Seòmar agus comataidhean

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I move amendment 41.

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

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

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

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

The member talks about moving functions and its 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?

I ask Mr Kerr to indulge me. He talks about experts, but I wonder whether I could draw his attention back to the evidence that the committee received from the SCQF Partnership, which advised that it would encourage any future deliberations on the issue to focus on addressing only evidenced risks within the current qualifications system in Scotland, not least due to the current fiscal operating environment. The SCQF Partnership is also an expert in this.

I am not denying that we need to look at accreditation, and the location of accreditation, in the future; indeed, the Government amendment commits and compels Government to do so. However, there is no simple answer, as I think that Mr Mason was alluding to. The solution that Mr Kerr puts forward is laden with risk and additional costs. Does he recognise that?

Does he also recognise the evidence that the committee received from the expert body, the SCQF Partnership, which talked about addressing this through an evidence-based approach within the current qualifications system?

I thank Ms Duncan-Glancy for explaining the purpose of her amendments. I note that the establishment of two committees that will be dedicated to the interests of children, young people and adult learners and to those of teachers and practitioners has been broadly welcomed. However, as I recognised in the Government’s response to the committee’s stage 1 report, we have an opportunity to further strengthen their intended impact. Members have lodged several amendments regarding the membership of those committees.

Ms Duncan-Glancy’s amendment 225 sets out a very important principle: the diverse needs and interests of Scotland’s people should be represented in qualifications Scotland’s committees and sub-committees. The amendment aims to ensure that people from marginalised communities and socially disadvantaged backgrounds are considered, and I fully agree with her proposal. The amendment reflects the objectives for interest committees as set out in the bill’s policy memorandum.

However, there are some challenges with amendment 225 as it is currently drafted. I question whether the terminology is precise enough for what I believe Ms Duncan-Glancy is trying to achieve. In order for the amendment to work in the way that she intends, it would have to be drafted differently. We would also need to be sure that the term “socio-economically disadvantaged” would work in the context of the bill and to consider whether we need to adjust the amendment to include an appropriate definition to sit alongside it. I ask her not to press amendment 225, with a view to working with me on the issue ahead of stage 3.

I have discussed the wording with officials. On the point about the term “socio-economically disadvantaged”, a range of terms are used in historical legislation, and we want to be absolutely sure about the definition. That is the challenge in relation to how the amendment is drafted. However, I am more than happy to work with Ms Duncan-Glancy on that to ensure that we capture the correct definition, because I support what she is trying to do, which is to ensure that we have a much more representative board. I hope that that allays her concerns in that regard.

We are all in agreement that it is paramount that the board of qualifications Scotland is set up to lead the organisation in order to better support teachers and practitioners and to support those taking qualifications. We must also be alive to what the role of the board of an NDPB involves and ensure that it has the appropriate balance of skills to enable it to deliver on its corporate governance requirements.

Board size is an important element to get right. If a board is too small, we limit the skills and experience, and if it is too big, we create a board in which efficient decision making and corporate responsibilities are at risk. Bearing in mind those two requirements, I have reviewed the bill specifications on the range of skills required and members’ amendments in that respect and have lodged amendments 41 and 42 to increase both the minimum and maximum number of other board members—that is, membership that is not the chairing member, the accreditation convener and the chief executive. The amendments propose an increase of one, to seven and 11, respectively, increasing the total board size from a minimum of 9 to a minimum of 10 and from a maximum of 13 to a maximum of 14.

Ms Duncan-Glancy’s amendments 211 and 212 seek to increase the minimum board size to 13 and the maximum to 15. I have reflected on that proposal, and I am content that it would be sensible for the sake of flexibility to set the maximum at 15, as Ms Duncan-Glancy has proposed, instead of 14, as I had initially proposed. Given that the amendments are direct alternatives, I ask members to support my amendment 42, as it will support the direction of travel to a higher maximum, but I also ask members to support amendment 212 to ensure that the maximum is ultimately set at 15—that is, 12 members in addition to the three named positions.

I have some concerns about Ms Duncan-Glancy’s amendment 211, which seeks to increase the minimum ordinary membership to 10. The amendment would create a minimum membership of 13 in total, when we take the appointments of a chairing member, accreditation convener and chief executive alongside it, as opposed to a minimum of 10 total members, which would be achieved through my amendment 41. The main concern that I have with the amendment is that it risks creating a large minimum board, which will require careful risk management when it comes to public appointments and maintaining a legally compliant and quorate board in the event of members unexpectedly ending their appointment.

That happened quite recently—in 2023—in the SQA, which has a much lower minimum board membership. Members unexpectedly stood down, and permission was then required from the Commissioner for Ethical Standards in Public Life in Scotland to rush through an appointments round to ensure that the board remained quorate. With that in mind, I urge members to support amendment 41, as opposed to amendment 211.

Amendment 213 requires consultation with the board as a whole, rather than just the chair, if the power is used to change the size of the board in the future. Although I find it unlikely that a chairing member would not engage with their board on decisions of such scale, I am content to support the amendment.

With regard to the board’s composition, there was a good discussion at stage 1 on whether a learner—more specifically, a young person—should be appointed to the board. Currently, the provisions focus on having knowledge and experience of the views and needs of those taking qualifications rather than on specific age-related criteria. The current provisions do not exclude a young person from being appointed; indeed, it is long-standing public appointments policy that anyone over the age of 16 can be appointed to a board.

As it was the intention behind the current provision in the bill to enable a wide scope of potential candidates to be appointed, be they someone with experience of taking a qualification or someone with experience of advocating on behalf of learners, without limiting it to those criteria, I am sympathetic to Mr Greer’s amendment 28, which seeks to ensure that someone under the age of 26 who is or has recently taken a qualification is appointed to the board. The amendment recognises the importance of ensuring a wide scope of potential applicants by not confining it to too young an age.

However, as this is a type of amendment that would, albeit in a positive way, seek to discriminate on the basis of age, we would have to be satisfied that it would be compatible with equality law, if it did proceed. I see the value in having a young person with experience of taking qualifications on the board, and we would be happy to work with Mr Greer to ensure that efforts were made to promote and encourage applications from those under 26. I therefore ask Mr Greer not to press the amendment and to work with me and other stakeholders to consider how we can best do that effectively.

More broadly, I recognise that more should be done to strengthen the relationship between the board member appointed to reflect the interests of learners and the wider education system. That is why, if Mr Greer were interested, I would be keen to work up a stage 3 amendment to require such an individual to consult directly with learners and those who represent them as part of their statutory board duties.

In lodging amendment 29, Mr Greer also seeks a change in respect of consultation. I will wait to hear his rationale for that, but, on the surface, it is something that I might be able to support. I will come back to it in my closing remarks.

Ms Duncan-Glancy’s amendment 214 requires someone taking a qualification offered by qualifications Scotland to be appointed to the board. Again, although I see the value of such experience, I have two concerns about the amendment. The first is that the duration of qualifications varies from as little as a few weeks to as long as a number of years, and that creates challenges with maintaining board membership once those qualifications end. The second concern relates to a clear conflict of interest, as I do not think it appropriate for an individual who is taking a qualification offered by qualifications Scotland to have a non-executive leadership role in the organisation. I therefore ask Ms Duncan-Glancy not to move her amendment, noting my commitment to Mr Greer to work on something that, I believe, will have the same effect.

With regard to the teacher voice on the board, ensuring that qualifications Scotland is led by the experience of those who deliver learning, teaching and training for qualifications is an absolute priority. That is why the bill explicitly requires that a number of teachers, and college-based teachers, be on the board. That said, I recognise that increasing the proportion of teacher experience on the board would be desirable—although I am mindful of doing so in a way that does not limit the other range of valuable skills that are required on the board.

I note that Mr Greer has lodged two packages of amendments as options for improving that proportion. Amendments 43 to 46 work together to ensure that there is always a minimum of five teacher or college members on the board and that there must be a balanced proportion between teacher and college members where there is, at most, one more than the other. That teacher or college experience could come from any of the members on the board, including the chairing member. The amendments also ensure that, should the board size change, more than one third of the membership will always be teachers or college lecturers.

I have interpreted the alternative amendment 27 as taking a slightly more limiting approach that could impact on access to other skills being on the board. I understand that it will require there to always be a majority of members who are teachers or college teachers in the “other members” section of the board—that is, the section that does not include the chairing member, the accreditation convener or the chief executive.

That could have two effects. Mr Greer will agree that the first is especially undesirable, as the current board size would mean that there could be a lower minimum of just four teacher or college members. His alternative, which I am supporting, ensures that there will be five. The second is less desirable from a corporate governance perspective when it is read alongside the other specified criteria in the bill. It would mean that there is a risk that there could be insufficient seats on the board for the wider skills that would be needed to lead the organisation, because of the number of seats that are filled by teachers and other learner or staff-focused members. Taking all that into account, my preference would be to support amendments 43 and 46. I encourage members to do that.

I note that Ms Duncan-Glancy has lodged two amendments to support teacher members on the board. Amendment 215 would ensure that any teacher members who are appointed are teachers from schools. I see no issue with supporting that amendment, as it is the intention that they would be delivering qualifications in schools. If amendment 43 is accepted, amendment 215 will be pre-empted, but I would be happy to support making that change at stage 3.

Amendment 216 requires there to be a board member who is representative of a teaching trade union that operates in Scotland. As I have said many times during the progress of the bill, we must be mindful of the requirements for public body appointments, which come with the duty to govern effectively the organisation to which people are appointed, regardless of other roles that they might hold, so they should not represent the interests of other organisations while they are on the board.

I do not want to run the risk of creating a form of representative board model for qualifications Scotland. It was a representative board model at the SQA that was deemed to be one of the key sources of the failure that led to the awarding and examination issue in 2000. That drove forward urgent legislation at that time to change the board model to that which the SQA stipulates today. It meant that the board was specifically focused on corporate governance as well as the relevant education and skills experience. I therefore cannot support amendment 216. I encourage others to reject the amendment, noting that Mr Greer’s amendments, which I have referred to, should provide additional reassurance that qualifications Scotland will have sufficient teacher and college experience on the board.

I do, however, believe that there is good cause to strengthen the relationship between qualifications Scotland and the teaching unions. That is why I would be interested in lodging an amendment at stage 3 that would require the teaching and college board members to lead the board’s engagement and consultation with teaching unions. If Pam Duncan-Glancy sees that as something that we could work together on, I ask her not to move amendment 216.

Coming to the voice of staff on the board, throughout my engagement with SQA staff I have listened carefully to their desire for a more robust mechanism for qualifications Scotland. I understand that the trade unions that act for SQA staff would like to see board membership for them—a request that mirrors Ms Duncan-Glancy’s amendment 217. I have considered that option carefully and I remain sympathetic to it. However, I have concerns about the application of direct staff roles in a non-departmental public body, given the associated corporate governance implications for how a trade union would work in practice for the operation of the board and, importantly, for the individual, given the focus and nature of the operational responsibilities of an NDPB and the need to navigate potentially significant conflicts of interest.