Education and Culture Committee

Meeting date: Tuesday, February 7, 2012

Official Report 492KB pdf

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Subordinate Legislation

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Scottish Public Services Ombudsman Act 2002 Amendment (No 2) Order 2012 [Draft]

Agenda item 2 is an evidence-taking session on a draft affirmative instrument. Members have the opportunity to ask technical questions about or seek clarification on the order, after which the committee will be invited to consider a motion to approve the order.

I welcome the Minister for Learning, Science and Scotland’s Languages, Alasdair Allan, and his officials, John Gunstone and Helen Reid, both of whom are from the people and leadership unit of the Scottish Government. I invite the minister to make a brief opening statement.

Thank you very much, convener. It is nice to be back at the Education and Culture Committee in a different capacity.

I do not want to tempt providence by saying that this is a simple draft order or an instrument that should not raise any questions—I am certainly happy to answer members’ questions about it—but I hope that it is clear that it is essentially a tidying-up exercise as a consequence of changes to the General Teaching Council for Scotland, which, as you know, has become fully independent of the Scottish Government. That said, the draft order is important in ensuring that the GTCS is genuinely fully independent of the Scottish Government and is able to operate without recourse to another public body.

As I am sure that members are aware, the Government used legislative powers under the Public Services Reform (Scotland) Act 2010 to establish the GTCS as an independent profession-led regulatory body from 2 April 2012. Parliament approved the legislation and, in March 2011, approved the Public Services Reform (General Teaching Council for Scotland) Order 2011, which brought in a number of changes to the GTCS’s role and operation including amending and updating the council’s governance arrangements; slightly expanding its responsibilities; and removing unnecessary restrictions on how it organises its affairs.

When we consulted on that order in April 2009, we elicited a response from the Scottish Public Services Ombudsman, who had a particular interest in the proposals. After all, the GTCS is currently listed as one of the Scottish public authorities that is liable to be investigated by the SPSO under the powers in the Scottish Public Services Ombudsman Act 2002. Given the GTCS’s impending change in status to an independent body, the ombudsman suggested that the Scottish Government consider whether it was still appropriate for the council to remain within his jurisdiction. Having considered the matter, we are clear that the GTCS, as the independent regulatory body for the teaching profession, should have the freedom to exercise its public functions and to be allowed to control any issues relating to complaints or appeals without needing recourse to the ombudsman.

If the public wished to pursue a complaint about teacher conduct, they could still route it to the ombudsman through the local authority as the teachers’ employer. On the other hand, teachers who were subject to disciplinary action would still have the right of appeal to the Court of Session.

It might be helpful to point out that this order is being brought forward under section 24 of the 2002 act, which provides that the standard draft affirmative procedure applies. However, the difference is that the order itself has to be made by Her Majesty at a meeting of the Privy Council. We consulted on the draft order in October 2011 and targeted in particular the bodies that nominated members to the GTCS. None of those bodies opposed the proposals and I hope that the committee will recommend that the order be approved.

Thank you very much, minister. Do members have any comments or questions?

First, I declare an interest as a member of the GTCS. Minister, will you confirm that if a member of the public wished to pursue a complaint against a member of staff at an independent school, their access to the ombudsman would not be through the local authority, which, after all, has no control over the independent sector? What would happen in that instance?

I will have to defer to officials, but I can confirm that my comment about local authorities applied to the state sector. Different arrangements will apply in the private sector. I am going to stick my neck out here but I presume that, in the private sector, the board of the school would be the body to go to.

Absolutely—and nothing changes in that respect.

It would be the governors.

So the board of governors in an independent school would refer such cases to the ombudsman.

I am not sure that it would. Are you asking about a complaint brought against a member of staff at that school?

You said that, in the maintained sector, the local authority would possibly have recourse to the ombudsman. However, given that that course of action would not be available in independent schools, there must be a different process for that sector.

I am not aware that the independent sector is covered by the Scottish Public Services Ombudsman.

As I understand it, the Scottish Public Services Ombudsman has no involvement in that sector at the moment, so I do not think that we are taking anything away from the rights of parents in the private sector. There is no change.

This is not about rights. Am I right in thinking that if a parent feels that the board of governors has not dealt with their complaint satisfactorily they can go to the ombudsman?

I have to defer to officials.

I am simply seeking clarification on the matter.

I think that we are unclear about that.

We can come back to the committee very quickly to clear the matter up.

We will certainly do that.

That is not ideal, given that we are being asked to approve the draft order. How quickly can you get back to us?

We will check with lawyers as soon as we get back to the office. The minister could write to the convener within two days, or by tomorrow.

Can you hold on a second while I speak to the clerk?

If you need a response today, I can get it to you today.

Does Liz Smith feel that she needs clarification before we move to the next agenda item?

It is not major but I think that it is a potential issue that needs to be clarified. I will not vote against the draft order or anything.

I understand that.

I just think that we need to be clear. My understanding is that someone who feels that their complaint has not been dealt with satisfactorily is entitled to ask for advice from the ombudsman. I simply want that to be checked out because I would not like to think that certain schools in Scotland, albeit few in number, would not be covered by this.

My understanding is that nothing changes in that respect, but I will confirm that to you today in writing.

If we can get that confirmation in writing, that will be fine. Obviously the draft order will come before the full Parliament but we need to have that confirmation in our hands before that happens.

I will certainly do as you ask.

12:00

Like Liz Smith, I declare an interest as a member of the GTCS. I should have mentioned that at the start of the item.

Okay. Now that we have had the Scottish Government’s briefing and given that members have no other questions or comments, we move to agenda item 3, which is formal consideration of the motion to approve the instrument. I ask the minister to move motion S4M-01906.

Motion moved,

That the Education and Culture Committee recommends that the Scottish Public Services Ombudsman Act 2002 Amendment (No. 2) Order 2012 [draft] be approved.—[Dr Alasdair Allan.]

Motion agreed to.

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Children’s Hearings (Scotland) Act 2011 (Commencement No 3) Order 2012 (SSI 2012/1)

Item 4 is consideration of an instrument that is not subject to any parliamentary procedure. Does the committee agree to make no recommendation to Parliament on the order?

Members indicated agreement.

Meeting closed at 12:01.