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We move to item 3. While the Scottish Executive officials take their seats, I will say a few things about the Further and Higher Education (Scotland) Bill. First, I remind committee members that the bill resulted from a recommendation of the Enterprise and Lifelong Learning Committee, of which I was a member. One of the many recommendations arising from our lifelong learning inquiry was that the two funding bodies should be merged.
I am afraid that I cannot offer a theatrical performance this afternoon, but we will do our best.
One of the areas of controversy was the categorisation of the four categories of institution. That was essentially a technical matter but it appeared as a policy decision. How has that categorisation changed?
It was intended to reflect the existing statutory background to the ancient universities and the post-1992 universities. I am afraid that I am going to lose track of all the categories, but there were four of them. That has been changed in the bill to reflect the institutions that are currently the responsibility of the Scottish Higher Education Funding Council and those that are currently the responsibility of the Scottish Further Education Funding Council—in other words, higher education institutions, and colleges—with no further distinction.
It is worth getting that on the record.
The bill is much better and it is good that the sectors' concerns have been taken on board. That bodes well for the draft bill process. Many of the concerns have been addressed already, but there are still two areas that I wish to ask about.
That is correct. The higher education sector in particular was concerned that its brand might be compromised internationally by a misunderstanding of the fact that the tertiary sector contained the higher education and further education sectors. However, in practice, there is no difference between the intention of the consultative bill that was issued in April, which referred to tertiary education, and the present one.
I welcome those comments. My second question is on fees. The NUS and others have raised the issue of ministers being able to vary the overall level of fees. I understand that that part of the bill is new and that the provisions were not included in the draft bill.
No, those provisions post-date the consultation and were not in the draft bill. They were included in the Deputy First Minister's announcement of 24 June.
I seek assurance that the intention behind section 8 is purely to give ministers the ability to vary fee levels in order to address cross-border flows. I know that ministers are concerned in particular about the Scottish medical schools. I understand that the provisions are intended to prevent English students in particular from coming to Scotland to take up a cheap medical course and, in so doing, crowding out Scottish students. I want to be sure that that is the reason why ministers are seeking the ability to raise fee levels by way of the bill.
On the first point, the member is exactly right: the provisions specifically address cross-border flows. As things sit today, the Quigley agreement means that the costs of studying in Scotland are broadly the same as those in England. The introduction of variable fees south of the border alters the balance. As the member rightly said, it creates the potential that more English students will be attracted to Scottish universities. Medicine is the course that has been specifically identified in that respect.
They have legal weight—
Yes, in determining the purpose of the provision when it was introduced.
Some people have described the provision as fees by the back door. However, you are saying that there is no way in which the bill could allow Scottish institutions to charge their own levels of fees in line with those in England.
They could not do it.
It might be useful if you could ask the Executive's lawyers to confirm your response to the point that Richard Baker raised and, again for the record, to confirm that any changes in fees under the bill would have to be made by statutory instrument.
Indeed.
The statutory instrument would come to this committee for approval.
It would come under the affirmative procedure.
It is fair to say that we have been round the block a few times on this issue both in this Parliament and in another place. I cannot remember any draft bill having so many changes before it is finally introduced. The changes are so many that the bill has had to have a special section on them.
What about the Scotland Act 1978?
I do not remember that one. I am such a sad person—I read all through the policy memorandum. Paragraph 54 nearly took my breath away. It says:
The answer is probably that, in substance, the bill is significantly as was originally discussed with the stakeholders last year. The bill attempts to give greater uniformity between the existing provisions for further and higher education, but the way in which that was presented caused people significant concerns about how it might be interpreted in future. There has been a significant amount of drafting, rather than change of policy, in order properly to reflect the concerns that stakeholders had about how the provisions might be interpreted.
I can understand that, and I can understand the renumbering of some of the sections, but it seems to me that the most controversial issues—I notice that the word "controversial" is used on a number of occasions in your submission on the changes—are such things as the use of specified tertiary education providers, or STEPs, and tertiary education fundable bodies. When I spoke to academics, the concern raised most often was the business about the council's right to attend meetings of governing bodies, whether that would be obligatory and on what basis it would be done. It would be fair to say that the terms of that power have now been softened. I am not necessarily asking, "Why didn't you spot it?" It seems to me that some of the key stakeholders, as you call them, did not raise those concerns particularly clearly at that earlier stage. Would it be fair to say that?
It would be fair to say that there was not a meeting of minds, but I would certainly not wish to apportion any blame. The period since April has been extremely fruitful, as we have had quite intensive engagement with stakeholders, with a draft bill in front of us to give focus to specific concerns that perhaps did not emerge when we were talking at a policy level. That has been the catalyst for getting to where we are now.
Do not get me wrong. I think that it is a positive process. It is good that it can work in that way. However, given that consultation had taken place earlier, I just wondered why all that was necessary.
One of our principles in framing the legislation is to apply consistency of treatment, where we can, to the two sectors. One example of how we have applied conditions to further education institutions that previously applied only to higher education institutions is in relation to academic freedom, restricting the ability of ministers to indicate the type and nature of provision by individual institutions. I know from colleagues in the FE sector that that provision has been well received.
Are you referring to the Public Finance and Accountability (Scotland) Act 2000, which was passed in the early days of the Scottish Parliament?
Yes, I am talking about the accountable officer relationship of the individual college board under the Public Finance and Accountability (Scotland) Act 2000.
Can you explain in more detail what the difference is, please?
When the Public Finance and Accountability (Scotland) Act 2000 was passed, HEIs were exempt from that act but FE colleges were included. That has not been changed, so it is one area in which there will still be some differences between the two sectors.
What does that mean in practical terms?
It means that audit of colleges is undertaken by the Auditor General for Scotland. That is not the case for universities.
Perhaps the committee could get a letter clarifying that.
Yes, it would be helpful if we could get more clarification on that.
I have two further points to raise. In section 20 of the draft bill, the council was told that it had to have regard just to skills, but that provision has been expanded to include economic, social and cultural issues. Can you say a bit about where that change came from? What was the driver for that?
It was the concern of the higher education sector especially, but of others as well, that our higher and further education institutions are not just about skilling up our work force but have a wider contribution to make. It was felt that reference to social, cultural and economic issues encapsulated that wider role beyond simply the provision of a training ground for the work force. The bill was redrafted to try to capture that idea.
I am interested to hear that the idea came from the higher education sector. I would have thought that it might have come from the further education sector.
It was principally the higher education sector that made that point.
Wherever the idea came from, I am pleased to see it included in the bill.
That is the estimate of the recurring costs for the ombudsman's office. We have compared that with the estimate for the Office of the Independent Adjudicator for Higher Education, south of the border, and found that the estimates are consistent with each other.
In the same paragraph, the financial memorandum states that the Executive has,
It would be a question for the ombudsman. However, I understand that it was based on evidence that the ombudsman's office sought directly from the institutions about the number of complaints that go beyond the internal level at the moment.
Should we write to the ombudsman, asking for more written information on that?
That would be useful. Thank you.
Is that agreed?
We could also ask for more information on the funding of the ombudsman's office.
Absolutely. The ombudsman part of the bill arose from a recommendation in the Enterprise and Lifelong Learning Committee's report. It is good to see that the Executive is listening to the wisdom of the committees.
I would like to pick up on the ombudsman provision. One of the concerns that was raised was a fear that the ombudsman might have something to do with academic quality decisions. That, allied to a concern about the powers that it was perceived that ministers were giving themselves to intervene in the policy direction of the individual institutions, seems to have been dealt with. Would you like to comment on what was done in that respect?
Quite simply, the bill now states that the ombudsman will not deal with matters of academic complaint.
May I make a clarification about matters concerning academic judgment? There may be complaints about the administration of academic procedures, which will be covered by the ombudsman.
But to confirm, there is provision in the bill for some sort of quality assurance of academic standards.
Yes, through the Quality Assurance Agency for Higher Education, as now.
On collaboration between fundable bodies, I presume that the provisions are designed to allow any new merged institutions to be included by statutory instrument. Is it envisaged that we may have more degree-level courses being validated by higher education institutions but being delivered elsewhere?
Ministers would be happy to see that happen. They are not forcing merger or collaboration, but projects such as the UHI Millennium Institute, the Crichton campus and other collaboration arrangements between the further and higher education sectors are all welcome.
That brings me to my final question, which is about the anomaly that degrees that are validated by higher education institutions but which are delivered in FE colleges attract a lower rate of financial support. Will that be changed to make the situation equitable?
I will not say yes at the moment, but I will say that an internal review of funding for learners has just been published, and it addresses issues across the HE and FE boundaries. It is simply a review to identify issues that need to be addressed in the short, medium and long term. The matter is quite far down the track, not least because of the significant funding issues that are involved.
Committee members might want to keep that issue at the back of their minds.
Absolutely. The committee might want to address funding for learners in its work programme later in the year, once we have seen the results of the Executive's work.
We have discussed that from the point of view of policy. As you rightly said, the position in the bill on quality is that the funding council has an obligation to assure and enhance quality—the reference to "enhancing" is new. Ministers took the view that there is now considerable evidence of collaboration between the various quality bodies that are in and out of our institutions. For example, HMIE is co-operating with Scottish Enterprise on the mutual recognition of quality systems. Similarly, I note that the QAA in Scotland is in discussions with HMIE about its approach to the UHI Millennium Institute, which sits on both sides of the issue.
It would be useful to get a report on how well the streamlining exercise is going, in measurable terms, particularly on the colleges and Scottish Enterprise side. I know that that does not relate directly to the bill, but it is a major issue and was a major cost factor for colleges too—it clearly became a nonsense. Most of the 28 regimes were publicly funded from the same sources.
Would it be helpful if we produced a short paper on that?
That would be extremely helpful.
I think that my colleagues will back me up when I say no. That is the power that has been discussed with the different sectors, including the chairs of universities, who had a significant say and had concerns about the constitutional right of the funding council to demand a meeting. The view that has come across is that the provision will work because it is a sensible way to go about things and people would not want it to be particularly qualified and restricted. If experience dictated that things were going wrong and the provision was being misused in any way, there would be opportunities to revisit it.
So there will be a general provision. Good, I am glad about that. We have asked you for quite a lot of additional and follow-up information and—dare I say it—the quicker we get that the better. We have two weeks' recess after the opening ceremony on Saturday, which will be a good opportunity to catch up on writing, no matter which part of this country or any other country we might be in.
We will make sure that the information is with you after the recess.
That is very kind. Thank you.
I echo that. The note from the Scottish Parliament information centre was very helpful, as were the responses that we got from the Scottish Executive.
Absolutely. The controversial parts such as STEPs were never in the recommendations of the committee.
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