Subordinate Legislation
Fundable Bodies (University of the Highlands and Islands) Order 2011 (Draft)
Fundable Bodies (Royal Conservatoire of Scotland) Order 2011 (Draft)
Edinburgh College of Art (Transfer) (Scotland) Order 2011 (SSI 2011/54)
The second agenda item is to take evidence on two affirmative instruments, which are the draft Fundable Bodies (University of the Highlands and Islands) Order 2011 and the draft Fundable Bodies (Royal Conservatoire of Scotland) Order 2011, and a negative instrument, which is the Edinburgh College of Art (Transfer) (Scotland) Order 2011 (SSI 2011/54).
I am pleased to welcome Angela Constance, the Minister for Skills and Lifelong Learning. This is Ms Constance’s first visit to the committee. She is replacing Mike Russell, who is unable to attend because of illness. Ms Constance is joined by Scottish Government officials Stephen Kerr, who is deputy director for higher education and learner support; Louise Sutherland, who is from the higher education governance branch; and Ailsa Heine, who is from the legal directorate.
I ask the cabinet secretary to make a short opening statement. Sorry, I have promoted the minister—I should not have stuck to the script.
I am pleased to have this opportunity to make introductory remarks. The draft Fundable Bodies (University of the Highlands and Islands) Order 2011 and the draft Fundable Bodies (Royal Conservatoire of Scotland) Order 2011 are to be made under the powers that are conferred by section 7(1) of the Further and Higher Education (Scotland) Act 2005. The changes that will be made by the orders have, as required by the 2005 act, been approved or proposed by the Scottish Further and Higher Education Funding Council. The funding council may fund only institutions that are listed in schedule 2 to the 2005 act. The purpose of the orders is to reflect two name changes: the UHI Millennium Institute has changed its name to the University of the Highlands and Islands, and the Royal Scottish Academy of Music and Drama is changing its name to the “royal conservatoire of Scotland”. The orders will allow the funding council to continue to fund the institutions under their new names.
It gives me particular pleasure to be speaking about the university of the Highlands and Islands, as members will be well aware that the creation of the university in the Highlands and Islands has been a long-held desire by many people. The Scottish Government has been supportive of the UHI’s journey to this historic moment. The university has a pivotal role in the educational, economic, social, cultural and environmental infrastructure of the region and it reaches out to the people of the Highlands and Islands and the rest of the world through its research and teaching.
On the draft Fundable Bodies (Royal Conservatoire of Scotland) Order 2011, the RSAMD is currently engaged in a review of its programme to refashion its curriculum. It is also developing a second campus to accommodate, among other things, modern ballet and technical and production arts. The RSAMD views that as being a fundamental step change in its development and that the time is right for it to represent itself as the royal conservatoire of Scotland. The RSAMD wishes to make its name change on 1 September 2011, for moving into the next academic year.
The third order under agenda item 2 is the Edinburgh College of Art (Transfer) (Scotland) Order 2011. Members will be well aware that, earlier this year, Mr Russell approved the merger of the Edinburgh College of Art and the University of Edinburgh. The merger has the full backing of the boards of both institutions and, more importantly, of the student associations of the college and university as well as the staff unions. The order is required to effect the merger by transferring the college’s staff, property, rights, liabilities and obligations to the university on 1 August 2011. On that date, the university will re-establish the college as part of the university and the college in its present form will be closed on 2 August.
We are aware that the Subordinate Legislation Committee has drawn certain matters to the attention of this committee. As outlined in the Government’s response to the Subordinate Legislation Committee, we consider that the provisions in article 3 relating to the re-establishment of the college, its principal and location are linked directly to the closure of the existing college and the transfer to the university of the college’s staff, property, rights, liabilities and obligations. The order has been made with the full involvement and consent of the university court. It understands that any future changes to remove the college or its principal would require the Scottish ministers’ consent. The court recognises the need not simply to preserve the identity of the Edinburgh College of Art, but to enhance it within the university. At the time of approving the merger, Mr Russell had regard to the university’s express commitment to preserving the college’s identity, ethos and studio-based culture as binding. The funding council has been asked to monitor and report on progress as the merger is implemented.
10:15
Section 47(1) of the Further and Higher Education (Scotland) Act 1992 enables Scottish ministers, by order, to close Edinburgh College of Art and wind up its governing body. Section 47(2)(a) of the 1992 act allows its assets to be transferred, which will be to the University of Edinburgh in this case. Section 47(2)(f) of the 1992 act allows the inclusion in the order of provisions
“of such incidental, supplementary, transitional or ancillary nature as”
Scottish ministers consider
“to be necessary or expedient for the purposes of the closure and winding-up.”
We consider that the power in section 47(2)(f) is wide enough to make the provisions in article 3 of the order and that they are therefore intra vires.
As the provisions of article 3 all relate directly to the closure of the institution and the transfer of its assets and staff to the reconstituted college, and as the university has consented to their inclusion, we also consider that it is appropriate and expedient that they are contained in the one instrument.
In respect of the Edinburgh College of Art prize fund, we have noted the Subordinate Legislation Committee’s views, but we are satisfied that the order provides for the fund’s transfer to the university for the continuing benefit of future students.
The purpose of article 7 of the order was to ensure that it was clear on the face of the order that, on transfer of the fund, it continues to be subject to the existing trust and the same conditions as currently exist. The fund was identified by means of a footnote in the order.
Thank you very much for your patience and indulgence as I made that rather lengthy statement.
Minister, I echo your comments on the UHI and what will become the royal conservatoire of Scotland, which are two of Scotland’s most innovative higher education institutions. I think that we all wish them well.
As the minister noted, the Subordinate Legislation Committee indicated to us that there is some legal concern about the Edinburgh College of Art order. I have spoken to the principal of the University of Edinburgh and received certain assurances from him. Indeed, he has written to the convener to make it clear that the university court and the university are clear about the future of the art college, its principal’s position, its location in Lauriston Place and so on. Are you absolutely content that not only is that the university’s view in the short term but that, based on the order, it will stand the test of time for the medium and long-term?
I am. I have been assured of that by officials who have far more legal expertise than I do. However, I accept the spirit of Margaret Smith’s question. For reasons that are well known to the committee, the order is necessary for the future of Edinburgh College of Art. I have sought assurances from Scottish Government officials that the order is, indeed, in order and intra vires, and absolutely necessary. However, I ask Ailsa Heine to give you more technical assurances.
Ailsa Heine (Scottish Government Directorate for Legal Services)
We consider that the provision, particularly article 3 of the order, is within the powers of Scottish ministers. As far as we understand it, the Subordinate Legislation Committee has expressed doubts about the provision but has not actually said that it considers it to be ultra vires. As the minister indicated, the legislation under which the order is made gives the power to make such supplementary or ancillary provision as Scottish ministers consider
“necessary or expedient for the purposes of the closure"”
of the college.
The Subordinate Legislation Committee has taken the view that the provision regarding the continuation of the college and the office of principal is not connected with the closure and, indeed, will apply afterwards. However, we think that seeing this as simply a closure is to take a very restrictive view; it is actually a closure and a transfer and, given that and the interests of all the parties involved in maintaining the college’s identity, it was felt expedient to make the provision in the order. As it is expedient, it therefore falls within ministers’ powers.
Stephen Kerr (Scottish Government Directorate for Employability, Skills and Lifelong Learning)
I think that the question contained a policy element related to the covenants and undertakings that we have been given by the University of Edinburgh. I would say two things about that: first, the university has quite a good track record of absorbing smaller institutions and seeing them grow. For example, the Moray House brand is still strong and the Roslin institute, which has been part of the university for some months, if not years, continues to flourish. Secondly, as documents on the university’s website make clear, its vision for the merger is very clearly to
“build a vibrant, growing and sustainable Edinburgh College of Art”
where existing provision is developed and strengthened and new provision created, and which will have
“a more diverse student body”
and “greater public impact”. We feel that in addition to Tim O’Shea’s undertakings the mood music around the merger is very positive and, putting all that alongside the university’s current track record in this regard, we have cause to be optimistic about the future.
As I have some constituency experience of dealing with the University of Edinburgh when it took on Dunfermline College of Physical Education, as it once was, I do not know that the picture is always so sunny. However, let us move on.
Minister, you mentioned in passing that ministers might have a role to play if there were any moves, for example, to lose the college principal or to change the college’s name or location. Can you be more specific about what would be covered in that respect?
Margaret Smith has probably seen the letter that Mike Russell sent to both institutions, in which he clearly states that guarantees about the ethos and identity of Edinburgh College of Art are binding. Within the scope of the order, we have made it clear that any substantial or significant changes must revert to ministers.
Ms Smith might be interested to know that the Scottish funding council, on behalf of ministers, will monitor the merger very closely and report back after six months and at regular intervals thereafter. Today is not the end of the process and I hope that I can reassure the committee that ministers will take an on-going interest in the matter.
I have more of an observation than a question. Putting the mood music to one side, I think that concerns remain, particularly with regard to loss of independence at Edinburgh College of Art. The college has been a very successful institution for many years now and it is unfortunate that it has had to be swallowed up by the University of Edinburgh. I realise that a lot of work has gone into this move and I think that it is the only thing that will save the college at the moment but, nevertheless, this is something to be regretted rather than celebrated.
The comment in the cabinet secretary’s correspondence that he viewed the merger
“with regret as well as anticipation”
chimes somewhat with Mr Macintosh’s view. Indeed, Mr Macintosh is right to suggest that events have been unfortunate; however, we are where we are and we now have to preserve and enhance Edinburgh College of Art.
We are very aware as a Government of the concerns about a loss of independence. Although we note that the response was two to one in favour of the merger, we take on board the range of views and concerns that have been expressed. We hope that the Government has shown itself to be diligent in pursuing the agenda, and we will continue to oversee matters as best we can within the scope of our powers.
Members of the committee have all been briefed by the principal of the University of Edinburgh, and the minister has put on record that she feels that the measure is necessary. Can you indicate, minister, what you feel the consequences will be if the legislation is not passed?
I am very aware that the timescales are critical. The Government acted on advice from the Scottish funding council at the beginning of this year that we as ministers had to make a decision, as a process would need to be put in place before Parliament rose in order to retain Edinburgh College of Art.
The Scottish funding council has been crystal clear in saying that Edinburgh College of Art is not viable in the medium to longer term, so we really need to act now. That is in the best interests of the college.
That concludes questions to the minister and our evidence taking on the instruments.
We move to agenda item 3, which is formal consideration of two affirmative instruments, the draft Fundable Bodies (University of the Highlands and Islands) Order 2011 and the draft Fundable Bodies (Royal Conservatoire of Scotland) Order 2011. I invite the minister to move motions S3M-7890 and S3M-7891. Members will remember that we have up to 90 minutes to debate the motion if necessary.
Motions moved,
That the Education, Lifelong Learning and Culture Committee recommends that the Fundable Bodies (University of the Highlands and Islands) Order 2011 be approved.
That the Education, Lifelong Learning and Culture Committee recommends that the Fundable Bodies (Royal Conservatoire of Scotland) Order 2011 be approved.—[Angela Constance.]
Motions agreed to.
The committee is required to report to Parliament on those affirmative instruments. Are members content to delegate authority to me to agree the text of the report with the clerks?
Members indicated agreement.
Agenda item 4 is consideration of the Edinburgh College of Art (Transfer) (Scotland) Order 2011 (SSI 2011/54). Members will note the paper from the clerk, which sets out the concerns that the Subordinate Legislation Committee highlighted and considers the minister’s answers to questions in our earlier considerations. No motions to annul have been lodged in respect of the instrument, and I see that there are no comments from members.
Does the committee agree to make no recommendations on SSI 2011/54?
Members indicated agreement.
I suspend the meeting briefly to allow the minister’s officials to change over.
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Meeting suspended.
10:31
On resuming—