Chamber and committees

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?

In the stage 1 report, the committee recommended that a statement on the purposes of inspection should be included in the bill. I agree on the value of setting out the purposes of inspection, but it is also my view that we need to strike a careful balance to ensure that we do not hinder the flexibility or independence of the chief inspector, which I believe Mr Kerr’s amendment 304 would do. As committee members will know, Professor Muir highlighted the importance of that balance when he gave evidence during stage 1. He advised that the bill should set out only the

“high-level principles in relation to how the inspectorate should operate”,—[Official Report, Education, Children and Young People Committee, 18 September 2024; c 18.]

leaving operational detail to the chief inspector.

As I said earlier, I remain open to further consideration of the topic. I note that Ms Duncan-Glancy raised a pertinent issue in relation to teacher recruitment. She will be mindful of the issues that I raised in response to Mr Kerr about the responsibilities of local government. However, I am also mindful that the inspection plan could set that out as a national focus, for example. The committee will have the opportunity to review the inspection plan and feed into it accordingly.

I intend to press amendment 86, as it is a minor, technical amendment that clarifies how an existing power in section 31 of the bill can be used. That is being done to ensure that the end result is transparent and accessible, with a full definition in one place, rather than a definition being split between the bill, when enacted, and regulations. I will not press my other amendments in the group, and I ask that Mr Kerr and Ms Duncan-Glancy do the same in order to create the opportunity to bring forward a strengthened amendment at stage 3.

Amendment 84, by agreement, withdrawn.

Section 30—The inspection function

Amendment 304 not moved.

I thank members for lodging amendments 331, 175, 25, 177 and 334. I appreciate that members are looking for assurances about particular things that the inspection plan will cover, which is a familiar theme from the previous groups. However, it is my view at the current time that those amendments reflect operational-level decisions that are for the chief inspector to make, and I worry that the amendments would inhibit their independence in that regard. My view is that it would not be appropriate to prescribe that level of detail in legislation. I note that, in their evidence to the committee, both Professor Donaldson and Professor Muir highlighted the risk of hemming in the chief inspector with excessive strictures in legislation.

The inspection plan will, of course, have to be prepared in consultation with the advisory council and others. I will come to Mr Greer’s amendment 92, which would guarantee the committee a voice in that consultation, in a moment. However, my view is that it is much more appropriate for the content to be set by the chief inspector in the light of that consultation, rather than being fixed now in a way that might not always remain appropriate.

For example, there could be a thematic inspection where evidence is sought from a range of schools about a particular aspect such as pupil attendance rates. If evidence was simply being sought from them by email, for example, it would not be an inspection where notice would need to be given in the usual way. However, amendment 331 would implicitly require that some notice of inspection was always given.

That is why we are best to take the view that, as long as the inspection plan is capable of covering all those matters, which it is, we should not set it in stone in primary legislation. I know from my discussions with the inspectorate that that view is supported by the FDA, the trade union representatives and Education Scotland, with whom I discussed the matter only yesterday. I therefore encourage members not to support those amendments.

Mr Briggs’s amendment 176 proposes that we include in the inspection plan the process for making recommendations and also expectations regarding how they should be responded to. I cannot see that changing over time or inadvertently tying the chief inspector’s hands, so I am happy to support that amendment.

I also believe that Mr Greer’s amendments 38 and 39 are useful in making explicit the importance of consultation by both the chief inspector and Scottish ministers, as applicable, with those who might be considered to be representative of educational establishments. Although that might reasonably be assumed to be implicit in the existing provisions, I am happy to support those amendments. We will likely want to return at stage 3 to the mention in amendment 39 of the “Chief Inspector”, which I suspect might be a typo, as I am not sure that it makes sense to have the chief inspector make a judgment call about consultees, given that ministers are the ones with the consultation duty under that provision. However, if Mr Greer wishes to press amendment 39 today, I will be content to support it, and it can be tidied up as necessary.

I move on to the amendments in the group that would require the draft inspection plans to be laid before Parliament. Although I support the principle of amendment 92, I strongly encourage members to support the Government amendments 92A and 92B, which seek to amend the one that Mr Greer has lodged. For operational purposes, 40 days is a much more manageable and proportionate time period. It is also in line with the time periods that are attached to numerous other plans such as the fuel poverty strategy, the national islands plan, the additional support for learning code of practice, the community empowerment national outcomes, the wildlife code of practice and the Scottish Parliament elections code of practice. If that period is sufficient for all those very important documents, I do not see a compelling case for making it significantly longer in the case of the inspection plan.

A 40-day period aligns with the period that the Parliament has to annul negative regulations and the period that the committee has for voting on affirmative ones. That includes regulations that are far longer and more complicated than I would expect the inspection plan to be.

I highlight that amendment 92 does not, in fact, confine the reports or resolutions of the Parliament to those that occur during the specified laying period. The amendment has a bit of latitude: as long as the plan is still in draft form at the time when the resolution is passed or the report is issued, it will have to be taken into account. I also note that our working assumptions on commencement are that factoring in the timescale of 60 days excluding recess would leave it almost impossibly tight for the chief inspector to produce the first inspection plan.

As such, although I will remain supportive of the principle of amendment 92 if my amendments 92A and 92B are not agreed to today, I will, in light of the points that I have just made, look to bring the issue back at stage 3 for further consideration. However, I hope that members are willing to support my amendments today.

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.

I accept the member’s point, but I have a concern that brings me back to the point that Ms Duncan-Glancy rightly raised, which is that the current culture in our schools is not necessarily that which the member has alluded to. We need to work to support that culture through reform.

I welcome the intention behind the amendments lodged by Mr Briggs and Mr Kerr. I understand that the petition that Mr Briggs has alluded to is still under consideration by the Citizen Participation and Public Petitions Committee, so I will make no further comment on the specifics.

However, I make it clear that I understand that the existing complaints processes can be perceived as fragmented and complex by complainants. I think that that was the point that Mr Briggs was making, and we should look at what more can be done in that area. Therefore, I propose today to discuss with COSLA and ADES through the recently established education and childcare assurance board—so, outwith the legislative process—the range of issues that have been highlighted in members’ contributions. It would also be pertinent to involve wider stakeholders, such as the General Teaching Council for Scotland, as necessary.

I am more than happy to engage with the committee on that work, if members agree to the proposition. The discussions might lead us to considering proposals such as those put forward by Mr Kerr and Mr Briggs. However, I am not clear at this point that those are appropriate functions for the chief inspector to take on.

Mr Kerr and I have discussed this privately, and I share some of his concerns about the cultural challenges in that respect in our education system. I would not want to apply this sort of thing in any blanket way across the whole school or education system; it will all depend on the school setting, for example, and the people involved. However, I take the member’s general point about the challenges in this space.

I have a number of challenges with regard to amendment 315, which sets out the chief inspector’s whistleblowing function. First of all, it would not fall within the Scottish Parliament’s legislative competence, which would risk the bill itself being unable to become law. The scope of the amendment would also risk cutting across the Scottish Public Services Ombudsman’s statutory remit, which, in broad terms, relates to maladministration and service failure.

Mr Briggs’s amendment 166 would require the office of the chief inspector to investigate complaints. Again, it is important to note that there are already established routes for parents, teachers and others who want to raise concerns about a child’s education provision. The delivery of education and the duty to secure improvement are primarily the responsibility of councils.

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 in 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.

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.