Chamber and committees

The member talks about moving functions and the associated costs, and I alluded to staff costs and staff terms and conditions in my commentary. Has she given any thought to how long the process would take? I am very mindful of the need for this bill to take effect and have an impact in our schools, where it should be having an impact, as quickly as possible. This is fundamentally about driving reform forward.

Some of the challenge that I face as cabinet secretary is that, as we have heard from Mr Mason, any reconsideration of establishing a new body not only would come with associated costs but would take time. Has the member scoped the time associated with moving staff across and the duration of the delay to education reform that that might create?

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 am happy to have taken that intervention from Ms Duncan-Glancy. I have already alluded to the extensive engagement that was undertaken prior to my time in office, which considered a range of different bodies. There is no unilateral view on where the accreditation function should sit and, additionally, no one view, I think, stemmed from the stage 1 report. However, there is a strength of feeling from committee members on the issue, and I accept that, which is where the Government amendment takes us.

More broadly, creating a new NDPB to accommodate the accreditation function would contravene the Government’s public service reform position that no new smaller public bodies should be established. We must be mindful of costs to the taxpayer in that regard.

I would also argue that a decision to set up curriculum Scotland as a new body via an amendment without having done detailed analysis and consultation would be highly questionable, particularly given the significant policy, legal, financial and delivery risks. I will talk more about that when we come to group 20.

Finally, similar to some of the other options, amendment 295 risks the creation of further complexity in the national educational infrastructure, potential disruption to services due to the significant change involved, and potential changes in staff terms and conditions. I therefore ask Ms Duncan-Glancy not to move the amendment.

In summary, I cannot support the non-Government amendments in this group, as they are all a consequence of removing the accreditation function from qualifications Scotland. I ask that members take into account the full range of measures that the Government is taking to ensure an appropriate separation between qualifications Scotland’s accreditation and awarding functions. The measures proposed in the bill are significant and will, in my view, provide the necessary separation. In addition to the legislation, I have commissioned the chair of the SQA to advise on additional measures at an operational level to further strengthen that separation and to provide reassurance to the public and MSPs about the integrity of accreditation.

Nevertheless, I accept that this is a complex issue, and it is important that we get it right. That is why I have lodged amendment 73, which will ensure that the issue is revisited through a statutory review of the operation of the bill’s accreditation provisions. As currently drafted, that review would include the location and scope of the accreditation function—which was the point that I made in response to Mr Kerr—and it would draw on two years of operation of the provisions. Not only would that ensure a smooth transition to the new body and continuity of service provision, but it would enable us to consider the wider implications for the education and skills sectors. A report of the review would be laid before Parliament so that the committee could consider it.

I understand that members might have concerns about the two-year period being too long—indeed, I think that we have heard that already this morning—and I would be happy to work with members to reduce it. I hope that that answers some of Mr Greer’s points. This is a complex issue that covers many interests, and I am committed to ensuring that we get it right.

The Government’s amendment will enable us to have the detailed consideration that is required in relation to the location of the accreditation function, so that we can ensure that any changes reflect the interests of all those who use and rely on that function, which, as members know, go beyond the immediate education sector.

Therefore, I ask members to support my amendment 73 in preference to the other amendments in the group.

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.

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.

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.

We have asked her to strengthen the accreditation function, and there are a number of different actions associated with that. I will come back to you on that point, as I am aware that officials are not allowed to talk in this current engagement.

On amendment 47, I am, of course, supportive of the principle that the chief examiner should have teaching experience. However, as members will appreciate, not all previous teachers necessarily remain registered with the GTCS, and not all of our teachers trained in Scotland. If someone has spent many years building essential qualifications and assessment experience elsewhere, they might not be a member of the GTCS—something that, of course, also incurs an annual fee. I believe that, if we were to require GTCS registration, we would risk missing out on the invaluable experience of candidates who might come from outwith Scotland, as we would be presuming that a candidate would have been a teacher in Scotland, which I think would be quite limiting.

I also wish to note that specifying a staffing role like that in legislation has other challenges. A chief executive is a well-established role, and it is clear to all that their role is to lead the organisation, whereas the role of a chief examiner, prescribed in legislation, is likely to be more ambiguous to people. We would need to be much clearer in the legislation about the function of that role but, at this point, based on the current role, I do not think that prescribing it in legislation would be helpful to the organisation, as that role might need to adapt and change to fit the future organisational and system needs.

As I said, if we were to legislate on this, we should be much more flexible about who can be appointed to ensure that we do not exclude good candidates who might have taught outwith Scotland.

Can I come back to you on that point? I want to check with officials in relation to an associated reporting period.

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.