Chamber and committees

Mr Rennie, I am concerned that, if I open my mouth, you might interpret my body language in a manner that I do not mean. [Laughter.]

I have heard contributions from Mr Rennie and Mr Kerr about my unwillingness to move on this matter. I would observe that, if that were the case, there was no requirement on me to lodge amendment 73 to compel the Government to look at this. I heard the strength of the committee’s feelings on the matter at stage 1 and I responded to that by lodging amendment 73 at stage 2. We were not sighted on the amendments that were being brought forward by the Opposition at the time, because of the timetable for the drafting of amendments, but I am happy to give a commitment to members today. We have to get this right. The issue that I have, which is predicated on the advice that I have been given, is that all the options that have been extensively considered carry inherent risk.

I also hear Mr Rennie’s points about the need for perfection. That is something that I would aspire to in relation to the new body, but Mr Mason’s points in that regard are relevant. I am happy to give an undertaking to have that extensive undertaking on a cross-party basis. However, I go back to my broader observation that the committee did not unanimously reach a decision on where the responsibility for accreditation should rest.

With that, and with the consensus that we want to work on a solution that works for the new organisation, I am happy to withdraw the Government’s amendment.

I am more than happy to recognise the points that Mr Greer has made and to give him that assurance.

Of course, I have been engaging with members on a cross-party basis throughout the stage 2 process in advance of today. I have not heard a clear, unilateral view from members on where accreditation should sit, but Ross Greer makes an important point. The Government amendment in this group compels Government to take action in relation to accreditation, so there has been movement from the Government in recognition of the strength of feeling of committee members.

More broadly, I have spoken about the risks associated with moving accreditation to Education Scotland. That would bring it closer to ministerial control, which committee members know is not supported by stakeholders. There could also be an issue with the alignment between the priorities of the agency, Education Scotland and the accreditation function, and there would be a change in employment status for staff. Therefore, I ask Ms Duncan-Glancy not to move amendment 291 and the related amendments.

Ms Duncan-Glancy’s amendment 295 seeks to remove the accreditation function from qualifications Scotland and locate it in a new body—called curriculum Scotland—alongside curriculum functions.

I cannot support amendment 295 for a number of reasons. The Government looked closely at the benefits of locating the accreditation function in a new, smaller, stand-alone NDPB and, although the proposal would provide an appropriate degree of independence from ministers, there were a range of factors against it.

As I alluded to in my response to Mr Greer, those factors included the fact that the start-up costs alone are estimated to be between £400,000 and £600,000. There would also be significant recurring costs for overheads and corporate costs such as estates, human resources, finance and information technology. In relation to all of those, the accreditation function currently benefits from being part of a larger NDPB. Under a new set-up and with additional functions, those factors would be much greater.

Similarly, as I highlighted earlier, it is clear that the accreditation function would not strategically align with the functions of curriculum, thereby creating unnecessary confusion within the system. We have all agreed that reform is about simplifying the system.

From my perspective, it is helpful to hear the rationale. I want to put on the record that that work has already been undertaken. Notwithstanding that, I recognise the concern that Mr Greer has raised and the issues around trust, which the committee is well versed in and which are part of the rationale behind reform. I am more than happy to work with Ross Greer on an amendment at stage 3 that will capture the focus of what he is trying to deliver, which is separation, and will recognise the points that I have made in relation to GTCS membership.

I turn to Mr Kerr’s amendments 221, 222 and 223, which seek to place legislative requirements around the experience and values of a chief executive, their appointment period and what actions they must encourage the organisation to undertake. I note that amendments 221 and 222 present slightly different options to consider. However, the reasons why I do not think that they are needed apply to both options.

The amendments from Mr Kerr replicate the values that all public appointments require, as set out in the code of practice for ministerial appointments to public bodies in Scotland, which is published by the Ethical Standards Commissioner. I think that previous amendments have addressed that point. It is not necessary or appropriate to set out those requirements in legislation, as that would mean that the bill could become out of date if the code of practice changed. Adding those requirements in isolation would also fail to recognise other important values that are required for public body appointments. The principles of public life in Scotland apply to all who hold public office, including members of public bodies, and they include integrity, honesty and leadership.

To reassure Mr Kerr, under the bill as introduced, Scottish ministers will approve the appointment of the chief executive. Schedule 4 also provides for the Ethical Standards Commissioner’s rules to apply. If a recruitment process has not identified a preferred candidate who meets the values that are expected of public body leaders, Scottish ministers can reject the proposed appointment.

Due to the subjective nature of some of the behaviours that are listed in amendment 222, I cannot support it. I am also concerned that amendment 222 conflates values and behaviours with the functions of the body, which are already covered in other sections of the bill. For example, the bill already sets out new requirements for transparency, decision making and scrutiny of how it works. I am mindful of the points that Martin Whitfield made on the matter, too.

References to demonstrating commitment and responding appropriately are open to judgment and would be better dealt with and tested in the appointment process rather than in legislation. Ministers would not appoint an individual who was assessed as not being able to deliver on those statutory requirements. Furthermore, the requirement in amendment 221 for the chief executive to have experience in the regulation of qualifications is contradictory to the provisions in the bill, in which the accreditation function is quite separate and overseen by the accreditation committee.

Limiting the appointment of the chief executive to seven years would, as we have heard, risk the body regularly losing essential knowledge—which I think was the point that Mr Adam was trying to make—which would limit its ability to inform and deliver long-term change and improvement. Furthermore, changes to qualifications as a result of the wider programme of education reform, which includes Professor Hayward’s recommendations, will take a number of years to be fully implemented and embedded across our curriculum. To that end, it would be valuable to have the ability to ensure sufficient continuity.

I highlight to Mr Kerr that statutory time limit terms for chief executives are not usual in Scottish legislation, but they are common for board members. Chief executive terms are generally covered by appointment contracts and governance frameworks rather than explicit legislative term limits. Therefore, I question the need for the time limit to be specified in legislation, given that the chief executive will be an employee of qualifications Scotland. However, the terms of appointment could be set by the board to allow for flexibility, should changes be required.

For those reasons, I cannot support Mr Kerr’s amendments in this group, and I urge others to take the same position. However, I hope that I have provided some level of comfort that the principles of his amendments are well established throughout Scottish public sector appointments.

The advice that my officials have provided estimates that start-up costs for moving the organisation would be between £400,000 and £600,000. Let us say that it is a ballpark £500,000 for Mr Kerr’s interests.

The committee has been advised by the briefing from the Scottish Parliament information centre that the current accreditation function fulfils functions at a total cost that is somewhere in the region of £1 million. The costs that are associated with accreditation would increase, because staff would have to be moved, which would impact on terms and conditions. We would have to undertake consultation with trade unions, and we would need to look at what that would do to terms and conditions. That is the underlying factor driving the cost of the movement of the function.

The other part, which the member has not alluded to and that we have not talked about in detail today, is that there is a presumption across the committee that all qualifications in Scotland are accredited. They are not at the current time. If, as the Government amendment commits us to doing, we were to look properly at the full scope of accreditation and consider that across the board, it would inherently increase costs. I hope that that explains to the member where some of the associated increased costs would be in the movement of staff and in relation to the scope of accreditation and what that currently covers.

I am happy to provide the member with that reassurance. I recall the issues that he spoke about—I think that it was when he and I sat on the Education and Skills Committee in the previous session that we addressed those issues with the SQA, so I very much recognise the challenge that he puts to me in that regard. I am happy to give him that assurance and to work with him further on the matter in relation to stage 3 amendments.

I thank Ms Clark for explaining the purposes of her amendments. It is helpful to have that background. As she will know, the Scottish Government already supports Fiona Drouet’s EmilyTest in colleges and universities more broadly.

We are all behind the importance of health and wellbeing across our education system. I appreciate that the amendments are an attempt to start a discussion, but there are some challenges in relation to drafting at present, which I am more than happy to engage with Katy Clark on. I will talk to them in more detail.

The challenges relate to the duplication of existing duties and the potential imposition of open-ended duties. It is unclear how organisations such as qualifications Scotland and education and training establishments in Scotland could comply with the duties of care that would be imposed in the terms that Ms Clark has proposed, because those duties are very broad and it is not clear what steps would need to be taken to meet them. I would be happy to discuss that with Ms Clark in more detail, but there is a lack of clarity in how the application of the proposed provisions would interact with existing duties.

I turn to the detail of amendments 224, 241 and 281. Amendment 241 sets out that qualifications Scotland would owe a duty of care to those who take and those who deliver qualifications. That duty would include, but would not be limited to, acting in their best interests. The package of amendments also includes measures that seek to ensure that qualifications Scotland sets out in its corporate plan how it intends to satisfy that duty and appoints a dedicated member of staff with responsibility for ensuring that the duty is met.

It is worth emphasising that qualifications Scotland will have, as all public bodies have, an inherent duty of care to its service users more broadly. Ensuring that qualifications Scotland acts in the interests of children, young people, adult learners and teachers is also, fundamentally, a core driver of reform, as we have already heard this morning. The range of governance and accountability measures that we are embedding in the organisation as part of the bill go wider than these amendments and will ensure that those interests are always at the centre of the organisation. For example, the learner charter and the teacher and practitioner charter emphasise the expectations that are to be met by qualifications Scotland in supporting learners and teachers, and section 7 of the bill requires qualifications Scotland to take account of the needs and interests of those who use its services.

However, I would be concerned about a requirement for qualifications Scotland to act in the best interests of those named, as that would create a significant ambiguity as to what exactly constitutes compliance. Furthermore, the duty is not limited to that. It is so broad in its current terms that it potentially widens the scope of the duty of care beyond what would normally attach to a national public body.

I am also concerned about the relevance of what is proposed in that regard. Qualifications Scotland will serve children, young people and adult learners who are undertaking qualifications. However, in practice, the organisation will not work directly with those individuals; rather, the relevant education establishments and their teachers and training staff will do that, and they already have a duty of care to them.

I therefore do not think that it is relevant for those broad duties to be conferred on qualifications Scotland beyond what it will already be expected to do as part of its delivery functions. I therefore cannot support amendment 241.

Amendment 288 would impose a duty of care on the listed educational and training establishments in relation to persons undertaking education or training and persons providing teaching or training. That duty includes, but is not limited to, a duty to act in the best interests of those persons, a duty to protect their health and wellbeing, and a duty to ensure that they have fair and equitable access to support from their education or training establishment. It is not clear whether the intention is to widen the scope of educational establishments’ potential liability in relation to those matters, but that appears to be the effect.

The duty is expressed in broad terms, and the particular aspects that it includes are framed in open-ended terms. For example, it is unclear what the limits would be to the duty of an education authority to protect the health and wellbeing of its pupils and employees.

In addition, some aspects of the provisions would interact with and, to an extent, duplicate, existing law. For example, it is unclear how the duty to protect the health and wellbeing of pupils and employees would interact with health and safety law and with the duty in the Standards in Scotland’s Schools etc Act 2000 for schools to be health promoting.

The duty of care that amendment 288 would impose on relevant educational establishments in relation to learners and teachers would almost certainly create confusion for educational establishments, which will already have their own specific duties of care that are relevant to their circumstances, staff and service users.

As I understand it, and as members heard from Jackie Dunbar, the Scottish Funding Council and Universities Scotland have written to the convener to set out their concerns over amendment 288 and its potential implications. I am concerned that such a broad requirement would lead to inconsistencies in how the duty was applied across different establishments such as schools, further education providers and training institutions, whose circumstances differ widely. That may also be the point that Miles Briggs was driving at.

In my view, amendment 288 is ambiguous and duplicative. I therefore cannot support it.

Amendment 333 would require the chief inspector’s inspection plan to include

“how an assessment will be made as to whether an establishment is upholding its duty of care”.

The new provision for the chief inspector on child protection and safeguarding in amendment 88, which is in group 29, goes a long way towards meeting what appears to be the policy objective behind amendment 333.

A further important safeguard will be the role of others, including this Parliament, in scrutinising the inspection plan and ensuring that it is sufficiently robust. That will be required to happen if amendments from Mr Greer, which I will support, are agreed to.

The scope of the chief inspector’s functions is wide, and we would expect that all inspection frameworks that they put in place would include consideration of how the health, wellbeing and other interests of children, young people and other learners are being safeguarded and promoted.

Finally, a range of different national and strategic frameworks and systems exists to support organisations to protect and care for learners and teachers. Members will be au fait with GIRFEC—getting it right for every child—which puts the rights and wellbeing of children, young people and their families at the heart of policies that provide support for children and families, including in relation to schools.

The United Nations Convention on the Rights of the Child requires that the best interests of the child are a primary consideration in all actions that concern them. Public authorities must also report on the actions they have taken and intend to take for the purpose of ensuring compliance with the compatibility duty and to secure better or further effect of the rights of children.

Although I do not support the amendments in this group as currently drafted, I am interested in working with Ms Clark on what I think is at the heart of her amendments, which is that our children, young people and learners, and those who deliver their learning, are supported in the best ways possible.

I note that Ms Clark has similarly themed amendments in group 15. I therefore ask Ms Clark to not press amendment 224 or move her other amendments and instead to meet me to discuss options to improve the support that qualifications Scotland and our wider system can provide to the individuals and groups that she has spoken about.

The structure that the member talks about is replicated on a number of boards. In the instance in my example, there are challenges in how the staff voice and teacher voice might be incorporated within the current board composition. I have set out my amendments and proposals in relation to consultation that go some way towards addressing that issue.

More broadly, I encourage members to support amendment 53, which seeks to strengthen staff voice arrangements within the organisation. The issue that I have in this instance goes back to the point that I made previously about the composition of the board and some of the issues that were experienced in 2000 with a representative board model that was arguably not as focused on governance as it should have been at that time. Amendment 53 would ensure much closer working between the board, staff and unions, which I believe goes some way towards addressing Ms Duncan-Glancy’s points. It requires the member appointed with knowledge of staff interest to consult and engage with staff and trade unions, and I have lodged another amendment in group 6 that further enhances the relationship.

Ms Duncan-Glancy has lodged two more amendments on board composition, both of which I am interested in supporting in some form. The first, amendment 218, seeks to ensure that knowledge of business, industry and skills is reflected in the statutory criteria of the board. That is an essential element of qualifications Scotland’s functions and services, and I fully expect that be reflected in the board in some form. I am, however, mindful of how requiring a public body to have specific business and industry knowledge on the board could be viewed. I would be interested in refining that position to focus on an individual who brings experience that is more related to the skills and training sector. I recognise the value that business and industry knowledge can bring to the body, and I would be happy to work with the member on that issue ahead of stage 3.

The second amendment, amendment 220, enables qualifications Scotland to co-opt additional members if required. I am supportive of that in principle. However, for it to work, I believe that some tweaks and additional provisions will need to be added to ensure that co-opted members could be appointed in a way that did not undermine the ministerial public appointments process or the necessary limits on board numbers. I ask Ms Duncan-Glancy not to press amendment 220, so that we can work on a solution ahead of stage 3.

I will comment on amendments 30 and 31, which, together, add a limitation of eight consecutive years as the maximum board appointment period. Eight years is the maximum for public appointments set out in the Ethical Standards Commissioner’s code for public appointments. That means that appointments to qualifications Scotland, regulated by the commissioner, will automatically align with that limit. To that end, although I am supportive of the general principle of Ross Greer’s amendments, I cannot support them, given the arrangements that are already present in the commissioner’s code. Relying on the code instead would ensure that the body always keeps pace with best practice, rather than setting something in statute now that may not be appropriate in the future.

I move amendment 41.

To provide Mr Kerr with clarity on that, no, it is not. The point that I was making was that a decision on the Government’s position on accreditation was reached some time ago. However, as cabinet secretary, I have listened to and engaged extensively with the committee on the purposes of accreditation and have reflected that in the Government amendment. I thought that Mr Kerr would have welcomed having a listening cabinet secretary.

I have heard a range of different options and amendments proposed and debated today, but there is no agreed, cross-party view coming from the committee that I can look at and respond to. The Government’s amendment moves us somewhat in relation to decisions that were taken previously, as I alluded to in my response to Mr Kerr. However, I will take Mr Briggs and Mr Greer at their word and say that I would be happy not to move the Government’s amendment in order to see whether we can reach that cross-party consensus on accreditation in advance of stage 3. However, that is contingent on other members doing likewise.

I thank Mr Greer and Mr Kerr for explaining the purposes of their amendments. As we have heard, amendments 47 and 48 are about the creation of a new statutory position of chief examiner, which would be separate from the role of chief executive. That person would require to be registered with the General Teaching Council for Scotland. I remind members that I am a member of the GTCS.

I highlight to the committee, as Ross Greer did, that the SQA has already implemented a new executive management structure, which includes the newly defined roles of chief executive and chief examiner as separate functions. Only yesterday, along with the director of education reform, Clare Hicks, I spoke to the chair of the SQA. She talked to us at length about how warmly that position change by the SQA has been welcomed. It is our expectation that that shift to the separation of those leadership positions will transfer to qualifications Scotland.