Chamber and committees

The Government has not begun any recruitment to qualifications Scotland, because that organisation does not exist yet. We have recruited to the SQA. I just wanted to put that on the record.

I very much recognise that there are calls for further legislation in this area. However, although the amendments are obviously very well-intentioned, I am not able to support them. We accept, of course, that there needs to be a robust system in place to monitor restraint where there is education provision in secure centres, but the amendments do not recognise the unique set-up of those centres or, in particular, the difficulties in distinguishing between care and education providers.

Notably, the Care Inspectorate has a vital role in undertaking the inspection of secure accommodation. I have, therefore, lodged my own amendment 88, which was debated in a previous group, to require the chief inspector to have regard to

“the need for relevant educational establishments to have adequate arrangements in place to safeguard and promote the welfare of children and young people”.

That flexible provision is intended to cover the use of restraint.

I am coming to that exact point now, Mr Kerr.

I am more open to discussing the intention behind Pam Duncan-Glancy’s amendments. Given the importance of inspection in the school system, in particular, it is an interesting proposition that ministers should set the frequency of the inspection of schools and other educational institutions, as amendment 309 suggests. That said, there could be potential downsides to it. There is a potential risk that, in focusing on the frequency and the number of inspections, we might lose sight of the trade-off that there might be with quality and appropriate focus. Hypothetically speaking, could the chief inspector, faced with a ministerial stipulation about how frequently schools should be inspected, seek to meet that requirement by carrying out a light-touch, simple inspection model, which might not always be appropriate?

I am also mindful of the fact that Professor Muir made no recommendation on the frequency of inspection in his report and that the associated consultation offered varying views from respondents.

I thank Ms Duncan-Glancy and Mr Kerr for their amendments. I am pleased to see that we agree on the value of setting out the purposes of inspection in the bill.

The amendments that I have lodged set out clear purposes for inspection, which will ensure that the chief inspector carries out their functions to promote improvement in education and to hold relevant educational establishments accountable for the quality of the education that they deliver. By including a ministerial power to amend the inspection purposes through secondary legislation if those purposes ever need to be changed, my amendments will also allow a degree of flexibility.

It is important to note that I am minded to seek to withdraw amendment 84. Fundamentally, I remain open to further consideration of the purposes of inspection. I have a number of concerns about other members’ amendments in the group, which I will explain in a moment. Although I believe that there are many similarities between those that I have lodged and Ms Duncan-Glancy’s amendment 313, at this point, I cannot support what she has set out, because, as well as making no reference to the importance of accountability, the amendment would appear to extend the chief inspector’s role to providing support for improvement, which would take resource and focus away from their core role, while risking blurring the very boundaries that removing the inspection function from Education Scotland will help to clarify.

Although I appreciate the intention behind amendments 337 and 338, I have concerns about their impact on the independence of the chief inspector, if they are agreed to. I have always been clear about the importance of ensuring that the chief inspector is able to operate independently, set inspection priorities and be independent in their findings. The bill’s current provisions give the chief inspector the power to decide on the format and content of each inspection report; indeed, the provisions have been specifically drafted that way to ensure that the chief inspector has the flexibility to report as they see fit.

It is also significant that, when Professor Muir gave evidence to the committee, he expressed concern that the inspector could become dominated by reporting, which is a risk that I believe these amendments could exacerbate. I also note that the chief inspector is highly likely to continue the practice of thematic inspections—which we have discussed in relation to other groups this evening—whereby a number of establishments might be inspected only on a particular aspect. Amendment 337, when taken with amendment 304 in group 26, would prevent that from being possible, as it would require every matter listed in amendment 304 to be covered in each inspection report. For example, discipline policies would always have to be reported on, as would the employment contracts held by teachers, even when those aspects were not relevant to the theme that the chief inspector wanted to examine.

On amendment 338, it is, of course, right that judgments in inspection reports should always be based on sound reasons, but insisting that “full reasons” be included in every report would risk bogging down the chief inspector legalistic discussions about what “full reasons” would constitute, as well as limiting their ability to make judgments about what was important, rather than peripheral, to include in reporting. For those reasons, I ask members not to support amendments 337 and 338.

In relation to Mr Briggs’s amendment 181, although I am supportive of the chief inspector making recommendations to strengthen areas for improvement, it might not always be appropriate to set out all the recommendations in a published report. For example, there might be concerns that a specific recommendation could inadvertently lead to the identification of an individual child or young person in a small school. However, I believe that there is merit in looking at the issue further, and I ask the member to work with me on it ahead of stage 3.

Similarly, I see Ms Duncan-Glancy’s amendment 339 as being useful. It would, of course, be right for the chief inspector to

“have regard to any representations made by”

staff in the establishment under inspection, and I am happy to support the inclusion of that in the bill.

On Mr Greer’s amendment 40, which would require the chief inspector to publish child-friendly versions of all inspection reports and other accessible versions that are appropriate to those receiving education at the establishment in question, I appreciate the member’s good intentions, although I am not sure how many children and young people currently engage with school inspection reports. As cabinet secretary, I read them regularly, and I do think that we will want to make them accessible.

More broadly, although that is my intention, I believe that amendment 40 is unnecessary and, importantly, its inclusion could accidentally weaken what is already covered in the bill. Section 49 already contains a requirement for the chief inspector to

“have regard”

when publishing documents

“to the importance of communicating in a way that best meets the needs of ... children and young people ... users of the Gaelic language”

and

“others affected by the exercise of the Chief Inspector’s functions.”

I am concerned that adding something bespoke in relation to inspection reports could inadvertently undermine section 49 by implying that it is not already suitably covered in all reports. On that basis, I ask Mr Greer not to move amendment 40.

On amendment 11, sending copies of inspection reports to establishments before they are published is already current practice in the existing inspectorate. Indeed, I further clarified that point yesterday when I met the trade union representatives from Education Scotland whom I mentioned earlier. That said, I do understand the member’s desire to secure the practice in legislation.

There is a bit of a risk, though, in setting out such a level of operational detail in legislation, particularly for thematic inspections, where reports might cover many different establishments with a diverse range of needs. I therefore cannot support amendment 11. However, I ask Mr Greer to agree to work with me to find a more suitable alternative ahead of stage 3.

On amendments 18 and 19, I sympathise with Mr Greer’s good intentions in seeking to ensure compliance with the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024. However, I have some concerns about those amendments, the most significant of which is that asking the chief inspector to assess how UNCRC requirements are being met would essentially be asking them to perform what is, and must remain, a function of the courts.

There are also other issues with amendments 18 and 19, such as the fact that not every relevant educational establishment would be subject to UNCRC requirements. However, more significantly, there are important complexities in how the UNCRC act applies, given that, for the purposes of that act, a “relevant function” is one that is conferred in legislation by the Scottish Parliament.

Significant parts of the functions of education authorities are also conferred by the Education (Scotland) Act 1980. Those are not “relevant functions” under the UNCRC act, so the prohibition on public authorities acting incompatibly does not apply in relation to those functions. However, the UNCRC requirements apply to other functions of education authorities, including those conferred by the Standards in Scotland’s Schools etc Act 2000 and the Education (Additional Support for Learning) (Scotland) Act 2004.

Amendments 18 and 19 would require the chief inspector to make complex and nuanced judgments as to which aspects of an educational establishment’s service provision are done in pursuance of a “relevant function” in respect of those aspects to which a public authority’s duty under section 6 of the UNCRC act applies, and those to which it does not apply. Those would be important judgments to get right, and amendments 18 and 19 would appear to add layers of legal risk to the chief inspector’s inspection activities. That would be likely to require significant resources and might cause delays in the preparation and publication of inspection reports.

I therefore ask Mr Greer not to move amendments 18 and 19. However if he still wishes to do something in that space, I believe that setting out some specific requirements might be more likely in practice to have the effect that he desires. I ask that he works with me on the drafting of such an amendment for stage 3.

On Mr Greer’s amendment 20, it would not be proportionate or a good use of staff time to require every establishment to read and review every single inspection report when it is published. My current expectation is that there will be about 250 reports a year. There are just 260 weekdays in each year, and school holidays take that to 195 working days a year. Therefore, more than one report would have to be reviewed on each working day. I am conscious that the committee has given itself 60 days to review the chief inspector’s report.

One purpose of the report on performance of education in Scotland will be to share key lessons that are of wider relevance, which will be sufficient to ensure that lessons are suitably drawn.

On that basis, I ask Mr Greer not to move amendment 20. However, I am supportive of the principle behind his amendment 21 in an upcoming group, which is confined to reports on the performance of education establishments.

The member will recall that there is already stipulation in the legislation for the inspection plan to set out

“the period to which the plan applies”

and

“the frequency with which different types of relevant educational establishments, other than excepted establishments, will be inspected”.

Frequency is already covered in the bill, but it is under the power of the chief inspector, who will stipulate it in the inspection plan, which will then be laid in Parliament, and the education committee will be able to interrogate that plan. As I understand it, that power currently rests with the chief inspector, not with ministers. Is the member content to give that power to ministers? Does he not trust the chief inspector to stipulate the frequency of school inspections?

I disagree in relation to the point on protected characteristics. We had that discussion last week, and I am advised that those are already covered by the Equality Act 2010 and the public sector duty. We need to be mindful about the way in which the proposals would interact. For example, when it comes to protected characteristics, I am not sure that having the chief inspector have regard to anyone who has an age would have the effect that Pam Duncan-Glancy seeks to deliver.

As already discussed, amendments 89 and 90, taken together, will insert requirements for the chief inspector to have regard to the needs and interests of persons who are receiving, or who wish to receive, British Sign Language learner education, British Sign Language medium education or the teaching of British Sign Language in the provision of further education by an education authority. Those important changes respond directly to requests from stakeholders and the committee, and I encourage members to support them.

I highlight the fact that we will be appointing the chief executive, which will bring fresh leadership to the organisation. We have already had a partial refresh of the board, and there will be the upcoming refresh that I talked about in relation to the membership. I am quite clear that the leadership of the organisation has been transformed since late 2023, when Ms Rogers was appointed, so I am not necessarily sure that I would accept the member’s point in that respect.

However, there are a number of risks in relation to board appointments, which we have discussed at length in previous evidence-taking sessions. Therefore, we need careful succession planning when considering such appointments, and I do not believe that Ms Duncan-Glancy’s amendment supports effective and efficient public body governance.

Would Mr Greer like to come in now?

There is nothing to preclude the chief inspector from stipulating that in the inspection plan. That is already provided for in the bill. The matter rests with the chief inspector. I understand the member’s point, which is that he wants to give that power to ministers and take it away from the chief inspector. It is arguable that doing so weakens the strength of the committee in interrogating the inspection plan, because the bill is currently drafted to allow for that.

I thank members for their explanations of the purposes of their amendments.

I understand and am sympathetic to the intentions behind Mr Kerr’s amendments 346 and 347, on reporting content. The provisions in the bill as introduced are intended to strengthen the independence of the chief inspector by giving them the flexibility to report on matters as they see fit.

Although Mr Kerr’s amendments would, to an extent, risk limiting the flexibility of the chief inspector in that regard, it is likely that the chief inspector would include some reference to the topics that are set out in Mr Kerr’s amendments in their report. However, I believe that we need to be careful to maintain the boundary between inspection and policy and not draw the chief inspector beyond their role of independent evaluation into policy making by default.

For example, if the Government adopted policy recommendations from the chief inspector, how could the chief inspector then be seen to evaluate them objectively? That would risk opening the door to charges of them marking their own homework. In any case, the amendments would not quite work in their current form, as the wording would need to be limited to education policy in Scotland in so far as it relates to the chief inspector’s functions. I ask Mr Kerr not to press or move these amendments but to work with me ahead of stage 3 to address the points that his amendments attempt to cover.

On Mr Greer’s amendment 21, I would very much expect establishments to have regard to the report on the performance of the Scottish education system in any case. The current wording of the amendment is somewhat problematic in that it would require establishments to have regard to all of the reports that had ever been published under section 39—even ones that had become out of date. I hope that Mr Greer is open to my suggestion that we work together on a reworded version of the amendment ahead of stage 3.

I agree that Mr Greer’s amendments 14, 15 and 16 would be helpful in aligning the reporting cycle of the annual report with the academic year, and his amendments 93 and 112 would include a power enabling ministers to amend that cycle through regulations, should that be required in the future. I am therefore happy to support those amendments and I urge members to vote in favour of them.