Education and Culture Committee

Meeting date: Tuesday, January 15, 2013

Official Report 571KB pdf

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Post-16 Education (Scotland) Bill: Stage 1

Agenda item 2 is our first oral evidence on the Post-16 Education (Scotland) Bill, which was introduced last November. I welcome Michael Cross, Col Baird, Gavin Gray, Ailsa Heine, Danielle Hennessy and Tracey Slaven, who are all officials with the Scottish Government. Our purpose is to get a factual update on what the bill will mean in practice. The committee will, of course, separately take evidence from the Cabinet Secretary for Education and Lifelong Learning at a later meeting. I invite the officials to make a brief opening statement.

Thank you very much indeed for inviting us today to discuss the bill. I make it clear that my responsibilities include the college regionalisation project, and I also have general oversight of the bill.

I know that members are familiar with the bill’s content, and I want to explore its detail in discussion, so I will not take up much time with this statement. However, I thought that it would be helpful, to inform discussion, to set out in no more than five minutes the context in which the bill sits and to give a brief overview of its six key areas.

The first key area is college regionalisation, which clearly forms the most substantial part of the bill. It is, self-evidently, a central element of our wider college reform programme, which is well under way. The bill is not needed to deliver college mergers or the significant efficiency savings that the Scottish Further and Higher Education Funding Council expects institutions to realise, but it will establish a new approach to college governance in supporting the new regional structures and reflecting the different approaches that colleges are taking in the regions.

The bill will also deliver ministers’ ambition for greater diversity in college and regional boards, which will help them to achieve their aims and build links across their communities. The proposed new arrangements for boards’ constitutions and appointments will improve public accountability by clarifying what is expected of college boards and their members. It will do so in the context of the existing arrangements for clear accountability for funding and the new regional outcome agreements.

For example, the new provisions for removal of college board members set out clearly the matters for which board members will be held responsible. In doing so, the provisions respond directly to the views that were expressed in Professor Russel Griggs’s independent “Report of the Review of Further Education Governance in Scotland”, which was published last January. Professor Griggs noted in the report that one reason why the current governance model is not working as it might is the lack of clarity available to boards.

The second area is higher education governance. The bill will be a significant step in implementing Professor von Prondzynski’s recommendations—specifically, by supporting the adoption of the new code of governance, which the HE sector is developing. The provision is based on striking the right balance between recognising the responsible autonomy of the independent institutions in the HE sector and the need to ensure that there is in place appropriate assurance that is consistent with substantial public investment.

The third area is the new provision on widening access to higher education, for which there is broad consensus on the need for further progress. The bill supports an approach that has been adopted in recent years and which is based on developing individual access agreements with institutions, and it provides that ministers—when, in turn, they provide funds to the Scottish funding council—can require the SFC to consider institutions’ delivery against widening access agreements that they have concluded.

Fourthly, the bill will introduce a new power to ensure that the SFC can proactively review the structure and provision of fundable further and higher education. The SFC already has a duty to exercise its functions for the purpose of securing coherent provision, but the bill provides a more explicit mechanism to conduct a review of the overall delivery landscape. That will give the SFC a clearer remit to use the evidence that it has available to it to ensure that the structures that we fund operate as effectively as possible.

The new power will not change our sustained relationships with institutions on matters of autonomy or academic freedom and it will not give ministers new powers to dictate what universities or colleges teach, or to force institutions to merge. However, provided that it secures ministers’ consent, it would give the Scottish funding council a clearer mandate to discuss with institutions evidence of, for example, unnecessary duplication that is to the detriment of learners and wider public investment.

The penultimate area is the provisions on tuition fees, in respect of which the committee is well versed in the arguments that apply and aware that a voluntary agreement is already in place. The bill simply aims to give ministers powers to set an upper limit by order and, when providing funding to the Scottish Funding Council, to impose conditions that ensure that institutions adhere to that upper limit.

The final area is data sharing. The bill provides for ministerial powers to develop secondary legislation that will specify the bodies that will be required to share data with Skills Development Scotland and set out the information that needs to be shared. The background is that, for some years, Skills Development Scotland has operated a database that allows staff to target their activity at young people at risk. The bill’s provisions would allow more consistency in information sharing, which will better enable SDS staff to identify those who are in need of help, and allow it to offer the right intervention to help those young people to re-engage in learning.

I hope that that is a helpful overview that sets the context for our discussion of the bill’s provisions. We are, of course, happy to take any questions. I have with me the colleagues who are working on the detail of each of the policy areas that I have described, and our legal advisor. The appropriate experts will pick up members’ questions, so I will make it clear who does what because that might help the committee. Tracey Slaven leads on higher education; Danielle Hennessy and Col Baird are the policy experts on college governance; Gavin Gray is the bill team leader, with responsibility for general matters relating to the bill; and, of course, Ailsa Heine is our legal officer. We are now in your hands, convener.

Thank you very much. That was an extremely helpful opening statement. I will take the bill section by section—although not necessarily in the order that they are in in the bill. We will begin with university governance. I ask members to indicate when they wish to come in, but we will keep questions to one section at a time before we move on.

What are the definitions of governance and management in relation to the university sector?

The focus when we were working on that area of the bill was on governance and strategic management. We have no interest in telling universities how to organise their academic management or how they run the university body. The phraseology in the bill refers to governance and management. Discussion with the sector has indicated that the focus on strategic management may have some unintended consequences and that that has gone slightly wider than we anticipated. We are therefore happy to talk with the sector about the detail of that as we get to stage 2.

The policy memorandum says:

“Ministers expect that the SFC will have regard to ensuring that such governance conditions are applied appropriately for different types of institution.”

Is it your expectation that that will be to do with governance or might it, because of the wider possible definitions that you have described, also affect management?

Our interest is absolutely in governance. However, that flips into some strategic management issues, such as when the secretary of a chair of court has management responsibilities. We want to define clearly their governance and management responsibilities in the code. We are interested in that strategic level of management, but have no further interest.

I would like clarification. Universities have been putting together—as requested by the Cabinet Secretary for Education and Lifelong Learning—a code of governance, to which I hope they will all sign up. Is it your understanding that that code will be agreed with the university sector and that the existing United Kingdom code will no longer apply when the bill is passed?

Yes. It is intended—as is clear in the policy memorandum—that the document in which we will seek to provide best practice in governance will be the Scottish code of good governance. That will be the specific reference point for Scottish institutions.

Does the code, as it is being drawn up, refer to “management”?

The code is at an early drafting stage. I do not expect it to be running into detail on management of organisations.

You said that, if management was to be discussed, it would be at strategic level. Will you give us examples of how that might happen?

10:15

The best example would be the secretary to the university court who is responsible to the court for its operation, but who also has management responsibility within the institution. Clarity about potential conflict between the university-secretary role and the managerial role would come at strategic level.

Is that it?

The provision is about strategic issues of that kind, and nothing more detailed than that.

Do you mean that there is no more detail at present?

No. I mean that our interest does not extend beyond strategic issues of that kind.

You said that the code of governance is at an early stage of development. Does that mean that you do not expect it to develop into areas other than the narrowly focused ones that we are discussing?

I do not expect it to develop into other areas. The code’s development is being led by a working group under Lord Smith, which has been put in place by the chairs of court. The conversations that pre-empted the group’s establishment were very much focused on governance, and the group is focusing on how to implement the HE governance review, in addition to aligning with the elements of the UK code that it is sensible to take forward.

To clarify the timing, we expect that Lord Smith will submit his draft report to the chairs group around the end of March, so it will be available as we move into stage 2 of the bill.

I am sorry—I did not catch that last bit. Did you say that a draft of the code will be available before stage 2?

That is my understanding of the timetable to which Lord Smith is working.

I will move on to a slightly different question on the same matter. If, once the code has laid down the principles of good governance and management, an institution fails to comply with it, what sanctions would be appropriate?

We need to be clear that such matters would be part of an holistic assessment of the institution’s performance by the Scottish funding council. The assessment would concern the institution’s future funding and would be about ensuring that it represents good value for public investment. Adherence to the code would be one of a number of elements that the funding council would review in making that assessment.

Other elements will include compliance with consolidation limits for filling funded places. The agreements on widening access fall into the same category.

Are you saying that if, for example, a higher education institution complied with the widening access agreements and all other matters but completely failed to comply with the code of good governance, there could be no sanctions?

That would depend very much on the assessment. If there was a complete failure to operate to any standards of good governance, action would obviously need to be taken. If it was a matter of the institution failing to comply with, for instance, an element of the code of good governance because that university’s particular circumstances meant that there was a strong justification for why a different approach had been taken, that might justify taking no action in the immediate future, provided that there was a commitment to move forward.

I can understand why, if there were sound justifications for a different approach, you would not take action. That is perfectly reasonable. However, if an institution said that it did not agree with the code and simply did not wish to comply with it but the rest of its operations were perfectly satisfactory, would sanctions be taken or not?

In those circumstances, the funding council might well decide to impact on the future funding of that institution.

When you say that the funding council could

“impact on the future funding”,

do you mean that its money could be reduced?

Yes.

Right. I just wanted to be clear about that.

Do other members have questions on university governance?

I have a question—just to make sure that I have got this right. We are referring to a management code that we cannot see, but are being asked to scrutinise it.

That is correct. The draft code is under development. A process of strong and detailed consultation is under way with all higher education institutions throughout the country and their staff and students. As I said, the draft should be ready to go from Lord Smith to the chairs of court group at the end of March, so the initial documentation will be available as we go into stage 2. The timing of that development is the reason why the bill as currently drafted refers to generalities, although our intention is made clear in the policy memorandum.

This is a general question that is not for anyone in particular. Is it unusual that we are being asked to scrutinise proposed legislation that is, in effect, incomplete?

Does any member of the panel have a view on that?

I would not say that the bill is “incomplete”. The provision gives ministers power to impose conditions in relation to governance or management,

“which appear to ... constitute good practice”.

If, for some reason, the code does not appear to ministers to constitute good practice—for example, if it is not developed fully or if ministers decide that another standard can be used—it need not be used to set the conditions. Therefore, I would not say that the bill is “incomplete”, because it simply gives ministers the power to impose conditions and to set a standard that they consider to be appropriate. As Tracey Slaven said, the current intention is that the code of good governance will be used, but ministers’ intentions may change if that code does not come to fruition, or for some other reason.

I will ask the question in a different way. Would it be helpful if members had seen, or were to see, the code of good governance?

As I said, at the moment, the policy intention is that the code will be used but, under the bill, it is not the only standard that ministers could use. So, from a policy point of view—

I am sorry to interrupt, but I want to ask the question in a slightly different way. What is Parliament’s role in relation to the code?

At the moment, Parliament has no role in terms of looking at the code.

There is no role for Parliament; the matter is entirely for ministers to decide.

Yes. Under the bill, it is for ministers to determine what they consider to be the standards of good practice.

I am sorry to persist, but I want to clarify the relationship between the UK code, Lord Smith’s changes that you expect in March, and the Scottish code. I ask again: will the Scottish code stand on its own and is it about governance and management?

The Scottish code will stand on its own. I anticipate that it will include elements that are in the current UK code and which our Scottish institutions have comprehensively agreed as being best practice. The code will also address further steps forward in governance best practice that were identified in the HE governance review. The focus of the code will be governance.

What specific issues would you like guidance on in relation to the UK code before the Scottish code is finalised?

I am not looking for guidance on any elements of the UK code; I simply expect the Scottish code to carry forward parts of the UK code that are not areas of debate in the Scottish HE governance review.

So, why cannot we progress more quickly?

The issue with the Scottish code relates to the development of the facets that were identified in the governance review. In the absence of the code or in the event of any delay in that respect, ministers will be able to adopt the United Kingdom code as the standard of best practice until the new Scottish code is ready.

I have a final question on university governance. The policy memorandum states that

“governance conditions”

should be

“applied appropriately for different types of institution.”

What do you mean by “applied appropriately”?

The Scottish HE sector has 19 higher education institutions that vary hugely in scale, and the flexibility that you have highlighted will serve to reflect those differences in scale and the organisations’ missions. Best practice in governance with regard to membership of a court, for example, might differ slightly between, say, Glasgow School of Art and the University of Edinburgh, so the code will have to be flexible to deal with the scale and nature of bodies. We want to ensure that flexibility is built into the code instead of having a kind of “comply or explain” approach in many different areas.

Thank you very much.

Clare Adamson has questions about section 3, on widening access to higher education.

Good morning. Some HEIs have indicated that they will use the Scottish index of multiple deprivation to determine criteria for widening access. What other information might be taken into account in identifying people who might be from disadvantaged backgrounds but who do not necessarily fall into that specific category?

Secondly, on funding, although the policy memorandum states that

“Improving participation among the most disadvantaged is not about displacing more able students”,

the financial memorandum says that

“There would be no new or additional budget required for widening access activity as a result of the Bill.”

Given those statements, how will displacement be avoided?

I will answer the questions on widening access.

The bill talks about widening access in relation to socioeconomic characteristics. In the widening access agreements that have been developed voluntarily between the institutions and the funding council, the focus has been on the lowest 20 per cent and the lowest 40 per cent in the index of multiple deprivation. However, the issue is not simply about the number of individuals in those categories, but about ensuring equality of access across the range of subject areas. In other words, if the participation rates by those groups were found to be lower in particular subject areas, that might well be identified in an individual institution’s widening access agreement.

There is also the potential for individual institutions to focus on particular geographies. A good example is the provision that is being developed by the University of Glasgow and the University of the West of Scotland on the Crichton site in Dumfries in order to recognise the combination of low socioeconomic and geographic participation rates. It is not simply a case of saying, “Well, because you fall into this or that category, you’ll get some kind of advantage.”

We are absolutely clear that the approach is not about displacing students of higher ability. Instead, we are trying to create a level playing field to ensure that students’ ability can be fully recognised. We are not seeking simply to adjust individual institutions’ entrance qualifications; this is a much more complex and sophisticated full-system approach.

We recognise that schools and parents have to be supported to help raise aspiration, motivation and qualifications, but it is also for the universities to look at more sophisticated ways of assessing ability, rather than just doing so through individual exam results. The top-up scheme at the University of Glasgow requires students to demonstrate capacity and ability before they are given an offer that would in any way deviate from the standard offer that the university would make.

10:30

I have a question on the same subject. In Paisley, in my constituency, UWS has a large demographic of people from various backgrounds—the 19 institutions that you mentioned are not all the same. The media tends to go just for St Andrews and mentions it all the time as an example, but the UWS’s situation is that, because it has a broad spectrum, retention is the problem. The issue is not just of getting people into higher education but of retaining them because the challenges those people face remain throughout their time at university. Are we doing anything on that?

The widening access agreement will cover that scope. It is not simply about a target for the number of individuals from a category; it is about making sure that we increasingly focus on the outcomes for those individuals. Therefore, the focus in the widening access agreement for the UWS may well—and probably should—relate to retention levels and making sure that the individuals are best suited to the courses that they are on. In other areas, the issue will be about changing the number of individuals at the access level. In some other instances, it may be about focusing on articulation: making sure that the right arrangements are in place for students who choose a vocational route and need access in third year.

When you answered one of Clare Adamson’s questions, you spoke about a more accessible way of assessment. One of the things that the public always complain about—again, this is media led—is the idea that people with fewer academic qualifications will get preference over others. How would a more accessible way of assessment work? Would it be part of the universities’ agreements?

It absolutely will be part of the individual widening access agreements. Glasgow has its top-up scheme and the University of Edinburgh is moving to develop bursaries to encourage students from other areas and lower-income households to consider Edinburgh as an option. A number of institutions are establishing summer schools to take in students who perhaps have not had experience of higher education, in order to make institutions appear accessible and to support those students in demonstrating their capability and capacity. That work will be very much part of individual institution plans to address individual access issues, rather than there being a one-size-fits-all solution.

I have a very simple question. Can you direct us to the parts of the bill that you feel can provide additional benefits on which the universities are not already undertaking work without legislation?

The statutory basis for widening access agreements will take us a significant step further. The progress on widening access has been relatively slow—we have had something like a 1 per cent improvement over the past nine years. The discussion about widening access on a statutory basis has made substantial progress in the past 12 months as we have discussed it with the sector, and that underlines the need to provide a statutory basis for the widening access agreements—to get the step change that we are looking for.

I want to follow up on Clare Adamson’s question. Without new moneys for universities for widening access activity, how will you increase the number of students from disadvantaged backgrounds and not displace any other students?

Access to university has been and will continue to be competitive. We are trying to level the playing field so that it is based on equal access with regard to academic ability. That is slightly different from access based simply on higher and advanced higher results, as under the current circumstances. This is about putting competition on a more level playing field.

On there being no additional money for widening access, we are operating within the spending review settlement. However, we took the opportunity before Christmas to use the funding council’s flexibility within the budget settlement to identify agreements with individual institutions about increasing places that could be specifically allocated for widening access, and to support articulation of students into year 3.

I refer to George Adam’s point about retention. I take it that there will be no additional moneys to provide additional financial support to students from disadvantaged backgrounds.

The changes to the student support package that were announced on 22 August last year are designed to help support students from disadvantaged backgrounds by meeting the £7,000 minimum income guarantee through a combination of student loans and bursaries. The package also provides support for middle-income families by providing an increase in the non-income-assessed student loan of up to £4,500 per student per annum. There is no requirement on a student to take that, but the flexibility exists if they need to draw on those resources.

But apart from that, there are no plans for additional finances to help students in the bill.

Not in the bill—no. Those announcements were made last summer.

My question is on a similar theme. You rightly pointed out that different institutions are taking different approaches—which is sensible—but you also talked about levelling the playing field. For the financial reasons that you have articulated, it is difficult to see how there will not be a displacement effect.

The levelling of the playing field presumably means that there will be a more sophisticated interpretation of qualifications and wider capabilities and aptitudes, but it leads me—and, I think, many people—to assume that, given the competition for places, some people who are accessing courses on the basis of the way in which the system works at present will not be able to secure places under the provisions in the bill. Is that a fair assessment?

As I said, access to university is competitive. What we are trying to do is to place that competition on the fairest possible basis. Some potential students who hope to get access to university will not do so, but we are trying to put competition on the fairest possible basis and look properly at the ability to learn and contribute.

There is a trade-off, in a sense, between fairness and an element of displacement.

Yes.

I have a couple of questions. First, will you explain to the committee the relationship between the future widening access agreements, which will be statutory, and the outcome agreements, which are non-statutory? How will they work together?

The issue is primarily about efficiency and good relationships between the funding council and the individual institutions. The outcome agreements will focus on a number of strategic issues that are likely to change and develop over time. The current focus is on knowledge exchange and some issues around coherence.

The widening access agreement will sit within that and will have a statutory basis. It will be a separate section of the outcome agreement, and it will operate in parallel with the development of the outcome agreement, simply because it would not be sensible for the funding council to have multiple conversations separately about the different issues.

The statutory footing for widening access reflects the importance of making progress on the issue and the longevity with which it will need to be addressed by the sector.

In effect, widening access agreements will be a subset of outcome agreements.

No—the widening access agreement will be a widening access agreement. The conversation will sit within the outcome agreement and they will be published together, but to describe widening access agreements as a subset suggests a prioritisation that is certainly not implied by the policy.

Let me move on to the slightly different issue of consequences, which I asked about earlier. If a higher education institution does not comply with its widening access agreement or in some way fails to reach its target, what will be the consequences?

Under section 3 of the bill, new section 9B(2) of the Further and Higher Education (Scotland) Act 2005 will provide that:

“The Scottish Ministers may, in particular, impose a condition that the Council, when making a payment to a higher education institution under section 12(1), must require the institution to comply with a widening access agreement of such description as the Scottish Ministers may specify.”

Therefore, if ministers impose a widening access agreement as a condition, the higher education institution must comply with it. Given that statutory underpinning, what will be the consequences of an institution failing to meet its widening access agreement targets?

The consequences would be in terms of the institution’s future funding from the Scottish funding council. However, I would not expect to see significant failures against the widening access agreements because, although ministers will specify the existence of such agreements and the general form that they should take, each widening access agreement will be developed between the institution and the funding council. The institution should clearly express its intent on both the targets that it intends to reach and the actions and behaviours that it will demonstrate in achieving them, so there should be clarity on how the widening access targets will be reached as well as what the targets are.

I have a follow-up question. Is there not a risk that the system of penalties may make it more difficult for individual institutions to achieve the targets in their widening access agreement? We all assume that achieving those sorts of objectives is likely to take up more rather than less resource, so the risk is that we could end up in a downward spiral in which institutions are punished for not meeting their targets and therefore have fewer resources to meet their targets in future.

We are operating on the basis that we would not want to see penalties imposed, and the process includes both a carrot and a stick, if you like.

As I described earlier, additional places are being provided within the current financial settlement and some of those are for widening access, so additional headroom is being created for individual institutions that have expressed difficulty about taking things forward. We are trying to be balanced in our approach, but we very much want to see progress. We think that the institutions are committed to widening access, and the statutory approach provides a strong basis for that going forward.

With the statutory basis having been put in place, it would be difficult to ignore examples of where the targets are not met, so we could be locked into a process whereby institutions that are struggling to make their targets end up in a downward spiral in which they have fewer resources to meet the requirements that are imposed on them.

We are very clear that we are not designing a system that is intended to make institutions fail. The institutions will be directly involved—in fact, they will lead the process in setting their targets—and they can bid for the additional places that will be provided to help support them in doing that. The application of penalties will be a last resort where the process has not worked.

I have a final question on widening access. You mentioned that we are not designing a system that will cause institutions to fail on widening access, but can you explain further—I know that you have mentioned this briefly already—how exactly the agreements are negotiated? I presume that the higher education institutions contribute to the process. Can you lay out what that process is?

For the process of developing the widening access agreements and the outcome agreements that they sit alongside, a lead within the Scottish funding council has responsibility for the relationship with the institution to ensure that the funding council understands the context and the broader strategic objectives of the institution.

There will be a team at the individual institution who have responsibility for the outcome and widening access agreements and who will draft the agreement. The writing of the agreement is undertaken by the institutions and signed off by the university court. The process is very much designed to support the universities in moving towards improving and widening access.

Thank you. We move on to talk about college regionalisation within the bill. The first question is from Colin Beattie.

10:45

I am really looking for a bit of clarification. As I understand it, the regional strategic bodies will take charge of the funding from SFC for the colleges for which they are responsible. How is that going to work? Will the colleges make bids to the regional strategic body for funding? If so, does the regional strategic body receive support from the SFC? How will that work?

At the outset, the hierarchy of funding will be as it is at the moment. The Scottish Government will apportion funding to the Scottish funding council and give policy direction in relation to that. The funding council will then distribute that funding to the regional strategic body.

A regional strategic body has a planning function, and the colleges that are assigned to the body must have regard to its plan. The distribution of funding will therefore come through the discharge of that planning function. It will not be a bidding process.

So the colleges will make their bid for funding through the regional strategic body, which gets funded and then disburses that money.

There is no bidding process. In establishing its plan for the region, the regional strategic body must take account of how the funding has to be apportioned across the colleges in that region.

Therefore, there will be a discussion between the regional strategic body and individual colleges: they will put their heads together and hopefully come up with what they need and what they will get, and then they will apply to the SFC. Is that right?

There is no bidding process between the regional strategic body and the Scottish funding council. The Scottish funding council will apportion funding to the regional strategic body based on its overall financial settlement and policy direction from the Scottish Government.

So the SFC funds the regional strategic body on the basis of what it perceives to be the need of the colleges and then the colleges, together with the regional strategic body, will decide how to cut that cake. Tell me if I am off on the wrong track here.

The Scottish funding council, in line with its settlement for the college sector, makes funding available across the country. In the areas that have a regional strategic body, it will make its funding available to that body. The regional strategic body will have agreed a delivery plan that reflects the outcome agreement with its constituent colleges, if I can put it that way. Those colleges will take their funding from the regional strategic body.

I want to ask another question but, before I do, I seek more clarification. What is the difference between an incorporated and unincorporated college?

An incorporated college has a board of management under the Further and Higher Education (Scotland) Act 1992, but a non-incorporated college does not.

My understanding is that the regional strategic bodies will have a role in making certain appointments to the boards. For which appointments to the boards will it be responsible?

Only regional boards will have those appointment powers. They will appoint the boards of the colleges that are assigned to them.

The regional strategic bodies will be able to make appointments to the boards of incorporated colleges. The appointments they make will effectively be the chair and all the ordinary members of the college board, such as the members who are not the staff member or the student member.

They cannot appoint the staff member or the student member.

That is correct.

But they will be able to appoint everyone else.

Yes.

Is a process for that being put in place?

The intention is that the ministers will issue guidance to the regional strategic body on the experience and background of the sort of people whom it should appoint and on the process for that appointment. Professor Griggs’s review recommended that public appointments be open and transparent, and the intention is that the guidance will outline that such a process should be adopted. In other words, it would be a competitive process, in general.

The appointment would be advertised; it would not just be arbitrary.

That is correct.

I want to follow up on a couple of those points; I also have a couple of separate questions.

In his opening remarks, Michael Cross referred to the role that the SFC would have in removing unnecessary duplication, which I presume it would exercise across a region. There is something that I am struggling to understand. If a regional strategic body takes a view on the provision in that region, I presume that it will have already gone through the process of determining what provision is necessary and what provision is less necessary. Therefore, the funding council will, I presume, have less of a role in such decisions than it has had up until now. Is that right?

You are absolutely right. In my opening remarks, I think that I was trying to make clear how the funding council might take a role in relation to the proposed duty on a strategic review of provision, as opposed to the exercise of dispersing funding to regions as part of the annual allocation of funding.

That is helpful.

In terms of the University of the Highlands and Islands—

Are you moving on to a different subject? A couple of members have questions on the previous topic.

That is fine.

We will come back to you.

I have a question for Ms Hennessy. There is no bidding process—I understand that. Could you be very specific about the criteria that will be used to accord funding to the colleges within the regional set-up?

Nothing is proposed in the bill to specify any such criteria. The establishment of such criteria would be a policy and operational matter as the bill came into force.

How does that affect accountability when it comes to the regional board?

In what respect?

If the regional board is accountable for the decision on how to spend public money on the different colleges in its region, can you tell us a bit about how that accountability will be measured?

The accountability hierarchy is as it is now, as I think that I said earlier. The funding flows from Government to the funding council and then to a regional college if it is a single-college region or, if it is a region with multiple colleges, to a regional strategic body and then on to the colleges to which it has been assigned. The accountability flows up and down in that way. Through the funding council, it flows back to Parliament.

There is no legislative accountability of the individual colleges in a region. Is that correct?

The accountability operates within the hierarchy that I have described.

So there is no public accountability of those colleges in the context of the bill.

I suggest that the public accountability comes through the boards’ accountability. As you may have noted, the bill proposes an extension of the grounds for removal of board members. In doing so, it makes clear what is expected of them as regards the proper running of colleges. The greater clarity on the expectations of the role board members provides improved public accountability.

Will the members of the regional board include people who are accountable in terms of their own colleges?

I am not quite clear—

Will some members of the regional board be assigned by individual colleges in the region?

There is no such specification of the board membership.

So there is no public accountability in the bill in that regard.

Not in the terms that you suggest.

The bill does not provide for—again, forgive me for using this term—constituent colleges to assign members of their boards or others to the regional board.

Would the staff and student appointments go through the public appointments system to be endorsed by the minister?

No, there would be no need for ministerial endorsement of those appointments. The student member in, say, a regional college would be entirely a matter for the student association and, like the provisions just now, the staff members will be elected by staff in the college—that will not change.

That is for election to the regional board.

It is the same for the regional board. There would be only a slight difference in student numbers if there were more colleges than places, but generally it will be students nominated by the student association or staff members elected by staff.

So there is no provision in the bill for us to stipulate that there will be elections for those posts.

There would be elections for staff members in the new set-up as there is in the current process.

Is that stipulated?

Yes.

That is fine.

I will follow on from that theme and perhaps go back to the one that I was going to raise previously.

On the powers of removal, Danielle Hennessy said that the bill provides more clarity on the terms under which removal can happen. To what extent is the bill extending ministerial powers to remove either chairs or members of the incorporated colleges or regional boards?

The bill proposes an extension of the grounds for removal of board members. It proposes extending existing mismanagement grounds to grounds that, if you like, pertain more to a failure in outcome. An example of that would be failure to deliver education of an appropriate standard.

Are you comfortable that failure is fairly tightly defined and that we will not end up with a failure to see eye to eye with the minister being a reason for either a chair or a board member being removed?

The criteria are absolutely specified in the bill and are additional to the existing mismanagement grounds.

I appreciate that a distinction is made for the Highlands and Islands. I welcome that approach and, indeed, the undertakings that the cabinet secretary has given in relation to non-incorporated colleges, a number of which are to be found in the Highlands and Islands.

I am aware, though, that there are concerns about having a regional strategic body in the Highlands and Islands, as it appears to create a level of duplication that might have a knock-on impact on the funding that finds its way down to the constituent colleges in the region. Can you explain the rationale for the make-up in the Highlands and Islands?

Unlike the other regions in which there will be more than one college, the Highlands and Islands will have the University of the Highlands and Islands—a higher education institution—as the regional strategic body. For comparison, Glasgow will have a new legal entity in the form of the Glasgow regional board.

The reason for the difference in the Highlands and Islands is that UHI already exists. Colleges in the region deliver higher education as an academic partner of UHI, and ministers felt that, given the institution’s existence, there is an opportunity to enable it to be a more truly tertiary institution by giving it—in effect, although there are some differences—the regional board functions that the Glasgow regional board will have.

Does a separate regional strategic body need to be established? Is it not simply possible to recognise, as you say, that UHI currently exists and therefore to deal with it as the strategic body and the filter through which the funding goes?

That is what the bill does: it designates UHI as a regional strategic body; it does not create in UHI a separate entity called a regional strategic body. It is a designation of UHI, which means that we can confer specific duties on UHI in its capacity as a regional strategic body.

11:00

So, from your perspective, UHI should not require any additional resource or to spend time on doing things that it currently does in a different way, in order to satisfy the provisions of the bill?

The UHI as an institution will certainly have additional duties because it will expect to distribute FE funding for the first time, but there is certainly no new infrastructure. The UHI as an institution will look at its own internal structure to accommodate the new duties.

That suggests that there may be a problem. At a time when resources are limited in both the FE and HE sectors, some of the resources will be held at the centre in order to meet the requirements of the bill, which will mean that there is less for the constituent colleges within the UHI region to spend on FE or HE provision.

That is a general point about the establishment of any regional body in a multicollege region.

With respect, whatever our positions on college regionalisation, we would all accept that there are savings to be made through that process. The glaring exception to that would appear to be the UHI, where there is a structure in place and the risk is that, far from creating savings that can be reinvested in course provision, whatever that may be, the resources that are available will be deployed more on performing the central function than is the case at the moment, whether at Orkney College, North Highland College or wherever.

Yes, that risk exists. However, we would want to mitigate it as far as possible by working with the UHI to develop the leanest and least bureaucratic arrangement that we could manage for the new role that it assumes as a regional strategic body.

You mentioned reducing duplication of courses. Will regional boards be expected to rationalise courses? If so, how will the impact on local colleges be assessed? For example, currently they might be providing X number of courses at a local college and the regionalisation and rationalisation of colleges might mean that those courses will not be provided any more. Will there be an assessment of what is currently provided and what will be provided under a regional structure?

The role of the regional strategic body is to conclude a regional outcome agreement with the Scottish funding council. We expect it to do that in wider consultation with regional partners including the constituent colleges. Part of its efforts in developing a regional outcome agreement may include some sort of rationalisation where that is in the interest of the learners. However, it is not an effort that the regional strategic team will make in isolation; they will undertake the planning exercise with a range of partners, many of whom will have their own contribution to make to the regional post-16 learning offer.

If a student in Clydebank, for example, currently studies a course at their local college, what assessment will be carried out of the transport and travel costs if that course is no longer provided in Clydebank but is provided in Greenock? What assessment will be carried out of the likelihood of that student travelling to Greenock? In removing duplication from a local college, what assessments will be made?

We expect regional boards to take that sort of matter into account as they develop a regional outcome agreement and any rationalisation that is implied in that regional outcome agreement. This is about enhancing the effort for learners, and additional travel costs, for example, would naturally be a matter that we would expect the regional board to take into account.

My question follows on from Liam McArthur’s questions about UHI. Does this mean that there will be a different relationship between the UHI board and ministers than exists in other regional set-ups or will the ministers have the same powers of removal in respect of UHI as they will have in respect of regional bodies? Might we have staff and student representatives at a regional strategic level in some but not all areas because in other areas they will be on the college boards?

Ministers will certainly not have the same relationship with UHI as a regional strategic body as they would have with, say, Glasgow regional board. For example, they have no power of appointment or removal in respect of UHI.

As you have said, the bill also makes provision for regional boards to include staff and student representatives. However, it makes no mention of the constitutional make-up of any board with regard to UHI; that would be a matter for the articles of association of UHI, which, after all, is a company limited by guarantee.

Does that not in effect make staff and student representation in the Highlands and Islands region less than in other areas?

Not necessarily. A working group report made recommendations on what a UHI FE committee might look like in order to discharge its role as a regional strategic body. The proposals are different from those in the bill, but they certainly covered staff and student membership.

Coming back to the powers of ministers and the like, I remind witnesses of the recent tiff between the cabinet secretary and the chair of Stow College, during which the cabinet secretary lamented the fact that he did not have the power to remove the chair. Will these changes give him such powers in the future?

The bill proposes that the grounds for removing board members be extended as I outlined previously. In addition to the existing grounds of mismanagement, grounds will include, for example, the failure to deliver education to an appropriate standard.

As the case that you have cited or indeed any such case relates to a board member’s personal conduct as a figure in public life, not to an individual discharging his or her functions for the board’s effective running, the matter is the responsibility of the Commission for Ethical Standards in Public Life. Nothing in the proposals alters the current position in that kind of case.

So at all levels the issue is the personal conduct of a board member, who would have to be referred to the Commission for Ethical Standards in Public Life or whatever it is called these days, which would decide on the sanction.

Exactly.

And could a person be referred to that organisation by anyone—the cabinet secretary, for example?

I think that that will be the case.

I suggest that if you are not absolutely sure, you should provide us with clarification after the meeting to ensure that we are absolutely right on that point.

I want to ask about the different approaches to changes in higher and in further education. Earlier, witnesses talked about respecting the autonomy and independence of higher education institutions whereas, with further education, the Government is setting up regional strategic boards that will have a direct effect on colleges’ strategy, courses and funding. Why has it chosen to take different approaches to further and higher education?

I suggest that the fundamental rationale is that different levels of public investment are involved. The Government has a deep stake in the outcomes that it expects from the further education sector, as it typically contributes something in the order of 75 per cent of colleges’ income. Through the regionalisation programme, we are trying to create a more coherent approach to securing outcomes throughout Scotland for that significant level of public investment.

The position is different for universities. Perhaps Tracey Slaven would like to say something about that.

The position with the universities is somewhat different from that with colleges. As Michael Cross indicated, the Scottish Government provides colleges with a substantially greater proportion of funding than it does universities. The amount varies across the sector, but the majority of funding for the research-intensive institutions may come from non-Government sources.

Also, with our further education colleges, we are focusing on ensuring that there is a match between local and regional need and local and regional delivery. Although our universities provide local academic provision, they are much more heavily focused on provision at the national and, indeed, international level.

A difference in mission, as well as a difference in funding, drives the differences in approach.

There may be a case for regular reform in further and higher education. Why have you chosen to make the changes to further education through legislation but make the changes to higher education through agreement? Why can you not make the changes that you wish in further education through agreement like you are doing in higher education?

It simply reflects the different changes to which we are giving effect in further education. In essence, we are changing the map of how further education is delivered in Scotland, and that requires a different approach to the one that we are taking with the universities. For example, we are introducing a series of changes to governance of the sort that Danielle Hennessy has described. The introduction of regional strategic boards is a case in point.

The substantial part of the regionalisation provisions in the bill pertains to the creation of regional strategic bodies, as they are new entities.

On who will be judged responsible for mismanagement, will a distinction be made between the chair of the board and individual board members? Do you envisage situations in which the whole board would be accountable for a failure and, therefore, would need to be removed or will the assumption be that the chair will take ultimate responsibility for the board’s performance and, therefore, would go and save the heads of the rest of his or her colleagues on the board?

The provisions are built around the existing ones in the 1992 act. That act includes a provision that enables ministers to remove a member, or any member, of a board.

If there was a failing, a judgment would be made about whether it could be attributed to a single member or, perhaps, a sub-group of members. For example, it may be that the failing could be attributed to the actions of a specific committee and that the members of that committee would be removed.

The flexibility to identify one, any or all of the board members is a feature of the existing statute.

Mergers are clearly separate from what will happen under the bill. They are a different issue, although they are happening at roughly the same time. If you set up a regional strategic body that covers an area that currently has multiple colleges and those colleges merge at a future date, what will happen to that body?

If all three colleges in Glasgow, for example, were to merge into one, provisions in the bill would enable us to abolish the Glasgow regional board and transfer its assets to what would then be the Glasgow college.

11:15

We will move on to the review of fundable further and higher education, which is dealt with in section 14.

Section 14 talks about the Scottish funding council ensuring that education is provided in “a coherent manner”. What is meant by “a coherent manner”? How is that arrived at?

I suggest that it is arrived at by taking account of the matters that are set out in proposed new section 14A(2) of the Further and Higher Education (Scotland) Act 2005. Those are matters such as

“the number of post-16 education bodies ... the number of regional strategic bodies ... the types of programmes of learning”

and

“The efficiency or effectiveness of the arrangements for the funding”.

There is also the issue of whether coherent fundable further education or higher education can be improved by “increasing collaboration”.

Is there a risk that, in driving towards coherence, some of the issues that Neil Bibby raised earlier about the demand for provision in an area that duplicates provision elsewhere in the region could result in a number of college applicants not pursuing courses simply because of the distance to a college? Are there safeguards in the bill to deal with that?

The issue of duplication is centre stage, but it is about unnecessary duplication when the provision in question can be delivered more effectively, in the interests of the learner for example, in one location rather than two.

The bill also talks about the Scottish ministers setting preconditions for the funding council in conducting a review. Can you shed any light on what the preconditions are likely to be?

I think that they would draw on the matters that are outlined in proposed new section 14A(2). However, that would, I think, necessarily be addressed on a case-by-case basis. As the provision is framed, the funding council will make a proposal for a review to the Scottish ministers, who will then consider that. The review cannot happen without the consent of the Scottish ministers. At that point, the ministers will take stock of the funding council’s proposal and suggest an additional condition that will apply to its work.

Given the time, I want to move on quickly to data sharing, which is in section 15.

The bill gives ministers the power to make secondary legislation to force relevant bodies to share information with Skills Development Scotland about 16 to 24-year-olds who are going through the system. What are the current gaps that make that measure necessary?

A framework has been set. As you know, SDS already operates a system of data sharing and information gathering. A national reference group has been set up to support data sharing, on which local authorities, colleges and other providers are represented. The need is not to get specific organisations that are not providing data to do so; rather, it is to achieve consistency of the data that is provided, so that all organisations give the same information in the same way. It is felt that a legislative structure will help to ensure consistency in that and, ultimately, in how organisations deal with learners so that, regardless of where a learner is, they will be picked up by SDS in the same way.

Does that mean that some colleges do not have the desirable information, or consistent information, on the young people they teach?

I am not sure that it would be undesirable but, because a clear framework is lacking, some of the information that has been given to SDS has been patchy and variable. Setting it out in legislation will ensure consistency.

We hear a lot about compliance and compatibility issues. Do we know whether the different bodies have compatible IT systems in order to share information?

I do not know the answer to that. SDS’s operational leads would be more aware of what the IT issues are. As I say, there is a national reference group on data sharing, so the SDS and other Scottish Government officials meet all the providers regularly to ensure that agreements are in place. A number of individual agreements are in place between SDS and colleges and local authorities. A lot of work has been done and some of the costs that are highlighted in the financial memorandum are about making the final tweaks to that. The framework is largely there—the issue is about high-level consistency in what we are looking for.

Will data sharing apply to private training providers or, indeed, learning providers outside Scotland should young people choose to learn outside Scotland?

It could apply to private providers—that would have to be specified in the secondary legislation. The legislation will set out which organisations are compelled to be involved in data sharing, so there is scope for private providers to be included. I am not clear on the position on institutions outside the UK.

I can provide a little bit of assistance on that. Normally, the predominance of students studying outside Scotland is in the HE sector. The Student Awards Agency for Scotland will be involved in the process and will have the information about students who receive HE support outside Scotland, so they will be picked up.

Did I pick you up right that the purpose is not to increase the amount of information that SDS has but to improve the consistency of the information that it provides? Is that correct?

No. The purpose is for SDS to get more consistent information from other organisations. If organisations are not giving the right amount of information, they might have to increase the amount of information that they give. This is not about the information that SDS gives; rather, it is about the information that SDS receives from other institutions.

I assume that some organisations work with paper files and others with electronic files—who knows what they work with. How will that work? SDS gave the committee an example: if it gives a specific session to a school year, assembly or a class, that is marked in the young person’s record as an intervention by SDS, perhaps as nothing more than a tick in their school profile. Would it go back and tick each individual SDS record? How else would it work?

To be honest, I do not feel comfortable talking about SDS’s operational issues and how it would do that. It might be better to speak to SDS when it gives evidence to the committee, rather than my second-guessing how that might or might not operate.

I thank the witnesses for attending; the session has been extremely helpful. There are clearly a number of areas on which we had further questions and others areas in the bill that we have not touched upon, so we will write to you to follow up some of the questions. I hope that we get a response reasonably quickly in order to cover some issues that we have not reached.

11:23 Meeting suspended.

11:28 On resuming—