National Library of Scotland Bill: Stage 1
Item 2 is the conclusion of our stage 1 evidence-taking on the National Library of Scotland Bill. I welcome Fiona Hyslop MSP, the Cabinet Secretary for Culture and External Affairs, and her Government team, who are Carole Robinson, the bill team leader; David Seers, the head of cultural excellence; and Greig Walker, who is a solicitor. I invite Fiona Hyslop to make an opening statement.
The Scottish Government is ambitious for culture in Scotland. The bill recognises the importance of the National Library of Scotland to our nation and will enable the library to develop and prosper in the years to come by modernising its functions and governance arrangements for the 21st century. The National Library of Scotland is a key resource as Scotland’s only legal deposit library. As a centre for cultural research on Scotland and the Scots, it is a national and international asset, and it provides free access to more than 14 million items in more than 490 languages. It is important that the legislation keep pace with the requirement to preserve and develop our national collections for generations to come.
The bill is forward-looking and sets out a broad framework of governance including, for the first time in the library’s history, a range of clear and outward-looking functions. In the bill, I have sought to give the National Library of Scotland the flexibility to respond to the technological changes of the future in supporting the work of bringing the nation’s history and culture to life. I pay tribute to the National Library of Scotland for what it has already achieved in the strategic approach that it has taken to digitisation. Crucially, it has made the collections and resources available online, thereby ensuring that the library is accessible to people beyond Edinburgh and Scotland.
The bill recognises the close working relationship that exists between the National Library of Scotland and the Faculty of Advocates. The faculty’s library is important to Scotland both as the historical foundation of the National Library of Scotland and as a working library of publications on Scots law. I welcome the recent signing of the two memoranda of agreement between those two organisations, which I sent to the committee on 19 January. Those are not merely important housekeeping documents; they underline the vital principle of public access to items in both libraries.
It may be helpful if I mention to the committee at this stage the Government’s response to some of the points that were raised in the evidence from the Faculty of Advocates. I agree in principle with the faculty on the scope of its collections and that the reference in sections 6(1)(a) and 6(1)(c) needs to be narrowed. We will produce an amendment at stage 2 to do that. I also accept the proposed technical amendment to section 5(3) and will lodge such an amendment at stage 2.
On the question of the faculty’s role in selecting material for collection under online legal deposit, the committee heard the views of both the faculty and the National Library in evidence on 7 February. The Government wants the bill to recognise the faculty’s experience and expertise in selecting legal publications, but I do not want the National Library of Scotland to be subject to inflexible and potentially burdensome statutory requirements. I am conscious of the fact that—as was discussed at the committee’s previous evidence-taking meeting—technology is likely to develop in ways that we do not as yet understand. With all that in mind, we will reflect further on sections 5 and 6, in discussion with the National Library of Scotland and the Faculty of Advocates, and will return with possible amendments at stage 2.
I hope that the committee accepts that there is broad support for the principles and provisions of the bill, and I look forward to further debate on any points that the committee wishes to explore in more detail.
Thank you for your opening statement, cabinet secretary. Liz Smith will begin our questioning.
Two weeks ago, witnesses expressed to us a slight concern that the new body corporate might be too small which might, therefore, exclude the expertise that will be required during the period of considerable technological change to which you have referred. Will you comment on that?
I have discussed that very issue with the board of trustees and acknowledge the points that have been made. In drafting the provisions, we considered the sizes of other boards. As everyone will acknowledge, the inherited board structure is too big and far too unwieldy; I point out that the National Galleries of Scotland board comprises between seven and 12 members and the National Museums Scotland board between nine and 15 members. I certainly do not want to hinder the proposed board’s operation; I appreciate the comments that have been made and I recognise the range of skills that will be required, but I should say that the feedback that we have received suggests that a more tightly drawn board can be more functional with regard to decision making.
Of the boards of bodies that were established under the Public Services Reform (Scotland) Act 2010—in other words, the most recent bodies to be established—the Creative Scotland board comprises between eight and 14 members, the Social Care and Social Work Improvement Scotland board between nine and 12, the Health Improvement Scotland board between 10 and 12 and the board of Bòrd na Gàidhlig between six and 12. It is unlikely that the number of board members will be at the smaller end of the scale. I am fairly open to persuasion as to whether the size of the board should be increased, but I am reluctant to say that its membership should always be at the top end. The decision making, focus, vision and other things that we really need and expect from boards are often best delivered by smaller boards. The bill reflects, for example, the National Galleries of Scotland’s current set-up.
You say that you are flexible and open to negotiation on the issue. Do you intend to consult the people who have raised the issue to discuss whether it might be possible to extend the board slightly to encompass the extra expertise that they have suggested is required?
Yes. I am very open-minded on the issue and am prepared to consider it for stage 2. I will be interested to see what the committee says in its report—you will obviously want to consider the matter.
I point out, though, that it is not unusual to have a spectrum with regard to the number of people on a board. That said, boards themselves do not always provide expertise and carry out functions; quite often, sub-committees do that work. At the moment, the National Library of Scotland draws in expertise for particular areas and specialisms—and will still need to do so. However, as I have said, I am fairly open-minded about increasing the minimum size of the board from seven to nine.
We all understand the need for the bill and the fact that it will make things more efficient. However, the National Library of Scotland is a very substantial asset and given the considerable technological and technical changes that are taking place and the fact that—as you have acknowledged—things are changing fairly quickly, the stakeholders who have expressed concern really feel that it would be helpful for that extra expertise to be permanent rather than on a consultancy basis. I am pleased to hear that you will definitely consider the matter. What is your timescale for that consultation?
Having looked at the evidence that has been given and having had on-going discussions in preparation for the bill and subsequently, I am quite aware of the points that have been raised. Part of the process will, of course, include hearing the committee’s assessment of, and views on, the matter. I think that I am being fairly straightforward in saying that I am open-minded about the size of the board and about seeing whether the low end of the scale should be higher.
Members should, however, bear it in mind that the size of most boards is rarely at the low end. After all, there is a reasonable risk that because of non-attendance, illness and so on board attendance might slip below the required level. In any recruitment round, the aim is to ensure that we do not leave a management board at risk of not meeting its quorum, and the matter has to be managed very carefully. I have certainly listened to what has been said on the subject.
That said, I must emphasise that the board’s role relates to governance and leadership. With regard to specialisms, staff on sub-committees will certainly provide advice on particular projects and areas. The current structural shift in the boards of cultural bodies has been more towards governance, accountability and leadership. We do not necessarily want people protecting and promoting their own area of expertise at the expense of everything else. The board must have a common sense of purpose. That is why we are increasingly seeing fewer designated places for particular representative groups on boards of management.
Do you accept, however, that even within management structures, a wide base of expertise on the issues that need to be discussed at this time of change is needed?
Yes—that is why we want to see a transition. We have taken the same approach with other organisations. There can be a period in which we can consider whether any current board members could or would be willing to serve on the new board. We are working on the skills and knowledge base—the matrix of exactly what is required. Different experiences are needed. The research library will definitely need people with experience. We are working with the universities, for example, and the interests of research students will need to be promoted. That relates to the skills matrix. Similarly, an understanding is needed of the national reach of libraries in working with our network of libraries across the country. Local government interests are another area that we will look at in relation to the skills matrix. The skills matrix must be considered in making up the board.
We have made appointments to many boards over the past five years. In looking at the size of the board, it must be ensured that there are the right skills in it. An individual might bring two strengths, but if individuals do not have multiple strengths, it will be more likely that a bigger board would be needed to ensure that it has all the required strengths.
I have heard evidence and we have kept in close contact with people; the committee heard in evidence that a stakeholder group gave recently that we have kept in close contact with it, and we want to ensure that what comes out of the process is what is needed. I look forward to seeing what the committee recommends in its report and am open minded on making changes to the minimum size of the board.
You say that you are open minded about the minimum size of the board. Obviously, the minimum is just one end of the spectrum. The bill says that the board would have between six and 13 members, plus the chair. Are you open minded on the six, but not on the 13?
Yes. There is an issue about the maximum size of boards. Ministers in this Administration and in previous Administrations have been under great pressure to deal with the wide range of public bodies that exist and the numbers of board members. Some board members are paid and some are not—in this instance, they are not—but there is an issue about the maximum sizes of boards.
I return to a point that I have made. From my experience as a minister and the feedback that I have received from people who have worked on boards, I know that, if a board of governance is too big, it will become less focused and the trustees’ leadership role will become less focused. Smaller boards can be more effective than larger ones. In general, the Government is not in favour of large boards. I am therefore open to considering the first number, but not the second.
I have no problem with trying to make boards more focused, which is an admirable aim, but you mentioned other boards that have a maximum of 14 and 15 members. Why are you so fixed on a maximum of 13 members rather than, say, a maximum of 14 or 15 members?
The number of board members will be 14: 13 members plus the chair. The number for the British Library is 14. It is 15 for the National Museums Scotland, 12 for the National Galleries of Scotland and there is a maximum of nine for the Royal Botanic Garden Edinburgh. Their sizes are determined by pre-1995 legislation. The more recent maximum numbers were established under the Public Services Reform (Scotland) Act 2010. The maximum number of board members for Creative Scotland is 14, the maximum for Social Care and Social Work Improvement Scotland is 12, the maximum for Healthcare Improvement Scotland is 13, and the maximum for Bòrd na Gàidhlig, which was established in 2005, is 12.
Do those numbers include the chairpersons?
Yes they do, so we are in the right realm.
The older boards have the higher numbers.
Yes. The older ones have higher maximum numbers.
That is helpful.
You touched on an issue that was raised in evidence two weeks ago. If the board is too small and is down at the lower end of the scale rather than towards its higher end, it will be difficult to form the sub-committees that it must inevitably form to progress particular bits of work. However, you have covered that by saying that you expect the board to be not too small.
10:15
Yes, but not all sub-committees will be formed from the membership of the board of trustees because specialists can be brought in. Despite the size of the board under the current legislation, NLS can still do that. People might want to go in and out of certain projects, particularly on technological changes, which Liz Smith mentioned. We would expect people who have specialisms to be brought in for specific projects.
The submission from the Office of the Commissioner for Public Appointments in Scotland says that it did not receive the consultation document, but that is another issue. It also states, contrary to what the financial memorandum says, that costs are associated with appointments. Will you confirm that? Are any other costs associated with the bill?
That is one of the arguments for not having too many board members; there is a certain administrative cost to advertising and making appointments. The Government has tried to restrict advertising costs, although we obviously still want to ensure that the adverts are accessible and that people see them.
If we are thinking about use of public resources, smaller boards also mean not only that advertising costs are smaller, but that the resource base that is needed to service the function is smaller. That resource base is quite considerable. This year, the Government has to administer quite a large number of appointments. The range includes board members for Creative Scotland and appointment of a chair of the board of the National Museums of Scotland, which has just been advertised. The cost of those appointments will be met from existing budgets.
The bill concerns governance as opposed to creating more costs. We do not anticipate additional costs, but it is fair to say that there are costs of advertising all board appointments. However, that is a necessary cost of accountability.
We sent the consultation to OCPAS and will continue to work with it and the Office of the Scottish Charity Regulator, which are key bodies for ensuring that we put in place the governance and other measures that are necessary to implement the provisions on the National Library’s trustees.
There seems to be concern about ministerial powers of direction in the bill, but it is partly allayed by the fact that the powers will be fairly restricted and concern only a couple of areas. Will you explain that?
The witnesses from the National Library said:
“What we regret is making a principle of the ability to direct the National Library.”—[Official Report, Education and Culture Committee, 7 February 2012; c 705.]
There is always slight edginess about so-called Government interference in any of our cultural organisations, so how can we allay the concerns of those witnesses?
There must be a balance. When an institution is funded from taxpayers’ money, it must be accountable to the taxpayer for ensuring that that money is spent wisely, and for its management and governance of the institution. That must be balanced with the institution’s artistic or—as in this case—curatorial responsibility and its freedom to ensure that it looks after our great cultural assets for the nation.
There is a history to the balance that we have struck, which goes back to the Charities and Trustee Investment (Scotland) Act 2005. Because of the need for public accountability, particularly in financing of organisations, an exemption was made under that act to permit national collections to continue to be charities while allowing a limited power of ministerial direction over them. I have already referred to the Public Services Reform (Scotland) Act 2010, which is the foundation for a number of bills that are likely to be introduced subsequently.
When Creative Scotland was established, one area of debate in Parliament was the degree of ministerial direction that could be allowed. There was debate not only with people who were involved in the then Scottish Arts Council, but also with the national institutions about what it would mean for them. It was generally recognised that if we could limit ministerial direction to matters of governance, management and accountability—in particular on financial aspects—and leave out any power of direction on curatorial or artistic matters, the provisions would be satisfactory.
Members will notice that section 8(1) of the bill, on page 4, says:
“The Scottish Ministers may give NLS directions ... as to the exercise of its functions”,
but that section 8(2)—this is the really important point, given that you are asking what reassurance we can give that there will not be overbearing interference—says:
“But the Scottish Ministers may not give NLS directions so far as relating to—”
paragraphs (a) and (b). Paragraphs (a) and (b) refer to NLS’s functions, which are covered in section 2. Those functions include
“preserving, conserving and developing its collections”.
I cannot give the NLS ministerial direction on that, on “making the collections accessible” or on
“exhibiting and interpreting objects in the collections”.
That indicates where the balance lies.
I am accountable to Parliament and, at themed question time, I frequently get asked to tell Creative Scotland to invest in a particular project. That is quite frustrating because, under the Public Services Reform (Scotland) Act 2010, I cannot do that. Could I direct the NLS to have an exhibition on X, Y or Z? Under the bill, I could not. That is the balance that we need to strike. We must have faith and confidence in the professionals, their curatorial decisions and how they promote
“understanding and enjoyment of the collections”,
which is one of their functions.
We have struck a balance, although it is sometimes quite frustrating. We want to ensure that we give the professionals their curatorial independence but we must, at the end of the day, ensure that public money is spent accountably. That is why there is the restriction that the power of direction can be used only in relation to overall management of the organisation. We have a responsibility in relation to the corporate plan, the accounts and so on, and in ensuring that the organisation is well and efficiently run.
If you want me to have more ministerial powers of direction, I remind the committee that an attempt was made to do that in the previous session of Parliament and there was real resistance from the cultural collections to the proposal to give ministers overriding powers.
I know that that was quite a long answer, but I hope that it has set the scene on where we have got to and why we want to have a limited ministerial power of direction. The power of direction that the bill will provide is very limited.
I make it clear that I was not suggesting that you should be given more powers.
I declare an interest as a member of the board of NLS under the current legislation.
Where might the ministerial power of direction be used?
I cannot recall having used the power, in my five years as a minister, for any of the bodies for which I have had responsibility. However, we do not know what might happen in the future. The power is a safety net for accountability for use of resources.
The power means that we will be able to provide guidance. For example, collaboration is extremely important, particularly when resources are tight, so it will be helpful to be able to encourage collaboration—although I have not needed to direct the collections to collaborate and would not necessarily seek to do so.
If it became clear that the board of trustees was not properly holding its chief executive and the national librarian to account for how money was being spent, a direction might be issued. The power of direction would be used if there was any difficulty with the management functions. The same would be true of any similar organisation. Such powers are not used very often, even in other areas. If, for example, a new chairperson was not functioning effectively, that would, in the first instance, be for the board to address.
Our experience of going through the recruitment process has been very good, and I would like to put on record my thanks to Professor Anderson for the role that he has played and for his patience in waiting for the bill, which I promised some time ago. However, there is always an element of risk—human failure can happen in any organisation. That is why the power of direction would tend to be used in relation to management functions.
Does either of my officials want to comment?
Carole Robinson (Scottish Government)
As Colin Miller explained when officials gave evidence, the power of direction could be used if the library had failed to comply with general public interest policies around, for example, no compulsory redundancies, procurement, transparency or pay policy. Those are other areas related to the management of the library.
Can you undertake to write to us after checking whether the ministerial power of direction has ever been used in the cultural sector? If it has not been used, that would be very reassuring.
We do not think that it has been used in the cultural sector, but we will write to confirm that, in case it was used prior to this Administration.
I appreciate your comment that we are almost trying to anticipate the unknowable. You are seeking a limited backstop power.
Nevertheless, one can see how a power of direction on promoting collaboration might bleed into operational issues around the curatorial role in that if you were to force NLS down a particular pathway with a limited budget, that would have a knock-on impact on what it is able to do in other areas. Is there therefore a risk that action on the part of the ministers, within the constraints of the bill, could have a knock-on impact on areas that are not included under the powers of direction in the bill?
No. The powers of direction are quite specific. The example that I gave on collaboration was more about my guidance on what I am trying to do currently without using the ministerial power of direction. That is the sort of thing that you can do to try to get best value for the public purse, but I am not doing that by ministerial direction and I would not necessarily see that as an area in which ministerial direction would be used.
If I were to use the ministerial power of direction in respect of collaboration, but that impinged on the National Library’s ability to make decisions about preserving, conserving and developing its collection—its curatorial role—I could be challenged on the ground that I was acting illegally. I would not do that however, because I think it best to do that through encouragement and other approaches. The public purse has a backstop in that there is always a point of intervention in terms of management and finances, but there is almost a backstop for the National Library, in that if I or any minister were to overstep the mark and compromise its ability to do certain things, there would be a difficulty.
Section 8(2)(a) stipulates matters on which I am not allowed to provide ministerial direction. It is clear that anything that would compromise curatorial functions is not allowed; so if we want to promote collaboration or the sharing of good practice, we can do that, but if that were to compromise exhibitions, interpretations and so on, my decisions could go to review and they could be deemed to have been illegal. There is a counterbalance for both sides, which is what we sought to achieve.
That is helpful.
Cabinet secretary, you helpfully wrote to the committee to clarify points about ministerial direction in relation to sections 2(2)(d) and 2(3)(c). I would like briefly to discuss the matter, particularly in relation to section 2(2)(d), on promoting collaboration. Your explanation in response to Liam McArthur was very helpful, but I want to be clear about where the boundaries of ministerial powers of direction lie in relation to collaboration.
I do not want to get into obscure hypothetical examples, but reducing the number of public bodies has been an aim of the Government over a number of years. There are other collections and other library services in Scotland. Where are the boundaries that would prevent a minister in a future Administration from pushing through collaboration between the National Library of Scotland and other library services?
If legislation was required, obviously a bill would have to be introduced in Parliament and parliamentary authority would be required.
10:30
Could section 2(2)(d) of the bill be used?
To promote—
I suppose that my question goes beyond collaboration or a particular interpretation of collaboration.
I think that that would be a politically unwise use of ministerial direction, which is more of a defensive thing rather than something that would necessarily be used to try to bring about public service reform. If you want to undertake such reform, you do it proactively and make a proposal, you discuss it in Parliament and you seek advice from the committee. That is what we have done in other areas. You do not necessarily need the power of ministerial direction to do it.
I will give you an example of what Government ministers can do. We brought together Skills Development Scotland from four different organisations, so the skills and training agenda was quite disparate. That was done without legislation but with co-operation because bringing those organisations together was seen as being in the best interests of delivering better skills and training. That was quite a major change. A lot of things can be done as a result of effective policies. In relation to my actions, I am accountable to this committee and to Parliament, and that provides checks and balances when steps are taken to make improvements or changes.
On the collaboration agenda, I am pleased that a lot of the back-end services of the National Library and the National Galleries of Scotland are working together, which can help to release resources and to spend as much of them as possible on front-line services and the visitor or researcher experience, which is what everybody wants.
We are well on the way with the collaboration agenda. The trend is towards what can and should be done. People have to be quite creative in the new environment. However, I do not necessarily see that agenda as being a matter for ministerial direction. I will confirm this later, but the indication is that to date ministerial discretion has not been used in the cultural sector. I do not think that using it would be a very wise thing to do, because it is a backstop as opposed to an action to make things happen proactively. If you want to make things happen proactively and change a policy, there are better ways to do that.
That is very helpful. Thank you.
Would ministerial powers of direction extend to charging for access to the collections? You are probably aware that the national librarian made it clear in his evidence that free access was a key principle. However, he also said:
“Our exhibitions are free at the moment, but it may be appropriate at certain points to charge for them.”—[Official Report, Education and Culture Committee, 7 February 2012; c 707.]
Is that the kind of issue that you might get involved in discussing?
I reiterate that the Scottish Government is committed to ensuring free access to our collections, although there are checks and balances within that. The charging aspect is part of the future proofing of the bill, given that there will be technologies of which we are not aware at present. For example, we can provide international access to digital work, but perhaps we will be able to do so more extensively in the future. There is no reason why the National Library might choose to charge for such services, but that does not mean that charging will never happen. However, such charges would be for quite specific areas.
I could not use a ministerial direction to do anything on charging even if I wanted to—which I do not; likewise, a minister in a future Administration could not use that to introduce charging because the function of the National Library to ensure that its collections are accessible to the public for study and research cannot be compromised by ministerial direction. Therefore, even if a future Government wanted to introduce charging, the legislative limits on ministerial direction would restrict it. I think that there are similar limits in other areas, such as disposals. Ministers would need to revert back to get agreement to use a ministerial power in relation to the disposal of certain assets. That is a check and a balance the other way in terms of how assets are used in relation to charging or disposal.
We have been conscious of the limits that there would be on ministers who wanted to introduce charging, and we think that the protection for the institution—for the collections—is the fact that the power of ministerial direction cannot be used if it compromises access, preservation, conservation, study, research, exhibiting or interpreting. In that regard, such a step could be challenged.
There are obviously some problems with definition, as the bill says that it might be legitimate for the library to levy a charge for an added-value service. You said that we do not know how technology will develop, and something that might seem an added-value service at the moment could become an essential service in the future. It seems to me that there may be a problem with the definition of an added-value service. How can such services be distinguished from a service to which access is regarded as a basic right?
Again, that would come down to accountability. At any point in time, the National Library of Scotland could be called to account for its corporate plan, which will set out its policy regarding what is threshold and what is incremental. You are absolutely right to say that things will change—possibly in five or 10 years’ time. However, we cannot put a definition in the bill that would constrain things in the future. The definition must allow flexibility in the future. There will always be the opportunity to hold me or the National Library to account on that definition and whether it compromises the library’s functions. It would be wrong to close off future opportunities, especially given the fact that charges already exist in some areas such as digital activity. That activity may be specialised at the moment, but it might not be in the future. We are also not in a position to give guarantees about what might happen to the budgets that Governments give to organisations, so we must give the National Library some flexibility to allow for charging. Nevertheless, the Government is committed to maintaining the principle of free access and we think that the preservation of the functions of the National Library of Scotland would prevent any ministerial direction from requiring it to charge for things.
Let me outline another hypothetical situation. If the management of the library decided, at some point, that it wanted to charge but the ministers disagreed with that because they were committed to the principle of free access, would the cabinet secretary intervene and use powers of direction to say, “No, you can’t charge”?
It would not be necessary to use ministerial powers of direction. Ministers could point to the functions of the National Library and say that it was not providing access. The library would be subject to the restrictions on its functions. It is not just ministerial powers of direction that are restricted by the functions; the National Library is restricted by its own functions. My officials may want to add to that.
David Seers (Scottish Government)
As we touched on when we were before the committee previously, proposals for new charges must be agreed administratively under the terms of the public finance manual that applies to all public bodies. So, there is an administrative route to be followed. In addition, as the cabinet secretary said, any proposal has to demonstrate that it is not inconsistent with or inconducive—if that is a word—to the function of making the collections accessible to the public. There are two checks: an administrative one and a legal one.
I know that it can be difficult to specify exactly how the bill will work, but there is at least curiosity about the difference between the powers in section 2 and the provisions in paragraphs 11(1) and 11(2) of schedule 1. Paragraph 11(2)(m) states that the National Library of Scotland may
“make charges for access to the collections”,
and paragraph 11(2)(n) states that it may
“make other charges in connection with the exercise of its functions (including charges for the provision of goods and services).”
There is a slight concern about where the line is drawn in paragraph 11(2)(n), which enables the library to
“make charges for access to the collections”,
given the point that has been made about the library’s functions under section 2, one of which, in section 2(2)(b), is
“making the collections accessible to the public”.
Where is the line drawn?
That comes back to the fact that the majority of funding for the National Library of Scotland comes from Government. Parties of different political persuasions will make statements in their manifestos about charging for entry to museums. Indeed, as you will recall, museums used to charge for entry, but the previous Administration stopped that and this Administration will maintain its commitment to free access.
It all comes down to politics. If people want to vote for parties that want museums to charge for entry, that is up to them. That is the democratic process. We believe in free access, as do a number of other parties; indeed, I am asked about the issue frequently in the chamber. Our letter of grant sets out what we expect from the use of public finances—for example, compliance with public pay policy and the policy of no compulsory redundancies. That does not need ministerial direction, but the fact is that a Government is elected on a certain mandate and must properly finance museums to carry out their functions.
Of course, all of that forms part of our general discussions with the National Library of Scotland about what can be achieved from the resources that we provide. Given the difficult financial circumstances, those resources can be very tight, and my officials have worked very hard to ensure that we can deliver all these things with the reduced budget that we are getting from Westminster. At the end of the day, however, it will always be up to a future Government to decide what it wants to do. The aspect that you highlight simply reflects the previous situation in which museums were allowed to charge for access. However, compared with previous legislation, the bill sets out the constraints on the setting of such charges. Charges cannot be introduced if they damage the functions set out in section 2 with regard to public access and curatorial matters.
I am trying to understand the relationship between the powers of ministerial direction and, in particular, the general powers of the library as set out in schedule 1. Where is the balance between those two sets of powers? How does the approach operate?
Your question raises issues about how much should be set out in legislation. You must remember that the bill is about governance and management, not about individual decisions. Although it is always open to us to say in legislation that access to museums will always be free, I suspect that such a move would be unwise. For example, it is not unreasonable to charge for certain highly specialised digital work that is currently done; otherwise, anyone could ask for anything and expect to get it for free because the legislation says so.
I must reiterate that we have absolutely no intention of introducing charges. We are committed to free access but the bill must be future-proofed to stand the test of time. As I have just pointed out, museums can already make charges for certain services, and we think that that position should be maintained. As for our policy position, we have not had to put in legislation our commitment to free access to the museums and national collections, including the National Library of Scotland; we expect that to be met from the resources that we provide. As I have said, that is already part and parcel of our discussions.
We are simply trying to work out what in the general administration of the National Library of Scotland and the relationship between it and the Government does not require to be set out in the bill. The aspect that you highlight does not require to be set out in the bill because it is subject to the general administration of NLS and the relationship between it and Government with regard to our expectations of what will be provided for the grant that we provide.
Thank you for that, but I am still trying to understand the relationship between section 2(2)(b), which relates to
“making the collections accessible to the public”,
and paragraphs 11(2)(m) and (n) in schedule 1. On the face of it, they seem to contradict each other. On the one hand, the bill says that the collections must be
“accessible to the public and to persons wishing to carry out study and research”,
while on the other it says that NLS has the ability to
“make charges for access to the collections”.
That is the current situation. The bill provides flexibility, but the main function is in section 2—at the beginning of the bill—which is the key legislative driver. Perhaps some legal advice might help. NLS may be able to do other things, but it cannot do them if they would compromise its main function.
10:45
I was trying to get to that point. In non-legal language, does section 2(2)(b) trump paragraph 11(2)(m) of schedule 1?
Run that by me again.
Is it the case that section 2(2)(b) cannot be superseded by paragraph 11(2)(m) of schedule 1?
Section 2(2)(b) cannot be overly compromised, because it is a main function. As is currently the case, there will be flexibility for things to happen incrementally, but that cannot compromise the main functions.
Paragraph 11 of schedule 1 starts with subparagraph (1), which says:
“NLS may do anything which appears to it ... to be necessary or expedient for the purpose of, or in connection with, the exercise of its functions”
or
“to be conducive to the exercise of its functions.”
That puts the functions first. Subparagraph (2) just says, “In particular”, and gives examples of what NLS can do. Paragraph 11(1) is the connecting point between paragraph 11(2) and section 2.
David Seers said that any new charges would have to be approved at ministerial level, because of the public finance manual. Is that underpinned by, or does it stem from, any primary legislation?
I am not sure—we will write to you about that.
Any charges will be minimal and in relation to incremental or additional matters—that is the case now. It might help the committee to ask NLS to give an example of what it charges for.
If you write to us about the other point, I am sure that your letter could cover both issues.
I think that I am understanding all this. I will use an example not from the National Library but from the Kelvingrove art gallery. We declare the national collections to be free and available, but the Glasgow boys exhibition was charged for, because it brought to this country Glasgow boys paintings from other European countries’ national collections. That exhibition contained items from our collection, private collections and collections around the world. Charging for it did not negate our basic principle that the national collections are available to the public. That example shows that, if something exceptional is concerned, there will be a charge, which I presume covers the extra costs that are involved.
That has been the case in recent years for different institutions. It would be great if a benefactor was found or if the public purse could make all such things free to access but, to get some of the best international collections on loan, charging happens in galleries and museums.
I will examine legal deposit issues. In your opening statement, you commended the library for its strategic approach and its work on new media and digital media. However, legal deposit legislation provides no guidance on what to do with that. I understand that the United Kingdom Government made a commitment in April 2011 to produce guidelines that would fit with the current regulations, which are under Westminster’s control. Have you made any representations to the UK Government about when those guidelines are likely to come through? Does the bill give the library the confidence to continue on the lines that it has followed in relation to new media and digital media?
That is an important question. The bill is an enabling measure that will allow future proofing for e-deposit. However, there are frustrations that there have been delays in introducing UK regulations. I have urged the Department for Culture, Media and Sport to proceed swiftly with regulations, as our records would be weakened by delays in implementation. We have tried to future proof the bill so that it covers existing arrangements for print material and arrangements for making electronic content available when it is received. However, you are right that the legislative competence on copyright exemptions and on other aspects that enable the use of copyright material when it is received is still reserved to Westminster. The bill ensures that, when such information is received, the operations of the library can be conducive to future proofing in relation to digital work.
There is an outstanding issue. It would be helpful to us, and timely, if the DCMS proceeded with the regulations. My understanding is that the UK Government’s general approach is to limit the number of additional regulations to try to limit what I suppose it sees as burdens on organisations. However, that is compromising our approach, as we need the guidelines.
We have made representations to the DCMS, but it is open to the committee to make further representations to it. The issue is more pertinent to Scotland, as we are considering a piece of proposed legislation, but it is as relevant to UK institutions as it is to Scottish ones. It would be helpful if we had the guidelines before the bill is passed, but I am not prepared to hold up the bill to wait for them. We have made representations, but it would be helpful if the committee also considered doing that.
I want to move away from the point about the firmer relationship of ministerial direction and on to the softer relationship between the Government and NLS. The bill will set out in statute—for the first time, I believe—a great many functions that NLS will be asked to perform. How do you envisage the Government measuring success in performance? How will you handle that more informal aspect of the relationship in the years after the bill is passed?
That takes us to the relationship aspects in the administration of the organisation. For NLS and for other organisations, a corporate plan is important, as it sets out what an organisation seeks to achieve. We have dialogue with bodies on the preparation of corporate plans. The NLS corporate plan will set out what the body is trying to do and how it will measure its success. At a time of change and transition from the use of print media to the technological age, evidence will be needed on how the NLS is managing that. Those changes provide fantastic opportunities for the National Library to be truly national, because people will not have to get to Edinburgh to access information, as access will be available throughout Scotland. That is an interesting issue.
We will set out our expectations and what we want the NLS to achieve, and we will measure it against that. That will be done publicly. The corporate plan will set out what the NLS expects to achieve, so it can be measured on that basis. I would not put that in legislation, because the situation will change. In five years, what the NLS seeks to achieve could vary from what it seeks to do now. There is a difference between what we put in legislation and what we expect from the general corporate plan. A primary aim and purpose of Parliament is to pass legislation to provide the basis of administration, but much of the accountability does not come through the legislation; instead, it comes from the opportunities that the committee has to hold me and the institution to account.
The cabinet secretary will be aware that we are required to consider the impact that the bill will have on equal opportunities. I understand that an equalities impact assessment was carried out in relation to three areas: the board, users and collections. How has the equality impact assessment process ensured that we will have better equal opportunity outcomes as a result of the bill?
Part of the process is to ensure that all legislation abides by the impact assessment in what it provides. With the bill, the primary issue is appointments to the board of trustees and governance arrangements. The Public Appointments Commissioner for Scotland will ensure that equality impacts are taken into account in the appointment processes that are applied.
With the bill that the committee is scrutinising, the board and the governance arrangements are the main subjects of the equality impact assessment. As far as the other aspects are concerned, when it comes to the organisation and its general day-to-day running, it must abide by equality legislation and the more general duty in that regard. What is interesting is that, as libraries become more accessible online, there is an issue about digital accessibility. There is a general issue about digital participation, the digital divide and how people can access materials electronically but, in one sense, online availability provides better and more equal access to the country as a whole, because people do not have to go to the library to access its collections. In a sense, the bill will enable a situation in which better and more equal access to services can be provided.
However, the primary driver as far as the equality impact assessment is concerned will be the appointment system for the board. That is driven by the public appointments system, which is governed by general principles. There is probably some way to go to ensure that that process is as good as it should be in terms of equal access.
I have a follow-up. It was reported that 6 per cent of NLS users declared themselves to be disabled, whereas 20 per cent of the general population are classified as disabled. Does the bill contain any specific provisions that you think will improve the usage rate by people who have a disability?
I think that it will have more of an indirect effect. It will future proof the organisation so that it can provide more material online, which will ensure better access geographically. The National Library faces the challenge of being located on a number of sites. Disabled access is always constrained in old buildings. The bill is enabling legislation in the sense that it will future proof the library for new technologies, the use of which should provide more access for people with disabilities.
We should remember that the library’s current functions are such that it is primarily a research library. The figure for access to the reading room may reflect how many disabled students there are in the general university population. There would probably be a better correlation between the proportion of postgraduate researchers who are registered as disabled and the figure for usage of the library by disabled people. If the proportion of disabled postgraduate researchers is a bigger number, that might lead one to believe that fewer disabled researchers use the library. If it is the same number, the disabled usage figure simply reflects the population that tends to use the library.
I have a final question about the legal deposit issue, which was raised earlier. You mentioned that, in April 2011, the DCMS committed to bring forward regulations on the matter but that no regulations have so far appeared. Can you confirm that legal deposit is a devolved matter? Through a Sewel motion in 2003, the Scottish Parliament allowed the UK Government to pass an act on its behalf. If, as is my understanding, it is a devolved area, why are we waiting for the DCMS to act?
Our understanding is that, as of now, that function is exercised by the Westminster Government—it has the responsibility and the powers on that. I am less familiar with the situation prior to 2007, but perhaps colleagues can help.
I would call it a semi-devolved area. The power to request that publications be placed on legal deposit in the National Library of Scotland is devolved, but there are other provisions in the enabling legislation and in the regulations to do with issues such as copyright and protection from defamation that relate to reserved areas. It is half and half.
The bill will enable us to act on the first aspect, but the second—the copyright aspect—is an area in which Westminster has responsibility.
Greig Walker (Scottish Government)
I would like to follow up on my colleague’s point by saying that the law of defamation is devolved, but copyright falls within intellectual property and is therefore reserved.
I suspect that the answer is that you are waiting for the draft regulations because it is better that they cover all such areas, rather than us taking action on one aspect of them.
Yes.
As there are no further questions, I thank the minister for her attendance, which has been very helpful.
10:59
Meeting suspended.
11:01
On resuming—