachers and practitioners
a charter for learners and another for teachers and practitioners.
At present, the SQA has an Advisory Council with representatives from areas including further education, higher education, skills, training, youth work, local government and teaching. The Bill would put the range of skills, knowledge and expertise that members of the Council might have on a legislative footing, and would also ensure that the Council has two co-conveners, one of whom is a member of Qualifications Scotland’s board, and one who is not.
In their evidence, the Children and Young People's Commissioner for Scotland (CYPCS) raised concerns about the use of 'learner' throughout the Bill and its associated documents.
CYPCS were concerned that, without a clear definition of a 'learner', Qualifications Scotland could technically fulfil its duties to consult by speaking only to adult learners. Given that young people make up the majority of those undertaking current SQA qualifications, CYPCS felt it was important that young people’s ability to contribute to these consultative processes was safeguarded.
By using the term 'learner' rather than 'children' or 'young people', CYPCS stated that there is an inherent risk that the status of children as rights holders under the United Nations Convention on the Rights of the Child (UNCRC) may be diminished. CYPCS stressed that "securing the involvement of learners, will not secure the involvement of children unless this is specified."1
Garvin Searly of Intercultural Youth Scotland agreed, noting—
If children are not mentioned, whether because of active or passive omission, that creates the opportunity for loopholes to appear and for their needs and concerns to be ignored.2
When giving evidence to the Committee, the Cabinet Secretary indicated that she was "pretty sympathetic" to this point, and that the Scottish Government would look again at the language, and "how we ensure that children's voices are heard."3
However, in their written evidence, the RSE Education Committee raised concerns that the Bill is, in fact, too centred around children and young people, instead of all learners. They argued that the Bill focuses largely on schools and that "reforming the education system solely from a schools' perspective is detrimental to the entire system".4
Throughout this report, the Committee will refer to learners, the learner interest committee and the learners' charter, as that is the language currently used in the Bill. However, the Committee agrees that the Bill needs to be clear and to specify, and create space for, the meaningful participation of children and young people as part of the governance of these organisations and to set out the requirements to meaningfully consult with them, consider emerging proposals and implement them, as appropriate.
The Committee urges the Scottish Government to define ‘learner’ in the context of the Bill and to ensure this definition clearly encompasses both children and young people and adult learners, and to set out the requirements to meaningfully consult with both these groups. In doing so, the Scottish Government should ensure that any consultation is truly representative and inclusive of all learners.
The Committee considers that explicitly mentioning children is also important, especially given the fact that the UNCRC is incorporated into Scots law.
Under the current arrangements, legally, the SQA is the Board of the SQA, which is appointed by Scottish Ministers. The SQA Board then employs the staff of the SQA. Broadly, the Bill replicates this approach for Qualifications Scotland.
The Bill provides that Ministers must appoint to the Board of Qualifications Scotland a Chair, the Convener of the Accreditation Committee and between six and 10 further members. In addition, the Chief Executive would sit on the Board.
The Bill provides that, of the appointed members of Qualifications Scotland—
one or more should “have knowledge of the interests” of people taking relevant qualifications (i.e. a qualification devised or accredited by Qualifications Scotland)
two or more be registered teachers who are teaching learners taking relevant qualifications
two or more must be college teaching staff teaching courses leading to a relevant qualification
one or more “with knowledge of the interests” of the staff at Qualifications Scotland.
With the exception of the member of the Board with knowledge of staff interests, these conditions for Board membership are new, and not found in the 1996 Act which created the SQA.
The Bill introduces four-year terms for the Board members of Qualifications Scotland. The 1996 Act does not specify term limits for Board members of the SQA. The Bill also provides additional powers (compared to the 1996 Act) for Ministers to remove members of Qualifications Scotland.
The Policy Memorandum explained that there is expected to be a level of continuity between the current Board of SQA and the new body, it said—
The Scottish Ministers recently appointed a new Chair of the SQA who will oversee the SQA and the transition to Qualifications Scotland. To support this transition, the new SQA Chair will become the first Chair of Qualifications Scotland. The appointment of the SQA Chair was made after fair and open competition and was regulated by the Commissioner for Ethical Standards in Public Life in Scotland, and the Code of Practice for Ministerial Appointments to Public Bodies in Scotland on the express basis that the successful candidate would transition to the new body.1
When giving evidence to the Committee, Fiona Robertson, Chief Executive of SQA, confirmed that the “appointments process has just concluded for five new Board members.”2
The Bill would ensure that there would be at least two registered teachers and two college teaching staff on the Board of Qualifications Scotland.
While welcoming the representation of teaching staff on the Board, many contributors highlighted the potential challenge for those Board members to represent the interests of all teachers and lecturers.
In their written evidence, the Institute of Physics noted that teachers had a range of views and that teachers from different disciplines could have very different perspectives, stating—
it is difficult if not impossible for a small number of appointees to represent fairly the full breadth of experience and opinion among such diverse groups as learners on the one hand and teachers and practitioners on the other. 1
In their evidence, the EIS highlighted concerns that the Bill was not sufficiently clear that the registered teachers on the Board must be school teachers. While noting the spaces on the Board for college teaching staff, the EIS argued that, as college lecturers are contractually obliged to register with the General Teaching Council for Scotland, it would be possible for there to be no school teachers on the Board. Given this, the EIS called for more clarity, to ensure the presence of school teachers.
The EIS also called for more clarity in the definition of college teaching staff. They stated that, at present, the term appears to refer to college lecturers but the National Working Practices Agreement, which sets out college lecturers’ national terms and conditions, refers to them as ‘lecturing staff’. The EIS suggested that this terminology be used in the Bill instead.2
Unite the Union advocated for those joining the Board, whether as registered teachers or college teaching staff, or those with knowledge of the interests of learners and Qualifications Scotland staff, to be representative of those groups, and therefore able to articulate a broader view, rather than participating as individuals.3 The Scottish Secondary Teachers' Association (SSTA) concurred, stating that teachers needed to be representative and accountable to the teaching profession.4
NASUWT and EIS agreed and argued that, given professional associations have processes to democratically formulate policy, and engage with their members, they should provide these Board members.26
The Policy Memorandum accompanying the Bill states that Scottish Ministers will use guidance to set out their expectations for how these representatives should be recruited, making it clear that any teachers on the Qualifications Scotland Board should not be in promoted or leadership posts.7
In its submission, NASUWT strongly advocated for the inclusion of the voice and perspective of practising classroom teachers within Qualifications Scotland. While they acknowledged that the Scottish Government intends to provide additional guidance that will support that aim, the NASUWT was disappointed that this was not set out explicitly on the face of the Bill.6
The Qualifications Scotland Board will have between 9 and 13 members. While it is possible, under the provisions in the Bill, for as many as 8 Board members to be registered teachers and college teaching staff, at least 4 members will be. The EIS expressed concern about this uncertainty, arguing that unless teachers and lecturers make up the majority of those on the Board, "they will not play the central role in governance as envisaged by Professor Muir."2
Instead, the EIS advocated the adoption of a different structure, highlighting the model used by the General Teaching Council for Scotland (GTCS) Council, which contains a majority of elected teachers and college lecturers. Of the 37 members on the GTCS Council, 19 are elected registered teachers; 11 are educational stakeholder nominees and 7 are lay members appointed by an independent Appointments Committee.
In her evidence to the Committee, the Cabinet Secretary for Education and Skills stated that the Bill increases the number of teachers on the Board, to 4 teaching and college professionals, to ensure that there is "substantive teacher voice in the new body."10
However, the Cabinet Secretary stressed that 4 is not a maximum and that "others who come from a teaching background may have experience in corporate governance and fulfil other positions on that body".10
Given that Qualifications Scotland's role includes delivering qualifications, assessment and connected services, it is important that those delivering qualifications and assessments are represented and included in governance arrangements for the new body.
The Committee notes concerns that there is insufficient clarity to ensure that registered teachers on the Board would be current classroom teachers. The Committee urges the Scottish Government to consider how it could provide further clarity on this.
The Committee draws the Scottish Government’s attention to the concerns raised by stakeholders, in relation to the need for teaching professionals on the Board, from both school and college settings, to be able to articulate a broader perspective than their own. It urges the Scottish Government to clearly set out in guidance the expectations placed upon those participating in this capacity to both consult more widely and report back, and the mechanisms that might be used to do this. This might include, for example, dedicated non-teaching time to allow discussions with colleagues to take place.
The Board should also support Qualifications Scotland and its stakeholders to develop innovative, including digital, solutions to provide for widespread and inclusive engagement approaches and consider how Qualifications Scotland is demonstrating an open and responsive approach to stakeholders’ views.
The Committee asks the Scottish Government for its view as to whether there should be an additional Member of the Board who is a representative from a teaching trade union.
The Bill provides that the Board includes one or more member who has "knowledge of the interests” of people taking relevant qualifications (i.e. a qualification devised or accredited by Qualifications Scotland).
Contributors broadly welcomed the intention to include learner voices within the decision-making processes of the new qualifications body, however, there was concern about some of the structures in place to facilitate this.
The Bill provides that there will be one or more people on the Board “with knowledge of the interests” of the staff at Qualifications Scotland.
As noted in paragraph 86, the SQA Board currently includes a member “with knowledge of the interests” of the staff at the SQA.
In their evidence to the Committee, SQA staff, who are also Unite the Union workplace representatives, stated that, in their view, the current arrangement does not work well as the Board member whose role is to represent staff interests does not engage with staff. They therefore advocated a change to the Bill, to ensure that - in Qualifications Scotland - this Board member is elected by the staff, giving staff "a direct voice and direct influence".1
Unite the Union also advocated for recognised Trade Union representation on the Board, adding that both of SQA’s recognised Trade Unions, Unite the Union and UNISON, had been seeking representation on the SQA Board for some time, without success.
Unite the Union was clear that this should be in addition to the Board member who is to represent staff interests, so that there would be three Board members with staff representation as their focus.2
The Policy Memorandum states that this provision is to—
ensure there is an expert member on the Board who is responsible for listening to and understanding the impacts of decisions on staff working to deliver qualifications, assessment and accreditation services, and support an effective staff voice within the organisation.3
However, when giving evidence to the Committee, the Cabinet Secretary for Education and Skills seemed to suggest that the Qualifications Scotland staff member would not be on the Board to represent the interests of staff—
a Qualifications Scotland staff member will be present for two reasons. It will have a representative in the room because it is its organisation, too, so it is important that it hears the challenge. It is there to respond. One of the key challenges that the SQA faces is that, arguably, it has not been responsive in the past, so let us try to manage that through the governance structures.4
It will be important for staff to fully understand this role, and whether it is a mechanism for staff to raise issues to the Board, or to hear and respond to them.
The Committee urges the Scottish Government to clearly articulate the role it envisages the staff representative will play on the Qualifications Scotland Board, in particular whether there is an expectation that they will bring staff-related concerns to the Board’s attention.
The Committee agrees that the Board member should be representative of, and accountable to, staff. As such, the Committee recommends that the Bill be amended to clarify that this Board member should be appointed by the recognised trade unions representing Qualifications Scotland staff.
While respondents generally welcomed Board positions for teaching staff and those representing learners' interests, many highlighted the need for greater representation and diversity within Board membership.
For instance, the Donaldson Trust advocated that at least three members of the Board, not including the Chair, Chief Executive and Convener of the Accreditation Committee, should be neurodivergent, either diagnosed or self-identifying as such, and one member of the Board should be affiliated to a Grant Aided-Special School (GASS).1
CRER stated that—
it is important that processes designed to include learners, teachers and others must also have an equalities focus. This includes the Board of Management, committees and advisory council.2
In their evidence, Children's Services Renfrewshire Council stated—
It will be vital that this collaboration is for all diverse groups in society and is organised inclusively. There has to be a voice for minority groups, ethnic minorities; the Gaelic community and those with visual and hearing impairment. We are better placed to do this than ever before, so it will be important to deliver for these groups.3
The Committee believes that it is critical that the Qualifications Scotland Board comprises a variety of voices, skills and experiences. The Board also needs to reflect and be cognisant of the needs of those undertaking qualifications, those delivering them and those using them, recognising that there may sometimes be tensions between these.
The Committee asks the Scottish Government to set out how it will achieve this, ahead of Stage 2.
The Bill provides that there will be a Strategic Advisory Council (SAC). The role of this Council will be to provide advice to Qualifications Scotland and Ministers on matters relating to:
qualifications devised or awarded by Qualifications Scotland
the functions and procedure of Qualifications Scotland.
The Bill states that Ministers must make regulations to create the SAC and those regulations can cover a variety of matters in relation to the functioning of the Council.
The 2002 Act provided for powers to establish an Advisory Council in relation to the SQA and its qualifications. The SQA council was established by the Advisory Council (Establishment) (Scotland) Regulations 2002.
The Bill substantially replicates the provisions in the 2002 Act in this respect. However, there are some differences and these include:
A requirement on Ministers to appoint two co-conveners, one of whom is a member of Qualifications Scotland’s Board, and one who is not. The 2002 Act required that the convener of the SQA’s Advisory Council was a member of the SQA Board.
The Bill specifies that regulations setting up the SAC may include provisions about skills, knowledge and expertise that members of the Council might have. The 2002 Act was silent on this; it was up to Ministers who they appointed.
The Scottish Government stated that it anticipated the "Strategic Advisory Council being where the representative stakeholder organisation sits, so that would involve teaching unions, parent fora and so on."1
The provisions relating to the SAC were generally welcomed, however, the importance of the Council being representative of the whole country, and diverse in its make up was raised repeatedly.
West Dunbartonshire Council highlighted the need for the SAC to reflect a diverse range of stakeholders, particularly those with direct experience in the education sector, to ensure that the needs and perspectives of learners, teachers, and lecturers would be adequately represented.2
In his evidence to the Committee, Professor Ken Muir called for greater specificity within the Bill to ensure that the membership of the SAC will "reflect the views of experts on the ground, such as expert practitioners, or, indeed, the interests of children and young people.”3
Organisations including the National Day Nurseries Association and the Construction Industry Training Board (CITB) stressed the importance of employers and industry stakeholders, as well as learners, teachers, and others being represented.
In their evidence, Colleges Scotland highlighted the importance of strong industry links with the new qualifications body, adding that there needs to be “a new perspective on parity of esteem for vocational subjects” and that Qualifications Scotland needs to be “agile and responsive to changing societal and industry needs” as colleges are within their regions.4
They also stressed the importance of more interactive and meaningful engagement between the qualifications body and the college sector.4
COSLA and several individual local authorities, including Angus Council and Moray Council, called for a recognition of the role that local authorities play in the delivery of education, and their statutory duty for improvement. While they appreciated the rationale for not specifying the membership of the SAC, they argued that, given this role, local government should be represented on the SAC.6
Organisations including Comann Luchd-Teagaisg Àrd-sgoiltean and Bòrd na Gàidhlig called for the inclusion of representatives from Gaelic Medium Education, to embed considerations of GME in all strategic planning for Qualifications Scotland.7
In their evidence, School Leaders Scotland acknowledged that it would not be possible for every interest to be represented, however, they stressed the need to create a culture of engagement by listening and bringing voices in, and ensuring that there is a variety of views and perspectives.
CRER called for all of the processes designed to include learners, teachers and others to also have an equalities focus. While acknowledging that Schedule 1, Part 2, sets out a requirement for Scottish Ministers to consider equal opportunities in appointing members of Qualifications Scotland, the Equality and Human Rights Commission stated that "there should be a commitment in primary legislation to ensuring that the Strategic Advisory Council reflects the interests of relevant protected characteristic groups".8
Several organisations stated that it was critical that communication and engagement with young and adult learners, parents and carers, teachers and practitioners, further and higher education, training providers and employers is ongoing. The Scottish Government concurred, stating—
The role of the Strategic Advisory Council should not be seen as a single point of contact for the organisation. Members of that Council would also be expected to engage with their networks and relay information back, which is also set out in the provisions as an expectation of the Council.1
The Committee observes that the proposals for the Strategic Advisory Council substantially replicate the legislation which established the SQA's Advisory Council. Given this, it is unclear to the Committee how this measure, as currently drafted, will lead to an improvement in the governance of the new qualifications body.
The Committee notes the evidence calling for membership of the Strategic Advisory Council to be diverse and reflect the whole of Scotland.
The Committee understands the need for flexibility in the provisions, however, it agrees with Professor Muir that a greater degree of specificity is required regarding membership.
The Bill provides that Qualifications Scotland must establish a Learner Interest Committee and a Teacher and Practitioner Interest Committee.
Issues that relate to both interest committees will be covered in the following paragraphs. Issues specific to each committee will be set out subsequently, in their own sections.
Both Committees must consist of a majority of members who are not from Qualifications Scotland, and a majority of those must be undertaking or have recently undertaken a Qualifications Scotland qualification, in the case of the Learner Interest Committee, or be providing teaching or training in respect of a Qualifications Scotland qualification, in the case of the Teacher and Practitioner Committee.
Qualifications Scotland must also consult with Scottish Ministers before appointments are made to these Committees.
Some stakeholders highlighted that, under the proposed arrangements, although they would not be able to comprise the majority, people from Qualifications Scotland could still be heavily represented on these committees. The exact minimums will depend on the total size of each committee. For instance, under the terms of the Bill, a 15 person committee could have as many as 7 members from Qualifications Scotland but only 5 people would be guaranteed to be either learners or teachers and practitioners (depending on the committee). As such, people from Qualifications Scotland could make up the largest group on both committees.
The EIS criticised the way these provisions were set out, stating—
The way that the bill is drafted is really opaque. If we are talking about majorities of majorities, that is not giving anybody any certainty as to what there should be.1
They stressed that there must be a majority of teachers on the teacher and practitioner interest committee, and called for the Bill to make that clear.
When the balance of the membership on these committees was put to the Cabinet Secretary for Education and Skills, she stressed that she did not want them "stacked with the staff". Instead people from Qualifications Scotland would be present to respond to challenge and listen to and understand the views of committee members.2
Scottish Government officials added that it would potentially be a Qualifications Scotland Board member who would be on the Committee, to hear directly from Committee members. They also explained that the "broader membership of the committees might not just be those with lived experience of learning and teaching, but they might be there to facilitate better engagement. They could be external people and not just staff members of the qualifications body."2
In written evidence, the SQA highlighted how integral the involvement of teachers and lecturers is to the delivery of its work, noting that—
many of those working within the organisation had first-hand experience of teaching and lecturing
subject specialists are involved and engaged in the development and review of qualifications, their evaluation and verification
teachers and lecturers are involved in the design and setting of assessments, including examination papers, marking papers and contributing to the setting of grade boundaries for National Courses
teachers and specialists deliver Understanding Standards events to thousands of practitioners each year.4
The SQA assured the Committee that they engage with learners and practitioners, and had recently taken steps to strengthen this engagement.1
Such steps have included—
the establishment of a Learner Panel, set up with the support of the Scottish Youth Parliament, which has engaged hundreds of learners on issues related to assessment and qualification
going to schools and colleges to hear first-hand from pupils and front-line educators
listening more through wide-reaching consultations and surveys on issues such as artificial intelligence and set texts in English courses.6
The Association of Directors of Education (ADES), Schools Leaders Scotland and the EIS acknowledged and welcomed this increased visibility and engagement from senior staff at the SQA.
However, this view was not shared by all. In their evidence, the RSE Learned Societies’ Group on Scottish STEM Education believed that the Learners' Panels had been merely symbolic, stating that no updates had been provided since they were established.7
Scottish Government officials stated that the Bill seeks to—
embed a systematic approach to learner and teacher involvement. Historically, that has been an evolving picture, but the legislation means that it is not an optional extra but is anticipated and should be considered in part through how those organisations operate, with Government support.2
In their evidence, the SQA agreed, stating that—
[engagement] needs to be both deep and broad; it needs to be felt every day; and the profession needs to feel listened to. We need to do that not just through enacting the provisions in the bill but through our on-going work.1
The Policy Memorandum accompanying the Bill states that—
the Learner Interest Committee will provide a meaningful mechanism for the lived experience of young people, adult learners and the wider learning community to inform Qualifications Scotland’s decision-making.10
The Policy Memorandum states that the Teacher and Practitioner Interest Committee—
forms part of the formal internal governance of Qualifications Scotland and will provide a robust platform for teachers, lecturers and other education professionals delivering learning for qualifications to shape decision-making.10
However, organisations including Children in Scotland, stated that it is not clear how the different elements of stakeholder engagement relate to each other;12 for instance how will interest committees interact with the Strategic Advisory Council and which groups' advice will take precedence in the event of a conflict.
In response to this query, the SQA told the Committee—
The bill has just been introduced. There will be further work to do to consider those issues in more detail as part of the implementation of the legislation.1
The Committee welcomes the intention to create mechanisms to hear from learners and from teachers and practitioners.
The Committee is concerned that, as drafted, the Bill only guarantees that just over one quarter of members on the interest committees will be learners or teachers and practitioners; and that the largest single group could be made up of people from Qualifications Scotland.
The Committee understands that this is not the intention of the Bill, however, the Committee believes that the legislation should be clearer in this regard and questions the necessity of Qualifications Scotland staff being appointed to these committees at all. The Committee also believes that learners or teachers and practitioners should make up the majority on their respective interest committees.
The Committee asks the Scottish Government to set out how the interest committees and the Strategic Advisory Council will interact with each other and with the Board, and whether there will be a hierarchy in the advice provided by these different groups.
The Committee urges the Scottish Government to set out how it will ensure that Qualifications Scotland is accountable to participants of wider consultative mechanisms that are put in place; and that it has appropriate structures and expertise to consult meaningfully with a diverse range of groups and, critically, to provide them with feedback on the actions taken and how decision making has been influenced by them.
Regarding the Learner Interest Committee, the Policy Memorandum states—
It is a priority that the voices of Scotland’s young people, adult learners and the wider learning community are involved at the heart of decision making. This is to ensure the actions Qualifications Scotland takes are always focussed on the needs and expectations of learners. Young people and adult learners of all backgrounds can provide important perspectives and these must be taken into account when designing qualifications and assessment services as part of a high performing education and skills system.1
There was broad support from contributors that there would be a dedicated interest committee to hear from people who are taking or have recently taken a Qualifications Scotland qualification.
CYPCS highlighted—
They know what it is like to sit the exams now, as a student, rather than to supervise or teach to the exams as a teacher. It is a different and really important perspective.2
However, there were significant caveats to this support from many organisations who stressed the need for the committee to—
Be representative and diverse
Ensure meaningful participation
Involve those supporting learners such as parents and carers.
Multiple organisations highlighted the need for diversity and representation. For instance, Dumfries and Galloway Council stated that it was essential that there is “representation from the diverse communities in Scotland, including those from ethnically diverse, rural, and deprived backgrounds.”3
CELCIS highlighted the need to "meaningfully include learners with care experience, and the people who live with, care for and teach them."4
Organisations including Children in Scotland, the Donaldson Trust and Forces Children Scotland stressed the need for disabled children and children with additional support needs to be included, with Forces Children Scotland suggesting that the Bill include—
a legislative requirement to include those who face additional barriers or require additional [support] for their learning, to ensure their needs are reflected in the work undertaken by the new bodies.5
Scottish Autism, the Donaldson Trust and the National Autism Society advocated that neurodivergent learners should be represented on the committee, with the Donaldson Trust suggesting that 20 per cent of the committee members should be neurodivergent.6
CRER also advocated for an explicit statement within the Bill recognising the need for BME learners and other marginalised groups to have the opportunity to present their concerns through the learner interest committee.7
Multiple local authorities including North Lanarkshire Council and organisations including Comann nam Pàrant advocated the inclusion of those undertaking qualifications within Gaelic Medium Education.
Reflecting on such a wide range of learners, Fife Council Education Services stated that the "involvement of learners in groups was well-received...However, ensuring that they represent the wider pupil body is always a challenge".8
In the Equality Impact Assessment prepared for the Bill, the Scottish Government stated that the interest committees' membership will be "expected to consist of individuals from a range of different backgrounds and reflect the diversity of needs and interests these stakeholder groups have."
Contributors, including Audit Scotland, stressed that the mechanisms to involve young people must allow them to participate meaningfully and not be tokenistic. As noted in the section, Age-appropriate spaces, this does not mean slotting a single or few young people into an otherwise adult forum.
In their evidence, CYPCS expressed disappointment in the proposals for the Learner Interest Committee as they "appear to embed existing power relationships rather than creating a child-friendly mechanism to put children at the centre of decision making".9
CYPCS Young Advisors indicated that a Young Advisors group - similar to the model used by CYPCS - should be set up to influence the qualifications body, noting that “most children and young people would feel better in a space only for children and young people”.9
Organisations including Forces Children Scotland and Children in Scotland agreed with the need for age-appropriate formats and for children and young people to be supported to engage fully.
Contributors regularly stated that legislation cannot change culture and that the structures put in place by the Bill would not, on their own, guarantee better engagement with learners and teachers and practitioners. Children's Services Renfrewshire Council agreed, noting that "the critical issue will be the extent to which the new organisation's Board and the Executive team...prioritise this involvement."11
Concerns were also raised about the ability of learners, within these committees, to influence the decision making of Qualifications Scotland. The Royal Scottish Geographical Society stated that the committees appear to replicate existing arrangements. As such, they are—
sceptical that there will be improvements in engagement without the inclusion of a requirement for Qualifications Scotland to take on board the views of the learner interest committee and the teacher and practitioner interest committee.12
Several organisations, including British Deaf Association Scotland, Forces Children Scotland and Connect, stressed the importance of involving parents and carers, and others, in the consideration of learners' interests and that this must be meaningful—
Engagement with parents and young people cannot simply be a tick box exercise for both new bodies, but instead seen as a vital and valued part of the process.13
Connect also called for the Bill to be amended to explicitly include parents and carers on the learner interest committee.2
In her evidence to the Committee, the Cabinet Secretary for Education and Skills stated that she needed the new qualifications body to be a "front-footed organisation that has the views of teachers, pupils and parents at its heart."15 The Cabinet Secretary went on to say that the Scottish Government could "perhaps, look at strengthening some of that".15
Organisations highlighted the value of including a youth work perspective in the work of Qualifications Scotland. YouthLink Scotland stated that youth workers' knowledge and expertise are integral to the excellent learning and teaching required to close the attainment gap.
They went on to advocate that the new qualifications body establish representation from the youth work sector within its governance structures, highlighting the learner interest committee as an option.17
The Committee recognises the importance of hearing from children and young people, and the intention to embed their involvement within Qualifications Scotland. However, the Committee notes evidence that these proposals entrench activity that is already happening, and which has been subject to criticism. As such, the Committee questions whether these measures will be sufficient to affect the change in culture sought by the Scottish Government, learners, their families and stakeholders.
Given the similarities in the structures and mechanisms for engagement between the SQA and Qualifications Scotland, the Committee asks the Scottish Government to set out how it will ensure that Qualifications Scotland will operate differently from the SQA.
The Committee agrees that there must be an age-appropriate forum, and support, to allow children and young people to meaningfully participate. However, the Committee recognises the importance of also hearing from adult learners and parents and carers.
The Committee acknowledges the suggestion from the CYPCS Young Advisors group that a similar model to their own be used by Qualifications Scotland, to allow young people to influence its work. The Committee asks the Scottish Government for its view on whether a quality engagement process, exemplified by the CYPCS Young Advisors and others, could be supported and resourced, including digital approaches to support inclusion and as wide a range of voices as possible, and if it could work alongside the learner interest committee.
Should the Scottish Government opt to develop an age-appropriate forum that sits apart from the main learner interest committee, the Committee recommends that there should be clear mechanisms to ensure that the views of that group are factored into decision-making processes for the learner interest committee and Qualifications Scotland as a whole - and a clear feedback loop provided so that young people know how their views have made a difference.
The Committee believes that it is critical that any forum or committee is representative of Scotland as a whole and contains a diverse range of voices. The Committee asks the Scottish Government to consider strengthening the Bill to more explicitly reflect the policy set out in the Equalities Impact Assessment.
As with the learner interest committee, contributors generally welcomed the intent to engage with teachers and practitioners but asserted the need for the committee to represent the diversity of teachers and practitioners as well as the contexts in which they are teaching.
As such, there were calls to ensure that the teacher and practitioner interest committee reflect rural as well as urban Scotland, Black and Minority Ethnic teachers and practitioners, those who are neurodivergent, those with additional support needs, the special school sector, Gaelic Medium Education and the independent sector.
Respondents, including Angus Council, were also keen to stress that, as with the engagement with learners, engagement with teachers and practitioners should be meaningful with the opportunity to influence how Qualifications Scotland carries out its duties.
CELCIS argued that the practitioner voice should not just be drawn from education, suggesting the committee “should also include practitioners from other parts of children’s services. Education does not work in isolation from other services”.1
While many organisations were supportive of learners, teachers and others being involved in the new body’s decision-making, the Federation of Awarding Bodies sought clarity as to the type of issues the committees would consider, stating—
we do request that the expertise within these pools is used appropriately - for example, learners and teachers could be involved in delivery aspects, but not in designing assessments, where AO [awarding organisations]/EPAOs [end-point assessment organisations] would be a more appropriate choice.2
The Committee recognises the importance of hearing from teachers and practitioners and the intention to embed their involvement within Qualifications Scotland.
The Committee advises that, should the Bill become law, the teacher and practitioner interest committee must be diverse and representative of the country, and the teaching workforce.
Given the lack of trust that many teachers have had in the SQA, the Committee believes that it is essential that there is good communication not only between Qualifications Scotland and the teacher and practitioner committee, but also with the wider teaching and practitioner workforce. This should include the work of the interest committee being transparent, and information readily accessible to all.
The Bill provides that Qualifications Scotland prepare and publish two charters. A ‘learner charter’ and a ‘teacher and practitioner charter’. These will set out what those groups “should expect from Qualifications Scotland in the exercise of its functions”.
The Policy Memorandum states that "Qualifications Scotland must have a strong, legislative mechanism that provides a means for strengthened accountability and transparency"1 and that these charters provide that.
There was broad support for the idea of the charters amongst the responses to the call for views. Many including CELCIS, some local authorities and Audit Scotland welcomed the "ambition to increase transparency and to provide a further mechanism to hold the new body to account."2
However, much of that support was contingent on the respective charters being:
Effectively monitored
Meaningfully co-created with learners and with teachers and practitioners
Impactful for all.
The RSE Learned Societies’ Group on Scottish STEM Education expressed concern that the Charters would be "merely symbolic in practice".1
Multiple respondents including Aberdeenshire Council, the Scottish Youth Parliament, Enquire and CRER2 stressed that there needs to be a mechanism for monitoring the charters, including measurable robust standards, and to hold Qualifications Scotland to account should they not deliver on the charters' commitments.
West Dunbartonshire Council concurred—
Charters need to be robust and strong documents that have real impact and are not merely symbolic. They must have the authority and mechanisms to enforce the standards and expectations they set out, ensuring that the needs of those they represent are genuinely addressed.3
NASUWT, while supportive of the intention to create an "additional accountability tool", highlighted that, at present, it was unclear what legal weight, if any, either of these charters will have.4
The Bill provides that Qualifications Scotland must set out the expectations of both the Learner and the Teacher and Practitioner Charters within its Corporate Plan. The Bill will also require Qualifications Scotland to set out what it has done to meet the expectations of the charters in its Annual Report.5
The Committee believes that, for the charters to play a meaningful function, they must have authority and mechanisms to enforce the standards and expectations they set out.
The Committee urges the Scottish Government to consider how it will include such measures in the Bill, to ensure that learners and teachers have some recourse should the standards set out in the charters not be met.
Respondents including Children's Services at Renfrewshire Council acknowledged the commitment within the Bill to consult learners and teachers when preparing the charters, but highlighted that their involvement needs to be wide ranging. The local authority also stressed that—
It will be essential to reach out beyond the formal representation mechanisms to get the views of young people who do not wish to be involved in official forums, but who have very important views that should be heard.1
As with the other mechanisms for engaging with young people, the Scottish Youth Parliament and the Children and Young People's Commissioner for Scotland stressed the need for engagement with children and young people on charters to be meaningful, ensuring that they can participate fully, and cautioned against anything that could seem tokenistic.
In their evidence, the EIS noted that in preparing the charters, Qualifications Scotland ‘must consult such persons as it considers appropriate’. In relation to the learners' charter, those consulted with must include ‘persons undertaking a Qualifications Scotland qualification’ as well as persons appearing to Qualifications Scotland to represent the interests of those undertaking such qualifications.
With regard to the teacher and practitioner charter, Qualifications Scotland must consult 'persons providing teaching or training in respect of a Qualifications Scotland qualification' as well as persons appearing to Qualifications Scotland to represent the interests of those providing teaching or training.
For both charters, the EIS stated that the Bill and accompanying documents should more explicitly reference the charters being co-designed and developed by all relevant stakeholders, rather than being prepared by Qualifications Scotland, following consultation.2
During the meeting of 18 September, Professor Ken Muir agreed, stating that it was not good enough that, under the Bill's current provisions, Qualifications Scotland is being asked to set out the charters after consulting those whom it deems appropriate - likening it to marking its own homework. Instead, he called for greater specificity in the Bill to ensure that Qualifications Scotland does consult, and with whom.3
Several organisations, such as the National Day Nurseries Association, argued that the charter consultation process should include as wide a representation as possible, with some advocating for the inclusion of specific views and experiences.
For example, parents' organisation Connect raised concerns that although the policy memorandum of the Bill mentions that parents and carers could be involved in the consultation process on charters, such involvement is not assured.
Connect argued that "day-to-day, [parents and carers] liaise with schools and local education authorities and try to advocate as best they can for their kids"4, and that, given their importance, the learner charter should be expanded to include them.
Comann nam Pàrant and Bòrd na Gàidhlig called for representatives from Gaelic Medium Education to be involved in the preparation of both charters, to provide a voice for those who use and deliver qualifications in Gaelic.5
Scottish Autism stressed the need to include learners and teachers/practitioners from the special school sector when identifying the individuals to be consulted on the preparation of the charters.6
The Chartered Management Institute stated that, given their role in designing qualifications, Awarding Bodies should be involved in the development of the teacher and practitioner charter.7
In their evidence, UNISON stated the Bill should explicitly include trade unions in the list of those who must be included in these consultations.8
The Committee welcomes the intention to create charters, which will set out what those taking Qualifications Scotland qualifications and those providing teaching in respect of those qualifications can expect from the organisation.
The Committee believes that Qualifications Scotland should consult widely on the charters, and ensure that such consultation is meaningful and representative of all those taking or teaching qualifications.
The Committee notes concerns that Qualifications Scotland alone will be responsible for drafting the charters, albeit following consultation. The Committee agrees that it would be more appropriate for the charters to be co-produced and recommends that the Scottish Government considers amendments to the Bill which would ensure such co-production.
Some respondents were sceptical that the charters would lead to improvements for more disadvantaged learners. In their evidence, Glasgow City Council stated—
Charters will not address the fundamental issues in our current high stakes exam system which results in the poorest young people in Scotland being disadvantaged. Unless there is a concerted effort to ensure no young person is disadvantaged on the basis of socioeconomic circumstances then charters will only advantage those with the social capital to be able to enforce their entitlement.1
While explaining that it had no inherent objection to the use of the charters, UNISON stated—
It is not a charter which will sustain and improve performance, rather it is motivated staff, resourced properly to do their jobs.2
While the Committee appreciates the challenge in engaging with all learners, it nevertheless believes it is vital that all voices are heard, including those learners who are unhappy with their learning experience, to ensure that Qualifications Scotland sets out the expectations that the full range of learners can have of the qualifications body.
Part 2 and Schedule 2 of the Bill establishes the office of His Majesty’s Chief Inspector of Education in Scotland. The Bill will remove the inspectorate function from Education Scotland and, for the first time in Scotland, set out in detail the role and function of the education inspectorate in legislation.
In 2001, Scottish Ministers set up Her Majesty's Inspectorate of Education (HMIe) as an executive agency which created greater organisational separation between the inspectorate and the government. In 2011, HMIe was merged with Learning and Teaching Scotland to create Education Scotland. The merger was undertaken by the Scottish Government administratively, that is, without passing legislation.
Within its recommendation to “simplify policies and institutions for clarity and coherence”, the OECD recommended that the curriculum support and inspection functions be delivered by separate bodies.
The Bill provides that the structure of the inspectorate will be based around the Chief Inspector of Education in Scotland (“Chief Inspector”). The Policy Memorandum states that this position will “separately be designated an office-holder in the Scottish Administration [and this will be] taken forward by subordinate legislation of the UK Parliament” under powers in the Scotland Act 1998.1
The inspection function will cover “relevant educational establishments”. The Bill defines “relevant educational establishments” as—
schools (including local authorities’ provision of ELC)
funded ELC provided by a partner provider
a provider of further education
a school of education providing initial teacher education (only to the extent that it provides such education)
residential accommodation connected to a school (only in relation to the welfare of the pupils)
an education authority (only in relation to its school education functions).
The Bill sets out “excepted establishments” which are a sub-set of “relevant educational establishments”, which are the types of relevant educational establishments that may be inspected only at the request of Ministers. These are—
funded colleges
schools of education providing initial teacher education.
A key aim of the Bill is to strengthen the independence of the inspectorate.
Schedule 2 of the Bill states that the Chief Inspector is “not subject to the direction or control of a member of the Scottish Government” other than where this is explicitly set out in legislation.
Ministers will retain the ability to direct the Chief Inspector to secure the inspection of specific or types of educational establishments and a power to specify the intervals at which inspections take place. These broadly reflect the current powers of Ministers contained in the Education (Scotland) Act 1980.
Contributors broadly welcomed the establishment of the inspectorate as a stand-alone body. Many, including Ken McAra, an HM Inspector of Education and FDA Convenor of Education Scotland Section, noted that there has been a perception that having the inspectorate within Education Scotland created a conflict of interests.1
The need for the new HM Chief Inspector to be - and be seen to be - independent, was repeatedly stressed by stakeholders, including Dr Judith McClure CBE—
It is vital for the future development of Scottish Education that there should be a regular assessment by qualified Inspectors of the performance, achievements and problems in individual schools and other organisations providing education. These assessments will be of use only if the inspectorate is independent and led by a gifted and experienced HM Chief Inspector of Education who is independent in this work and understands what team leadership and planning mean.2
There was a range of views on whether the measures set out in the Bill would ensure the inspectorate had greater independence from Government.
Some, including Scottish Autism, indicated that they were content that the role was sufficiently independent.
Others, including NASUWT and Glasgow City Council, stated that the proposals went "some way to ensuring greater independence"3.
However, organisations, including AHDS, the EIS and Children's Services Renfrewshire Council argued the "consistent reference throughout the Bill to the Chief Inspector carrying out inspections at the request of ministers" suggested that "the Chief Inspector is not independent but is an officer who acts on behalf of the Government."4
ADES advised that "it will become apparent very quickly if the proposal for an independent role is rhetoric or reality."5
Professor Ken Muir considered that many of the provisions were "open to quite a lot of interpretation". He stated that, as such, how independent the inspectorate is in practice could be determined by the person appointed Chief Inspector.6
Professor Graham Donaldson was head of HMIe from 2002-10, when the inspectorate was a single body, before it became part of Education Scotland.
In his evidence to the Committee, Professor Donaldson stated that he had more operational independence than the Chief Inspector of Education would have under the terms of the bill—
Some of the provisions in the bill mean that the Chief Inspector would be in a position of constantly having to negotiate what he or she does, rather than having operational freedom and being accountable for their decisions6
Professor Donaldson stated that the role of the inspectorate is—
to provide on-going monitoring of how the system is serving young people, and to provide, where necessary, sometimes difficult messages to Government or to others about where policy is not working in practice or where it needs to be changed.6
He argued that, had the current inspectorate felt able to deliver difficult messages, the OECD reviews would not have been needed. Amendments were therefore required to better "enshrine the independence" of the Chief Inspector.6
Organisations including the EIS, the RSE’s Learned Societies Group and West Dunbartonshire Council suggested that the Chief Inspector should be accountable to Parliament, rather than Scottish Ministers.
However, a recent report by the Scottish Parliament’s Finance and Public Administration Committee suggests that there are already significant challenges for the Scottish Parliamentary Corporate Body in supporting and providing sufficient oversight of Parliamentary-supported bodies.
The Cabinet Secretary for Education and Skills accepted that there is a perception that the merger of HMIe into Education Scotland in 2011 was "not good for independence or accountability." She added—
Separating the role and legislating for the post gives it objectivity and clarifies roles and accountability for improvement.10
While acknowledging that Scottish Ministers would retain power to direct the Chief Inspector, the Cabinet Secretary explained that the direction power is "very rarely used and, when it is used, it is usually at the behest of a senior member of HMIe".10
In her evidence to the Committee, the interim Chief Inspector of Education, Janie McManus, stated that Scottish Ministers had used its powers of direction twice in the previous three years.12
The Cabinet Secretary stressed that the Bill "takes ministerial power away and empowers the Chief Inspector to lead on direction of inspection."10
The Committee believes that it is essential that the Chief Inspector is able to provide challenge to Scottish Ministers and education authorities, and to deliver difficult messages.
The Committee acknowledges the concerns expressed by some stakeholders that the proposals do not ensure sufficient independence for the inspectorate.
The Committee recognises the call from some stakeholders for the new inspectorate to be directly accountable to the Scottish Parliament. Although some members of the Committee did not consider that necessary, the Committee does recommend that the Scottish Government strengthen the measures within the Bill, to increase the inspectorate's accountability, including to Parliament.
The Chief Inspector will have two main functions: inspection and providing advice. There is an additional function set out in section 32 – the voluntary arrangements function which allows the Chief Inspector to undertake work with a third party.
The functions and duties set out in the Bill broadly reflect the legislative requirements in the 1980 Act and the 2000 Act or are codifying existing practice.
Several contributors, including Professor Donaldson, stated that while the Bill sets out the role and the function of the inspectorate, it does not define the purpose of inspection.
He is concerned that, without that, the Bill seems to only be about inspecting schools and producing reports—
Education is about much more than schools, but in the bill as drafted the Chief Inspector and their office will be hamstrung into just inspecting establishments. The unit that matters is the learner and the learner is going to learn in different places and in different ways.1
The Bill would leave the approaches to inspections to the Chief Inspector to determine. She or he would have to include, among other things, “information about the different types of inspection model which may be used” in an inspection plan that would need to be laid before Parliament.
The requirement to produce an inspection plan was generally welcomed but the General Teaching Council for Scotland (GTCS) noted that, in preparing the plan, the Chief Inspector is not obliged to consult with anyone in particular, except for its own advisory council and Scottish Ministers. 2
Many organisations, including the Stirling Centre for Research into Curriculum Making, multiple local authorities and multiple teaching unions, argued that there should be a new approach to inspection set out in the Bill, with a focus on improvement and support rather than enforcement.
Professor Muir expressed concern that, as set out, the Bill appeared to recommend that the inspectorate should continue to work in the way that it has been. Instead he advocated a more agile inspectorate, which could develop different inspection models to better suit the school system as it is now, and in the future.
In her evidence, the interim Chief Inspector of Education, Janie McManus, highlighted that Education Scotland is currently undertaking a review of school inspections. The review will "look at the current inspection framework and approaches with the aim to develop a new quality framework, and adapt and enhance approaches to school inspections.”3 Janie McManus said that this would include schools’ self-evaluation tools, how findings are reported, how success is celebrated and how support is directed when required. She added that Education Scotland is working with stakeholders as part of this process.4
Multiple organisations, including CELCIS, Close the Gap, Forces Children Scotland and Scottish Autism, stated that the inspectorate must have knowledge, understanding and consideration of the additional challenges that some children and young people face, such as being care experienced, experiencing gender inequality or having additional support needs.
In their evidence, CRER raised concerns that the inspectorate may not be listed under the Public Sector Equality Duty. They noted that, in other public bodies such as Police Scotland and Fire and Rescue, the Chief Constable and Chief Officer of the Fire and Rescue Service are listed rather than their organisations. CRER suggested consideration be given to whether the Bill could include a requirement for the Chief Inspector of Education to be listed.5
Within the inspection plan, the Chief Inspector will set out the frequency with which relevant educational establishments will be inspected.
At present, the inspectorate carries out approximately 250 inspections per year.6 Connect hoped that there would be more inspections in future and asked for a whistle-blowing process by which parents and carers could raise concerns about their child's school directly with the inspectorate.6
The RSE Education Committee stated that it "supports frequent inspections carried out to highlight best practices, provide constructive feedback for areas in need of improvement, and to help educational institutions access resources where needed."8
They highlighted the impact of the pandemic on the frequency of inspections and expressed concern that "without set timeframes for inspections, there is a risk that cohorts of learners will go through schools without any inspections taking place."8
In his evidence, HM Inspector of Education and FDA Convenor of Education Scotland Section, Ken McAra explained that resources will determine what the inspectorate can do, and how it does it.
The Committee believes that a clear statement on the purpose of inspections would be helpful and recommends that the Scottish Government include this in the Bill.
The Committee notes the calls to include parents and carers more in the inspection of schools and urges the Scottish Government to consider mechanisms to achieve that.
The Committee acknowledges that there is some uncertainty at present about how inspections will be carried out under the new inspectorate, and that this uncertainty may continue until the inspection plan is published.
The Committee notes the Bill’s proposals that it is for the Chief Inspector to decide the approach towards inspections, and set out inspection models within an inspection plan. The Committee views this as an opportunity for the new Chief Inspector to reframe the way in which inspections take place, with an increased focus on the experiences of individual learners, including those with a diverse range of needs.
The Committee urges the Scottish Government to consider where further flexibility should be built in to future proof the inspectorate and ensure the Chief Inspector is able to respond in an agile way, as teaching and educational delivery methods evolve.
The Committee notes that Education Scotland is currently undertaking a review of school inspection and asks Education Scotland to set out the timescales, remit, work programme and membership for this work and to what extent it expects the review to influence the approach of the new Chief Inspector, once appointed.
Early learning and childcare (ELC) establishments are currently subject to inspection by both HM Inspectors of Education and the Care Inspectorate. Under the provisions in the Bill, the new inspectorate will retain the power to inspect early learning and childcare (ELC) establishments.
In his review, Putting Learners at the Centre, Professor Ken Muir noted that plans had been put in place to create a shared inspection Framework for ELC in 2021, and recommended—
As a matter of urgency, the new independent inspectorate should re-engage with the Care Inspectorate to agree a shared inspection framework designed to reduce the burden on ELC practitioners and centres.
In their evidence multiple organisations, including local authorities, ADES, the National Day Nurseries Associations and AHDS, all stressed the need for the shared inspection framework.
In written evidence, FDA confirmed that a draft shared self-evaluation and improvement framework has been developed. They went on to say that the new framework is "designed to improve self-evaluation, reduce bureaucracy and streamline inspection arrangements for early learning and childcare (ELC) settings."1
However, both FDA and the Care Inspectorate asked for more clarity on their organisations' respective roles and responsibilities. The Care Inspectorate argued that more clarity was also required as to the definition of ‘ELC funded partners’ within the Bill.2
Whilst acknowledging that the shared framework could bring some improvement, COSLA said that it was unclear whether it would significantly reduce the inspection burden, as there would still be two bodies with different focuses and approaches. They therefore re-iterated their view that a single shared inspectorate for early learning and childcare was required.3
Since the Committee concluded its evidence gathering, Education Scotland and the Care Inspectorate have published their shared framework.4 It was published on 21 October, ahead of its release date of 14 January 2025, to allow practitioners to become familiar with it. Following its release in January, there will be a period of testing. It is intended that the new framework will be used for inspections from September 2025.
The Committee notes the concerns about the burden of double inspections in some ELC settings and therefore welcomes the publication of the shared inspection framework.
The Committee recommends that Education Scotland continues to work with the Care Inspectorate to ensure joined up working and proportionate regulation of the ELC sector.
The Committee also asks for the Scottish Government to clarify the definition of ELC funded partners within the Bill.
As highlighted in the section, Purpose and approach, Professor Donaldson expressed concern that, without setting out the purpose of inspection, the Bill could focus too much on schools and therefore miss out other learning environments.
The RSE Education Committee, FDA - whose members include HM Inspectors, and YouthLink Scotland concurred, stating that "inspection, support, and improvement activity should better reflect the breadth of Scottish education".1
Although HMIe has the ability to inspect youth work delivery in grant-funded national voluntary organisations and community learning and development (CLD) services at present, it has not done so in recent years. YouthLink Scotland hoped that the Bill would ensure that these areas would be included in the "activities that evaluate and report on the quality of education in Scotland"1
In its evidence, the FDA stated that the Bill is, at present, not clear enough on how the inspectorate will operate, not only within CLD and lifelong learning but also initial training for teachers or other education practitioners, further and higher education and national agencies.2
The Committee recognises that the Bill provides the inspectorate with flexibility to inspect education provision in a variety of settings while maintaining its programme of school inspections. However, in practice, without increased resources, it is unlikely to be able to do so.
The Committee asks the Scottish Government to clarify whether the new inspectorate will be provided with funding to allow for a greater range of educational settings to be inspected than is the case at present.
In respect of initial teacher education (ITE), the Bill states that, subject to arrangement with the Scottish Funding Council (SFC) and on request by Scottish Ministers, the Chief Inspector can inspect ITE.
The GTCS highlighted that it has a statutory responsibility to determine what ITE programmes contain and deliver. As such, should such an inspection be requested, they stressed the need for collaboration between organisations and advocated that the inspectorate use GTCS criteria and standards to measure performance.1
Edinburgh Napier University raised concerns that ITE provision could be effectively double inspected when, under the current system the sector already has "robust quality assurance processes", including regular re-accreditation with the GTCS. They went on to say—
Any changes in legislation that could lead to institutional academic integrity to be compromised would be extremely detrimental to both to the delivery of the training and the teaching profession.2
The SFC was more explicit, stating—
we do not consider that the HM Chief Inspector of Education should have responsibility for publicly funded colleges or higher education institutions delivering teacher training, in light of SFC’s existing legislative duty for assuring quality in respect of these institutions.3
The SFC asked for more clarity within the Bill to ensure that it is understood that the Chief Inspector would only be able to inspect ITE provision when directed to do so by Scottish Ministers.
In relation to the post-16 landscape more generally, several organisations, including Skills Development Scotland, noted the recent publication of the Tertiary Quality Enhancement Framework (TQEF) which is the new approach to quality assurance and enhancement for colleges and universities.
Given this, many, including the SCQF Partnership, Skills Development Scotland, Colleges Scotland, RSE's Education Committee and the Quality Assurance Agency (QAA), sought clarity on the role of the inspectorate in the post-16 education landscape, and how all these bodies will work together. The QAA said—
It is important that the legislation recognises the distinction between school education and tertiary education covered under Scotland’s Tertiary Quality Enhancement Framework (TQEF), led by the SFC in collaboration with the tertiary sector. Further clarification would be welcomed on the status of certain provision delivered by colleges within the context of the school sector, for example, school-college provision is college provision delivered to support pathways and options for learners. This will be important to consider to avoid double inspection and subsequent duplication and burden for colleges.
The cross college and university work developing TQEF has significant potential to provide solutions for and delivery against key ambitions within the Withers Review and the Scottish Government Purpose & Principles. It would be desirable that the Education (Scotland) Bill supports parity of esteem for quality assurance and enhancement of tertiary education in seeking not to confuse or duplicate this important work.4
In his evidence to the Committee, Ken McAra from FDA explained that, in practice, resources will determine the scope of what could be inspected—
What has been described about the scope of what can be inspected is not a million miles away from how things used to be. For example, initial teacher education has been mentioned, but inspection of that has never happened, and many people would be interested in getting involved with that. Much of how flexible and how widespread inspections can be will depend on funding and what our workforce will be, and whether that will allow us to do that work. At the moment, we do 250 inspections a year. The majority of those are in primary schools, but quite a few are in secondary schools and some are in special schools. What will be possible depends on how the finances will be configured.5
The Committee notes the evidence from stakeholders regarding the lack of clarity within the Bill as to who is responsible for inspecting non-degree qualifications in all tertiary settings. The Committee asks the Scottish Government to address this ambiguity ahead of Stage 2.
The Committee also asks the Scottish Government to set out how the Tertiary Quality Enhancement Framework will interact with the work of the inspectorate.
The Policy Memorandum explains that, under the Bill—
the Chief Inspector must report annually on the performance of Scottish education (as far as falling into the Chief Inspector’s remit). ... This will provide a regular, independent statement to the Scottish Parliament and other stakeholders on the education system at a national level, supporting accountability and improvement.1
Organisations, including COSLA, Dumfries and Galloway Council and the EIS, queried whether, given this responsibility, the Chief Inspector should have a role in scrutinising national education bodies such as the reformed Education Scotland, Qualifications Scotland, the Centre for Teaching Excellence and relevant Scottish Government directorates.
The Committee urges the Scottish Government to respond to the proposal that the inspectorate should inspect national agencies, including Qualifications Scotland and Education Scotland. If this is not the Scottish Government’s preferred option, the Committee would welcome details of how the Scottish Government will ensure the performance of the new bodies is regularly evaluated.
During the evidence sessions, concerns were raised about the role of inspection in relation to child protection and safeguarding.
The General Teaching Council for Scotland regulates teachers in Scotland, however, it is currently unclear whether any public body inspects how local authorities and schools monitor and exercise their safeguarding responsibilities.
In her evidence, Megan Farr from CYPCS stated that there is currently a potential gap regarding who inspects child protection and safeguarding in schools. The Bill could provide clarity as to whether the inspectorate would be responsible for this. She added—
It is a really important function that we need to be sure is happening.1
In her evidence to the Committee, the Cabinet Secretary for Education and Skills stated that she had discussed child protection and safeguarding issues with the GTCS and would be meeting with Disclosure Scotland. She undertook to update the Committee on these discussions.
The Committee shares the concerns of the Children and Young People's Commissioner for Scotland about the potential inspection gap around child protection and safeguarding in schools. The Scottish Government should clarify where responsibility lies for inspection, ahead of any Stage 2 considerations and, if it is to be HM Chief Inspector of Education, the Committee recommends that the Bill is amended to clarify this.
The Committee notes the Cabinet Secretary's discussions in respect of these concerns and welcomes her intention to update the Committee on this. The Committee would welcome this update ahead of Stage 2.
In addition to preparing reports following inspections, the Bill provides that the Chief Inspector must also prepare and publish annual reports on the performance of the education system, insofar as it relates to the functions of the Chief Inspector. This is a new statutory duty.
Education Scotland currently publishes summaries of its inspection findings from time to time, as well as thematic national reviews.
The requirement to prepare and publish annual reports on the performance of the education system was generally welcomed, although there were some concerns as to whether the information would be drawn from existing sources or would require additional reporting.
Children's Services Renfrewshire Council highlighted that the education system “is already subject to very significant levels of scrutiny and reporting at all levels”1
The Cabinet Secretary for Education and Skills highlighted that inspection reports and the regular report on the performance of the system should provide an early warning system on issues, and provide challenge to Ministers.2
Fife Council Education Services welcomed the requirement for annual reporting, but suggested other data would also be required—
At a system wide level we have missed the collated three yearly accounts as evidenced in previous years through the Improving Scottish Education Series. It would be useful to have a more truncated annual account followed by a much more detailed three yearly summary as was the case with the ISE series. A much more significant gap is the subject based curricular accounts of what is happening across the country. This has been a huge gap of late as schools have taken steps to improve the quality of the curriculum offer without there being any meaningful national summary to reference their work or benchmark it against. The curriculum in Scotland is comprised of individual subjects which together make their own unique contribution to pupils' learning experience - we need a national collation of how this is happening3.
Professor Muir welcomed that the reports on the performance of the education system will be laid in Parliament at the same time as being sent to Ministers, so that everyone will be able to see them at the same time.
Glasgow City Council thought that an annual report would become onerous and may not show progress. They advocated reporting every two years instead.4
The GTCS argued that reporting on the performance of the education system would be of "limited use with no corresponding obligation on anyone to act upon the findings." They re-iterated their view that there should be oversight regulation in education, and that it would make sense for this to be part of the Chief Inspector's role.5
The views on the requirement to prepare reports following inspections were more mixed.
Many contributors, including School Leaders Scotland and West Dunbartonshire Council, agreed that it should be the Chief Inspector who determines the content and form of each report, however, they advocated that the format be subject to consultation with stakeholders.
There was widespread support for reports which were focused on improvement and sharing good practice.
Professor Donaldson stated—
We need to get away from an inspection process that is perceived—and the media tend to play up this aspect—as a big stick.6
Many organisations suggested that the areas covered in reports be reviewed, to add issues relevant to learners. For instance CRER, Close the Gap and Comann nam Pàrant advocated—
Equality-proofing standard reporting requirements to ensure that the specific implications for learners with protected characteristics are reported on7
Reporting on gendered inequalities in education settings, which will be critical "if it is to lead to tangible improvement in the education system"8
Including specific reference to the performance of the GME sector and Gaelic Learners Education within the English Medium Sector.9
In her evidence to the Committee, the interim Chief Inspector, Janie McManus stated that, as part of the current review of school inspections, the inspectorate would consider what their reports look like and how they celebrate success.
The Committee acknowledges the variety of views from stakeholders on the reporting powers for the inspectorate.
The Committee recognises that the new provisions requiring the inspectorate to provide a view on the overall performance of the education system will provide an opportunity for the inspectorate to highlight areas of concern which can be tackled on a systemic, rather than individual basis.
The Committee asks the Scottish Government for its view on the calls from stakeholders regarding the issues that should be covered in national and / or school inspection reports, including a focus on learner outcomes and experience.
The Bill provides that the Chief Inspector must establish an advisory council. The Chief Inspector would have a duty to endeavour to ensure that the council be representative of the “interests of persons likely to be affected by the Chief Inspector’s functions”. The Chief Inspector would have a duty to have regard to any advice provided by the council and provide reasons should he or she not act on the advice given.
The aim of this provision is to support the involvement of stakeholders in the governance of the inspectorate. The Policy Memorandum states—
The establishment of the office of Chief Inspector presents an important opportunity to ensure more learner and service user engagement and representation. This can be achieved in the model and approach to how inspection is carried out, which the Chief Inspector will take forward. However, there is also an opportunity to strengthen learner and parent/carer voices in the governance arrangements, alongside other important perspectives, such as those of teachers and other education professionals. This aligns with the opportunities set out by Professor Muir in his report to the Scottish Ministers to ‘align inspection with the vision of putting learners at the centre and incorporating the implications of the UNCRC’.1
In her evidence, interim Chief Inspector Janie McManus stated—
It is important that, just as the inspectorate provides support and constructive challenge, it should welcome hearing the diverse views of stakeholders.2
The creation of the Advisory Council was generally welcomed, however, as with the Strategic Advisory Council for Qualifications Scotland, contributors highlighted the importance of diverse representation, including—
Gender expertise
GME sector
Black and minority ethnic learners and teachers
Parents and carers
Those representing the range of settings inspected, including ELC and CLD
Local authorities.
NASUWT and the EIS advocated that the Advisory Council contain a majority of teachers. The EIS suggested that the GTCS Council model, as set out in the section Registered teachers and college teaching staff, be used for the Advisory Council as well as the Qualifications Scotland Board of management.
Organisations including West Dunbartonshire Council welcomed the establishment of the Advisory Council but requested more detail on how members would be appointed.3
CYPCS acknowledged that as a public authority, the inspectorate will have a duty to act compatibly with UNCRC. However, they and Together (Scottish Alliance for Children's Rights) expressed their disappointment that the Bill lacks a statutory guarantee that children and young people will be involved in the inspectorate's governance arrangements, as the membership of the Advisory Council is only required to ensure that it is “representative of the interests of persons likely to be affected by the Chief Inspector’s functions” rather than be comprised of persons likely to be affected.
To address this, they called for amendments to strengthen the voice of children and young people in relation to both membership of, and consultation with, the Advisory Council.4
When giving evidence to the Committee, Megan Farr from CYPCS highlighted that HMIe had been doing a lot of good work, engaging with children and young people. She observed "it would be a shame to see that work delayed because of some of the other issues with the bill."5
NASUWT stated that the Advisory Council cannot be the only mechanism by which the inspectorate engages with teachers, but rather it is a "springboard to wider engagement".6
Professor Graham Donaldson, Professor Mark Priestley and Barry Black generally welcomed the establishment of the Advisory Council but explained that how it works in practice will be critical.7
However, Professor Donaldson added that, as drafted, the proposals for the Advisory Council and engagement with stakeholders more generally indicated "analogue thinking in a digital age." He suggested "citizens assembly methodology, combined with a much better use of technology" as a potential way to increase engagement and buy-in from the education system to the work of these bodies.7
The Committee notes that the establishment of the Advisory Council is a new measure within the governance of the inspectorate. The Committee welcomes this but understands that its establishment alone will not be sufficient to improve governance.
The Committee agrees that membership of the Advisory Council should be diverse and representative. Whilst the Committee does not believe the Bill should be overly prescriptive in terms of who should be represented on the Advisory Council, it highlights the evidence it has received from stakeholders about the under-representation of certain groups in governance roles, including black and minority ethnic learners, care experienced young people, young carers, disabled young people and neurodivergent young people.
The Committee also urges the Scottish Government to consider how children and young people's voices will be incorporated, given the importance of providing age-appropriate spaces to ensure meaningful participation and compliance with UNCRC, as discussed repeatedly in the report. The Committee notes that a number of the proposals for strengthening the voice of children and young people in Qualifications Scotland could also be applied to the inspectorate.
As set out earlier in this report, the Committee believes it is vital that there is diverse representation across all engagement, governance and inspection mechanisms set out in the Bill.
The Bill makes reference to the need for both Qualifications Scotland and His Majesty’s Chief Inspector of Education in Scotland to have regard “to the needs and interests of persons” in Gaelic Medium Education or Gaelic Learner Education, or those that may wish to do so. This was welcomed by a number of respondents, including several local authorities and organisations with a specific interest in Gaelic such as Comann nam Pàrant and Bòrd na Gàidhlig.
However, several organisations noted the absence of a similar provision for BSL. In a joint submission provided with Deaf Action, RNID, Deafblind Scotland, The Health and Social Care Alliance Scotland (the ALLIANCE) and Lothian Children’s Deaf Club, the National Deaf Children’s Society said—
Gaelic and BSL have similar legal and demographic status. Access to Gaelic or BSL allows children and young people in Scotland access to a rich culture, heritage and identity. It therefore seems appropriate that the bill be amended to place similar specific requirements on the new bodies to be created by the bill around addressing the specific needs of those who use or wish to learn BSL.1
The Committee agrees that BSL should have parity of esteem with Gaelic throughout the Bill. The Committee therefore recommends that the Bill is amended to place specific requirements on Qualifications Scotland and HM Chief Inspector of Education to take account of the needs and interests of those who use BSL, or wish to do so.
Although not included in the measures proposed within the Bill, several organisations highlighted the importance of collecting good data, particularly in relation to national agencies meeting the needs of groups with protected characteristics.
NASUWT stated that, as a result of a lack of equality data, the SQA was unable to fully examine the 2020 approach to National Qualifications, to identify the possible impact on particular groups. They called for an improvement with Qualifications Scotland—
This approach to data-gathering around equalities must change under any new qualifications body, which must pay more than lip service to its Public Sector Equalities Duty, and make monitoring and data collection a core part of supporting curriculum and assessment issues.1
The Institute of Physics Scotland added that collecting, and publishing, data that cross-references national qualifications with protected characteristics would provide organisations, such as theirs, with the participation rates of different groups in different subjects. As such, they would be able to target efforts to address under-representation more effectively.2
In its submission, the Royal Society of Biology recommended that a commitment to enhanced data collection be included within the Bill as part of the duties of Qualifications Scotland.
The Committee believes the regular collection and analysis of equalities-related data is an essential component in fulfilling the national agencies’ requirements under the Public Sector Equalities Duty and ensuring they meet the needs of all learners.
Ahead of Stage 2, the Committee asks the Scottish Government to clearly set out which improvements it intends to make to current data collection processes, and which new requirements it plans to put in place as a result of this Bill to allow both Qualifications Scotland and the new inspectorate to—
Better understand the impact of their decisions and policies on protected groups
Improve areas of their work, for instance the information they produce, additional support that might be provided to certain groups, how certain qualifications are best assessed, etc.
Better assess the experience of learners in their respective educational settings.
In her evidence, the Cabinet Secretary for Education and Skills explained that the Bill is a "single but significant component"1 of the Scottish Government's wider education and skills reform programme.
Respondents to the Committee's calls for views repeatedly expressed disappointment that the Bill focuses on structures, rather than policy change, and that the Bill does not offer a more comprehensive package of reform.
In particular, contributors were disappointed that the Bill does not include the changes to qualifications and assessment in the Senior Phase recommended by the Independent Review of Qualifications and Assessment.
Many contributors acknowledged that such changes to assessment could be brought about without legislation. Some also highlighted the limitations of what legislation alone could achieve, with Professor Graham Donaldson stating clearly that "legislation will not change culture."
Others including COSLA, YouthLink Scotland, the Scottish Youth Parliament and the SQA, argued that the reforms in the Bill must be part of a bigger package. The SQA stressed—
the bill should be a catalyst for more far-reaching and fundamental reform. Change should not start and stop with the provisions in the bill, and, if it were to do so, a major opportunity would be lost.2
In relation to Qualifications Scotland, some contributors questioned why a structure is being established ahead of possible reform to qualifications and assessments. The RSE's Education Committee advocated that—
without a formal and comprehensive response to the recommendations of all of the reviews it commissioned into improving education in Scotland, Scottish Government should not undertake any structural reform to ensure a coherency of approach.3
Others, including Barry Black, were less concerned whether structural reform preceded wider reform, however, they agreed with Professor Muir who said that it was critical to have a clear vision for the education system, for reform and structures to be built around.4
The Scottish Government has recently consulted on proposals for legislating on post-school education and skills reform. Several stakeholders, including the Scottish Funding Council, highlighted the need for coherence between the measures progressed in the Bill and wider reform of the education and skills landscape.
When giving evidence to the Committee, the Cabinet Secretary for Education and Skills stated—
We need to reform the qualifications body. I also need to deliver on the aspirations of Professor Hayward’s review, but I cannot do so without that reform of the qualifications body, so the chronology is important.1
She also highlighted her intention to set out the Scottish Government's updated national improvement framework to Parliament by the end of 2024, adding that this would look at that longer-term strategic vision for education.
The Committee acknowledges the frustration of those who wanted the Bill to include measures for wider reform, particularly in relation to assessments and qualifications. The Committee notes that some of the changes outlined in the reviews that the Scottish Government is yet to respond to could be progressed without legislative change. The Committee also notes that some changes proposed in the reviews require a refocused Education Scotland and urges the Scottish Government to urgently clarify what measures would be needed to ensure Education Scotland could deliver the changes needed, including whether it believes this would need legislation.
The Committee understands that this Bill is designed to action the recommendations on structural change made by Professor Muir in his review. It is critical, however, that any structures put in place by the Bill are future-proofed so that they can easily adapt to any changes to curriculum and assessment that are subsequently put in place.
The Committee would ideally have expected the Scottish Government to set out a coherent vision for wider educational reform ahead of this legislation being introduced. However, it acknowledges the Cabinet Secretary's intention to set one out before the end of 2024. The Committee asks that any future statements include timescales for the overall reform package, with milestones for key reforms.
As a result of the Bill, the inspection function will be removed from Education Scotland. In June 2024, the Scottish Government announced that the body that remains will be re-focused into a new-look curriculum support agency. The Scottish Government stated—
The primary purpose and focus of Scotland’s national education agency will be to lead curriculum design, delivery and improvement, including the provision of resources to support high quality learning and teaching.
The national agency will also have an important role in supporting a thriving professional learning sector through a national framework for professional learning and will build on the existing and well-regarded national leadership professional learning programmes.1
However, in relation to estate costs, the Financial Memorandum for the Bill states that—
Education Scotland is expected to be decommissioned and replaced with a new National Agency for Education along similar timescales to the establishment of the independent inspectorate2
In their evidence, Audit Scotland noted this inconsistency, stating that "there is ongoing uncertainty about the future role of Education Scotland that the Bill does not address."3
Some contributors, including Barry Black, the Royal Society of Biology and the Stirling Centre for Research into Curriculum Making expressed concern that the Bill does not include any provision in relation to Education Scotland or set out how the bodies will relate to each other.
Contributors repeatedly asked how Education Scotland will operate and what governance arrangements it will employ.
Noting their response to the Scottish Government's consultation ahead of the Bill, CYPCS stated that reforms to all the national education agencies "must improve their direct accountability to the wider community—including children and young people".4 While the Bill puts in place governance arrangements for Qualifications Scotland and the new inspectorate, it does not reference potential arrangements for the reformed Education Scotland.
NASUWT stated that, along with the SQA, Education Scotland has also made decisions which have eroded the trust and confidence of the teaching profession. While accepting that legislation is not required for reform of Education Scotland, NASUWT argued—
If reform of Education Scotland structures, approaches and engagement does not take place, it will be impossible to address the recommendations and concerns set out inter alia by the OECD.5
Professor Ken Muir added—
we need to review the governance and support structures and, critically, how we listen to the voices of children and young people, who matter most and who are most affected by their learning experiences.6
In her evidence to the Committee, Gillian Hamilton, interim Chief Executive of Education Scotland, recognised the importance of teachers feeling engaged with the organisation. She did, however, highlight the challenges involved with engaging with such a large workforce, citing the current curriculum improvement cycle work—
We have almost 1,000 teachers who have engaged with Education Scotland in that process during the pilot reviews and into the first stage of the improvement cycle, but we have more than 51,000 registered teachers in Scotland. Although 1,000 teachers engaging is a big improvement from previous engagements, there is still a way to go.7
She added that by working in partnership with COSLA and ADES, Education Scotland can "corral the teaching workforce to be a much greater part of those ways of working."7
It was highlighted that, in addition to learners, parents and carers and the workforce, the reformed Education Scotland needs to be responsive to local needs. COSLA stated that this "should be reflected within a new approach to governance",9 suggesting that the new-look agency could report jointly to local government and the Scottish Government, in the way that Public Health Scotland does.
In their evidence Education Scotland stated that the future relationships and collaboration between the three future bodies – Qualifications Scotland, the inspectorate and the new-look Education Scotland – will be fundamental to achieving the desired outcomes.7
Several organisations, including local authorities, School Leaders Scotland and the GTCS, concurred, with many noting that this will be critical for other key bodies too.
Dumfries and Galloway Council stated—
We support the proposed direction but need clarification on the collaboration between the new qualifications body, independent inspectorate, reformed Education Scotland, and the Centre of Teaching Excellence. Understanding Education Scotland's role with national bodies and local authorities is essential to maximise the opportunities of the Education Reform agenda.11
SCQF Partnership, Scottish Funding Council, Quality Assurance Agency were also cited as bodies to be considered as part of this landscape.
In his evidence, Professor Muir told the Committee that the “complexity of the education system in Scotland is quite remarkable for such a small country”.6
Professor Mark Priestley concurred—
Currently, we have a lot of issues with agencies that have overlapping functions and a lack of clarity about function. There are demarcation issues and boundary issues. There are agencies that do operational and strategic stuff and that also evaluate their own work, so there are conflicts of interests. The system is set up to justify itself and to celebrate its success, rather than take a critical look at what happens, and that is seen very clearly by practitioners working on the ground.6
Graham Hutton of School Leaders Scotland noted that, at a time of such financial constraint, we cannot afford doubling up and overlapping functions.7
The Committee recognises the importance of the curriculum support agency engaging with learners, parents and carers and the teaching workforce.
As with the Committee's recommendations in relation to Qualifications Scotland and HM Chief Inspector of Education, it is critical that Education Scotland's engagement work with children and young people is in age-appropriate formats, that they are supported to participate meaningfully and that their views are fully considered.
While understanding that arrangements, as currently proposed, do not require legislation, the Committee asks the Scottish Government to set out its full intentions on Education Scotland, including how it plans to improve governance arrangements. The Committee also asks Education Scotland to set out the work that it is doing to engage with learners, parents and carers as well as the teaching workforce.
The Committee notes the evidence about the complexity of the education landscape in Scotland. The Committee urges the Scottish Government to consider how it can clarify the roles and responsibilities of these bodies, to reduce the potential for duplication and confusion.
Similarly, the Committee believes that it is important that consideration be given as to how Qualifications Scotland and the new inspectorate will impact and influence the work of organisations that are established later, such as the Centre for Teaching Excellence.
As highlighted in the section on the Board of Qualifications Scotland, the Bill provides for the Board of the SQA to become the Board of Qualifications Scotland. A new Chair has recently been appointed and a recruitment process is ongoing for 5 new board members, with the express intention that they would move to Qualifications Scotland.
The Bill also provides that staff in the SQA are able to become staff of Qualifications Scotland at the point of transfer between the two bodies.
Many respondents expressed frustration suggesting that, as an organisation which not only has the same functions but also the same executive staff as the SQA, Qualifications Scotland would effectively be the same body.
School Leaders Scotland stated that some continuity was required as there is not an alternative qualifications authority in Scotland which could provide the same function. However they, along with many others, stressed the need for a different culture.
Expressed repeatedly by contributors, and highlighted throughout this report, is the assertion that legislation does not change culture, rather it is the leadership of an organisation which sets the tone, and provides the direction for how an organisation, and its employees, will work.
Barry Black stated—
if we are keeping the same functions, the same leadership and broadly the same governance arrangements, it is hard to see how any real reform—and particularly cultural change—can stem from that.1
As noted in the section on interest committees, the Committee heard that the SQA has started to make improvements to the way that it engages with teaching unions, local authorities and learners.
In his evidence to the Committee, Laurence Findlay from ADES stressed that "a significant cultural shift is required" but that he had been impressed with the new Chair's focus on the need for cultural change and for Qualifications Scotland to feel different.2
In additional information provided after giving evidence to the Committee on 25 September, Fiona Robertson asserted that she wanted "to build a culture of genuine engagement and collaboration with the profession."3
While Anne Keenan of the EIS acknowledged recent improvements in communication and responsiveness from the SQA, she suggested that it was, "too little too late."2
Unions representing staff at the SQA and HMIe, along with the leadership of both organisations, explained that staff have been trying to deliver the transition as well as core functions, over several years, without knowing what the new organisations will look like, or what their roles within them might be.
SQA staff, who are also Unite the Union workplace representatives said that SQA staff have been highly professional and highly dedicated but they have been "living under a cloud of uncertainty".1
In his evidence, HM Inspector of Education and FDA Convenor of Education Scotland Section, Ken McAra added—
There has been three and a half years of very little information, despite our regularly asking for it. We have had meetings from time to time with the Scottish Government reform unit and asked for milestones, at least, regarding what was going to happen and when. It was agreed that that would be a good idea. We have had something approaching that in the past couple of weeks, but with very little detail.
Part of the problem is that the inspectorate will become separate, so people there have a reasonable idea of what that will look like, but people in the rest of Education Scotland, who we also represent, are less clear about their job. We have a no compulsory redundancies agreement, but that is as far as it goes. They are wondering whether their current job will remain, how it will look, who they will be working with and so on. That kind of uncertainty is making people particularly anxious.1
The Committee recognises the uncertainty that there has, and continues to be, for staff at the SQA, HMIe and Education Scotland since these reforms were initially announced in June 2021. The Committee further recognises that, during this time, staff have been preparing for the transition to the new or reformed bodies, while also delivering their current programmes of work.
The Committee asks the Scottish Government to set out how it will improve communications with the staff of national agencies affected by the provisions of this Bill, including via Trade Union and other routes.
The Financial Memorandum (FM) sets out the expected costs arising from the provisions in the Bill. The Bill’s proposals are largely concerned with governance structures for activity that currently takes place. The FM reflects this, stating—
The functions of the new qualifications body and independent inspectorate are currently carried out by existing organisations funded by the Scottish Government, namely the SQA and Education Scotland respectively. The SQA also funds its activities through income derived by levies and international commercial activity … The costs of the SQA and the inspection function within Education Scotland will no longer arise, and the new bodies are expected to carry out broadly similar functions; consequently, the recurring costs for the new bodies are in the most part expected to be similar – notwithstanding oneoff costs and some additional recurring costs.1
The FM estimates one off costs to total between £1.6 million and £2.4 million. The majority of the estimated one-off costs relate to staffing costs on the Scottish Government to support the establishment of both bodies. That is, not the staffing costs of the bodies themselves. The other one-off costs include new branding/website costs and the costs of transferring staff from the legacy to the new organisations.
Regarding these costs, Comhairle nan Eilean Siar stated—
Whilst it is understood that there would be a cost element to this [creating two agencies], it is a concern that a proposal that brings very little reform comes at significant cost and consumption of resources.2
The Bill establishes a qualifications body with largely the same functions as the one that it replaces. The key differences between the SQA and Qualifications Scotland relate to governance and how it will engage with learners, teachers and practitioners. However, the FM does not estimate costings for such engagement.
In their evidence, organisations including CYPCS, CELCIS and the Scottish Youth Parliament set out what is required for meaningful participation. CELCIS stated that it requires "ongoing attention alongside time, resource and skilled practice." 3
In relation to children and young people, it should involve creating age-appropriate forums, where young people are supported to participate. The costs associated with meaningful participation, including potentially establishing and maintaining a consultative group, do not appear to have been factored into the FM.
Education Scotland also highlighted the challenge in engaging with teachers, to ensure that the profession as a whole, feels engaged and involved. Professor Donaldson suggested that citizens assembly methodology and digital technology could be used to engage more widely.
In their submission to the Finance and Public Administration Committee’s (FPAC) call for views on the FM, Stirling Council highlighted that “reform of SQA will include increased partnership work with key stakeholders, including teachers, [therefore] there will be cost involved in releasing staff to undertake any future roles”, which is not reflected in the FM.4
Education Scotland stated that the figures in the FM are “a reasonable early estimate of the costs associated with the establishment of a new inspectorate”, although they asked for “further detail and clarity on the financial implications of the bill on what will now become the refocused Education Scotland’s budget”.5
In their evidence, an SQA staff member, who is also a Unite the Union workplace representative stated that the staff of the SQA do not believe that the Bill will achieve its objectives—
The primary reason for that is nothing to do with leadership or culture—it is to do with finance. None of our members believes that there will be sufficient resource and finance to transform...Qualifications Scotland.6
When asked about the costings in the FM, Scottish Government officials stated that it is a "best estimate of the transition cost of establishing the new organisation", suggesting that "how qualifications reform more broadly takes place and the funding that is required to do that" is a separate point.7
The Cabinet Secretary for Education and Skills stated that she would listen to views on how the legislation can be improved—
If there is an ask ... for additionality, I am happy to hear it. It might be challenging to deliver it in the current climate, but we have to consider these things in the round. We have to deliver meaningful change, and that is the challenge with this bill. The new organisation cannot be a replication of what came before.7
The Committee notes the Scottish Government's position that the FM provides an estimate of the costs of establishing the new bodies and transferring staff from the current agencies to their successors.
However, the Committee recognises that, with very similar functions, the key difference between the SQA and Qualifications Scotland are the governance arrangements and mechanisms for engagement. Should the successor organisations not be funded to carry out that engagement, the Committee is sceptical that these measures will be able to effect the change the Scottish Government, the profession, learners and stakeholders are looking for.
The Bill confers 14 powers on Scottish Ministers to make subordinate legislation.
It is the role of the Delegated Powers and Law Reform (DPLR) Committee to check whether proposed powers to make secondary legislation in Bills, such as these, are appropriate.
At its meeting on 10 September 2024, the DPLR Committee considered the powers to make secondary legislation within this Bill.
The Committee was content with the following 8 delegated powers:
Section 9(1): Duty to establish the Strategic Advisory Council
Schedule 3, paragraph 5(2): power to appoint initial board members to Qualifications Scotland
Section 30(4): power to specify the intervals at which establishments are to be inspected
Section 31(6): power to modify the meaning of “relevant educational establishment” or “excepted establishment”
Section 36(5): power to make provision about the frequency with which the Chief Inspector of Education must review the inspection plan
Section 48(1): power to give an enforcement direction
Section 56: Ancillary Provision
Section 57: Commencement
However, the Committee agreed to write to the Scottish Government to raise questions in relation to the remaining 6 powers—
Section 8(2): Power to issue guidance to Qualifications Scotland on consultation with the Strategic Advisory Council
Section 9(3)(b)(iii): Power to issue guidance to the Strategic Advisory Council
Section 17: Scottish Ministers’ power to direct Qualifications Scotland
Section 21: Scottish Ministers’ power to direct the Accreditation Committee
Schedule 1, paragraph 2(2): power to alter the number of members of Qualifications Scotland
Schedule 1, paragraph 13(6): power to regulate the procedure of Qualifications Scotland and its committees.
The Scottish Government responded on 23 September 2024.
At its meeting on 1 October, the Committee considered the Scottish Government's response. The Committee concluded that it was generally content, in principle, with the delegated powers set out in the Bill, and the parliamentary procedures that they would, or would not, be subject to. However, the DPLR Committee noted that while it received assurances from the Scottish Government about how it intends to use the powers in the Bill, these assurances do not and cannot bind any future governments.
The DPLR Committee also wished to bring two particular points in its report to the attention of the lead Committee.
The first issue relates to the power to issue guidance under sections 8(2) and 9(3)(b)(iii).
The Committee asked the Scottish Government to clarify the nature of the guidance, and in particular, whether the guidance is intended to assist or direct Qualifications Scotland and the Strategic Advisory Council. In other words, the DPLR Committee asked whether the guidance will be administrative or legislative in nature, and—
If it is administrative, why is it considered necessary to place a duty on Qualifications Scotland and the Strategic Advisory Council to have regard to it?
If it is legislative, why it is not subject to any parliamentary procedure?
The Scottish Government responded that, in its view—
the essential characteristic of guidance is that it is advisory rather than directory and does not impose legally binding duties; and therefore, by definition, is not of a legislative character. That these guidance making powers are intended to assist QS [Qualifications Scotland] and the SAC [Strategic Advisory Council] in the process of discharging their functions and purpose; and will also give the SAC an indication of how consultation with it may occur. The Scottish Government does not consider that guidance can direct those to whom the guidance is addressed as a direction-giving power would be required for that purpose.
The Scottish Government considers that the issuing of guidance on consultation, and regard being had to it, is necessary to ensure Ministers can make suggestions which will be given due consideration as to how QS can best use the SAC and ensure effective scrutiny takes place; and is necessary to provide Ministers with a role in ensuring the SAC’s advice to QS is informed by effective consultation. It does not agree with the suggestion that QS and the SAC will be “expected to follow” such guidance as it is advisory and does not impose legally binding duties. It is the Scottish Government’s view that any guidance issued under this provision will not be of a legislative character, which is why, in its view, it would not be appropriate to attach a parliamentary procedure to it. It states that a duty to have regard to guidance certainly requires those on whom the duty is imposed to consider the guidance, but it does not require it to be considered as the only or top priority. However, the Scottish Government is also of the view that a failure to have regard to guidance may be relevant in determining whether an authority has complied with the duties created by the Bill. It therefore considers it appropriate for both QS and the SAC to “have regard to” guidance issued under this provision to ensure that any guidance is included in all considerations as to how QS and the SAC deliver their respective consultation duties.
Given its response to these questions, the Scottish Government stated that an answer to the question about parliamentary procedure was non-applicable.
In its report, the DPLR Committee noted that, whilst it is not uncommon for guidance to be subject to a “must have regard to requirement”, whether that is appropriate will depend on the circumstances and the nature of the guidance proposed. In this instance, it appears the nature of the guidance is to assist rather than direct.
The Committee therefore drew the guidance-making powers in sections 8(2) and 9(3)(iii) to the attention of the lead committee to consider whether, in the circumstances, it is appropriate for QS and the SAC to be subject to that duty.
The Committee stated, if the lead committee considers it appropriate for QS and the SAC to be subject to such a duty, it may wish to recommend that a parliamentary procedure is attached to any guidance issued under this power, with the negative procedure most likely being appropriate.
The second issue highlighted relates to the power to direct Qualifications Scotland in Section 17.
The Committee asked the Scottish Government what consideration it has given to the need for this direction making power in the circumstances, given Scottish Ministers’ input to the SAC, and given that QS will already have to comply with its duties and consultation requirements under part 1 of the Bill. It also asked how the Scottish Government envisages using this direction making power. As part of this, it asked for practical examples of the circumstances, and the types of direction it has in mind.
The Scottish Government responded—
It wishes to clarify the Committee’s understanding of this particular power by providing more information on the interaction between Scottish Ministers, QS, and the SAC, and their respective purposes. The Bill seeks to establish QS as a Non-Departmental Public Body. This ensures the body is strategically accountable to Scottish Ministers whilst being operationally independent from the Scottish Government. The ability for Scottish Ministers to direct QS is important to ensure the strategic direction of QS aligns with the Scottish Government’s objectives and priorities. It also enables Scottish Ministers to issue directions in relation to the delivery of functions.
The Bill also requires Scottish Ministers to establish an SAC for the purposes of advising QS on its functions and procedures and to provide advice on those matters to Ministers. The SAC membership will be made up of QS stakeholders and will provide strategic advice to QS from their perspectives and wider networks. This advice will differ from the type of advice, guidance or strategic direction that Scottish Ministers may give QS. Further, as the Scottish Ministers have oversight of the wider education, skills and qualifications system, it is important that the Scottish Ministers can utilise the expertise of the SAC to consider specific system-wide matters that relate to QS’s functions rather than QS or the SAC being the sole determinants of what they provide advice on. For example, Scottish Ministers may wish the SAC to consider specific aspects of the Post-School Education Reform programme in relation to how it impacts QS from the perspective of their respective organisations and networks.
As well as existing precedent for this power (see section 9 of the Education (Scotland) Act 1996) in relation to the Scottish Qualifications Authority (“the SQA”), which Qualifications Scotland will replace, the Committee is asked to note other recent examples of similar powers of direction include section 17 of the South of Scotland Enterprise Act 2019 and section 37 of the Scottish Crown Estate Act 2019.
The Scottish Government envisages the Scottish Ministers using this power in different ways depending on what is required. Scottish Ministers have used direction making powers historically in relation to directing the SQA, however these have been used sparingly since the SQA was established and it expects that to continue being the case. It is not the intention for Ministers to use these powers to manage the organisation on a day-to-day basis. For example, Scottish Ministers may need to direct QS to take a particular course of action relating to its awarding functions. The Scottish Ministers have used this power previously when they issued a direction to the SQA in 2020 regarding the Alternative Certification Model for awarding qualifications during the Covid-19 pandemic. Scottish Ministers want to be able to issue the same type of direction to QS should it be needed.
While the DPLR Committee was content with the delegation of the direction-issuing power, in principle, it did suggest that the lead committee may wish to consider the impact of these direction-issuing powers on the independence of Qualifications Scotland and the Strategic Advisory Council, which will be subject to them, and whether it considers that to be appropriate in the context.
The Committee notes the points made by the Delegated Powers and Legal Reform Committee in its report.
The Committee notes that these provisions are largely replicated from the legislation which established the current qualifications body and its Advisory Council and is content with the assurances from the Scottish Government on these provisions.
The Committee is content for Qualifications Scotland and the Strategic Advisory Council to be subject to a requirement to "have regard to" guidance from Scottish Ministers at Sections 8(2) and 9(3)(b)(iii). The Committee recommends that this guidance is subject to the negative procedure.
At Stage 1, the lead committee’s role is to consider and report to the Parliament on the general principles of the Bill – that is, on the principal purposes of the Bill.
The aim of the Bill is to provide the legal underpinning to support the design and delivery of a national organisational infrastructure for education in Scotland that more effectively supports the system to deliver the vision for education in Scotland.
The Committee recognises the need for a qualifications body. It also recognises that the reputation of the current body, the SQA, has become tarnished with many learners, parents and carers, and teachers and practitioners, which is a key rationale for why it is being replaced.
However, at present, many of the measures in Part 1 of this Bill replicate the legislation that created the SQA. It is therefore not clear how the Scottish Government will be able to ensure that the successor body conducts its functions in a way that inspires more confidence.
Some contributors urged the Committee to strongly recognise that structures the Bill creates are not sufficiently different to the status quo. They also raised concerns that clarity is not yet provided on the direction of travel for education in Scotland in general, including on structures and function of Education Scotland or on the vision for education in Scotland. The Committee awaits the Cabinet Secretary's response on these points.
The Committee notes the broad support for the establishment of HM Chief Inspector of Education as a stand-alone body, subject to it being demonstrably independent.
The Committee acknowledges the Cabinet Secretary for Education and Skills and Scottish Government officials' remarks, that the Bill will create the scaffolding for these bodies to engage more, and be more accountable.
The Committee also acknowledges that legislation cannot change culture. Much of change culture is down to leadership, a change to ways of working and a commitment to do things differently.
Although the Committee supports the replacement of the SQA and the creation of an independent inspectorate, it does not yet have sufficient information on wider education reform. Whilst the Committee agrees the general principles, it believes the Bill will require substantial amendment to ensure that the improvements envisaged by the Scottish Government in relation to engagement, governance, organisational culture and accountability, become a reality for learners, teachers and staff. As such, the Cabinet Secretary must take cognisance of the points raised in this report on these issues and respond to these ahead of Stage 2.
Extracts from the minutes of meetings of the Education, Children and Young People Committee.
23rd Meeting, 18 September 2024
2 Education (Scotland) Bill:
The Committee heard evidence on the Bill at Stage 1 from—
Professor Kenneth Muir, Honorary Professor, University of West of Scotland.
and then from—
Professor Graham Donaldson, Honorary Professor, School of Education, University of Glasgow; Barry Black, Post Graduate Researcher, University of Glasgow; Professor Mark Priestley, Professor of Education and Director of the Stirling Centre for Research into Curriculum Making.
Pam Duncan-Glancy indicated that Barry Black had carried out policy development work for her office. Ross Greer indicated that Professor Mark Priestley had been commissioned to carry out policy work for his office.
3. Evidence Session (In Private): The Committee considered the evidence it heard earlier under agenda item 2.
24th Meeting, 25 September 2024
3. Education (Scotland) Bill:
The Committee heard evidence on the Bill at Stage 1 from—
Gillian Hamilton, Chief Executive and Janie McManus, His Majesty’s Chief Inspector of Education for Scotland, Education Scotland; Fiona Robertson, Chief Executive, Scottish Qualifications Authority (SQA);
and then from—
Anne Keenan, Assistant Secretary, Educational Institute of Scotland (EIS); Graham Hutton, General Secretary, School Leaders Scotland (SLS); Laurence Findlay, Director of Education and Children’s Services, Aberdeenshire Council, representing the Association of Directors of Education in Scotland (ADES); Stuart Hunter, President, Scottish Secondary Teachers Association (SSTA).
4. Evidence Session (In Private):
The Committee considered the evidence it heard earlier under agenda item 3.
1. Education (Scotland) Bill:
The Committee heard evidence on the Bill at Stage 1 from—
Gavin Yates, Executive Director, Connect; Megan Farr, Policy Officer, Children and Young People’s Commissioner Scotland; Garvin Sealy, Interim Executive Director, Intercultural Youth Scotland;
and then from—
Ken McAra, HM Inspector of Education and Convenor of FDA Education Scotland Section, FDA; Sharon McGuigan, SQA Accreditation Manager and Workplace Representative and Pauline Rodger, SQA Understanding Standards Project Manager and Workplace Representative, Unite the Union.
2. Evidence Session (In Private):
The Committee considered the evidence it heard earlier under agenda item 1.
2. Education (Scotland) Bill:
The Committee heard evidence on the Bill at Stage 1 from—
Jenny Gilruth, Cabinet Secretary for Education and Skills, Clare Hicks, Director, Education Reform and Jaxon Parish, Team Lead, NQB Policy, Scottish Government; Nico McKenzie-Juetten, Lawyer, Scottish Government Legal Directorate.
3. Evidence Session (In Private): The Committee considered the evidence it heard earlier under agenda item 2.
30th Meeting, 20 November 2024
1. Education (Scotland) Bill (In Private):
The Committee considered its draft Stage 1 report. The Committee agreed to amendments, and for the final draft to be signed off by the Convener and Deputy Convener.
The Committee also agreed to invite the SQA and the Cabinet Secretary for Education and Skills to give evidence in relation to the SQA’s Higher History Review 2024.