Education and Culture Committee

Meeting date: Tuesday, May 7, 2013

Official Report 590KB pdf

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Post-16 Education (Scotland) Bill: After Stage 1

The next item is an oral evidence session on the Post-16 Education (Scotland) Bill and the draft Scottish code of good higher education governance. We will take evidence from two panels this morning, and I welcome to the committee our first panel: Professor Russel Griggs OBE.

Professor, you should be sitting beside Professor Ferdinand von Prondzynski, who I am told is on his way—his train was delayed. If you do not mind, we will just kick off and he will, I hope, join us shortly.

I begin with a general question. You wrote your report on further education some time ago. Now that the bill has gone through stage 1, what is your view of the process that has led from your report to the current bill that is before Parliament?

I am delighted to be here this morning to give evidence. I will answer that question in a number of ways.

When you sit down to do these reviews, it is a wonderful place to be because you can just think and say what you want in many ways. However, anyone who has done such reviews must understand that at some point they have to go back to the world of politics, where there are different nuances and ways of doing things.

I was asked recently what I thought of the bill, and my answer would be that it is okay. Like all these things, I do not think that anyone who has ever written a review has ever had everything—100 per cent of it—transferred into legislation.

With regard to the key areas, such as the need to move towards a better structure guided by a strategic forum with a bigger asset base for regions to build their educational provision, I am satisfied with the direction in which the bill has gone. The committee might be surprised to hear that I would have done some of that work more quickly, as I do not think that some of it has gone as fast as it needed to go. I would probably have been less flexible than the bill has been on some of the arrangements for colleges coming together, but I understand that there are political and other reasons why the approach in the bill has been taken.

I still think that we have a way to go in figuring out what we mean by outcomes. There is a lot of work for the Scottish Further and Higher Education Funding Council in getting outcomes down to a simple thing. If you want to turn dirty water into clean water coming out of a pipe, you test the water coming out of the pipe, not what goes on inside the pipe. There is still an awful lot of testing of what goes on inside the pipe rather than looking at the outcome, so there is more work to be done in that regard.

The strategic forum needs to focus on some of the issues that I set out in my review, such as looking at where the college sector goes. To go back to the point that I made in the very last paragraph of my report, we cannot just say, “This is how it is and this is how it will be for ever.” The bill is there to set out a platform on which everything else can be built, and I am content that it has started to move that process forward.

Professor Griggs, you said that you are a bit concerned about some of the outcomes. Obviously, post-16 is designed to deliver better outcomes. Can you give us a bit of detail about your concern?

My concern is about the length of the outcomes. To me, there is still far too much detail about the “how”. If you take an outcome as the “what”, it must be the college or college board that runs the “how” to achieve that “what”, because there are many ways of getting from A to B.

The point that I made in my review is that we must give college boards the flexibility to have a short list of quite clear outcomes for what they are achieving but not make them hidebound by restrictions that do not allow them to be flexible, which they might have to be because of their local community or the type of student that they have.

In the work that the funding council has done to date—although the year 2 outcomes are better than the year 1 outcomes—I still feel that there is too much concentration on certain aspects. The situation varies from one college having a two-page outcome agreement to others having very long ones. My concern is about the amount of detail that the funding council still asking about in the middle around key performance indicators that are to do with the “how” rather than the “what”.

Sorry, but I am a bit confused. I was not talking about outcome agreements but about the bill, because the outcome agreements are there in any case, irrespective of legislation. Can you be specific about how the bill could be improved?

I am fine with the bill but, as you know, I have spent a lot of my life worrying about how bills will work in practice through regulation. I am happy with the bill in terms of outcomes, but I am still concerned about how the funding council will take them into consideration, as it will ultimately have to create the outcomes.

It is the outcome agreements that you are concerned about.

Correct.

Right. On another theme, it was put to us by a couple of college principals when we took evidence that they were slightly envious of the university sector having a new code of governance. Would it be good to have that in the college sector too?

That is for the strategic forum to decide. I hope that the strategic forum will consider what things need to be common and done as a national standard. I would have no problem with a college code of governance, but it is up to the forum to consider whether it wants that.

You said that the bill is okay, but that implies that certain things could perhaps be better. Do you think that having a code of governance would improve the college sector?

It depends. The question goes back to my point about outcomes, because it depends how restrictive the code of conduct would be and whether it was sensible restriction. I am not trying to avoid the question, but the answer depends on how you write something. If the code of conduct gave people a guideline or way of getting to whatever they want to do, without prescribing how to achieve it, that would be okay.

I will interrupt proceedings to welcome Professor von Prondzynski to the meeting. I am glad that the train got you here eventually—thank you very much for coming along this morning.

Professor Griggs, saying that the bill is okay is probably one of the more positive comments that we have had about it. I think that we are likely to see a large number of amendments to the bill because of how it stands at the moment. A number of people have said that the bill should be delayed or taken away and brought back again. What is your comment on that?

I made the point in my opening remarks that, in many ways, we are having to wait too long for bits of the bill. Let me take my own position as an example. I am retiring as chairman of Dumfries and Galloway College, but we cannot look for my replacement until the legislation is passed. A number of other colleges will face a similar situation. If we are going to move on to a new type of governance of further education across Scotland, the sooner we move to it the better, because things are being held back just now. We have gone less quickly than I would have liked in some respects. I watched the evidence session to which Neil Findlay alluded, and I am not sure that I would agree with the argument of the person concerned.

Are you saying that you could not appoint someone under the existing rules?

We could.

Either you can or you cannot.

But they would be appointed only up to the point of the legislation, which means that they would then have to go through another process.

As is the case with any legislation, surely.

But we are talking about September or October. Are you sensibly telling me that I should employ a chair for two months to get to September?

Well, that is the opinion that you are expressing. Some of us would express the opinion that it would be better to delay the bill and get it right.

The Educational Institute of Scotland has stated:

“The complexity of the proposed structure will confound all but employees and public policy experts.”

The cabinet secretary said that the structure is quite simple. If you agree with the EIS’s view, do you agree that that is a problem in itself? If you agree with the cabinet secretary’s view, can you explain the structure in a simple, quick way so that we can get our heads round it?

My structure was quite simple: we would move to 13 regional boards. The cabinet secretary has chosen, for his own reasons, to make the arrangement more flexible and to allow people to do things quite differently. I hope that there will be a bigger move over the coming years towards a more regional structure. Every piece of evidence that I have seen, both in this country and elsewhere, has shown benefit in cases where colleges have come together in a bigger community. I have not seen one example where such a move has shown disbenefit.

We are starting to see the practical implications of what is happening in colleges, particularly in Edinburgh, with an example that the committee has discussed several times—the closure of Edinburgh College’s construction section at its Midlothian campus. Is that a positive outcome for the students of that area?

If the board of the college has considered how to use its assets properly to give the best education to the people in the area and has decided that it wants to put the construction part in location A rather than B, and if that is the correct thing to do, I have no issue with it.

You spoke earlier about the bill’s approach, and you used the analogy of a pipe and trying to turn dirty water into clean water. I take it from that that your impression is that there is too much of an inclination in the bill, either through ministerial powers or through the Scottish funding council’s powers, to keep opening up the pipe and micromanaging the process so that whatever emerges at the end accords with the objectives that have been set.

I would go back to the situation before the bill was introduced. There has always been a concern in the college sector about the amount of information that the funding council and other organisations collect and about the reason for their collecting it. It has never been clear to college boards why the funding council and others collect some of it. I agree with you that we still have concerns that we are being asked for things that do not really affect outcomes and are just bits of micromanagement.

I understand, in essence, why some of those things have to happen. We all have to work within financial guidelines. There are instances, however, where that becomes restrictive or we end up using limited resource to do things for which nobody really sees the necessity. I still have concerns in that regard.

To be fair to the funding council, I said in my review that it would find it a big challenge to move towards an outcome-based framework. By its essence, the funding council is a bank and a data collection organisation. The council is experiencing a challenge in moving towards that framework as quickly as it can. Year 2 has been better than year 1, but a bit of work is still needed.

You refer to the role of the funding council as that of a bank and a data collection operation. There is a view that the funding levers are significant in both the further and higher education sectors and that they perhaps offer the best way to achieve the outcomes that we seek—as opposed to overlayering either ministers or the funding council with specific powers or responsibilities. Do we have the balance right? Does that reflect what your report sought to achieve?

I repeat that there is a way to go. The funding council is trying to move towards that approach—struggling would be the wrong word. There are still inconsistencies in how things are managed in different regions of Scotland, but the situation is getting better.

To answer your question directly, I think that there is still a way to go. The process must involve a greater focus on allowing boards to use the flexibility that they might need to adapt to the situations in their respective geographical areas, which could make the learning outcomes different from elsewhere. It is also a question of how boards get there.

11:30

So you would share the concern that has been expressed about there being a regional board that will presumably take a strategic view of a region while, at the same time, the funding council retains certain powers over course provision across the same region. Does that not represent a duplication of effort in some respects?

Yes, and the strategic forum needs to sort the issue out across Scotland to ensure that there is a consistent approach.

Professor von Prondzynski, how well do you think the draft code, which has now been published, reflects your review group’s work?

There are a number of complex questions to address. First, what is a code of good governance actually for and what do we expect it to do? It might be worth saying that I do not think that it should be a substitute for legislation, and I have to say that I did not read the code from the viewpoint of whether it had covered all the points raised in the review of higher education governance, which I chaired. A code of good conduct is largely about ensuring that certain key principles of governance—integrity, transparency, legitimacy and openness—are upheld and sustained in higher education institutions, and I would have looked at the code with that in mind.

The code is not yet perfect—there are some amendments that could be made to it and I know that a process is under way to allow people to make such proposals—but on the whole it meets the objectives of a code of governance. It is good in that it is accessible and is written in language that is likely to be easily applied and it observes and maintains the main principles of good governance that I outlined. In that respect, it is not at all bad and is well worth supporting.

Although I know that the code has been criticised by some people, including members of my higher education governance panel, and although I understand some of those criticisms, I think that on the whole most of the issues that have been identified as not having been met in the code are probably issues that should be covered in legislation anyway.

Thank you for that.

The code has been quite heavily criticised; indeed, those involved with the open letter that we received say that they cannot support the proposed code in its current form and have put forward their reasons. Do you think that those criticisms are a bit strong?

I understand the particular points that my colleagues on the panel wanted to make. My own view is that the code could still be amended in certain relatively containable aspects and that, with those amendments, it would meet such a code’s objectives.

As I understand it, the consultation period runs into June. By that time, you envisage that amendments will be made to the code that will make everyone happy.

I am not in charge of the code and cannot say what amendments will be made after the consultation period ends, but things that I would think might improve the code could easily be incorporated into it without their changing the code’s overall purpose and structure.

With regard to timescales, would you have preferred the process for amendments to have been completed by the time we had reached stage 2 of the bill?

I suppose that it would have made it easier to assess the contents of the code’s final form and that we do not have such an opportunity at the moment. In some ways, the answer to your question is yes, but this is where we are.

Perhaps you might be able to clear something up for me. If the draft code in whatever form becomes the Scottish code, what will happen to the UK code? Given that the two codes do not exactly overlap point for point, what will be the status of the UK code post the implementation of the Scottish code?

They do not overlap and, in fairness, it should be said that the draft Scottish code goes further than the code that was adopted by the committee of university chairs.

That latter code is a voluntary code put forward by university chairs across the UK. It is expected that universities would abide by it, but there is no framework in which they can be compelled to do so. We do not yet quite know how everything will play out in Scotland, but I am assuming, particularly in light of the bill, that there will be a statutory framework in which at least a comply or explain provision, which is also contained in the draft code, would also apply to Scottish universities. In other words, the status of the Scottish code will be greater or more effective than the existing UK-wide code.

I am sorry—I did not answer the question that you asked. In the circumstances you describe, convener, I would regard the UK code as having been superseded by the Scottish code and no longer applying to Scotland.

None of it?

No.

In the letter that we received from three of the five members of your committee, they state:

“The chair, and we three, were in agreement on all the proposed measures and, in particular, that they should be taken as a whole package if they are to have the greatest possible effect in making Scottish Higher Education more transparent, democratic and publicly accountable.”

Three out of the five are saying that in the letter; given that you wrote the report, I am assuming that four out of five are saying that overall. If the report as a whole were implemented, would it make Scottish universities more democratic, accountable and transparent than what has been proposed in the code of governance?

As I said a moment ago, the report that we issued last year cannot be completely implemented by a code of good governance, no matter what is in that code, because there are recommendations that we made in the higher education governance review that can be implemented only by legislation; they could not be implemented by a code.

To that extent, the complete implementation of the review will require legislation beyond the bill. As I understand it, the Government has indicated that it intends to introduce legislation on higher education governance more generally at some point in the present parliamentary session. I would expect that to be necessary in order to implement fully the recommendations of the governance review.

The letter says that the code

“ignores many of the recommendations of the von Prondzynski report that it could have addressed, and actively countermands others.”

Do you agree with that?

It does not contain some of the recommendations that we made but, as I said a moment ago, I do not think it could contain all of them because some of the recommendations would require legislation.

As for countermanding, there is a framework in the code for the appointment of chairs of governing bodies that is not in line with the recommendation made in the review. However, that was one of our recommendations that requires legislation. In all fairness to the group that drafted the code, I do not think that it could have made that recommendation in the code; it would have been too difficult to implement by that route. If that recommendation were to be implemented, it would require legislation.

We all need to be aware of the fact that the code is just one part of a process, although it is a very important part. We recommended in our review that there should be a code of good governance for higher education and therefore the code is at least potentially an implementation of that recommendation. However, it cannot complete the picture.

I would prefer to say that one ought to look at the code by asking whether what it contains improves the governance position in terms of integrity, transparency and openness. We should not get too hung up on whether all the recommendations of the higher education governance review are contained in it. As I said, I am still of the view that some of the recommendations would require legislation.

Was it a mistake for the university chairs to decide to set up their own group to review the code without any representation from students, employees in the sector or trade unions?

As I understand it, the process was that the chairs made an offer to run with the process of drafting a code and that there were subsequent discussions between the chairs—

I asked whether you thought it was a mistake.

There were subsequent discussions between the chairs and the cabinet secretary, and I imagine that the process that ensued was the result of those discussions.

It is difficult for me to answer your question. I have been in favour of an inclusive approach to the management of this agenda, and that approach has been reflected in the higher education governance review and other statements that I have made. However, at the same time, we have a draft code, and I think that we need to look at what is in it and how appropriate it is.

Is your specialism the law or politics?

My academic specialism?

Yes.

I was a lawyer.

That does not surprise me, I am afraid, given the answers that we have received from you today.

When you appeared before us some time ago, Professor von Prondzynski, you said that there was nothing radically wrong with governance in Scottish universities. At the time, I think that most committee members agreed with that point. What is not good about governance in Scottish universities now that requires not only a new code but further legislation? You did not indicate that that was the case when you appeared before us previously.

The review that we submitted last year was quite clear on that point. We recommended a higher education statute and a code of good governance. That has been my position throughout the process. I apologise if I was ever ambivalent about that, because I did not intend to be.

You are absolutely right to quote me as saying that, on the whole, Scottish universities have conducted themselves extremely well—indeed, they are very successful institutions in the global higher education system. That is not a matter for dispute.

When it comes to governance and related matters, it is important that there should be a high degree of public trust and confidence. It is not just a case of me putting my hand on my heart and saying that my university applies the highest standards of governance if that is not clearly visible and is not accepted with confidence by those who observe what we do.

It was clear to us when we conducted our research and listened to evidence before we produced our report that there were large sections of stakeholder bodies with an interest in higher education that were not satisfied that good practice was definitely being applied in higher education. Although we did not conclude that there was a serious, fundamental problem, we took the view—which I still take—that it is important that there should be a high level of public confidence, which needs to be expressed in transparency and openness of procedures. I believe that the recommendations that we made will help the university sector to gain that sense of confidence.

Thank you for putting on the record the fact that concerns were raised. Could you provide us with some evidence that was given to you that the current governance arrangements in Scottish universities do not deliver as good an education as they should?

For a start, we looked at a number of submissions and took evidence from a number of people. I do not think that the substance of that evidence was that there was something deficient in the provision of Scottish higher education—and it should be noted that it was not really in our remit to look at that. Rather, there was a suspicion, on occasion, that the way in which universities operated excluded parts of the university body and that significant parts of the higher education community, or stakeholders, did not have access to decision making or understand how decisions were made. The evidence that we received on that is public—it can be read.

We did not make a judgment about whether those comments were objectively justified; we just noted that such views were expressed. When that is the case, it is important that we have a system in which there is seen to be integrity and transparency and that the public can have confidence that that is the case.

I totally accept that that is essential when it comes to accountability and transparency. What I am driving at is that one of the key issues is whether improving that delivers a better university sector. I am not clear that there is a great deal of evidence about that.

11:45

The issue is not specific to universities. It is like asking whether there should be high standards of corporate governance in the corporate world. Society generally has accepted that there needs to be a high level of accountability and appropriate integrity of conduct, and that needs to be the case whether or not it can be proven that it has an impact on performance. Apart from anything else, there is always the risk that defective integrity and transparency will produce a problem at some point in the future.

Do you accept that a key part of this discussion for us is the decision whether to legislate? It is perfectly possible to have transparency and accountability without legislating. The committee has to decide whether we need to legislate to get accountability and transparency or whether the same outcome can be provided through updating the existing code.

We made 40-odd recommendations in our report. If you accept them as good recommendations, you must accept that some of them will require legislation—they cannot be implemented in any other way.

My question follows on from Liz Smith’s questions. We have received evidence that the international comparisons suggest that the responsible autonomy model has generally delivered better results. The Shanghai table was referred to as evidence of that. How do you square what you have just said with the concerns in the sector that the move towards legislating in a number of areas will inevitably undermine that responsible autonomy? You have a role in the sector and I presume that you have a horse in this race.

In the “Report of the Review of Higher Education Governance in Scotland”, we agreed with that and reinforced the point that an autonomous system of higher education with autonomous institutions is an important ingredient in a successful sector. There is nothing that we recommended or that I would have wanted to recommend that would run counter to that.

As you say, there are global rankings and lots of other evidence to suggest that institutions in systems that have a high degree of autonomy perform best. That does not mean, however, that the public should take no interest in how institutions perform. Integrity and proper conduct need to be maintained even within an autonomous system, and—as I said a moment ago—that is not specific to higher education. We think that of the corporate sector, banking and all sorts of other autonomous sectors of the economy that need to apply high standards of good conduct. The situation is the same in higher education and universities.

The recommendations that we made were not calculated to overturn the idea of institutional autonomy, particularly institutional autonomy as regards strategic direction and conduct. Rather, they were intended to ensure that institutions conduct their business in such a manner that they are seen to be behaving to the highest ethical standards in a way that is visible to all the stakeholder bodies.

I concur with that. However, do you not accept the argument that an updated code that is further improved before it is finally settled on later in the summer and the funding levers that the funding council has at its disposal are sufficient to deliver a sector that is transparent and accountable but has the responsible autonomy to deliver not just in a national context, but in an international context?

As in all these things, it is a matter of finding the right mix. Those things that can adequately be contained in a code should be contained in a code and should not be in legislation. That is why we recommended that there should be a code of good governance. A number of our recommendations would most appropriately be contained within that code.

Nevertheless, in higher education, as in other sectors, there is a need for some legislative grounding. There is already legislation; we are not recommending that legislation should be introduced as a complete innovation in the system. In fact, one of the reasons why we recommended that there should be a higher education act is that the current legislation is complex.

A number of different statutes, some of them hard to understand, apply to different institutions. We think that simplification would help the sector. However, legislation at some level is necessary. We would not say that banking or corporate affairs could be handled just by codes of good governance and good practice; some legislation is necessary to underpin society’s expectations of how those sectors operate. Higher education is no different. We were not recommending—and I am not recommending now—that the legislation should be intrusive or that it should undermine institutions’ autonomy or flexibility of action. Those sorts of standards would also be applied in assessing any legislation that comes forward.

Thank you. I welcome to the committee Jenny Marra, who has joined us briefly.

Thank you, convener. I apologise to the clerks and my colleagues for not giving prior notice.

I want to put a question to Professor von Prondzynski on his governance review and recommendation on gender quotas for university governing boards. Why was that recommendation made in your report?

We made that recommendation because practice within the sector is pretty uneven. Some universities perform better than others on gender balance and diversity on governing bodies, and some universities could perform much better. I came to Aberdeen from Ireland where there was a statutory obligation to have a 40 per cent gender balance on governing bodies. That system worked well. As part of gaining the confidence of wider society, it is important for universities to show that the composition of their governing bodies reflects that of society. Clearly, we are not doing that if few women—and occasionally none—are on such governing bodies. I stand by the recommendation that we made. I think that it was a good one, although it could not be introduced easily by a code. Introducing gender quotas would probably require legislation, because if they were just in a code that would be open to legal challenge.

How easy would it be to legislate for that?

I am not sure whether that is a legal or a political question. It would be possible to do so from a legal point of view; there are illustrations from other sectors of how to do it.

I have one final point. You said that the gender balance on a governing board should reflect wider society. Can you tell me a bit about the impact that a better gender balance would have on the institution itself?

Occasionally there is a risk—outside the issue of gender imbalance or lack of diversity on governing bodies—that the particular range of skills and expertise available to governing bodies from their membership is limited, typically to particular aspects of economic activity. If greater diversity, including gender balance, were to be introduced and successfully implemented on governing bodies, the range of economic activity would be significantly widened and therefore the expertise and advice available to the governing body would be much more balanced.

I concur with both Ms Marra and Professor von Prondzynski that gender balance is a good thing. You have a legal background, professor, and it strikes me that equality legislation is reserved to Westminster. If there was an attempt by this Parliament to legislate along those lines, would that not be ultra vires?

That would depend on how the particular provision was framed. For example, if legislation was introduced that indicated that gender-based decisions would have to be made in relation to particular positions on a governing body, that would be a problem and I suspect that it would not succeed. However, if a statutory obligation was placed on governing bodies to maintain an overall gender balance, not specific to any particular appointment to the governing body, my advice would be that that should be in line with the legal framework. That was how it was in the system that I came from.

The group set up to review the code has seven members and two advisers, and only one of them is a woman. Do you think that we have a real challenge in getting the message across to those people?

Probably, yes. I should say that the panel that I chaired was very aware of that issue during its deliberations. We were aware that we were an all-male group, and that that was not ideal.

A recurrent theme in your report is representation of students and staff, but the draft code seems to have watered that down considerably. Is it an area in which legislation is required? I would not have thought so, but is it a grey area?

No. In that case, the code could usefully be amended. I agree with the point that is implied in your question, and our recommendation in the review was that remuneration committees, nomination committees and bodies of that kind should contain staff and student representatives. That remains my view. It would be helpful if the code stated that.

The code could reflect that without any legislation.

I believe so, yes.

You mentioned earlier that the code was not yet perfect, and you have just given one example of where you would like to see changes. What other areas fall short of your recommendations? Should there be amendments to the references to, for example, meetings in public; the role of students; consultation with staff and students; the abolition of, or transparency around, bonuses; details of how staff and students—

Some of those issues probably do not fall under the code. For example, things such as remuneration and bonuses would have to be handled differently. I am not sure whether those things require legislation, but I am not sure that they are an issue for the code.

The main issue with the code is the one that I have just mentioned about staff and student representation. That should be provided for on decision-making bodies, particularly those that are relevant to appointments and remuneration, and ideally the code should say that.

The other points that I would have identified are more minor and technical. I do not have them in front of me, so I am not in a position to go through them in detail. For me, the issue that we have just mentioned is the fundamental one; the others are more technical in nature.

The code has been described as having been written by managers for managers and there is a view that students and staff should be much more involved in the Government’s arrangements. The code has been drafted by the chairs of university courts. You say that the code should be amended. Do you expect it to be?

The code was drafted under the direction of university chairs; it was not drafted by them. You will have other opportunities to explore that. The chairs had no direct impact on the drafting of the code. A steering group was set up for that, which had representation that went well beyond the chairs. In that sense, I do not think that the code was drafted by managers for managers, not least because chairs are not managers—I am, but chairs are not. I can understand politically why that comment was made, but it is probably not a fair one.

The code reflects two things: one is having a higher level of accountability, transparency and predictability in systems; and an important element is that the code is presented in an accessible way. In that sense, it is better than any other code that I am aware of, some of which are written in quite an opaque way. The defects that you have outlined are not particularly reflected in the code, which is not to say that there is nothing that can be improved. Indeed, the steering group that presided over the code’s drafting took that view, because it has opened up the code to consultation and submissions.

12:00

Do you stand by all your recommendations in the report?

In the higher education review report?

Yes.

Yes, I do. There is only one that I have been persuaded might not be ideal, and I mention it because it is relevant to the code and our recommendations in that regard.

We recommended—at the time, I strongly believed that this was correct—that meetings of governing bodies should be held in public. That is still the ideal scenario, but I understand the point that people have made in response to that recommendation, which is that if such meetings were held in public, the willingness of governing body members to be critical of university management would probably be compromised. If they did not want to do it as a result, an element of monitoring and control might disappear.

I have been persuaded that that argument might carry some weight but, apart from that, I stand by everything that we said in the review.

You can see why there would be concerns about holding meetings behind closed doors that are not open to scrutiny.

Yes, and it is important that such meetings should take place with the highest level of openness and transparency possible. For example, the agenda for any meeting should be publicly available before the meeting takes place, so that people know what is going to be discussed. There should be proper open publication of documents and minutes, and opportunities for people outside governing bodies who are aware of what will be discussed to make submissions so that their input can be taken on board.

The highest level of openness and transparency is always good, and ideally I would like meetings to be held in public. If I had not been persuaded by the argument that it might shut down some of the discussion, I would still prefer that option, but people have made that point to me with some force, and I understand it.

You have given a skilful and lawyerly performance this morning—

I do not take that as a compliment. [Laughter.]

You can take it as you will.

I find it difficult to see how you can stand by your report while saying that you support the code that has been developed, which dismisses so much of what your report contains. I find that difficult to follow.

Would you give me an example of something that the code dismisses that was in our report?

We have only a few minutes—I could give you a list. My colleague Neil Bibby mentioned a number of things, such as representation, the agenda issue and meetings in public—we could go on and on. They are all in there.

Yes, but I have agreed with the one example that you gave, where I think that there should be a change. The other points that you have mentioned are all for legislation.

I refer you to the letter from three of the five members of your group, which covers the points that have been made. Is there no contradiction between standing by your report and supporting the code that has emerged?

No—there are a number of issues that will require legislation, as I have said. I remain in favour of that; it will need to be done, and I believe that the Government intends to do it. Therefore, I do not believe that there is a contradiction between my support for the review that I chaired and my support for the code, bearing in mind that I have said that some adjustments to the code would be desirable.

I never expected that the code would implement the higher education governance review; that is not what a code of good governance is supposed to do. I expected that, in the spirit of that review, it would introduce a framework of good practice in governance. Aside from some specific points that are open to amendment, I would say that, on the whole, the code does that.

Do you think that there is any merit in delaying the bill?

Staying on the point that you raised, which is relevant to the bill, I believe that it is important given what the bill says about the principles of good governance that what those principles are should be known before the bill becomes law. In other words, there should be no ambiguity about which principles of good governance the act—if the bill is passed—supports.

If in the process of finalising the code we get a code that the Government accepts is appropriate—which is the Government’s decision—and if it is clear to which principles the bill refers, the timing issue is no longer significant. If, on the other hand, we do not know to which principles of good governance the bill is referring, it might be more of an issue.

To clarify that point, if the bill stays as it is and refers to the code, and the code is the current UK code, would that cause any problems?

The bill currently includes a provision that would

“require the institution to comply with any principles of governance or management which appear to the Scottish Ministers to constitute good practice”.

That raises the question of what those principles of governance or management are. My point is that the reference needs to be clarified, and in the bill rather than in any accompanying commentary.

If that were a reference to the Committee of University Chairs code, I am not entirely sure that I would necessarily regard it as the most appropriate thing, given that we have said that there should be a specific Scottish code. The Scottish system of higher education is now significantly different from the English system, and it is appropriate that there should be specific guidelines of good governance for Scotland, which is why we made that recommendation in the review.

There is an ambiguity about that particular section of the bill, which probably needs to be sorted.

A particularly distinctive aspect of Scottish higher education is the election of rectors by the student body to chair the court. In the University and College Union’s submission, it suggests that the new draft of the code dilutes the important role of the rector as the elected chair of the governing body. Do you share its concerns?

My reading of the code—I might need to read it again—did not lead me to that conclusion. If I recall correctly, the code recognises the rectors as having the right to chair governing bodies within those universities that have rectors.

As you know, we have recommended in the review that chairs of governing bodies should be elected. I stand by that as I believe that it is the correct way forward, although I also believe that that cannot be implemented in the code of governance; it really requires legislation.

With regard to the system that exists at present—recognising that elected chairs are currently not part of it—what the code says is not bad. The problem at present is not only that the majority of the institutions do not have elected chairs of governing bodies, but that they have processes for appointing chairs that are occasionally quite opaque. It is difficult to see how appointments are made and the extent to which the processes involved are open. The evidence is, overwhelmingly, that chairs come from within the existing governing body, as distinct from there being external input.

The recommendations in the code—if we assume for a moment that we are not, or not yet, in a situation in which chairs are elected under a statutory regime—are an improvement on the position that currently exists. I would not be critical of that, but it does not change my view that our recommendation for elected chairs in the report that we submitted last year was correct.

So it is an improvement, but not enough of one?

For me, it is not the end of the road.

I thank the witnesses for coming along this morning. We appreciate your time in coming to the committee.

12:09 Meeting suspended.

12:12 On resuming—

Our next panel of witnesses will also give evidence on the Post-16 Education (Scotland) Bill but particularly on the draft Scottish code of good higher education governance. I welcome to the meeting Robin Parker, president of NUS Scotland; Mary Senior, Scottish official, University and College Union Scotland; and Lord Smith of Kelvin, chair, and Simon Pepper, committee member, from the steering group on the Scottish code for good higher education. Thank you for coming and giving evidence to the committee.

I will begin by asking Lord Smith to outline how his group went about taking recommendations from Professor von Prondzynski’s review and recommendations from others in coming up with the new draft code.

We took von Prondzynski’s report on higher education and employed two consultants to consult people in universities. We visited every higher education institution; saw 360 people in 80 meetings; and split those meetings into individual discussions with management, principals and so on, unions, staff and students, all of which are listed at the back of our report. At the end of that process, we sifted the evidence, had four meetings and reached our conclusions, which I think faithfully represent the evidence that we had gathered.

Before we get into some of the detail, I wonder whether I can very briefly take you back to the consultation process. In oral evidence heard earlier in the year and in written evidence that we received for this meeting, the committee heard some criticisms of the process; indeed, some witnesses felt that they had not been properly consulted, that the meetings were short and shallow and that they did not have the opportunity to make a proper input into the process. How would you respond to those criticisms?

I largely reject them. There were, I think, 80 meetings over a period of four or five months, which is an awful lot to pack in. Those who undertook the consultation saw people in different groups at each university and, depending on the number of people who were being seen, they had probably anything between half an hour and an hour for each meeting. Several hours were spent at each university, which was quite a commitment for the people undertaking that work. I do not think that we could have done much more. We did not see unions as a group or body; to do so, we would have had to have seen principals, chairs of court and a whole lot of other people.

As I have said, the work was undertaken by the consultants. We sifted their evidence very carefully, and Elish Angiolini, Simon Pepper and I as well as the three chairs of court challenged them on it. If people are saying that they were badly treated at the time, I have to tell you that I have no evidence of that. I have reports of all the meetings that took place, and we sifted through them very carefully. We consulted widely on this.

12:15

Given that some of the criticisms have come from the unions and staff members in universities, I wonder how Mary Senior responds to those comments.

When I gave evidence in February, I raised concerns about the whole process. I said that meetings were fairly short and were not minuted and I expressed concern that when trade unionists were invited to give evidence they had to do so alongside other groups of individuals. In other words, there was no meeting with trade unionists alone to allow them to express views from a staff perspective.

Those concerns have been borne out in the draft code before us. As our written submission makes clear, the University and College Union is very concerned that the draft code does not truly reflect many of the recommendations in the von Prondzynski report, which was the result of a more inclusive process, or many of the concerns that the UCU raised with the consultants who met us.

Do you accept Professor von Prondzynski’s evidence this morning that he did not expect all his report’s recommendations to have been covered in the code and that, in fact, some of them should be covered in legislation?

Many of the recommendations in the von Prondzynski report could be encompassed in the draft code. I was interested to hear his observations on the recommendation about meeting in public, which we think is very important and embodies the principles of openness and transparency. It makes board or court members more accountable and ensures that officials or managers who make recommendations thoroughly test any proposals that they might bring to meetings. Holding meetings in public does not prevent difficult decisions from being taken; it just ensures that they are taken in a more inclusive and transparent way. Trade unions know that governing bodies have to take difficult decisions, but if we are able to test such decisions and take the views of staff and students, we can get to a better place in the institution in question.

As chair of the steering group, Mr Smith, did you express any concern about the lack of women, students or employee and trade union representation on your group?

I took what I was given. Sometimes that is not a great thing, but I was given one woman, three independents—including me—and three chairs of court. That is the team I was given to play with.

But could you not—

What? Have refused to serve?

It is glaringly obvious to everyone else that the group was lacking certain people.

That is a different question.

Well—

It is a different question. I note that there was no principal on the group, as there had been in the earlier higher education report, and there were no unions or students on it, although students had been represented before. Ferdinand von Prondzynski, who chaired the earlier group and stood by his recommendations, came to our meeting in Glasgow and presented at length; we spent about an hour and a half with him.

Sure, I could have turned round and said, “You’ve given me an inferior team here. There are people missing.” However, we had at least one woman. By the way, she gave a very good account of herself. I do not know whether you know her, but she is a redoubtable lady, so we certainly had plenty of input there.

It is not impossible for independents to understand things such as women’s representation. A lot of the things that we pushed in our draft report are about having more student representation and more female representation. I would be very disappointed if the code did not lead to a lot more of that when people work out their plans and build their goals into their future plans.

Following on from what you have just said about who was missing, I note that the UCU said:

“We stated that the code development process was flawed from the start and it has resulted in a faulty draft code.”

You implied just now that you might agree with some of that comment, given that what you were given—

No, we had one—

Excuse me, but let me finish. You have expressed concerns here about what you were given, so would it not have been better if the group developing the code had been more inclusive and had included more stakeholders?

First, I did not say that I was not satisfied with what I was given. You asked me whether I should have turned round and said that, but I did not. I was given a team that I think was a good one. We went out and consulted in a very detailed way: 360 people were asked questions in every institution. The team came back with that evidence and there were enough of us with completely independent minds to sift through it. I think that what we have brought out is a very progressive code.

As an independent member of the steering group, I reassure the committee that the membership of the steering group does not represent any kind of bias. I was invited to participate and I accepted the invitation. My understanding of the logic behind the composition of the group was that it had to comprise some university chairs because they would be taking responsibility for the code’s implementation. They have no sectional interest; their interest is in general good governance of the universities.

The independents have no conflict of interest, and to have included any representatives of sectional interests on the steering group would, ironically, have been a breach of the principles of good governance that we are supposed to be promoting. I think that if you look at it in that way, you will see that the group had a fair composition. If any of us might be guilty of bias, I suppose that I would be the candidate for that, because my background is as a rector elected by students. When I was a rector, I was certainly a strong champion of students’ interests. However, I do not think that anyone will criticise me for having exercised a prejudice in the proceedings. I hope that the committee is reassured about the composition of the group, because it has more rationale to it than perhaps meets the eye.

In drawing up the code, you took into account both Professor von Prondzynski‘s review and the UK code. The implication is that you took the best from both to create the new code. However, there are a number of issues in Professor von Prondzynski’s review that you do not seem to have addressed. For example, Professor von Prondzynski said earlier that he felt very strongly about the inclusion of student representatives and staff representatives, but that aspect seems to have been completely watered down and taken out. What was the reason for that?

Just to be clear, you are saying that we said that there were to be no student and staff representatives where?

I did not say that. I said that what Professor von Prondzynski proposed has been watered down.

I do not believe that to be true. I think that the code is very progressive. We asked people to produce goals and we said specifically that a nominations committee must include a student representative and a staff representative. We said that, when deciding on appointing chairs of court and principals and appraising a principal, students and staff must be taken into account, which is far removed from where we are today. I would hope that the levels of aspiration are serious when it comes to the female to male balance on boards and so on. I hope that people come up with decent percentages, on which they deliver—and that, if they do not, the Scottish funding council, the court of public opinion, peer pressure and people living in the community will see that the universities are not complying.

When you took the UK code into account, did you take any advice as to what the status of that code would be versus the Scottish code, particularly with regard to issues relating to the UK code that are not carried forward into the Scottish code?

We did not have our attention drawn to that issue, but our understanding is that the Scottish code that has been proposed does not go back on any commitments in the UK code. Indeed, we have identified a dozen or so examples where our code is a progression on the UK code. If there are issues where there appears to be some kind of gap, with the CUC code imposing more stringent requirements than we have, we would like to know about that and reflect on it.

I think that the UK code covers one or two things that are not explicitly covered in the Scottish code, for example estate management, student unions, health and safety and so on.

That was not drawn to our attention, and we would need to reflect on the matter if there is indeed a gap in those areas. Perhaps that was behind the convener’s earlier question to Professor von Prondzynski about the relationship between the two codes.

I take you back to the point about the involvement of staff and students. Professor von Prondzynski recommended that staff and students should be involved in the appointment and appraisal of principals, which should include membership of interview panels. The draft code says that staff and students should be consulted. I think that you said that they should be taken account of. Those are not necessarily the same things.

We say that there should be staff and student membership of the nominations committee, which should come from the main court, if you like. There absolutely should be one of each on the nominations committee and two of each on the court. That is an absolute recommendation.

When we get into the realms of remuneration, it gets slightly tricky. We consulted on the issue, and some student representatives were a bit concerned about their position and whether they could act on a remuneration committee, or remco. If I were the principal of a university, I would allow both staff and student representatives on a remco. However, we are not in a position to force that.

There will be situations where a staff member may feel that it would be difficult or embarrassing to comment. A union representative sitting on a remco might find it difficult to act as a member of that committee and to forget about their position outside. It is quite a difficult role. I have been on many boards where people are in effect representatives of organisations and find it difficult to leave that at the door. There absolutely should be influence by students and staff.

I feel quite passionately about this. I know that I am going on about it, but you can shut me up in due course, convener. The role of chancellor is no role at all—it is purely ceremonial at the University of the West of Scotland, but we have a number of outlying campuses in places such as Hamilton, Dumfries and Ayr, and indeed Paisley. I have seen the effect that we have in those areas. For example, if our university was not present in Dumfries, the effect on the economy would be catastrophic. Youngsters in such places will not go to Glasgow to go to university. They feel that Glasgow is quite alien to them. Of course, being a Glaswegian, I object to that proposition, but they find it quite difficult to move to the big smoke to go to university.

If people are in that position, we have to reach out to communities, to councils and to local youngsters. That is why staff and students should be mightily represented and listened to at all universities, particularly those that provide real pastoral care.

12:30

Thank you for that. I will bring in Robin Parker now, because the NUS written evidence clearly shows that you are extremely concerned about what seems to be a lack of direct input from both students and staff.

I thank the committee for having me along. The first words that I want to point to are not from the NUS; they are from the letter from the presidents of the student associations. As regards the consultation, they said:

“we do not think that quantity of these visits should become a misnomer for their quality, or indeed the end product.”

It is important to note that we remain focused on the end product. The process has been led by the chairs and therefore it is rightly perceived as a self-regulation process. In terms of where governance goes next, we cannot continue with such a self-regulation process. The process needs to fully belong to the entirety of the higher education sector, which includes the staff and students who participate and who make higher education what it is.

To provide a bit of clarity on the specific points about staff and student involvement, the draft code points to

“the involvement of staff and students”

in the nominations for the appointment of the chairs. That is a small step forward, but the code does not address the point about having two students on all university courts. Some university courts have two students and some do not. However, that is a matter for legislation, because the membership of university courts is dealt with through legislation.

The big oversight is in the appointment of principals. The draft code merely says that staff and students should be consulted, unlike the von Prondzynski report, which says that they should be full members of the interview panel. As this process has demonstrated, being consulted is not necessarily the same as being involved.

Robin Parker has highlighted important points. When Lord Smith made his comments a wee while ago, he indicated how he would act and it was good to hear that. However, we need a strong code of governance because staff have not felt that they have experienced strong, fair and transparent governance. That is why it is important that the von Prondzynski report recommendations are encapsulated where possible in the draft code.

In some ways, I find it quite insulting that there is a view that trade unions cannot play full and meaningful roles on courts and governing bodies. Indeed, the von Prondzynski report recommendations are for two student members of the court, two staff members and one trade union representative from academic staff unions and one from support staff unions. That is because the unique role that trade unions can play in governing bodies has been recognised. Trade union representatives can say things and represent views in a different way from ordinary staff members.

It is concerning that that important point has not been recognised at all in the draft code. Indeed, the draft code does not use the words “trade union”—it does not really recognise that trade unions exist in our higher education institutions. The only time that “trade union” appears is in the annex that talks about the meetings that have taken place. We need to grapple with that issue because trade unions can play important roles on governing bodies and that recommendation seems to have been watered down.

We also have concerns relating to the current rectors of a number of universities. Currently, rectors are elected by students—in Edinburgh, they are also elected by staff—and rectors chair the governing body. In the draft code, that role seems to be taken away from them in that rectors would not automatically chair the governing body. They could be considered for chairing the governing body, but that would not automatically happen. We felt that that was a real step backwards, because von Prondzynski recommended that all chairs of governing bodies be elected, and perhaps even by a broader constituency than just students and staff. The recommendation in the draft code is a step back in that respect.

I would like to go back to Lord Smith and try to nail the issue about the election process and what is and is not recommended in the draft code. In the current situation, there is an automatic chairing of the court by the rector in some institutions. Is that being taken away?

Absolutely not. However, having reread the draft code, I think that we have to change the language that we have used there. I ask Simon Pepper to comment on that, as he was a rector.

We were concerned about confusion. There were students who voted for a rector and thought that that rector would chair all manner of things, but that simply was not so in some cases. In order to be honest with the electorate, if nothing else, we are saying, “For goodness’ sake, if there is a chair of court, tell people what that chair does and what the rector does, and be up front about that when people are going for election.”

Simon Pepper has been there.

The legislation, which is from the 19th century, provides for the rector, who is elected by the students or, in the case of the University of Edinburgh, by the students and the staff, to preside at meetings of the court. I do not think that, in the entire history since then, there have been many rectors who have agreed to undertake all the functions of the chair that are now described in the code of governance. Individual institutions have always made their own negotiations with incoming rectors, who have been of various kinds. They have ranged—to use the recent Glasgow experience—from somebody who was in prison in Israel for the entire period of his rectorship, to, currently, a former leader of a UK political party. Rectors arrive with different capacities and degrees of willingness to engage.

The code is trying to say that, before someone proceeds very far, they should make it entirely clear where they agree that the role of rector starts and finishes and where the senior lay member, governor, convener or whatever the person who is appointed by the governing body is called takes over and undertakes the remainder of the chairing functions that are described in the code. It is important that all those functions are covered. We felt that the code would be derelict in its duty if it did not draw attention to a potential conflict there or confusion at least.

I assure the committee, Robin Parker and Mary Senior that there will be a rewrite of the section in question, because it was absolutely not our intention to undermine rectors.

Thank you very much for that. That is helpful.

I would like to go back to the question about specific nominations of representatives of particular interests who should have places on particular committees.

Briefly, please.

The whole steering group entirely agrees with the principle that inclusion and participation should be maximised. There is no question at all about that, and I think that Lord Smith has already made that point. The issue is how the principles are put into practice.

One option, which is fair enough, would be to specify or prescribe exactly which members of which committees should come from which sources. Another option, which we have favoured, is to say that the really important things are the values, the sense of collegiate—I think that Mary Senior used that word—responsibility and behaviour, and how a sharing of the governing body’s corporate responsibility works. We all know that good governing bodies work best because they inculcate a shared culture of collective responsibility. Our feeling is that, together, the measures that we have introduced—some people have said that each measure might be quite small—represent a significant advance on what is currently required under the CUC code.

We are sure that the result will be a significant change in the culture of the management of governing bodies and the sorts of outcomes that our colleagues are looking for: more inclusion and more significant consultation, which are perhaps better achieved that way than by mechanistic appointment of certain quotas in certain places.

It is my understanding that, when you published your new code, Professor von Prondzynski was quite complimentary about the vast majority of it, albeit that he flagged up some key issues that he wanted to address. Is that your understanding too?

That is my understanding. I would not want to quote the man, but he did write to me to say:

“I am genuinely very impressed. I think you have done a really good job in capturing many of the key elements of our HE governance report ... the code is well written and accessible. It is also practical, in that it will allow institutions to be effective and decisive as well as demonstrating integrity and accountability.”

I know that there are quite a number of small points that he wants to guide us on. I am sure that we will take those on board, because they will improve the language of the code. The most glaring example is the one about rectors. The impression that was given was not what was intended, but if that was the message that came across, it is plain wrong and we have to change it.

Given that the consultation period on the new code is running until June, do you believe that you could work with Professor von Prondzynski to improve the existing new code—if I can call it that—so that it will be better?

Yes. We might not go 100 per cent of the way—we took an awful lot of evidence. He has already written to me privately about a number of the issues raised and I do not think that there is anything that I could not persuade the committee to go along with.

Mr Parker, Lord Smith has just suggested that there does not seem to be a huge difference between the von Prondzynski version and the new code. You are saying that you definitely cannot support the proposed code in its current form. There seems to be a slight mismatch there.

In the evidence from NUS Scotland we were quite clear about which matters and which issues we think have not been addressed in the draft code. It is welcome that Lord Smith has picked up on the point about rectors, which has addressed one of our points. I hope that the same approach can be taken on our other points. For example, we could find some way to involve staff and students in interview panels for principals. That should be made clearer—it is a tangible recommendation that would help.

Issues around remuneration have to be picked up. Von Prondzynski recommended that staff and students should be involved on remuneration panels, but the draft code just glosses over that. All universities in Scotland continue to receive a large amount of public funding. It is not surprising at all that the public and indeed MSPs are asking about remuneration, given that 88 members of staff in universities receive greater remuneration than the First Minister. That seems to be going far too far and something needs to be done to tackle the issue. We have made one proposal. The code could clearly go further than it does at the moment to tackle that issue.

Exactly the same point applies to fair gender representation on governing bodies. The code does not even mention the issue; it talks more generally about diversity and equality. Of course we want all forms of diversity and equality to be taken account of. Our university governing bodies should reflect the staff who work in the universities, the students who study in them and the wider public whom they serve. It is incredibly important that much more significant and tangible steps be taken. The code needs to go as far as possible in tackling those issues. Gender equality is a particular issue. Given that not a single woman chairs a university court in Scotland, we need tangible steps to be taken to tackle that issue.

I accept what you say. I do not necessarily agree with every single point you make, but there is still time to consult. Is it your hope that at the end of the three or four weeks—or however long it is until the consultation period is finished—you will have come closer together?

All the points that we are making address what needs to happen for the higher education sector to maintain its autonomy. If the sector does not tackle remuneration and the other issues that I have outlined, I expect that the political process will clarify things. If the code does not tackle remuneration, I would not be surprised if MSPs introduced amendments. That would be the right thing to do.

12:45

Is it your understanding that it would be helpful to the committee and the Parliament for the consultation period, and the information from it, to be complete before we finally agree?

The timescales run closely together. The most important thing is for the legislation to make it clear how the code will update itself and how the process will continue. Experience indicates that the code cannot be led in the main by the chairs themselves because that is far too much of a self-regulation role. We need a system that ensures that staff and students are involved in the maintenance of the code and that there is appropriate public involvement.

We need to decide next week on our approach to stage 2, particularly on governance. It is not helpful to us that there is still some dubiety about how things will move together in the consultation period.

Indeed.

To be clear, MSPs will not be able to amend the code because it will not be in the statute. You said that we could amend it, but that is not actually the case.

I meant that the bill should make it clear that the maintenance of the code should involve staff and students, and it should ensure that the code belongs to the sector. I think that that would be possible.

To follow up on that, if I get you right, you were not advocating an increase in the First Minister’s salary.

On timeframe, you listened to Professor von Prondzynski acknowledge that, although he stood by all his recommendations, he always expected some of them to be implemented through legislation. It has already been indicated that some changes will be made, not only in relation to rectors but in relation to staff and student involvement in the appointments process—he was strong on that in his evidence. He envisaged the other aspects coming through in the legislation anyway, so do you not see the potential for reaching agreement on an updated code with a focus on the amendments to the legislation that you, the UCU and others feel are necessary?

I do not have Professor von Prondzynski’s legal expertise, but it seems to me that, on diversity and equality on boards—particularly in relation to gender and remuneration—the code could go a lot further. The letter that I put together with Iain Macwhirter and Terry Brotherstone, which committee members will have seen, finishes:

“We continue to hope, and expect, that the full recommendations of the Review will be implemented as an integrated package whether that is through legislation or through a combination of legislation and the revised Code.”

That suggests that there is more scope for agreement on a further improved, updated code than was, perhaps, evident from some of the public statements that were made immediately after the code came out. Is that a fair comment?

From my point of view and that of the students whom I represent, those are really significant deficiencies in the code. The question is whether those points will be addressed.

I welcome the discussion that we have had today and the fact that Lord Smith has indicated that there can be changes, but I will be deeply concerned if you tell us to go away and reach agreement because the NUS and the trade unions will not be involved after this point. We will make our written submission to the chairs of court by the deadline, which I think is 11 June, but are we just then to hope that they will take on board our recommendations? We do not really know that they will do that.

The UCU wrote to Lord Smith back in September, asking to meet him, and today is the first time that we have met him. Professor von Prondzynski indicated his concerns about the timescales, and the committee has a difficult decision to make, but we are deeply concerned that the bill will refer to a code or principles that we are not happy with.

We had a tremendous opportunity to put together a meaningful code that would make a difference. I am concerned that what we have got is no significant change to what already happens. As I said, we have had a useful discussion today, but I am not sure whether, in the short time that we have, there is a process for us to reach agreement. I am not trying to be difficult, but that is my concern. My members would be concerned if what we have here is what they are going to get in August. That is also the holiday period, and we need further scrutiny of the draft code.

We have made some helpful progress on rectors. I thank Lord Smith for that. However, Robin Parker has raised the issues of interviews and remuneration. I saw you scribbling down some notes, Lord Smith. Do you have any views that you want to express at this point, given that you have been so helpful on rectors?

It is not necessarily a concession.

No, but I noticed you making notes.

Simon Pepper may want to speak on both those subjects.

Without getting down into the detail, which might take some time, I do not think that the evidence that the committee has received comprises the full response to the on-going consultation. We look forward to hearing the supporting arguments behind some of the points that have been made today—indeed, we look forward to hearing any other points that people want to raise. The group’s doors are open for suggested improvements, and we genuinely want to listen. I hope that we can close the gap that we heard about earlier.

There is another issue. In the end, whether we are moving far enough with the new code will be a matter of judgment for Parliament and the committee. We would claim that we are moving significantly further and that the changes that we have made—not least the fact that the code will be compulsory, which was not the case in the past—will cause a major shift in the culture of governing bodies in Scotland. If, in three to five years, the code is to be reviewed anyway in light of the experience of its early years, that is another safeguard. The proof of the pudding is in the eating, and if the pudding turns out not to be as expected it can always be adjusted in years to come.

Our firm advice is that the code will lead to the sort of changes that are being sought without being too prescriptive—we are confident about that. It should be borne in mind that we are talking about a very diverse sector with a variety of ways of operating.

It should also be about continuous improvement. One of the clauses in the draft code states that boards should look at themselves every year, but that is too cosy. Every three years, there should be an externally facilitated look at how they are performing. We need to watch them. If the code is in place in August, we should give peace a chance. However, it if is not working, something else must be done.

I have a couple of questions. One of the recommendations was that meetings should be held in public, which is different from what Professor von Prondzynski put in his report. He said that he changed his mind, given the implications for staff. However, we have just heard the UCU say that it is keen to have all meetings in public and that meetings should not be held behind closed doors. What is your view on that?

Our consultation received an overwhelming response against doing that. We have tried to say, “Look, you are part of a community, so when you talk about making changes you have to publish your agenda and your minutes, and you have to consult people.” By “people” I mean not just the university, but the surrounding district, as it were—stakeholders and people outside. The overwhelming evidence was that public meetings should not be held. There are examples: in Luxembourg, there was what amounted to a supervisory board; and in other areas, the process had to be abandoned because people would not criticise other people in front of witnesses and so on.

I know that in politics you people do this all the time; the process is absolutely open. Perhaps the higher education environment is more precious, but I would not like many of my private sector board meetings, for example, to be held in public. We can have a lot of discussion and argument behind closed doors and hope that we will present a united face. To do that with management and the court challenging people in public might be very difficult. However, we have gone as far against the consultation as I feel that we can. We have said that agendas and minutes should be published so that people can have their say. There is an argument for holding an absolutely open meeting once a year or so and seeing whether that works. If the effect of that is to drive the real decisions underground, we will not have made any progress. That is our concern.

I want to take us back briefly to the starting point as to why we need all these improvements in governance. The issue partly relates to the fact that there are still, quite rightly, hundreds of millions of pounds of public funding going into universities in Scotland. That means that there has to be a much more democratic and transparent approach to governance than there is in the private sector. The driver for all this is how we can increase that transparency. That is where the proposal to hold meetings in public comes from.

On the question whether there should be a compulsory code, one of the things that Mr Pepper said jarred slightly. The presumption so far from the committee of Scottish chairs has been that the code would be voluntary, on a comply-or-explain basis. It is very important, for a number of reasons—not least the fundamental principle that huge amounts of public funding go to Scottish universities—that the code should be a condition of grant with which universities have to comply. That is particularly the case when we are talking about publishing agendas and minutes of meetings, not all of which are published at present. If we are setting the bar that low, there has to be an expectation that universities will comply. If there is too much flexibility, issues will disappear in a sea of ambiguity, as it has been described elsewhere. Things need to be clear and tangible, otherwise they will not happen.

I want to respond to the comply-or-explain point. For me, that is not an option to opt out; it is an option for an institution to explain how it is meeting the code’s requirements perhaps in a way that is different from that prescribed in the code. That does not weaken the principle. It is up to the judges—the external scrutineers, the SFC or whoever—to say whether they are satisfied, if the method that an institution chooses to comply with the code differs from that prescribed in the code. I hope that that is reassuring.

It should be a condition of grant from the SFC. That is another point on which I agree.

On the comply-or-explain principle, the SFC has to use its discretion when institutions explain why they have not done something. I guess that that is where the ambiguity comes in. For instance, if a small, narrowly based institution—or, indeed, a larger institution that has a lot of private money coming in—feels unable to go the whole way on the issue, that might be difficult. The SFC should police the situation so that the institution does not get the money unless it complies.

Thank you. That was helpful.

We have heard concerns about the draft code from the UCU, the EIS, the NUS, student presidents and three out of the five members of the von Prondzynski review. My question is for Mr Pepper and Lord Smith. Why is there that level of concern about the code?

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You can read the evidence that they have given. They are concerned about, for example, union representation on various committees and stronger staff representation on, say, the remuneration committee.

I have been inundated with people writing to me and phoning me to say that they think that the code is workable, well researched and easily understandable and will actually work. I imagine that some university courts are wondering just exactly what they are going to make of it because—I know that Robin Parker and Mary Senior do not agree with me—it will push them further.

I agree. If I was in the shoes of the critics to whom Neil Bibby referred, I would be doing exactly the same. I would want to push the issue as far as I could. However, they slightly underestimate the force that the package of measures that we are introducing will have. I am very confident that it will cause a major change. We know that some universities have looked at the draft and are saying that they will have pull their socks up, and that is what we are looking for.

You say that the code is workable and that you have had positive feedback about it, and I do not doubt that for a minute. However, although we hear you say that, we also hear evidence from unions and people involved in the von Prondzynski review who are concerned about the code. Can you see why we might be reluctant to proceed with the code if there is no consensus or if there are two different opinions and a stalemate? I do not want to misquote von Prondzynski, but he talked about establishing the general principles before proceeding, but we do not have a finalised code and we do not have consensus in the sector.

I am not a politician so I do not understand how you deal with legislation—I do not understand all that. The code has been arrived at by honest people doing as much research as they can. There has been no establishment stitch-up, as someone described it. As a boy from Maryhill, I did not know that I had arrived in the establishment, but perhaps I have progressed a lot since I left Maryhill. People who know me know that I do not get pushed around.

I honestly believe that we arrived at the code by genuinely looking at the evidence. If it is not good enough, if people are not complying with it, or if the SFC does not apply pressure, it will have to be revisited. We took 19 recommendations and we completely accepted them in what we believe is the right way, subject to a bit more negotiation. Issues such as the Privy Council and the others that require legislation still have to be dealt with elsewhere, but we have done our best with the 19 recommendations that we thought we could apply.

The code could be in place by August. If it is not working shortly thereafter, people will know that. I do not know how long legislation on these things takes, but the whole thing might well be delayed. I hope that we get something workable.

I cannot help you with the legislation. If you believe that there is no agreement and you have to make a decision next Tuesday—hey, I do not know where you need to go from there. I think that I have indicated that Ferdinand von Prondzynski has fed several areas to us that we can accommodate, although they are relatively minor. You have heard what we think about the rector issue, which will require a complete rewrite. You have heard that we will look again at some areas. I believe that we have already dealt with the issue of membership of nominations committees. I will follow that through and see what it means for interview panels and so on because I do not know if I quite understand the issue. The remuneration committee issue is more difficult, but I will look at it.

I am quite happy to engage in some conversation about the code but I do not particularly want to meet all the unions in one block and then find that the chairs and then the staff who are not in unions need to see us, because I will never be able to deliver the thing in June.

You mentioned that you have been in dialogue with Professor von Prondzynski and that you are taking on board what the unions are saying. In the past two hours, we have not mentioned the Cabinet Secretary for Education and Lifelong Learning, who I understand will have the power to sign off the code. Have you spoken to him? Has he given his views?

I have had a couple of conversations with him. We always have to be careful when quoting a politician, but I understood him to say that he was happy with a lot of the code although he felt that the language was not aspirational enough. He was very concerned about the rector issue, and he wanted to look at the remuneration area more. There are some pretty common themes coming through.

I think that we have dealt with the rector issue, and as for the aspirational language, I will look at it again. I have said on the record that I will be bitterly disappointed if the code does not move the needle quite a bit on percentages and the genuine involvement of females, students and staff in opening up higher education governance a bit more. However, it is up to the higher education establishment to set the goals. If the code does not move the needle, someone else will have to pick up the issue and take it forward.

Who initiated the contact with the cabinet secretary? Did he approach you?

I actually cannot remember. I think that he got in touch with me, but it does not matter. He had not heard anything, and I simply wanted him to know that we were looking seriously at the issue. Is it improper for the cabinet secretary to be in touch with me?

Some people seem to think that it is, Lord Smith, but there you go.

Are there any other questions?

I have one final point. Mary Senior suggested that she had written to you but there had been no engagement. As always, I am trying to be conciliatory. Is it possible that that could happen?

It is logistics, apart from anything else. I know that if I do not answer a question straight, you will call me a lawyer, and I am not a lawyer.

I would not insult you that much.

If I have direct dialogue with the unions only, what happens then? Do I have to go back to the chairs of court and those who are not members of the unions?

Come on—we are talking about a significant group of the people who form the academic backbone of these institutions. Surely you must speak to those people directly.

One of the principles set out in the code that is recognised by everyone is that staff and students should be involved at every level of the process. How that happens is complicated for staff and the UCU would like to see it go further, but staff and students have always been involved in universities’ governing bodies. We should be taking that principle to the next level when deciding how the code is decided on and maintained.

Mr Findlay, I have heard what you have to say, so let me take it away and we will see what we can do about having a direct dialogue, as long as it does not wreck the whole timetable and consultation in other areas. I am sorry, but I do not want to give you a direct answer right now. However, I have heard you loud and clear.

Thank you.

I thank all the panel members for coming along this morning. We appreciate your giving up your time to assist us with our discussion of the draft code.

13:08 Meeting suspended.

13:11 On resuming—