A briefing on the Education (Scotland) Bill. This briefing explores some of the recent policy developments in education reform and explores the provisions of the Bill.
The Education (Scotland) Bill seeks to replace the Scottish Qualifications Authority (SQA) with a new body, Qualifications Scotland, and to set out the functions of a new office, His Majesty's Chief Inspector of Education in Scotland. These actions would form part of a wider programme of education reform.
Over several years, there have been concerns raised around the culture and communication of the SQA in Parliament and beyond. There was particular disquiet around the SQA's handling of school qualifications during the pandemic.
Since 2011, the inspectorate has been part of Education Scotland, which is also Scotland's national agency providing curricular guidance and support. The intention was that these two functions would be complementary. However, there have been concerns that the arrangements have not allowed for sufficient independence for the inspection function.
The OECD review of Curriculum for Excellence (CfE), Scotland’s Curriculum for Excellence: Into the Future, was published on 21 June 2021 ('the OECD report'). The report made a number of recommendations on improving the implementation of CfE; this included recommendations around the structures and roles of national agencies. Following the report, the Scottish Government announced it would seek to replace the SQA and create a separate inspectorate.
The Government commissioned Professor Ken Muir to undertake a review and make recommendations on the functions of the new national agencies. Professor Muir published his report in 2022 and the Government accepted most of his recommendations. The Bill is the vehicle to take forward this work.
The OECD report was much broader than the structures and roles of national agencies. Similarly, this Bill is concerned with only one part of the the broader policy development on education reform. Other aspects include considerations around the future of school qualifications and reviewing the curriculum in Broad General Education.
The Bill creates a legislative framework for Qualifications Scotland that is very similar to the current legislative framework that underpins the SQA. The proposals in the Bill differ from the current legislative structure in relation to the SQA in broadly two areas. The first is that will be structures to increase the influence of educators and learners in the work of Qualifications Scotland. The second is to create greater independence of the accreditation function.
Part 2 and Schedule 2 of the Bill establishes the office of His Majesty’s Chief Inspector of Education in Scotland. The Bill will remove the inspectorate function from Education Scotland and, for the first time in Scotland, set out in detail the role and function of the education inspectorate.
The removal of the inspectorate function from Education Scotland means that there will be a third new national education agency which will take on the remaining functions of Education Scotland - mainly curricular guidance and support. The structures and development of this body will not require legislation and therefore may attract less attention and parliamentary scrutiny.
Creating new legislative frameworks is likely to be only one part of the work required to create high quality new national education agencies. While structures are important there are other aspects of governance that are necessary to secure good public service and outcomes. These include good leadership and strong relationships with the customers/users, other public bodies and sponsoring departments.
The Education (Scotland) Bill was introduced on 4 June 2024.
The Bill has two purposes, to establish and set out the functions of:
Qualifications Scotland
His Majesty's Chief Inspector of Education in Scotland.
Qualifications Scotland will take on functions currently undertaken by the Scottish Qualifications Authority (SQA) and the Chief Inspector will lead a new independent inspectorate to take forward the education inspection functions that currently sit within Education Scotland.
The SQA's functions are set out in the Education (Scotland) Act 1996. The organisation has two main roles: accreditation; and developing and awarding qualifications. It is best known for developing and awarding qualifications that most young people will take in the Senior Phase in school or in college.
Education Scotland is "the national body for supporting quality and improvement in learning and teaching". Education Scotland also has two main functions. It includes inspecting schools, colleges, early years settings, education authorities and other settings. It also provides curricular guidance and support. Education Scotland advises Scottish Ministers on matters of education policy.
This Bill is part of the Scottish Government’s response to the OECD report on the implementation of Curriculum for Excellence and can be considered as part of the programme of school education reform the Scottish Government is pursuing. The Financial Memorandum accompanying the Bill states:
An extensive education reform programme is underway in Scotland, incorporating the creation of a qualifications body to replace the SQA (to be known as Qualifications Scotland), an independent inspectorate, a national agency for Scottish education focussing on the curriculum, and a Centre for Teaching Excellence. The reform programme, which is overseen by the education reform programme board is an open and consultative process in response to the OECD’s report in June 2021 ‘Scotland’s Curriculum for Excellence: Into the Future’. The Scottish Government subsequently commissioned independent reviews which encompass the education and skills landscape, namely ‘Putting Learners at the Centre’ by Professor Ken Muir, a review of Qualifications and Assessments by Professor Louise Hayward, and of the Skills Delivery Landscape by James Withers. These, alongside the National Discussion on Education, have informed the programme’s approach and objectives.
Financial Memorandum, Para 10
This briefing sets out the background to these reforms and then explores the provisions of the Bill in more detail.
The reforms of the Bill have been trailed since the beginning of the current parliamentary session; when the then Cabinet Secretary for Education and Skills announced plans to abolish the SQA. This was part of the Government's response to recommendations of the OECD's review of Scotland's Curriculum for Excellence. That review also recommended that the Inspectorate be demerged from Education Scotland.
Concerns about both the performance of the SQA and the functions of Education Scotland had been raised before the OECD report. Over the past decade there have been a number of reports which have touched on the performance of the SQA and Education Scotland. Broadly speaking, the criticisms of Education Scotland have been around the quality and clarity of support provided, and the unusual arrangement of both the curriculum support and inspection functions being in the same organisation. For the SQA, the criticisms have focused on its communication with teachers and learners, and its responsiveness to concerns.
This section looks at the critiques of Education Scotland and the SQA over recent years and then highlights aspects of the wider education reform programme.
In 2017, the Parliament's Education and Skills Committee published areport on the Performance and Role of Key Education and Skills Bodies. Among other public bodies, this work looked at both the SQA and Education Scotland.
In relation to Education Scotland, the Education and Skills Committee said that it had "explored the perception that Education Scotland is too close to the Scottish Government and that performing both curriculum support and inspection functions could be seen to be a conflict of interest." The "conflict of interest" here was the view that the national body that is charged with supporting improvement should not also be the body that reports on the quality of teaching and learning.
In relation to the SQA, the Committee commented:
The SQA must improve its performance in a number of areas. The Committee received clear evidence pointing to a breakdown in the trust of the SQA by teachers.
Education and Skills Committee. (2017). Performance and Role of Key Education and Skills Bodies, 2nd Report, 2017 (Session 5). Retrieved from https://webarchive.nrscotland.gov.uk/20240327050012/https://archive2021.parliament.scot/parliamentarybusiness/CurrentCommittees/103056.aspx
Early in the last parliamentary session (2016-2021), the Scottish Government was embarking on a programme of education reform following the 2015 OECD report, Improving Schools in Scotland: An OECD Perspectivei. In 2017, the Government published Education Governance: Next Steps. Perhaps reflecting on the work of the Education and Skills Committee and the debates that followed, this said in relation to SQA:
[The Scottish Government] will make clear our expectations of SQA on the importance of listening, and being open to, the voices of learners, teachers and parents. [The Scottish Government] will ensure that the Chair regularly reports to Ministers on the improvements being made in relation to these matters. [The Scottish Government] will request that SQA outline in their annual corporate plan their strategic communications and engagement plans.
The publication envisaged an enhanced role for Education Scotland, with the Scottish College of Educational Leadership being merged into it and a move towards more regional provision. Earlier in 2017, Parliament had passed a motion that called for "serious consideration to be given to the inspection and policy functions of Education Scotland to be separated and for a reorganisation of the SQA".1 Neither of these actions were contained in the Government's plans at that stage.
The performance of the SQA in supporting the qualifications system in the pandemic was also criticised. Due to the pandemic, the SQA was required to develop a new approach to certification a few weeks before the first exams were due to take place in spring 2020.
After controversy around the approach to awarding qualifications and the automatic moderation of teacher judgements, the Scottish Government directed the SQA to change its approach. A similar set of challenges, approaches and Government intervention happened elsewhere, for example, in England.
The process in Scotland was the subject of a "rapid review" which was undertaken by Professor Mark Priestley of the University of Stirling (the Priestley Review). The report was sympathetic to the difficult position that both SQA and policy makers were faced with in 2020.1
The Priestley Review criticised some of the technical approaches and decisions taken by the SQA. It also highlighted issues with SQA's approaches to transparency and collaboration with partners. It stated:
Many respondents see SQA as lacking in transparency, and resistant to working with stakeholders in a genuinely collaborative manner.
Scottish Goverment. (2020). National Qualifications experience 2020: rapid review. Retrieved from https://www.gov.scot/publications/rapid-review-national-qualifications-experience-2020/pages/4/
The report also said:
Local authorities, head teacher and teachers have pointed to a sense of grievance in many schools that teacher estimates are not trusted, exacerbated in the view of [the Association of Directors of Education Scotland] by a lack of consistency in communications regarding the balance in the [Alternative Certification Model] between estimation and moderation. It is likely that stronger messages about the need for some form of national moderation would have been helpful at the outset.
Scottish Goverment. (2020). National Qualifications experience 2020: rapid review. Retrieved from https://www.gov.scot/publications/rapid-review-national-qualifications-experience-2020/pages/4/
In 2021, the OECD published two reports on Scottish Education. The first, 'Scotland’s Curriculum for Excellence: Into the Future', was published on 21 June 2021 and followed a review of the implementation of Curriculum for Excellence. The second, Upper-secondary education student assessment in Scotland: A comparative perspective, was more narrowly focused on how learning is assessed and certificated (e.g. through school-based qualifications). This section of this briefing focuses on the first of those reports.
The Scottish Government initially commissioned the OECD in 2019 to undertake a review of the Senior Phase of education – the fourth to sixth years of secondary education. This was in response to criticisms of how changes to the structure of secondary education had worked in practice, particularly the number of qualifications being taken by pupils in S4.
The remit was expanded to include all of the Curriculum for Excellence (CfE) after a motion was agreed in Parliament which, among other things, called for “a full review of broad general education and how it articulates with the Senior Phase”.
The Scottish Government set out the remit of the OECD's review which included examining:
curriculum design
depth and breadth of learning in the Senior Phase (S4-S6)
local flexibility versus increased prescription
the transition from S1-S3 to S4-S6
vocational and academic learning and awards
roles and responsibilities in relation to the curriculum.
The remit said that the "principles and aspirations of CfE have had widespread support from practitioners, learners, parents, and politicians in Scotland and, as such, are not being questioned in the review".
The OECD reported on 21 June 2021. The OECD report was positive about the aims of CfE, suggesting that “Scotland should consider renewing its commitment to CfE’s bold and relevant vision”. It also stated that CfE had been consolidated in the Broad General Education phase (Early Learning and Childcare to S3) and that it “allows for reasonable coherence” over these phases of education. However, the linkage to Senior Phase (S4-S6) and the period where pupils learning is certificated is problematic.
The OECD identified a number of tensions around Curriculum for Excellence that impact student learning. These were—
local curriculum flexibility and the need for coherence to achieve system-wide objectives
understandings of breadth and depth of learning in the policy discourse
conceptualisation of knowledge, skills and competencies
curriculum, student assessment and evaluation.
The OECD noted that stakeholder engagement is at the heart of CfE and that considerable efforts have been made in this regard. It said that this has led to the “communication and development of a shared language created the conditions for shared ownership and wide support of CfE’s vision”. The OECD team identified three challenges “inherent to stakeholder engagement around CfE”. These were—
“A gap between the seemingly intense involvement of stakeholders at all levels of the system and the confidence they have in their effective influence on decision making.” Two particular issues were identified in this regard “the clarity of purpose of engagement initiatives and consistency in terms of using stakeholders’ input.”
“CfE ownership was most often described as fragmented, with too many stakeholders claiming ownership of CfE while not necessarily fulfilling the responsibilities that come with such ownership. Transparency in the division of responsibilities among stakeholders is a necessary condition for policy success in a system that promotes shared responsibility of its curriculum.”
“Communication around CfE remains confused, which can hinder implementation by leaving CfE open to wide interpretations and overwhelm schools, learners and parents.”
(p90)
The review also noted that while there was a broad sense of ownership of CfE, the responsibilities were “often described as fragmented”. It suggested better and more coherent stakeholder engagement and communications are required.
The review identified three reasons for the lack of clarity of responsibilities in CfE. These were—
bodies, committees etc unclear of their role;
organisations taking on responsibilities “de facto because they had resources to respond to stakeholders’ demands”; and
“Top administrative and executive positions in Scotland’s education system tend to be held successively by a small number of agents” risking conformity of thought and discourse.
(p87)
Overall, the report said—
Scotland’s system is heavily governed relative to its scale and numbers of schools. The multiple layers of governance and additional responsibilities created around CfE can complicate implementation processes by generating additional policy priorities and supplementary materials with little co-ordination.
Chapter 5 of the report outlined the recommendations. The chapter is summarised in its abstract:
[This chapter] suggests that the next steps for CfE need to focus on students and their learning progress. This implies reviewing how CfE is consistently providing learning opportunities through the Senior Phase; clarifying ownership of CfE and regularity in responsibilities and communication; defining a stable institutionalised curriculum review process and an aligned assessment system; and gathering consistent data to monitor progress.
In relation to the curriculum, the report recommended a re-assessment of the vision of CfE in light of emerging trends in education. The review picked out the role of knowledge in the curriculum and how this is reflected in the Experiences and Outcomes. It said “clarifying the role of knowledge in the vision of CfE is the first step to strengthen the coherence of CfE.”(p118) The review also suggested that a “better balance between breadth and depth of learning throughout CfE” should be found and “Scotland might consider creating guidance about the elements of knowledge to prioritise, and how to select and update and integrate them more clearly in curriculum areas”. (pp119-120).
The report suggested that Scotland “could revise the current allocation of responsibility for CfE, including responsibilities for its strategic direction, its reviews and updates, and the response to schools’ needs for support with curriculum issues.” It also suggested that a redistribution of responsibilities may be required and that duplication of responsibilities should be avoided. It noted that those organisations that have responsibilities should be resourced sufficiently to carry out their responsibilities. (p124)
The OECD recommended that policies and institutions be simplified for greater clarity and coherence. The report stated “consideration should be given to a specialist stand-alone agency responsible for curriculum (and perhaps assessment) in the future.” The report made clear that the OECD’s view was that the functions of the inspectorate should sit within a stand-alone body.
In response to the report, the then Cabinet Secretary for Education and Skills, Shirley-Anne Somerville MSP, said:
We know that we must simplify our policies and institutions so that there is maximum coherence. That includes the need to clarify the roles and responsibilities of the national and local bodies that are involved in delivering and supporting Scotland’s curriculum, and to ensure that the teacher workforce has the skills, time and capacity to lead, plan and support CFE on the ground.
...
We will move the inspection function out of Education Scotland. As the OECD highlights, such a separation can help to balance the dual need for local flexibility of provision alongside national consistency in outcomes. In addition, I am minded to accept the OECD recommendation to create a new specialist agency that will be responsible for curriculum and assessment, which will replace the SQA. That will help to improve alignment and coherence in those functions, as recommended by the OECD.
Scottish Parliament. (2021). Official Report, Meeting of the Parliament Tuesday, June 22, 2021. Retrieved from https://www.parliament.scot/chamber-and-committees/official-report/search-what-was-said-in-parliament/meeting-of-parliament-22-06-2021?meeting=13244&iob=120092
To help take forward policy in response to the OECD's report on the implementation of Curriculum for Excellence, the Scottish Government appointed Professor Ken Muir as an independent advisor on education reform. The news release suggested that Professor Muir would “lead work to replace the Scottish Qualifications Authority (SQA) with a new specialist agency for both curriculum and assessment.”
His report on the replacement of the Scottish Qualifications Authority, reform of Education Scotland and removal of its inspection function was published in March 2022. Putting Learners at the Centre: Towards a Future Vision for Scottish Education. Following the publication of his report, Professor Muir appeared at the Education, Children and Young People Committee. He explained that:
When I took up the remit at the beginning of August [2021], three decisions had already been made. One was to replace the Scottish Qualifications Authority, one was to remove the inspectorate from Education Scotland, and the third was that Education Scotland would be subject to reform as a result of that and that I was to advise on what that reform might look like. I was also asked to consider the possibility of establishing a curriculum and assessment body. I took that into account as part of my work.
Although my remit was quite tight and ring fenced, it was clear that, given the substantial remit and role of Education Scotland and the SQA in Scottish education, it was necessary to take a wide-ranging review and to engage with folk not only within but outwith the school sector.
...
My report is designed to be a catalyst for further reform and change. The replacement of SQA and the restructuring or reform of Education Scotland is a starter, but I hope that you get the sense from my report that it is very much a starter and that more is needed to ensure that the education system in Scotland is fit for purpose for current and future learners in a changing world.
Scottish Parliament. (2022). Official Report, Education, Children and Young People Committee, Wednesday, March 23, 2022. Retrieved from https://www.parliament.scot/chamber-and-committees/official-report/search-what-was-said-in-parliament/ECYP-23-03-2022?meeting=13670&iob=124059
Professor Muir's review was about more than just the national bodies. For example, his report led to the establishment of the National Discussion on Education. Professor Muir also found themes around the quality of communication of SQA and support for separating the inspection function from the improvement function in Education Scotland.
Professor Muir recommended that "a new body, Qualifications Scotland, should be established". He said that this body should include the awarding functions of SQA, but not the accreditation function. He also recommended that the new body's governance structures "should be revised to include more representation from, and accountability to all learners, teachers, practitioners and the stakeholders with whom it engages".
Professor Muir recommended that a new national agency for Scottish education should be established. He said that "this should be an executive agency of the Scottish Government comprising the current support and improvement functions of Education Scotland, SQA’s Accreditation/ Regulation Directorate, the Scottish Credit and Qualifications Framework (SCQF) Partnership and elements of Scottish Government’s Curriculum, Qualifications and Gaelic Division."
In terms of the inspectorate, Professor Muir recommended:
A new Inspectorate body should be established with its independence enshrined in legislation. Its governance should reflect this independence, with the body funded by the Scottish Parliament, staffed by civil servants and inspectors, the latter of which are appointed with the approval of Her Majesty via the Privy Council.
Following the Muir Review, the Scottish Government and COSLA established a “National Discussion” to establish “a compelling and consensual vision for the future of Scottish education”. This work was independently facilitated by Professor Carol Campbell and Professor Alma Harris, who are members of the Independent Council of Education Advisors.
The National Discussion was a wide-ranging consultation exercise undertaken in Autumn 2022, with a total of over 38,000 participants. All Learners in Scotland Matter: Our National Discussion on Education was published on 31 May 2023.
The National Discussion was not focused on structural reform, it was mainly concerned with the priorities for a future education system in Scotland. However, it did provide some commentary around structural reform and a change in cultures.
A future education system in Scotland would benefit from system-synergy where the structural, cultural, and practical realisation of all key components reflect a coherent, co-ordinated, and interdependent system. We also heard of the need for the entire Scottish education system to be much more of a learning system, that was able to take risks and affect change, at the local point of need. If the Scottish education system is to meet the needs of all learners in the near and distant future, then a move away from centralised control towards greater subsidiarity could be more productive.
Scottish Government. (2023). All Learners in Scotland Matter - national discussion on education: final report. Retrieved from https://www.gov.scot/publications/learners-scotland-matter-national-discussion-education-final-report/pages/1/
And later it said:
We heard few comments specifically about structural change, but there was a recognition that roles and responsibilities throughout the education system needed consideration, including in taking forward the National Discussion. There was a general view that while national direction, strategy and resources are necessary, top-down change being driven onto the education profession is inappropriate and there needs to be a genuine move to let the education profession lead the way forward, in collaboration with all staff, learners, parents, and families. The concept of subsidiarity where powers and responsibilities are devolved to the most relevant people and place was suggested – this must not be devolving mandated changes but enabling professional agency and judgement. While Scotland has committed to empowering the education workforce, we heard from teachers and school leaders that they did not feel this had been achieved in reality.
...
The new national agencies require careful consideration and design within this context – there are structural considerations of not centralising control and resources but rather working collaboratively with professionals throughout the education system who have responsibility and expertise for leading educational improvement. However, these are not simply structural issues, this requires unleashing deep cultural change and leadership for human-centred educational improvement placing learners at the heart, valuing professional expertise and judgement, and engaging parents/carers, families, communities, employers, and all relevant partners and stakeholders.
Scottish Government. (2023). All Learners in Scotland Matter - national discussion on education: final report. Retrieved from https://www.gov.scot/publications/learners-scotland-matter-national-discussion-education-final-report/pages/1/
Following the two OECD Reports on Scottish Education in 2021, the Government commissioned Professor Louise Hayward to lead an Independent Review of Qualifications and Assessment. The review began its work in early 2022 and through 2022 and 2023 undertook several phases of consultation. Its final report was published in Summer 2023.
Some of the key recommendations in the report are:
adopting an SDA (Scottish Diploma of Achievement) as a graduation certificate for all senior phase educational settings.
removing exams in all subjects up to SCQF level 5 (e.g. National 5s), examinations may be retained in levels 6 and 7 (e.g. Highers and Advanced Highers)
a digital profile for all learners which allows them to record personal achievements, identify and plan future learning
The Government has not yet formally responded to either the National Discussion on Education or the Independent Review of Qualifications and Assessment.
The Scottish Government undertook a further consultation exercise on both sets of recommendations. This consultation exercise was directed specifically at the teaching profession and included a survey sent to colleges and schools. In February 2024, the Government published an analysis of the surveys. This found mixed views; it said:
Based on the recommendations of the National Discussion for Education, respondents were asked to list their top priorities for short-term, medium-term, and long-term action. Responses were extremely varied and, thus, there was little consensus on what the top priorities should be at each stage.
Scottish Government. (2024). School and college teacher recommendations: consultation analysis. Retrieved from https://www.gov.scot/publications/findings-school-college-teacher-consultation-recommendations-independent-review-qualifications-assessment-national-discussion-education/pages/1/
Shortly after the publication of this analysis, the Scottish Government led a debate in Parliament. The Cabinet Secretary for Education and Skills, Jenny Gilruth MSP, provided some indications of the Government's intentions in relation to assessment in the senior phase of education but was not clear about how many of the recommendations of the Independent Review of Qualifications and Assessment the Government would be taken forward. She said that a full response was due in the "coming weeks" and she gave an indication of the types of changes that we may expect:
The new qualifications body will consider the content of qualifications to ensure progression as part of the curriculum improvement cycle, but the other change that is needed relates to rebalancing the assessment methods, as recommended by Professor Hayward. Ideally, we would do both at the same time, but that will not always be possible if we are going to make progress at pace.
Scottish Parliament. (2024). Meeting of the Parliament, Wednesday, February 28, 2024. Retrieved from https://www.parliament.scot/chamber-and-committees/official-report/search-what-was-said-in-parliament/meeting-of-parliament-28-02-2024?meeting=15728&iob=134214
The recommendations of the Independent Review of Qualifications and Assessment could be taken forward under the current structures and are not dependent on the provisions of the Education (Scotland) Bill.
At the same time as the work on reforms to school-level education, the Scottish Government has been developing new policy in the post-school education sectors.
The 2023 Independent Review of the Skills Delivery Landscape carried out by James Withers (the Withers Review) sets out recommendations for reform of post school education. It builds on earlier reviews, in particular the 2021 Review of Coherent Provision and Sustainability carried out by the Scottish Funding Council (SFC).
The Withers Review calls for the Scottish Government to:
Take responsibility for skills planning at national level.
Create a single funding body bringing together many of the functions of the SFC, Skills Development Scotland (SDS) and the Student Awards Agency Scotland (SAAS).
Introduce a universal skills framework with consistent language around qualifications.
Develop a clear map of the post-school system to help learners navigate it.
Following the publication of the review, the Scottish Government published ‘Purpose and Principles for Post-School Education, Research and Skills’ in June 2023. This is a framework intended to set the overarching policy direction for Higher Education and Further Education. Creating parity of esteem where all post-school learning pathways are valued equally is an aim of the Purpose and Principles framework and a recurring theme in the Withers Review.
One year after the publication of the Skills Review and the Purpose and Principles, the Scottish Government launched the Post-school education and skills reform legislation consultation. This focuses on simplifying the funding landscape and laying the groundwork for future plans.
Further information on post-school reform is set out in the SPICe blog ‘Post-school reform: One year on from Withers’.
In 2024, the Scottish Government instigated "a regular Curriculum for Excellence improvement cycle". This will "consider curricular areas in a planned and systematic way, including considerations around the relevance of curriculum content, role of knowledge, transitions between primary and secondary, and alignment between the broad general education and senior phase."1
The Cabinet Secretary for Education and Skills, Jenny Gilruth MSP, told Parliament in December 2023 that the first curriculum area to be reviewed would be mathematics.2
In October 2023, the Cabinet Secretary for Education and Skills, Jenny Gilruth MSP announced plans to establish a Centre of Teaching Excellence. She told Parliament:
I am committed to co-designing the centre with teachers and practitioners, professional associations, local government and our national education bodies. To that end, my officials are engaging with the Scottish Council of Deans of Education and the General Teaching Council for Scotland, and I will meet trade union representatives [on this matter].
Scottish Parliament. (2023). Official Report, 24 October 2023. Retrieved from https://www.parliament.scot/chamber-and-committees/official-report/search-what-was-said-in-parliament/meeting-of-parliament-24-10-2023?meeting=15494&iob=132200#132200
In November 2023, the Scottish Government launched a consultation on the Education Bill. This focused on the establishment of a new qualifications body and the approach to inspection. The consultation did not seek views on whether the SQA ought to be replaced or whether the inspectorate should remain within Education Scotland.
In terms of the qualification body, the consultation covered the range of qualifications that should be offered, how professionals and learners' voices could be included in the decision-making of the organisation and the design of qualifications, and the accreditation function would sit within a new body.
In terms of inspections, the consultation set out two options: that the inspectorate be housed in a new executive agency, or that the chief inspector be an independent office-holder. It also sought views on the processes and aims of education inspections.
As noted above, the Bill seeks to make two changes:
establish a new qualifications body, Qualifications Scotland, to replace the Scottish Qualifications Authority.
set out a legislative framework for a stand-alone education inspectorate.
These actions form a relatively small part of the wider reform programme.
Part 1 of the Bill, along with Schedule 1, establishes a new body, Qualifications Scotland. This body will have substantially the same functions as the Scottish Qualifications Authority (SQA). The Bill is similar to the legislation that currently underpins the SQA: Part 1 of the Education (Scotland) Act 1996 ('the 1996 Act') and the Scottish Qualifications Authority Act 2002 ('the 2002 Act').
The SQA has two principal functions:
developing and awarding qualifications (up to but not including degree level)
accrediting qualifications.
There are two other statutory functions. The quality assurance function gives SQA the power to determine the suitability of establishments offering SQA qualifications. The SQA also has the function of advising Scottish Ministers.
The proposals in the Bill to set up Qualifications Scotland differs from the current legislative structure in relation to the SQA in broadly two areas. The first is that there are structures to increase the influence of educators and learners in the work of Qualifications Scotland. The second is to create greater independence of the accreditation function.
SQA is best known for its awarding function. It develops and awards a range of qualifications – some are aimed principally at schools (e.g. National Qualifications or Skills for Work Courses), others are aimed at colleges (e.g. Higher National Certificates and Higher National Diplomas).
The SQA keeps these qualifications under review and make revisions from time to time.
SQA offers a wide range of qualifications including [National Qualifications]. These include Advanced Certificates and Diplomas, National Progression Awards, Professional Development Awards and Customised Awards that are developed in conjunction with teachers, lecturers, professional and industry bodies and are delivered by colleges, universities and training providers.
Section 2 of the Bill sets out the awarding function for the new Qualifications Scotland and this broadly replicates section 2 of the 1996 Act.
The SQA’s accreditation function is where the SQA accredits an awarding body and their qualifications. This includes:
Scottish Vocational Qualifications (SVQs)
regulatory and licensing qualifications
other qualifications.
Certain qualifications developed by SQA will also be accredited by SQA. SQA says—
SQA Accreditation is responsible for approving awarding bodies to deliver qualifications of social, economic, environmental or cultural benefit to Scotland. In addition, SQA Accreditation accredits and quality assures qualifications, and regulates approved awarding bodies, thereby safeguarding the interests of learners, employers, parents, funding bodies and government.
The accreditation function is set out in section 4 of the Bill. The equivalent section in the 1996 Act is section 3.
Within the SQA, there is an Accreditation Committee which is responsible for this function. The Bill provides for a similar structure within Qualifications Scotland, although the governance structures are different and this is explored later in this briefing.
Accreditation is a relatively small part of the operation of SQA. The SQA’s annual report and accounts for 2022-23 identified around £1 million of funding for this function. Gross expenditure by the SQA for that year was £107 million.
The Muir Review noted—
SQA is the statutory body for qualification awarding and regulation in Scotland. This means that as well as being the body that awards qualifications, it also regulates those qualifications. It does so through the SQA Accreditation part of the organisation, with SQA's Chief Executive also overseeing this work. This regulatory role performed by SQA is similar to that carried out by the regulatory bodies such as Ofqual in England and Qualifications Wales in Wales which are separate from their respective qualifications and examinations bodies.
The Bill provides for Qualifications Scotland’s quality assurance and advisory functions. These provisions closely mirror similar provisions for the SQA in the 1996 Act.
Statutorily, the SQA is the board of the SQA, which is appointed by Scottish Ministers. The SQA board then employs the staff of the SQA. Broadly, the Bill replicates this approach for Qualifications Scotland.
The Bill provides that Ministers must appoint to the board of Qualifications Scotland a Chair, the Convener of the Accreditation Committee and between six and 10 further members. In addition, the Chief Executive would sit on the board.
The Bill provides that, of the appointed members of Qualifications Scotland:
one or more should “have knowledge of the interests” of people taking relevant qualifications (i.e. a qualification devised or accredited by Qualifications Scotland)
two or more be registered teachers who are teaching learners taking relevant qualifications
two or more must be college teaching staff teaching courses leading to a relevant qualification
one or more “with knowledge of the interests” of the staff at Qualifications Scotland.
These conditions are new and are not found in the 1996 Act, with the exception of the member with knowledge of staff interests. Ministers have had wide discretion in who they have appointed to the SQA board.
The Bill introduces four-year terms for the board members of Qualifications Scotland. The 1996 Act does not specify term limits for board members of the SQA. The Bill also provides additional powers (compared to the 1996 Act) for Ministers to remove members of Qualifications Scotland.
The Bill provides that staff in the SQA are able to become staff of Qualifications Scotland at the point of transfer between the two bodies.
The Bill provides that Qualifications Scotland must establish three Committees:
Learner Interest Committee
Teacher and Practitioner Interest Committee
Accreditation Committee.
The Bill provides that there will be a Strategic Advisory Council. The role of this council will be to provide advice to Qualifications Scotland and Ministers on matters relating to:
qualifications devised or awarded by Qualifications Scotland
the functions and procedure of Qualifications Scotland.
The Bill states that Ministers must make regulations to create the Strategic Advisory Council and those regulations can cover a variety of matters in relation to the functioning of the council.
The 2002 Act provided for powers to establish an Advisory Council in relation to the SQA and its qualifications. The SQA council was established by the Advisory Council (Establishment) (Scotland) Regulations 2002.
The Bill substantially replicates the provisions in the 2002 Act in this respect. However there are some differences and these include:
A requirement on Ministers to appoint two co-conveners, one of whom is a member of Qualifications Scotland’s board, and one who is not. The 2002 Act required that the convener of the SQA’s Advisory Council was a member of the SQA board.
The Bill specifies that regulations setting up the Strategic Advisory Council may include provisions about skills, knowledge and expertise that members of the council might have. The 2002 Act was silent on this; it was up to Ministers who they appointed.
The Bill provides that Qualifications Scotland prepare and publish two charters. A ‘learner charter’ and a ‘teacher and practitioner charter’. These will set out what those groups “should expect from Qualifications Scotland in the exercise of its functions”.
It is not clear what legal weight, if any, either of these charters will have.
The legislative approach in the Bill is very similar to the current legislative underpinning of the SQA. Where there are substantive differences, these focus on including learners and practitioners in the work of Qualifications Scotland and creating greater independence of the Accreditation Committee.
Professor Muir stated in his 2022 review —
Overall, it was evident to me in my engagements that there are significant relationship issues within the current SQA. Feedback from some of my engagements with [members of the Practitioner and Stakeholder Advisory Group, which supported Professor Muir in his review] and others also questioned the effectiveness of leadership, the culture, accountability, and appropriateness of current governance structures within SQA.
Teachers and practitioners have a significant role in the functions of SQA currently. There are a number of roles practitioners can take as appointees of the SQA. These range from marking exam scripts to being a Principal Assessor, who is “responsible for ensuring all duties and tasks associated with externally set/assessed Course assessments are undertaken within the conditions, timeframes and arrangements set by SQA.”
The SQA currently has “panels” to seek views from learners, professionals and parents/carers.
The Policy Memorandum stated—
A key priority and objective for the new body is that it will be a model organisation in how it better involves young people and other learners, teachers and practitioners, and wider stakeholders in its decision-making. It will also be an exemplar in how it will be accountable to and transparent with these stakeholders. By emphasising these characteristics of the organisation alongside its functions, the Bill seeks to encourage an organisational culture that puts learners in Scotland, and other key education stakeholders, at its centre.
Para 18
Part 2 and Schedule 2 of the Bill establishes the office of His Majesty’s Chief Inspector of Education in Scotland. The Bill will remove the inspectorate function from Education Scotland and, for the first time in Scotland, set out in detail the role and function of the education inspectorate in legislation.
Education Scotland is "the national body for supporting quality and improvement in learning and teaching". Education Scotland has two main functions. It inspectsg schools, colleges, early years settings, education authorities and other settings. It also provides curricular guidance and support. Education Scotland advises Scottish Ministers on matters of education policy.
Inspectors of education in Scotland date back to around 1840. Inspectors’ appointments are approved by the monarch at a sitting of the Privy Council. In 2001, the Scottish Executive set up His Majesty's Inspectorate of Education (HMIe) as an executive agency which created greater organisational separation from the inspectorate and the government. Education Scotland was established in 2011 through a merger of HMIe and Learning and Teaching Scotland. The merger was undertaken by the Scottish Government administratively, that is without passing legislation.
The Education (Scotland) Act 1980 provides for a range of powers for Ministers to direct the work of the inspectorate to inspect schools, Early Learning and Childcare (ELC) providers, and other education providers. Inspectors do not inspect universities save for the schools of education which provide initial teacher education. The 1980 Act provides that Ministers may prepare a “code of practice as regards inspections” and it also provides for reporting mechanisms for inspectors to raise concerns to Ministers. The Standards in Scotland’s Schools etc. Act 2000 provides that inspectors can inspect education authorities.
The OECD report commented:
The approach to inspection of education in Scotland had a long history of innovating with and for schools, particularly in supporting school self-evaluation. While the responsibilities for inspection of education is not the focus of this OECD review, the team was struck by the absence of references to inspection or to Education Scotland’s role as Her Majesty’s Inspectorate of Education (HMIE, part of Education Scotland) in considerations of CfE as a school-led process. The unusual configuration of an inspectorate of education as part of an organisation that is also responsible for supporting school leaders, curriculum design and support, teacher professional learning and a range of other initiatives is noteworthy, particularly in a system where the autonomy of schools in curriculum making and in planning for teaching and learning is so highly valued. Across countries, school evaluation and inspection systems are important means of managing the tensions between local flexibility and national consistency. In recent years, many systems have moved to more decentralised models of inspections, including school self-evaluation and the development of self-evaluating networks of schools (in particular, local authorities, for example).
Within its recommendation to “Simplify policies and institutions for clarity and coherence”, the OECD recommended that the curriculum support and inspection functions be delivered by separate bodies. The Muir Review also noted concerns about the combination of functions of Education Scotland and noted:
From the outset [of the creation of Education Scotland], concerns were expressed about having both the improvement and assurance functions sitting within the one organisation, Education Scotland, albeit internal arrangements were put in place to protect the integrity and impartiality of the organisation’s inspection (more recently referred to as scrutiny) function. In a similar way to SQA having both an awarding and regulatory function within the one body, it was felt by many that Education Scotland having an inspection function within the same body charged with supporting improvement created potential conflicts of interest and compromised the organisation’s ability to perform both roles well.”
The Government consulted on whether the inspectorate should be an executive agency, which could have been established administratively under powers under the Scotland Act 1998, or as an office-holder in legislation. The Government has chosen the latter course; the Policy Memorandum states:
Whilst there was no clear consensus on this point, among those who supported the appointment of an independent office-holder, many commented that legislation would make accountability and independence more obvious and more stringent which, in turn, could maximise public and professional confidence in the inspection process.
Para 99
The structure of the inspectorate will be based around the Chief Inspector of Education in Scotland (“Chief Inspector”). The Policy Memorandum states that this position will “separately be designated an office-holder in the Scottish Administration [and this will be] taken forward by subordinate legislation of the UK Parliament” under powers in the Scotland Act 1998. (Para 104)
The Chief Inspector will be appointed by His Majesty by Order of the Privy Council on recommendation of the Scottish Government. Individual inspectors will continue to be appointed in this way.
A key aim of the Bill is to strengthen the independence of the inspectorate. Schedule 2 of the Bill states that the Chief Inspector is “not subject to the direction or control of a member of the Scottish Government” other than where this is explicitly set out in legislation. Ministers retain the ability to direct the Chief Inspector to secure the inspection of specific or types of educational establishments, but the legislation provides that the Chief Inspector has greater autonomy over the inspection regime compared to the 1980 Act.
The Chief Inspector will be able to appoint staff to support the office. Under the Bill, he or she must also appoint a Deputy Chief Inspector.
The Bill provides that the Chief Inspector must establish an advisory council. The Chief Inspector would have a duty to endeavour to ensure that the council be representative of the “interests of persons likely to be affected by the Chief Inspector’s functions”. The Chief Inspector would have a duty to have regard to any advice provided by the council and provide reasons should he or she not act on the advice given.
The aim of this provision is to support the involvement of stakeholders in the governance of the inspectorate. The Policy Memorandum states:
The establishment of the office of Chief Inspector presents an important opportunity to ensure more learner and service user engagement and representation. This can be achieved in the model and approach to how inspection is carried out, which the Chief Inspector will take forward. However, there is also an opportunity to strengthen learner and parent/carer voices in the governance arrangements, alongside other important perspectives, such as those of teachers and other education professionals. This aligns with the opportunities set out by Professor Muir in his report to the Scottish Ministers to ‘align inspection with the vision of putting learners at the centre and incorporating the implications of the UNCRC’.
Para 113
The Chief Inspector will have two main functions: inspection and providing advice. There is an additional function set out in section 32 – the voluntary arrangements function which allows the Chief Inspector to undertake work with a third party.
The functions and duties set out in the Bill broadly reflect the legislative requirements in the 1980 Act and the 2000 Act or are codifying existing practice.
The Bill provides that the Chief Inspector may inspect “relevant educational establishments”. The Bill defines “relevant educational establishments” as:
schools (including local authorities’ provision of ELC)
funded ELC provided by a partner provider
a provider of further education
a school of education providing initial teacher education (only to the extent that it provides such education)
residential accommodation connected to a school (only in relation to the welfare of the pupils)
an education authority (only in relation to its school education functions).
Under the Bill the Chief Inspector's function will be to "secure the inspection of relevant educational establishments". The Bill provides that the Chief Inspector must produce and publish a plan which sets out the approach to inspections, including the level of inspection activity, the approaches to inspections; and the standards against which establishments will be evaluated.
Ministers will be able to direct the Chief Inspector to undertake inspections of a "relevant educational establishment" in specific or general terms. Ministers would also be able to make regulations to specify the intervals at which establishments should be inspected. Ministers would be able to direct the Chief Inspector to inspect an "excepted establishment". The Chief Inspector would not be able to inspect an excepted establishment unless so directed by Ministers.
The Bill sets out “excepted establishments” which are a sub-set of “relevant educational establishments”, that is, the types of relevant educational establishments that may be inspected only at the request of Ministers. These are:
funded colleges
schools of education providing initial teacher education.
Ministers will be able to definitions of “relevant educational establishments” and “excepted establishments” by regulations.
Taken together with the voluntary arrangements function, these provisions are intended to allow the inspectorate to continue the range of inspections it currently undertakes and flexibility to widen the scope of its work in the future.
In relation to the inspection of relevant educational establishments, the Bill provides inspectors the right of entry to the premises. It also would place a duty on the managers of the educational establishment to provide assistance to inspectors. The Bill creates an offence of failing to provide assistance to inspectors. These provisions reflect section 66(3) of the 1980 Act, although the Bill is more specific than the 1980 Act.
The Chief Inspector will be required to prepare reports following inspections. The Bill provides that the Chief Inspector must prepare and publish annual reports on the performance of the education system, insofar as it relates to the functions of the Chief Inspector. This is a new statutory duty. Education Scotland currently publishes summaries of its inspections findings from time to time, as well as thematic national reviews.
The Chief Inspector will be protected from claims of defamation in relation to the reports she or he publishes.
The inspectorate also provides information and analysis at a system level. That could be an evaluation of an education authority, thematic reports on particular aspects of school education, or wider reports (such as the 2024 Evaluation of curriculum design in Scotland). These reports can provide valuable insights into wider policy making and implementation.
The Policy Memorandum stated:
While most respondents to Professor Muir’s consultation supported the removal of the inspection function from Education Scotland, there were views that this alone would not be sufficient to optimise the contribution of inspection to Scottish education. In addition, the approach to inspections (and general inspection ethos) was also seen as being in need of fundamental review and change to make it more supportive, creative and formative. This included the need for a renewed focus on improvement and support, with collaboration at the heart of the process. These findings were echoed in the public consultation on a new approach to inspection, contained in the Education Bill provisions: consultation analysis report.
Para 103
Weir (2008) noted that from the inception of education inspectors in Scotland, there has been a tension between teachers’ professional autonomy and the accountability function of the inspectorate. The inspectorate both provides an external view of the quality of the provision of education and assistance to schools, education authorities and so on to improve. Weir said that a key question is “exactly what is the best balance between the supportive role of HMI and their accountability function”.1
The Bill provides that the Chief Inspector must provide advice to Ministers on request in relation to his or her functions. The Chief Inspector may provide advice at any other time.
The Financial Memorandum (FM) sets out the expected costs arising from the provisions in the Bill.
The Bill’s proposals are largely concerned with governance structures for activity that currently takes place. The FM reflects this; it says:
The functions of the new qualifications body and independent inspectorate are currently carried out by existing organisations funded by the Scottish Government, namely the SQA and Education Scotland respectively. The SQA also funds its activities through income derived by levies and international commercial activity … The costs of the SQA and the inspection function within Education Scotland will no longer arise, and the new bodies are expected to carry out broadly similar functions; consequently the recurring costs for the new bodies are in the most part expected to be similar – notwithstanding one-off costs and some additional recurring costs.
Para 8
The FM provides low and high estimates of the ongoing costs of the new bodies between 2025-26 and 2028-29 and low and high estimates of costs if the functions remained within the SQA and Education Scotland. It also sets out high and low estimates of the expected one off costs to set up the two new bodies. The table below summarises the estimated costs and savings.
| 2025/26 | 2026/27 | 2027/28 | 2028/29 | ||
| Total savings from cessation of SQA (£000s) | Low | -30,268 | -52,609 | -54,002 | -55,445 |
| High | -35,367 | -61,454 | -63,100 | -64,807 | |
| Total savings of inspectorate function moving away from Education Scotland (£000s) | Low | -8,379 | -14,652 | -14,945 | -15,244 |
| High | -10,242 | -17,908 | -18,267 | -18,632 | |
| New qualifications body one-off costs (£000s) | Low | 854 | 169 | 0 | 0 |
| High | 1,194 | 209 | 0 | 0 | |
| New independent inspectorate one-off costs (£000s) | Low | 434 | 124 | 0 | 0 |
| High | 846 | 185 | 0 | 0 | |
| New qualifications body recurring costs (£000s) | Low | 29,030 | 50,455 | 51,786 | 53,164 |
| High | 35,435 | 61,573 | 63,222 | 64,931 | |
| New independent inspectorate recurring costs (£000s) | Low | 9,465 | 16,582 | 16,949 | 17,323 |
| High | 11,746 | 26,261 | 26,839 | 27,430 | |
| Total costs | Low | 1,136 | 69 | -212 | -202 |
| High | 3,612 | 8,866 | 8,694 | 8,922 |
Estimated one off costs total between £1.6 million and £2.4 million. The majority of the estimated one-off costs are related to staffing costs on the Scottish Government to support the establishment of both bodies. That is, not the staffing costs of the bodies themselves. The other one-off costs include new branding/website costs and the costs of transferring staff from the legacy to the new organisations.
The removal of the inspection function from Education Scotland will mean that there is a new-look curriculum support agency. A Parliamentary Question (S6W-28044) answered on 5 June 2024 explained:
Following engagement with teachers and stakeholders, the Scottish Government has further considered the role of the national education agency, including how it can add most value to Scotland’s education system.
An excellent curriculum from 3-18 requires national leadership and direction. Therefore, the primary purpose and focus of Scotland’s national education agency will be to lead curriculum design, delivery and improvement, including the provision of resources to support high quality learning and teaching.
The national agency will also have an important role in supporting a thriving professional learning sector through a national framework for professional learning and will build on the existing and well-regarded national leadership professional learning programmes.
The Scottish Government is ambitious for all of Scotland's children and young people and Scotland’s local authorities and schools have an important role in creating the conditions for them to thrive. The national agency will work with local authorities to inform approaches to wellbeing, inclusion, behaviour and enabling better support for those with additional support needs. The national agency will also employ its unique national perspective to inform, share and promote wider approaches to improvement to close attainment gaps as set out in the National Improvement Framework.
The Scottish Government has determined that refocussing Education Scotland will deliver the change and improvement necessary to achieve excellence and equity for Scotland’s children and young people including across Gaelic Medium Education.
Work is underway to set out further detail on transition plans and associated timescales, including for the appointment of a permanent Chief Executive for a refocussed Education Scotland and HM Chief Inspector of Education, both of which will be taken forward as quickly as practicable. In line with previous commitments, there will be no compulsory redundancies as a result of this reform.
The language in the response to the Parliamentary Question differs from that in the Financial Memorandum in relation to the new national agency for education. The quote above talks about "refocussing Education Scotland". The FM said, in the context of estate costs, "Education Scotland is expected to be decommissioned and replaced with a new National Agency for Education along similar timescales to the establishment of the independent inspectorate" (Para 93).
The structures and development of this body will not require legislation and therefore may attract less attention and parliamentary scrutiny.
The structural reforms in this Bill are essentially aimed at improving the governance and structures of the national education bodies. In short, it aims to change the culture of the qualifications agency and separate the inspectorate from the education improvement body.
It is unlikely that legislation on its own will achieve an improved culture in our national education bodies. While structures are important, there are other aspects of governance that are necessary to secure good public service and outcomes. These include good leadership, and strong relationships with the customers/users, other public bodies and sponsoring departments.
The Scottish Government has set out principles of good governance. These are:
leadership
accountability
integrity
effectiveness
transparency
sustainability.
These are reflected in a separate Scottish Government publication focusing on the strategic engagement between the Government and its public bodies. This highlights the complementary roles of different levels of governance, including the civil service, boards and chief executives, and the expectation to “work with other public bodies and the Government to improve service design and delivery, share services and integrate activities with one another and to work across organisational boundaries to focus on outcomes.”