Post-16 Education (Scotland) Bill: Stage 3

– in the Scottish Parliament at on 26 June 2013.

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Photo of John Scott John Scott Conservative

The next item of business is stage 3 proceedings on the Post-16 Education (Scotland) Bill. In dealing with the amendments, members should have the bill as amended at stage 2, the marshalled list and the groupings. The division bell will sound and proceedings will be suspended for five minutes for the first division of the afternoon. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. Members who wish to speak in the debate on any group of amendments should press their request-to-speak button as soon as possible after I call the group.

Section 2—Higher education institutions: good governance

The Deputy Presiding Officer:

Group 1 is on “Governance: consultation”. Amendment 5, in the name of Neil Findlay, is grouped with amendments 100, 16 and 76.

Photo of Neil Findlay Neil Findlay Labour

Through amendments 5, 16 and 76, we want to ensure that, when the principles that govern our universities are discussed, debated and/or even changed, the main and most important stakeholders in our universities are included in those deliberations. That would include the student associations that represent those who attend universities, the trade unions that represent the staff in higher education, the business community and other relevant groups.

The recent development of the code of governance was heavily criticised by staff and students for being an exclusive exercise that was conducted by a narrow, self-appointed group and excluded staff, unions and the National Union of Students. The amendments would ensure that that would not happen in future, and I hope that the Government will accept them.

We support Joan McAlpine’s amendment 100, which is on staff and students being on remuneration committees. That is a good move that will, I hope, open up the remuneration process to more scrutiny, debate and transparency.

I move amendment 5.

Photo of Joan McAlpine Joan McAlpine Scottish National Party

Amendment 100 is a probing amendment. It is supported by the NUS, which, like me, is looking for reassurances from the cabinet secretary. The NUS recognises the concern about the pay gap between senior management and workers in the universities sector. In Scotland, the gap is a ratio of 1:16. The situation is out of step with Scotland’s egalitarian education tradition.

The pay differential in universities is higher than that in the public sector as a whole. It is wider than the gap between a four-star general and a private in the army, and it is wider than the gap between the national health service chief executive and a hospital porter. The average pay for a university principal is £240,000, which is far in excess of what the United Kingdom Prime Minister earns. It is all the more worrying when we consider that a recent NUS survey seemed to indicate that some universities in Scotland are not paying their lowest-paid members of staff the living wage.

Amendment 100 does not seek to dictate the salaries of university principals. It seeks to ensure that staff and students are represented on the universities’ remuneration committees. From the start of the process, the cabinet secretary made it clear that the chair’s job was not to rewrite the original von Prondzynski report but, rather, to find a way in which to take his recommendations and apply them across the sector through a code. The consultation period on the draft code closed last week, and it is disappointing that the final code will not be published until after the stage 3 proceedings.

I do not think that I am alone in thinking that the chairs of university courts who first gave evidence to the Education and Culture Committee were not particularly conciliatory. Indeed, their position on consultation with other stakeholders did not inspire confidence. I was more encouraged by the constructive attitude of Sir Robert Smith, who, at a later evidence session, agreed to speak to the staff representatives about the code.

As things stand, the proposed code makes no reference to staff and students in its discussion of remuneration, other than to note that remuneration panels should be careful not to agree severance packages that staff and students might find excessive. The code should go further than that.

I would like the cabinet secretary to state his position on the presence of staff and students on remuneration panels and what message he would intend us to send to universities on the subject of executive pay.

Like everyone else in this chamber, I am very proud of the performance of our universities and their ranking in international league tables. At the same time, they must remember that they are in receipt of large amounts of public money, which brings with it certain responsibilities. Universities in Scotland are not businesses; they are learning communities, and staff and students are key members of those communities, who should be treated as such by management.

The Deputy Presiding Officer:

I should have drawn to members’ attention at the outset that we are tight for time and it would be helpful if we could have succinct speeches.

Photo of Elizabeth Smith Elizabeth Smith Conservative

There is clearly a need to ensure an effective balance between the accountability of public money and the autonomy that is enjoyed by colleges and universities to be responsible for the running of their institutions. In our view, one of the reasons that the bill has been fraught with so many difficulties has been the sharp division of opinion on that issue between the Scottish Government and the college and university sectors, which have seen the balance shift too much in favour of the Government and too much away from them.

The college and university sectors have rightly questioned which structures of governance and academic accountability can best deliver the very high standards of further and higher education across Scotland and how they can maintain their competitive edge when measured against the rest of the world. That competitive edge is directly linked to the abilities of colleges and universities to be innovative, diverse and flexible, and therefore they expect Government to respond to policies that will enhance those characteristics. They do not expect the Government to be interventionist, which is very much against international trends in further and higher education.

The sectors do not understand—neither do the Scottish Conservatives—why there needs to be extensive legislation to change governance structures, when they can find no evidence that existing governance structures undermine or in some way hold back education outcomes for our students. They are puzzled when the main architect of the reform of governance tells them that the existing structures are largely working very well indeed, yet they are told that there must be wholesale changes. That does not make sense. In particular, they worry deeply about the excessively prescriptive parts of the bill, which would see many governing bodies restrained in political straitjackets, without the ability to respond well to the educational needs of what is a very diverse and competitive set-up.

The sectors’ fears about the extent of that intervention have led the Scottish Conservatives to oppose a great deal in this section of the bill, and we will do so again by opposing amendments 5, 100, 16 and 76.

Photo of Liam McArthur Liam McArthur Liberal Democrat

As the Presiding Officer said, we are tight for time; that is regrettable, but it is not out of keeping with the way in which the bill has progressed since it was introduced to Parliament. With that in mind, I will keep my remarks brief.

I remain sceptical of the need for statutory underpinning of a code of good governance for our universities. I am still of the view that that encroaches into the responsible autonomy of those institutions, which international evidence shows is a defining feature of the best-performing universities worldwide.

I welcome that Mr Russell has backed down, in so far as ministers will not now decree what constitutes good governance. That will fall to the Scottish Further and Higher Education Funding Council. However, I am not sure that the additional layer of consultation that Neil Findlay seeks is necessary.

Joan McAlpine’s amendment 100 reflects public concern about pay levels and pay increases for some of our senior academic positions, but I believe that it runs counter to corporate governance rules that remuneration committees should be composed of directors external to the organisation. Remuneration procedures need to be transparent and robust and staff and students need a genuine and effective say in remuneration decisions, but that can be achieved through their enhanced roles in the governing body.

Photo of Michael Russell Michael Russell Scottish National Party

I will not rehearse all the arguments that have been heard already. Suffice it to say, we have endeavoured to develop and improve the bill by listening to the sector and the Opposition parties as we have moved through the process. We have a series of amendments that continue that process, which I am pleased is taking place.

When Neil Findlay lodged at stage 2 a very similar amendment to his amendment 5 today, I agreed—as I continue to agree—that consultation should be at the heart of the development of any governance standards that are adopted across universities. Progress has been made on that and other changes to the bill have achieved that. The Scottish funding council’s existing duties allow for a sufficient level of consultation, which has also been improved by the bill. The Education and Culture Committee accepted that at stage 2 and the amendments are not substantively different from those that were previously lodged in a way that makes me reconsider the position.

Joan McAlpine’s amendment 100 raises an important point. I fully support the principle of having more transparency in the area and I expect to see Professor von Prondzynski’s recommendations in that regard properly reflected in the final code of governance. Indeed, as I said during education questions, Lord Smith has now indicated to me and to the convener of the Education and Culture Committee that he has made substantial progress in that regard.

Amendment 100 expresses an aim that I share but, unfortunately, it will not achieve that aim. Our universities are many and varied, as Liz Smith has pointed out before now, and their governance instruments—some of which date back hundreds of years—introduce a level of complexity that the amendment does not accommodate. Nevertheless, it is right that, when we see the final code of governance, we should consider whether further legislation is required in the proposed higher education governance bill that I have committed to bring to Parliament in the coming years. As we know, there are some things in the von Prondzynski recommendations that cannot be implemented except by an underpinning statute of the type that von Prondzynski asked for.

I support my colleague Joan McAlpine’s aim, but her amendment, alas, will not achieve that aim. I therefore ask her not to move amendment 100—the matter is very much taken to heart.

The Deputy Presiding Officer:

I call Neil Findlay to wind up and to press or withdraw amendment 5.

The Deputy Presiding Officer:

The question is, that amendment 5 be agreed to. Are we agreed?

Members: No.

There will be a division. As this is the first division in stage 3, I suspend the meeting for five minutes.

14:51 Meeting suspended.

14:56 On resuming—

Division number 1 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 36, Against 80, Abstentions 0.

Amendment 5 disagreed to.

Amendment 100, in the name of Joan McAlpine, was debated with amendment 5. I ask Joan McAlpine to move or not move amendment 5.

The Deputy Presiding Officer:

The question is, that amendment 100 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 2 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 36, Against 80, Abstentions 0.

Amendment 100 disagreed to.

After section 2

Group 2 is on equalities. Amendment 3, in the name of Jenny Marra, is grouped with amendments 4 and 80.

Photo of Jenny Marra Jenny Marra Labour

This week, the Equality and Human Rights Commission announced that it is taking legal action against nine Scottish public bodies for their failure to meet their equalities duties. It is able to take that legal action under the Equality Act 2010, which Labour drove through Westminster in 2010, and under the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012, which the SNP passed in order to comply with the 2010 act.

My amendments would make it a condition of payment to colleges and universities that their governing bodies comprise at least 40 per cent women and 40 per cent men. Only seven of our 34 colleges have 40 per cent women on their governing bodies, and only one of our universities meets that target.

This is the eighth set of gender-quota amendments that I have moved in Parliament—I moved four sets of such amendments during consideration of the Police and Fire Reform (Scotland) Bill and two during consideration of the Scottish Civil Justice Council and Criminal Legal Assistance Bill, and I have now moved such amendments twice during consideration of the Post-16 Education (Scotland) Bill. Each time, my amendments have been opposed by the Scottish National Party. First, it said that it did not agree with quotas. Now, it says that it agrees with them, but does not have the power to implement them. The rhetoric may have changed, but the reality has not: the SNP is still not prepared to be bold for the women of Scotland.

The SNP says that it has legal advice to back up its position, but we will never see it and the SNP will not tell us what it is. We have been here before. [Interruption.]

Photo of Jenny Marra Jenny Marra Labour

The reality is that we simply will not get a fair judgment until the policy is tested. If the Government were truly committed to the policy, as the cabinet secretary has told me he is, the Government would have lodged its own amendments, which would have gone before the Lord Advocate for him to test. The Scotland Act 1998 is tested constantly. Private legal advice is not an excuse not to test the powers of the Scottish Parliament, which are so important to the SNP.

Labour will support Clare Adamson’s amendment 80. There is little to disagree with, because it simply restates duties that Labour legislated for in the Equality Act 2010. However, there is no doubt that we need to be more radical. The Parliament has seen some of its best legislation passed when it has united to test the powers of the Scotland Act 1998. Legal advice initially said that the smoking ban was ultra vires, but the Government of the day took the risk and passed it into law. The lesson from the smoking ban is that the Scotland Act 1998 is fluid. Today, we can take advantage of that fluidity to make a real difference to how our universities and colleges are run.

We are not doing enough to tackle the lack of female representation—80 per cent of people on our public boards are men and only 27 per cent of university court members are women. This week, public bodies in Scotland may find themselves in court over their failure to address that. The time to act is now. Our Scottish Parliament was not designed simply to reiterate Westminster legislation. [Interruption.] That is exactly what the cabinet secretary is doing. [Interruption.]

Photo of Jenny Marra Jenny Marra Labour

Our Parliament was designed to use and test the powers that we have in order to make bold changes to the lives of people in Scotland. I think that the Government has missed an opportunity to test its boldness.

I move amendment 3.

Photo of Clare Adamson Clare Adamson Scottish National Party

I lodged amendment 80 to address a critical issue that the committee considered during its evidence gathering. A recurring theme was the lack of diversity, particularly in relation to gender, on university governing bodies. Although that is clearly an issue in universities, my further research has shown that the situation in colleges is not much better. In both sectors, only about 30 per cent of board members are women. That situation is absolutely unacceptable, so I am pleased that the cabinet secretary has given his explicit support to addressing that inequality.

Although I support the intention behind Jenny Marra’s amendments, I accept the cabinet secretary’s view that they are not within the Parliament’s legislative competence. I look forward to making “bold” decisions for the women of Scotland.

Photo of Clare Adamson Clare Adamson Scottish National Party

The bold decision would be to vote next year for the powers that would bring such amendments within the Parliament’s legislative competence.

I accepted the cabinet secretary’s generous offer to work with those who had wanted to lodge amendments on the subject and with the Minister for Commonwealth Games and Sport to draft amendment 80, which signals our desire to see meaningful progress being made, and which will enable that to happen in a way that is within the Parliament’s current competence.

Photo of Liam McArthur Liam McArthur Liberal Democrat

As I said at stage 2, I firmly believe that one area in which the performance of our university governing bodies needs to improve significantly is the diversity of their make-up. That view is shared by Lord Smith, who was unequivocal in setting out for the committee his expectations on what needs to happen over the next few years. Both he and Simon Pepper talked of the need for

“a major shift in the culture of our governing bodies in Scotland”,—[Official Report, Education and Culture Committee, 7 May 2013; c 2342.]

but both felt that the compulsory nature of the new governance code would help to bring that about and argued that time is needed to allow that change to take place.

Although I have sympathy with amendment 3 in the name of Jenny Marra, and believe that her efforts now and at stage 2 have helped to reinforce Parliament’s expectations to the university sector, I feel that it is not appropriate at this time to introduce the strict quota that she proposes. There might be a better case to make for taking that approach in the college sector, as is proposed in amendment 4, in recognition of the absence of the same type of governance code as exists for higher education, but even then careful consideration must be given to timeframes.

Amendment 80 in the name of Clare Adamson is, for now, a helpful addition in underscoring the need for greater diversity and equality of opportunity in appointments to university governing bodies. As Simon Pepper suggested to the committee,

“The proof of the pudding is in the eating”.—[Official Report, Education and Culture Committee, 7 May 2013; c 2342.]

I suspect that if the pudding turns out to be not as was expected, demands will very quickly grow for very different ingredients to be added.

Photo of Michael Russell Michael Russell Scottish National Party

No one is defending the woeful record of university and college boards. The boards themselves have accepted that the gender balance on them is atrocious—indeed, in some cases, it is more than atrocious. We need to get that situation changed quickly, and that view is supported not only by me and the education team but by the equalities minister and the Government itself.

The question is how we get there. Unfortunately, Jenny Marra’s suggestion shows a regrettable lack of knowledge of what would actually happen were we to pass amendment 3. [Interruption.] Presiding Officer, can I have the opportunity to make this point?

Photo of Michael Russell Michael Russell Scottish National Party

Essentially, amendment 3 is a wrecking amendment. The bill would go not to the Lord Advocate but into constitutional limbo. It would require the attention of the Advocate General—whoever that is—and the process would take a considerable time. As a result, all the things that we are trying to achieve through the bill such as widening access, improving governance and mutualisation would go. Perhaps that is the idea; perhaps Labour wants to put the bill into constitutional limbo.

I have spoken to Jenny Marra on the matter, have told her the facts and have indicated my support—indeed the equalities minister has now sought the support of the leader of the Labour Party on this—for getting responsibility for this issue transferred to the Scottish Parliament. In that way, Ms Marra’s fine nationalist rhetoric—she made a good job of it—could be matched by actions. Instead of her standing up and making a speech about what needs to change, she could vote for that change—and the most effective vote for change would be to vote yes next year. [Applause.]

Photo of Michael Russell Michael Russell Scottish National Party

Even if Jenny Marra is not going to do that, she and her party might support the necessary moves at Westminster to transfer responsibility for equalities legislation to this Parliament. However, I will not hold my breath for that change of heart.

Clare Adamson’s amendment goes as far as we can within the powers of the Parliament. I want to go much further than that and to test the powers of this Parliament; indeed, I want to test those powers to destruction, which is what we will do when we have independence. Let us recognise—[Interruption.]

Photo of Michael Russell Michael Russell Scottish National Party

Let us recognise that we cannot do that in this bill here and now unless we wreck the bill here and now. If that is Labour’s intention, I hope that Parliament rejects it.

I would have been happy to make common cause with Jenny Marra and to ensure that we had a united approach on the matter. I regret that she was not willing to do so.

The Deputy Presiding Officer:

Do you wish to press or withdraw amendment 3, Ms Marra?

The Deputy Presiding Officer:

The question is, that amendment 3 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 3 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 36, Against 81, Abstentions 0.

Amendment 3 disagreed to.

Section 3—Widening access to higher education

Group 3 is on widening access. Amendment 7, in the name of the cabinet secretary, is grouped with amendments 8, 10, 11, 15, 21, 24, 49, 52, 77, 78 and 97.

Photo of Michael Russell Michael Russell Scottish National Party

Section 3 is at the very heart of the bill. During stage 2, we had a detailed discussion about widening access provisions. Liam McArthur in particular lodged a number of amendments, which I opposed at the time because I felt that they went too far in diluting the effectiveness of the provision. However, I think that the entire committee agreed that there was merit in some aspects of his proposals, so I have worked with Universities Scotland and the NUS Scotland to agree some small but important changes to the provision that will make clearer the nature of the agreements between institutions and the Scottish funding council.

It is important that ministers will retain the power to drive the agenda but—this was the key point—universities, with the agreement of the funding council, will be able to go beyond that to extend agreements to other groups, as they see fit. That strikes the right balance between respecting responsible autonomy—which we do, of course—and ensuring that there is progress in an area in which the track record has left a lot to be desired.

On the other amendments in the group, the principles that underlay Marco Biagi’s stage 2 amendments were eminently sensible. His updated versions in the group will widen the scope and therefore the benefit of his previously lodged amendments, and I am happy to support them.

I move amendment 7.

Photo of Marco Biagi Marco Biagi Scottish National Party

I beg the indulgence of members, as I have six amendments in the group, which are in three sub-groups, each of which I will outline in turn.

Amendments 21, 24, 49 and 52 will create a duty on the regional colleges and regional strategic bodies to have regard to the desirability of participation in further education and higher education by underrepresented socioeconomic groups. Scotland’s colleges do excellent work on that already. Some 22 per cent of college students come from the 20 per cent most deprived areas of the country, and articulation with universities is a well-trodden path that allows people from non-traditional backgrounds to access full university degrees. The amendments will put into the new founding statute what the sector does so well already.

Amendment 77 will create a similar duty on the Scottish funding council, which is already required to have regard to a wide range of areas, including skills needs, the economy, social and cultural issues, sustainable development, the UK and international context, and the educational support needs of students. Widening access to higher education will now take its well-deserved place alongside those other priorities. Moreover, amendment 77 will ensure that the Scottish funding council will not simply have to pay heed to the desirability of widening access, but will promote the sharing of good practice among institutions. That is an important role for the Scottish funding council into which I hope it will grow over the coming years.

Finally, amendment 78 will create a duty on the Scottish funding council to review and report every three years on progress on widening access. We have seen a lot of reviews of higher education in these islands. In past years, our student communities have anxiously watched when another review—by Dearing, Cubie or Browne—has come along with questions that have always been asked in such a way that the answer would always be more fees, more charges and more barriers. The reviews in question will focus on how we can open doors, rather than shut them. Although they will be a lot less grandiose, I hope that they will be just as closely watched, well respected and deeply challenging, because we cannot allow to continue the status quo of recent decades in terms of socioeconomic participation.

At stage 2, the cabinet secretary accepted the principles of my amendments in those areas, but pointed out technical problems, which have been addressed by our working together, so I hope that members will join the chorus of stakeholders, which includes Colleges Scotland, Universities Scotland and NUS Scotland, in supporting the amendments.

We have in the chamber the shared objective that access to learning should be open to all. Embedding a clear and much-needed focus on widening access in our post-16 funding bodies will help to achieve that vision.

The Deputy Presiding Officer:

Many thanks. A number of members wish to contribute to the debate on group 3, but it is unlikely that I can call you all. I ask those whom I call to be brief.

Photo of Neil Findlay Neil Findlay Labour

Throughout the passage of the bill, Scottish Labour has been consistent in its view that our universities need to open up access so that many more people have the opportunity to access higher education. It is not acceptable that some of our higher education institutions have made such little progress in that area and continue to draw students from a very narrow section of society. Higher education should be accessible to students from all classes, backgrounds and cultures.

Throughout the debate, Scottish Labour has sought to amend the bill, working with disability charities, NUS Scotland and others, so that the system can be opened up and can enhance the prospect that disabled students and others, including those from the SIMD—Scottish index of multiple deprivation—20 most deprived areas, will gain access to higher education. It was a great disappointment that the cabinet secretary rejected the very progressive proposals on that. We lodged such amendments again for stage 3, but they were not selected.

Let me state clearly, so that there can be no misrepresentation of our position—as has frequently been done in the past by the cabinet secretary—that we support widening access and, indeed, we want to go further than the Government proposes. However, that has been rejected by the cabinet secretary.

The Deputy Presiding Officer:

I must hurry you along.

Photo of Neil Findlay Neil Findlay Labour

We acknowledge that there has been progress during the progress of the bill and that the Government has acknowledged some of our arguments, but instead of accepting our proposals, the Government has lodged amendments in Marco Biagi’s name. Our genuine proposals were supported by a broad coalition of charities and campaign groups but, sadly, they were rejected by the cabinet secretary. The bill is a lesser bill for that.

Photo of Elizabeth Smith Elizabeth Smith Conservative

I record Scottish Conservatives’ support for the principle of widening access, which we believe is valuable not just for intrinsic educational reasons but for social and economic ones. I think that our parliamentary record over a long period substantiates that claim.

We do, however, differ markedly from the Scottish Government on where the policy focus should be, and we remain very concerned about some of the unintended consequences of forcing universities to adopt prescriptive targets that are enshrined in legislation, rather than to be bound by what are successful outcome agreements. Indeed, we do not believe that we have ever been provided with an answer as to what additional benefits will accrue to universities from having prescriptive legislation rather than outcome agreements. Our belief is that the policy focus should be on schools far more than on tertiary education.

We are conscious of the unanimous support for the widening access principle, but we have had great difficulty with the sections of the bill that are overly prescriptive. We are also very conscious of the universities’ lobbying of the cabinet secretary to ensure that ministers will not be able to intervene in admissions policy. On that basis, we will support amendments 7, 8, 10, 11 and 15.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

I very much welcome the amendments in group 3 in the names of the cabinet secretary and Marco Biagi. As the cabinet secretary said, the amendments are at the very heart of the bill and are a crucial part of the process that underpins much of what we have been trying to do in getting the bill through. Neil Findlay’s amendments at stage 2 were, of course, comprehensively defeated, so it is not surprising that they have not come back at stage 3.

I very much welcome amendments 7, 8, 10, 11, 15 and 97, which I believe have been negotiated and agreed with outside stakeholders including Universities Scotland and NUS Scotland. I think that that is a very welcome development in the process. Obviously, the amendments will change the nature of the widening access provision and I think that they much better reflect the process between the SFC and the universities, which is very welcome for dealing with widening access agreements.

Amendment 7 will broaden the scope of agreements so that they can include additional groups that are agreed by the SFC and the institution. Again, that is very welcome. Amendment 10 is important because it will ensure that the institution has the obligation to consult; in other words, as the amendment states, the

“higher education institution must consult”.

Again, that is a very welcome change.

The Deputy Presiding Officer:

I must hurry you along.

Photo of Stewart Maxwell Stewart Maxwell Scottish National Party

I very much welcome Marco Biagi’s amendments, which include the previously suggested changes. I point, Presiding Officer, to amendment 78, which will create a duty for the SFC to review and provide a report. Again, I think that that is an extremely welcome development.

The Deputy Presiding Officer:

Thank you very much. Very briefly, Liam McArthur.

Photo of Liam McArthur Liam McArthur Liberal Democrat

As others have said, whatever progress has been made over recent years in terms of widening access, it has been far too slow and has started from a very low base. The minister is therefore right to attach priority to addressing the issue, although I think that he has failed to make the case for why legislation is essential. Widening access agreements are now being developed and the funding levers that he has always had at his disposal, as both carrot and stick, will determine whether ambitions are met.

Nevertheless, as the minister is determined to press on with his approach, it is important that we establish certain safeguards. The need to broaden the definition of what constitutes an under-represented group was a key feature of evidence at stage 1 and of amendments, including mine, at stage 2. In that context, I welcome the amendments in group 3, which reflect the consensus that has emerged on the issue.

The review requirements that are set out in Marco Biagi’s amendment 78 are also worthwhile provisions.

I note that the cabinet secretary’s amendments 7, 8, 10 and 15 acknowledge, however belatedly, that widening access agreements flow from higher education institutions, albeit in consultation with other stakeholders. Indeed, despite his protestations at stage 2, he now seems to believe that such agreements are “a creature of the universities”.

The Deputy Presiding Officer:

I can allow an extremely brief contribution from George Adam.

Photo of George Adam George Adam Scottish National Party

For me, widening access is the most important part of the bill. I say that for personal reasons because my constituency includes Ferguslie Park, which is an area of multiple deprivation. We need to provide opportunities for all our young people in Scotland, including those from areas such as Ferguslie Park.

Until now, progress on widening access has been extremely slow; an increase of 1 percentage point in the past nine years is just not good enough. Some Opposition parties say that they support widening access, but they vote against it when they get the opportunity to do so. I find that quite a strange thing for anyone to do because, as the cabinet secretary quite rightly said, widening access is at the very heart of the bill.

Photo of George Adam George Adam Scottish National Party

I do not have time.

On 19 February, the NUS Scotland president Robin Parker told the Education and Culture Committee:

“The legislation must happen. ... A year ago, it would have taken 40 years if things had carried on at the current rate.”—[Official Report, Education and Culture Committee, 19 February 2013; c 1985-8.]

For me, that rate of progress is just not good enough for the young people of Scotland.

The Deputy Presiding Officer:

I am afraid that I must ask you to conclude.

Photo of George Adam George Adam Scottish National Party

In my area, the University of the West of Scotland has managed to attract more than 20 per cent of its students from lower-income areas. UWS provides a perfect example of how we can move forward to ensure that all young people in Scotland have the opportunity.

The Deputy Presiding Officer:

I call the cabinet secretary to wind up the debate.

Photo of Michael Russell Michael Russell Scottish National Party

However we got here, we have got here. I hope that we can now legislate on widening access, which is needed to drive forward progress that has been too slow.

I will not spoil the moment by disputing all the various arguments that we have heard. I have listened—I certainly listened to Liam McArthur, as I said in my opening remarks—but I have listened particularly to Universities Scotland and NUS Scotland. I pay tribute to Robin Parker, who is just finishing his period of two years as president of NUS Scotland. He has been a tower of strength in taking the issue forward, which he has driven almost personally, and he certainly deserves much of the credit for it.

Amendment 7 agreed to.

Amendments 8, 10, 11 and 15 moved—[Michael Russell]—and agreed to.

After section 3

Amendment 16 moved—[Neil Findlay].

The Deputy Presiding Officer:

The question is, that amendment 16 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 4 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 36, Against 80, Abstentions 0.

Amendment 16 disagreed to.

Section 5—Regional colleges

That brings us to group 4, which is on regional colleges and regional strategic boards: functions etc. Amendment 101, in the name of Neil Bibby, is grouped with amendments 102, 103, 17 to 20, 22, 23, 45 to 48, 50, 51, 106 to 109, 53 and 119.

Photo of Neil Bibby Neil Bibby Labour

There are 21 amendments in group 4, which is on the functions of regional colleges and regional strategic bodies. Amendments 101, 106 and 109 in my name would ensure that colleges engage fully with community planning partners in their areas. I lodged similar amendments at stage 2 and I lodged amendments on the same issue for today because I believe that colleges should consult community planning partners when decisions are taken.

Colleges are a vital part of the community and should work with community planning partners when possible. It is vital that, as well as meeting a community’s general needs, colleges should meet an area’s economic needs. We have seen some concessions on that through the cabinet secretary’s amendments 17 and 45, so I hope that we will also see concessions on consultation with community planning partners.

Similarly, amendments 102 and 107 would ensure that colleges engage and work with community health partnerships. Unfortunately, far too many of the communities in which colleges are situated have high levels of health inequalities. It is important that colleges consult community health partnerships and, when possible, work with them to resolve issues when health and education services overlap. Amendments 102 and 107 are simple, reasonable and necessary.

My amendments 103 and 108 would require regional colleges and regional strategic bodies to consult transport providers that serve the areas in which colleges are situated. Those amendments are important, particularly given the regionalisation agenda. We are hearing more and more concerns about the prospect of courses not being available at local colleges because they have been moved to other campuses in a region.

The Education and Culture Committee has heard about construction courses being moved from Dalkeith in Midlothian to the other side of Edinburgh. To put it simply, if such changes continue, as we fear that they will, transport providers must be consulted. I have said many times that, in my West Scotland region, I regularly hear concerns about the possibility of a lack of transport for people who want to travel between Clydebank and Greenock. Such a situation would be very problematic. If that is the case in West Scotland and Edinburgh, I am pretty sure that the situation will be repeated in almost every part of Scotland.

I would of course prefer courses to be retained at their present locations but, if they are to be moved to different parts of a region, there must be engagement with transport providers to ensure adequate transport provision between college campuses for staff and students. That is necessary in relation to the regionalisation agenda. Even if that agenda was not happening through the bill, it would make sense to consult and work with transport providers that serve local colleges. I believe that the whole Parliament must support amendments 103 and 108.

I am happy to support amendments 17 and 45 in the name of Mike Russell and related amendments. I was surprised that references to local economic and social wellbeing were not originally included in the bill. As the cabinet secretary and members of the Education and Culture Committee will know, I lodged amendments at stage 2 that called for regional boards and regional strategic bodies to have a duty to promote social cohesion and inclusion and local economic regeneration and to have regard to regeneration plans that affect a college’s locality.

I therefore welcome the lodging of amendments to that effect at stage 3. At a time of high unemployment, it is vital that our colleges continue to play a key role in helping people back to work. Prior to stage 2, there was a complete lack of a specific regional focus. We know that different regions face different challenges and have different needs and priorities. The amendments will address what were, in my opinion, glaring omissions, so I am happy to support them.

I move amendment 101.

Photo of Michael Russell Michael Russell Scottish National Party

Amendments 17 and 45 fulfil commitments that I gave to Neil Bibby in committee at stage 2 to place new duties on regional colleges and regional strategic bodies in relation to economic and social regeneration and social inclusion and cohesion. I am grateful to him for the positive role that he played in raising the issue. The duties are part of a wider duty on regional colleges and regional strategic bodies to improve economic and social wellbeing in their localities.

Amendments 18 to 20, 22, 23, 46 to 48, 50 and 51 integrate more generally into the bill local matters, by which I mean skills needs and economic, social and cultural issues. Local matters are for the regional bodies to determine. National issues will be for the Scottish funding council, in consultation with ministers, as is the case now. Given the way in which the bill is constructed, a lot of amendments—nine in total—are required to deliver on one good idea, but I am satisfied that the result will be a better bill.

Amendment 53 will align the consultation provisions in new section 23K of the Further and Higher Education (Scotland) Act 2005 with similar provisions elsewhere in the bill. Amendment 119 will enable ministers to obtain from a regional strategic body, a regional college or an assigned college such information as they may reasonably require in connection with the exercise of their functions under the 2005 act.

At stage 2, Neil Bibby lodged identical amendments to today’s amendments 101 to 103 and 106 to 109, and I outlined then the good reasons why I cannot support them. It is true that colleges play an important role in CPPs, but the Government will consult this summer on a draft community empowerment and renewal bill, which will be the appropriate vehicle for considering the issue if any changes are to take place.

There is nothing preventing colleges and regional strategic bodies from consulting community health partnerships, transport providers and community planning partnerships. During my meeting at Adam Smith College two weeks ago, we discussed the role that the college could play in assisting with transportation, as many colleges have always done. I see no convincing reason to place a statutory obligation on them to do so.

Photo of Liam McArthur Liam McArthur Liberal Democrat

As I said in the stage 1 debate, I feel that the cabinet secretary is pursuing an interventionist and controlling agenda in relation to our colleges, which is unwise and, in many cases, counterproductive. Nevertheless, I accept that a number of more positive steps are being taken in the group of amendments. Amendments that reinforce the need for regional colleges to focus on their locality’s needs and in particular on skills and on regeneration needs are helpful, albeit that they rather confirm what is the bread and butter of most of our colleges already.

I was happy to support Neil Bibby’s amendments at stage 2, as they helped to make the point that the Government needed to expand its horizons on those with whom engagement is needed in any given locality, notably on the transport aspects of college mergers. However, those amendments have now been overtaken by other changes that have been made to the bill.

The Deputy Presiding Officer:

I ask Neil Bibby to wind up and indicate whether he intends to press or withdraw amendment 101.

Photo of Neil Bibby Neil Bibby Labour

I have nothing more to add, and I will press the amendment.

The Deputy Presiding Officer:

The question is, that amendment 101 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 5 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 37, Against 80, Abstentions 0.

Amendment 101 disagreed to.

Amendment 102 moved—[Neil Bibby].

The question is, that amendment 102 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 6 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 37, Against 78, Abstentions 0.

Amendment 102 disagreed to.

Amendment 103 moved—[Neil Bibby].

The question is, that amendment 103 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 7 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 37, Against 79, Abstentions 0.

Amendment 103 disagreed to.

Amendments 17 to 20 moved—[Michael Russell]—and agreed to.

Amendment 21 moved—[Marco Biagi]—and agreed to.

Amendments 22 and 23 moved—[Michael Russell]—and agreed to.

Amendment 24 moved—[Marco Biagi]—and agreed to.

Section 6—Colleges: boards of management

Group 5 is on board membership. Amendment 25, in the name of Neil Findlay, is grouped with amendments 26 to 36, 60 to 64, 112, 65 to 70, 85 to 88, 115, 89 to 91 and 99.

Photo of Neil Findlay Neil Findlay Labour

Amendments 25 and 26 would ensure that staff representation on college boards is drawn from the relevant trade unions that represent staff at our colleges. Trade unions are recognised as representative of college staff, and it is right that they are represented on the boards of the colleges to which they contribute so much. Governance will be better for their presence.

Amendments 27 and 63 would ensure that recommendations of appointments to boards are made by the board and submitted to the chair and ministers for final approval. That will give the board the power to make its own appointment, which is the right thing to do.

Amendment 28 would increase representation to two members from one, which would ensure that colleges that are not regional colleges will have two staff representatives on boards and that the set-up is similar to that of regional colleges.

We accept Mike Russell’s amendments 29 and 31 because they are similar to my amendment 28 in that they would ensure that colleges will have two staff representatives—one teaching and one non-teaching—which is the same as the regional colleges. Amendments 30, 60 and 61 will ensure that representation of teaching and non-teaching staff will come from those recognised trade unions.

Amendments 32 and 33 seek to ensure that assigned college boards will be able to appoint their own board members in the same way as regional colleges, recognising the role of the regional strategic body and that its approval will be needed to appoint other members.

I move amendment 25.

Photo of Michael Russell Michael Russell Scottish National Party

Amendments 65, 66, 68 to 70 and 89 to 91 will ensure that a person who is removed by ministers for reasons of mismanagement from one relevant board that is an incorporated college board or regional board will be removed from all such boards.

The effect of Government amendment 99 will be that, if a person cannot be a member of an incorporated college board or regional board, they will also be barred from being a member of or serving on the Scottish funding council.

Government amendments 29, 31, 86, 87 and 88 provide for two elected staff members on assigned college boards—one elected by teaching staff and one by non-teaching staff—and make related provisions relating to their tenure.

Amendments 67 and 85 relate to terms and conditions of appointment. Amendment 67 prevents a regional board from setting the terms and conditions of the appointment to the board of an assigned college chair. Amendment 85 makes provision for who sets the terms and conditions of incorporated college board members.

Amendments 34, 35 and 64 ensure that relevant staff unions are consulted on the election rules relating to staff members on incorporated college boards and regional boards.

Amendment 62 increases the minimum number of “ordinary” members of a regional board. It would ensure that a regional board with three assigned colleges would have a maximum board size of 18.

Mr Findlay’s amendments 25, 26, 28, 30, 60 and 61 are identical to those that he lodged on the same topic—that of trade union nominees on boards—at stage 2. As I committed to doing, I have reflected and consulted on the matter. While I recognise the value of trade union experience and background on boards—the bill achieves major gains for trade unions—I have concluded that I do not want to exclude anybody. I want to leave it to boards to determine how, in addition to the two elected staff members, they access and utilise such expertise, subject to any guidance that is issued on appointments. I will consult on the appointments guidance, as the bill would require me to do.

Amendments 32 and 33 proposed by Mr Findlay take us back to assigned college boards being responsible for their own appointments, albeit with the regional strategic body’s approval. If that is how regional strategic bodies want to work with their colleges, that is fine, but it should be a matter for regional strategic bodies to determine. That is the hierarchy that the bill seeks to establish. I will make that clear in the appointments guidance.

Amendments 27 and 63 that have been lodged by Mr Findlay prescribe a level of detail that I think is inappropriate for legislation.

Photo of Elizabeth Smith Elizabeth Smith Conservative

Two of the great advantages of our college system, particularly since 1992, are its diversity and flexibility, which give it the ability to respond to local needs. Since those features are clearly those that bring success to the college sector, it makes sense to ensure that the management of our colleges reflects that diversity and flexibility.

That is why the Scottish Conservatives have been reluctant to see overly prescriptive changes to management structures and especially to board membership. For example, we would not wish to put in place any structures that, while allowing trade unions to be eligible for board membership, would exclude other staff who are not members of trade unions.

Likewise, we believe that there has to be maximum consultation on board appointments and an appointments process that has full transparency and the appropriate lines of accountability. For example, we prefer to see other member appointments to assigned college boards to be approved by the regional strategic body. Board membership is crucial to the good workings of our colleges, but we strongly believe that it must reflect the diversity of the college sector, bringing to it a variety of experience and skills rather than being too prescriptive.

On amendment 36, we are of the strong opinion that colleges work best when there is clear collaboration between the different institutions and when there is similar collaboration between the different institutions, the Scottish funding council and the Scottish Government. That collaboration can be effective only if there is mutual trust between the different partners—I use the word “partner” advisedly—and when the professional relationships are built on consultation. Too often in this bill, the Scottish Government has sought to impose its will on colleges in a way that undermines that mutual trust.

Amendment 36 therefore requires the Scottish ministers to consult the existing board fully, prior to making any transfer or new appointment of board members—which will obviously be part of the transitional arrangements for new boards. In that way, there will be a process based on agreement rather than on the whim of the Government.

Photo of Neil Bibby Neil Bibby Labour

Amendments 112 and 115, which are supported by Colleges Scotland, would prevent a board member from being barred permanently from holding office. A board member could be removed for a number of reasons and, while it may be justified the majority of the time, we have to be realistic and accept that, on occasion, it may not be justified. Is it is therefore right to bar someone permanently?

The Government’s amendments would prevent a board member who has been removed from a board from sitting on any college board ever. That compares to a fixed five-year ban for someone who has committed a criminal offence, proposed by the cabinet secretary. Many people would see it as disproportionate to bar a board member permanently.

Central to the amendments is the fact that they would give former board members the opportunity to apply to hold office after a period of four years, which is effectively a one-term ban. Clearly, if they were not deemed fit to hold office again, they would not. Any application process would take into account previous conduct and any previous offences.

Amendments 112 and 115 give us the chance to make the ban for a removed board member more proportionate and prevent board members from being permanently banned from holding office. I urge members to support the amendments.

The Deputy Presiding Officer:

A few members wish to speak, so I would appreciate brief contributions.

Photo of Patrick Harvie Patrick Harvie Green

I slightly expected Mr Findlay to make more of a case for his amendments 25 and 26 in his opening speech. I ask him to clarify, in his closing speech, whether he considered lodging an amendment that would guarantee unions the ability to participate in the boards but would not exclude non-union staff members from being considered for that role. Surely that would be a more inclusive approach. Could he explain his reasons for not approaching the issue in that way?

Photo of Colin Beattie Colin Beattie Scottish National Party

I am concerned that Mr Findlay’s amendments 25, 26, 28, 30, 60 and 61 remove the stated intention regarding staff representation on the board of assigned colleges.

Mr Findlay proposes to increase the number of members of the board who are elected by trade unions to two while alternative representation from teaching staff and non-teaching staff seems to be eliminated. In some colleges, now or in the future, there might be more than two trade union or staff associations represented, while in others there might only be one. In such cases, how will the proposed trade union representatives be determined?

It also seems to be entirely possible that, under the existing proposals, staff representatives could well be trade union or staff association members. Nothing seems to exclude that possibility. I struggle, therefore, to see the need for Mr Findlay’s amendments.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I think that Neil Findlay’s amendments 25, 26, 30, 60 and 61 are unduly prescriptive in terms of staff representation. However, I welcome his amendments 27, 28, 32, 33 and 63, which make helpful changes to the way in which board appointments are made for regional and assigned colleges as well as increasing staff representation.

Liz Smith’s amendment 56, which stipulates consultation with an existing board in relation to the transfer or new appointment of board members, is entirely sensible.

Neil Bibby’s amendments 112 and 115 also offer a pragmatic solution to dealing with instances in which mismanagement has occurred, allowing for a suitable but not disproportionate period of exclusion and full transparency in any future application processes. By contrast, the minister’s amendments 89 and 90—and even 70—seem rather open ended.

I can support most of the rest of the minister’s amendments in this group. I note, however, that amendment 85 could be improved by allowing other member appointments to assigned colleges to be approved rather than set by the regional strategic board.

The Deputy Presiding Officer:

I ask Neil Findlay to wind up and indicate whether he intends to press or withdraw his motion.

Photo of Neil Findlay Neil Findlay Labour

I have no further comments to make. I will press my amendment.

The Deputy Presiding Officer:

The question is, that amendment 25 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 8 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 32, Against 80, Abstentions 0.

Amendment 25 disagreed to.

Amendment 26 moved—[Neil Findlay].

The question is, that amendment 26 be agreed to. Are we all agreed?

Members: No.

There will be a division.

Division number 9 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 35, Against 81, Abstentions 0.

Amendment 26 disagreed to.

Amendment 27 moved—[Neil Findlay].

The question is, that amendment 27 be agreed to. Are we all agreed?

Members: No.

There will be a division.

Division number 10 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 52, Against 64, Abstentions 0.

Amendment 27 disagreed to.

Amendment 28 moved—[Neil Findlay].

The question is, that amendment 28 be agreed to. Are we all agreed?

Members: No.

There will be a division.

Division number 11 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 53, Against 62, Abstentions 0.

Amendment 28 disagreed to.

Amendment 29 moved—[Michael Russell]—and agreed to.

Amendment 30 moved—[Neil Findlay].

The question is, that amendment 30 be agreed to. Are we all agreed?

Members: No.

There will be a division.

Division number 12 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 35, Against 81, Abstentions 0.

Amendment 30 disagreed to.

Amendment 31 moved—[Michael Russell]—and agreed to.

Amendment 32 moved—[Neil Findlay].

The question is, that amendment 32 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 13 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 53, Against 63, Abstentions 0.

Amendment 32 disagreed to.

Amendment 33 moved—[Neil Findlay].

The question is, that amendment 33 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 14 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 54, Against 63, Abstentions 0.

Amendment 33 disagreed to.

Amendment 34 moved—[Michael Russell]—and agreed to.

Amendment 35 moved—[Michael Russell].

The question is, that amendment 35 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 15 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 81, Against 35, Abstentions 0.

Amendment 35 agreed to.

Amendment 36 moved—[Liz Smith].

The question is, that amendment 36 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 16 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 54, Against 62, Abstentions 0.

Amendment 36 disagreed to.

Section 7—Colleges: mismanagement

Group 6 is on mismanagement. Amendment 37, in the name of Liz Smith, is grouped with amendments 38, 39, 105 and 73 to 75.

Photo of Elizabeth Smith Elizabeth Smith Conservative

Obviously, college mismanagement occurs in relatively few situations, but when it occurs it is essential that definitions are clear and due process ensues. That is why at stage 2 the Scottish Conservatives lodged amendments to introduce a code of governance that is similar to the enhanced one that will operate in the university sector. We believe that exactly the same principles are relevant and that if the code operates well, it should reduce further the incidence of mismanagement.

However, we are concerned about the lack of clarity over what constitutes mismanagement and we have lodged some amendments to try to tighten up the definition. There must be consistency with the code of governance and its principles when all alleged instances of mismanagement are evaluated—something that is not entirely clear in the bill as it stands. In that respect, we feel strongly that any attempt to remove board members should be set against that code of good governance. Amendment 37 would ensure that serious or repeated breaches of the code would provide grounds for removal, but would not confuse that with other instances of possible mismanagement.

We are concerned about the line in section 7 that talks about board members

“failing ... to discharge ... their duties”.

That is too open-ended, and it is open to different interpretations. Amendment 38 seeks to remove that line.

We also believe that any orders made by Scottish ministers to remove board members should be subject to consultation with the Scottish funding council, since that reflects a more open process of discussing whether a college has not been able to fulfil the conditions set by the council. Amendment 39 is specifically designed to ensure that such consultation takes place and that there is the safeguard of allowing for careful and independent scrutiny of any situations involving alleged serious or repeated breaches of the code.

Currently, the bill will allow ministers to argue that repeated or serious breaches of any condition of grant are grounds for removal. That could include, for example, outcome agreement targets not being met. If a college breaches its targets in that way, financial penalties will result. Given that the code of governance is being introduced as a condition of grant, it will fall within that provision as well. Amendment 73 would ensure that the only condition of grant for which serious or repeated breaches could result in removal from the board would be those that relate to the code of governance.

Amendment 74 would remove the line that refers to regional boards

“failing to discharge” their

“duties properly”,

which we consider too vague and open to interpretation, if not abuse.

Amendment 75 would secure the important safeguard of requiring ministers to consult the Scottish funding council before appointing another board member.

I move amendment 37.

Photo of Neil Bibby Neil Bibby Labour

When ministers aim to give themselves more powers to fire members of public body boards, we need to consider what safety mechanisms are needed. As the Colleges Scotland briefing states, Mike Russell has sought to extend his powers to remove board members to include potential removal for breaches of any condition of grant—for example, not meeting targets set in outcome agreements—and for failure to discharge duties.

It is therefore more than reasonable that further action is taken to limit those powers appropriately. I support the Liz Smith’s amendments 37 and 73, which would limit possible causes of removal to breaches of the code of governance, and amendments 38 and 74, which would remove broad ministerial powers to remove board members for failure to discharge duties.

My amendment 105 calls for the establishment of an independent panel to review decisions to remove college board members. There is particular unease about this area of the bill. It was put to me, even last week, that there could have been a role for the Standards Commission for Scotland in cases of dissatisfaction about conduct, as I understand that it already has statutory role in the oversight of college governance.

Some safety mechanism should be in place. If a member of staff is removed, they have the right to appeal, so it is reasonable that a board member should have the same right if they are removed by the cabinet secretary. I would expect the cabinet secretary to think that that was reasonable and I would be disappointed if he did not. The fact is that the cabinet secretary’s judgment could be called into question in certain circumstances—we all know that it has been called into question in the past.

When taking evidence, we heard concerns about the level of ministerial control, so although I hope that the cabinet secretary’s judgment would be sound in such situations, I also hope that members will support amendment 105, to allow an independent appeal panel to review decisions to remove board members. That would reassure people who might find themselves in that position.

The cabinet secretary said at stage 2 that such an amendment was not necessary or desirable, but I think that a former board member in that position would find the provision both necessary and desirable. The option of judicial review would be a costly and time-consuming exercise.

We also welcome amendments 39 and 75, which would introduce a requirement for the Scottish funding council to be consulted on any proposed removal. It is important that such assessments are made more objectively.

Photo of Liam McArthur Liam McArthur Liberal Democrat

I begin by addressing amendments 39 and 75, to which I have lent my support. As I have said in earlier proceedings, I remain concerned about the extent and range of powers over our colleges that the cabinet secretary feels need to be vested in his hands. His wholly regrettable spat with the former chair of Stow College at the end of last year provided a disturbing insight into the frustration that he obviously feels at his lack of hiring and firing powers. Along with amendments 37 and 38, which would link any decision to remove a college board member to the code of governance rather than the more open-ended and potentially subjective discharge-of-their-duties requirement, amendments 39 and 75 would require any ministerial order to that effect to be subject to consultation with the funding council. If nothing else, that would give some reassurance that any action was not being taken for merely personal or even political reasons.

I also offer my support to Neil Bibby’s amendment 105, which revisits an issue that was touched on at the end of yet another long and rather tetchy committee session at stage 2. I got the impression that the cabinet secretary was, at that stage, not unsympathetic to the idea of an appeal mechanism in instances when board members have been removed. I may have misread that, however, as there is no alternative amendment from the Government as far as I can see. Even if Mr Russell were to accept the case that Liz Smith and I are making for wider consultation on such orders, there would still be a strong argument for a right of appeal to be available to those who are subject to ministerial dismissal. I look forward to hearing what the cabinet secretary has to say.

Photo of Michael Russell Michael Russell Scottish National Party

I am minded to support amendment 39, despite the fact that Mr McArthur has tried to talk me out of it. The reality is that I was sympathetic at stage 2. I am happy to support the amendment, which is a Colleges Scotland amendment.

The Griggs review recommended

“the removal of the Chair and/or Board if they do not fulfil the required outcomes.”

Amendments 37, 73, 38 and 74 would unduly restrict the powers to remove board members, taking us back to the largely process-focused provisions that we have now. Adherence to any code of governance would be a condition of grant, so the bill already provides a mechanism for removing board members if they fail to deliver on the code. However, that is not the only type of condition of grant. Outcome agreements, for example, would be terms and conditions of SFC grant to regional colleges and regional or strategic bodies. Serious or repeated breaches of an outcome agreement would, therefore, be grounds for the removal of board members.

In its written evidence to the Education and Culture Committee, West Lothian College summed up the issue well. It stated:

“The Board notes the introduction of Ministerial powers to remove chairs and other members for reasons of failure in addition to mismanagement. The Board reiterates its view that it has no difficulty with being audited against a set of agreed outcomes.”

I fail to see why failure to discharge duties—failure to discharge legal obligations—is not also an appropriate ground for removal.

I have some sympathy for the idea behind amendment 105, but the amendment has no detail at all. It is not clear how recourse to an independent review panel would sit alongside the existing mechanism of parliamentary scrutiny—nothing is clear in the amendment.

Amendments 39 and 75, in the name of Liz Smith, which are supported by Liam McArthur, provide a much better way to achieve an independent look: consultation with the SFC before an order can be made. The amendments are supported by Colleges Scotland. I therefore urge members to support amendments 39 and 75 and to reject the rest.

Photo of John Scott John Scott Conservative

I call Liz Smith to wind up and to press or withdraw amendment 37.

Photo of Elizabeth Smith Elizabeth Smith Conservative

I am grateful for the support that has been given to some of the amendments, particularly amendment 39, which I consider to be very important.

There is a concern about the definition of mismanagement, and the cabinet secretary will be conscious of the concerns that have been raised throughout the evidence-taking process about what “discharging duties” means. On that basis, I press amendment 37.

The Deputy Presiding Officer:

The question is, that amendment 37 be agreed to. Are we agreed?

Members: No.

Division number 17 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 53, Against 63, Abstentions 0.

Amendment 37 disagreed to.

Amendment 38 moved.—[Liz Smith.]

The question is, that amendment 38 be agreed to. Are we agreed?

Members: No.

Division number 18 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 53, Against 63, Abstentions 0.

Amendment 38 disagreed to.

Amendment 39 moved—[Liz Smith]—and agreed to.

Amendment 105 moved.—[Neil Bibby].

The question is, that amendment 105 be agreed to. Are we agreed?

Members: No.

Division number 19 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 41, Against 73, Abstentions 0.

Amendment 105 disagreed to.

Section 8—Regional strategic bodies

Group 7 is on the designation of regional boards and assigned colleges. Amendment 40, in the name of Michael Russell, is grouped with amendments 41 to 43.

Photo of Michael Russell Michael Russell Scottish National Party

Amendment 40 would remove the entry establishing a regional board for Aberdeen and Aberdeenshire colleges because the colleges in the region are proposing to merge. That is an indication of the progress that has been made since the bill was introduced.

Amendment 41 would require the funding council to propose or agree to the removal of a college from the list of bodies eligible for council funding, the purpose of which is to ensure that the council is satisfied that proper arrangements are in place for a multi-college region before stepping away from the funding process for assigned colleges.

Amendment 42 is consequential to amendments made at stage 2. It gives the funding council the role of proposing or approving colleges new to public funding, when assigned to a regional strategic body. Amendment 42 adds regional strategic bodies, where they exist, to the list of those to be consulted before an order is made under new section 7C to assign colleges.

Amendment 43 corrects a cross-reference to the relevant order-making power.

I move amendment 40.

Amendment 40 agreed to.

Amendments 41 to 43 moved—[Michael Russell]—and agreed to.

After section 9

The Deputy Presiding Officer:

Group 8 is on other regional strategic bodies: terms and conditions of funding. Amendment 44, in the name of Liam McArthur, is grouped with amendments 95 and 96.

Photo of Liam McArthur Liam McArthur Liberal Democrat

With amendment 44, I return to another issue that I raised at stage 2 and on which I think that there is common ground between me and the cabinet secretary and, indeed, among members from across the Highlands and Islands region.

It has generally been accepted that the prior existence of the University of the Highlands and Islands and the unique way in which it is structured and delivers further and higher education through a range of campuses across the largest and most rural of Scotland’s regions set it apart from the other institutions. It is not surprising, therefore, that special attention has been required to deal with the way in which the bill impacts on and interacts with UHI and its various colleges, all of which are already highly networked, but each of which is critically important for the local economy and the community in which it is based.

As I said at stage 2, and as was well argued by the chairs of Perth College and Moray College in their evidence to the committee, the Highlands and Islands will be the only region that will be managed by a non-FE body, with the UHI court having been designated the regional strategic body for delivering FE. Although an FE board will operate as a sub-committee, concerns remain that the potential exists for future difficulties with funding and governance arrangements. To date, the assurances that the minister and the UHI court have given have been insufficient to fully address those anxieties, and further safeguards are being sought by a number of the colleges concerned. That is what my amendment 44 seeks to do—it is about protecting the structures and, importantly, the flow of funds. At the same time, it attempts to take on board the wording problems that arose at stage 2.

That said, I am grateful to Mr Russell for his willingness to engage constructively with me and other members on the issue. I certainly accept that his amendments 95 and 96 are a genuine attempt to draw a line under the matter. I will listen closely to what he has to say before I decide whether to press amendment 44. In the meantime, I thank him for the approach that he has taken—on this aspect of the bill, at least.

I move amendment 44.

Photo of Michael Russell Michael Russell Scottish National Party

Highland members, of whom I am one—I declare that interest—are aware of the correspondence on the matter, which has been going on for some time, and a number of Highland members have met colleges in their area that are part of UHI to discuss it.

Amendment 95 seeks to give ministers a power to impose terms and conditions to require regional strategic bodies to comply with specified matters before they receive funding from the funding council. It specifically addresses the issue that is raised in the UHI circumstances and will provide parity with the power that is already in the bill in relation to the provision of funding to institutions.

Amendment 96 is a technical amendment that links to amendment 95. It will have the effect of restricting the power so that it can be used only to set terms and conditions that relate to regional strategic bodies as a group, as opposed to terms and conditions that relate to any particular one.

I support the objectives of Liam McArthur’s amendment 44, but after a great deal of consultation, I consider that amendment 93 and the linked amendments—we will discuss amendment 93 when we come to the final group—are a more effective and lasting mechanism to achieve those objectives. Although amendment 44 is well intentioned and I can understand where it comes from, it would not give the funding council any additional powers that it does not already have.

Amendment 93 will regularise the situation and is supported by Colleges Scotland. Whatever we do—I hope that amendment 93 is the right way to proceed—will provide support and succour to the Highland colleges and will give them a degree of reassurance on the matter, which is what they want. As far as I am aware, what we propose has the support of every Highland member in the chamber. I ask Mr McArthur to withdraw amendment 44, as the amendments that I have lodged will take care of the matter, which is something that we all support.

Photo of Elizabeth Smith Elizabeth Smith Conservative

I add our support, in principle, for the amendments in this group.

UHI is a unique institution, and we have been very conscious of the concerns that the individual colleges have raised. I am grateful to the cabinet secretary and the other members who have worked hard to try to resolve the issue. Given that UHI is such a unique institution, it is perhaps not surprising that that has been difficult, but I think that we are making progress. Therefore, we are happy to support the Government’s amendments.

Photo of Liam McArthur Liam McArthur Liberal Democrat

Given the cabinet secretary’s remarks, I think that we will maintain a watching brief on this issue but we have probably done as much as we can through amendment 93, which I hope will be agreed to later. On that basis, I intend to withdraw amendment 44.

Amendment 44, by agreement, withdrawn.

Section 10—Regional strategic bodies: functions

Amendments 45 to 48 moved—[Michael Russell]—and agreed to.

Amendment 49 moved—[Marco Biagi]—and agreed to.

Amendments 50 and 51 moved—[Michael Russell]—and agreed to.

Amendment 52 moved—[Marco Biagi]—and agreed to.

Amendment 106 moved—[Neil Bibby].

The Deputy Presiding Officer:

The question is, that amendment 106 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 20 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 37, Against 78, Abstentions 0.

Amendment 106 disagreed to.

Amendment 107 moved—[Neil Bibby].

The question is, that amendment 107 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 21 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 36, Against 77, Abstentions 0.

Amendment 107 disagreed to.

Amendment 108 moved—[Neil Bibby].

The question is, that amendment 108 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 22 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 37, Against 77, Abstentions 0.

Amendment 108 disagreed to.

Amendment 109 moved—[Neil Bibby].

The question is, that amendment 109 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 23 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 37, Against 76, Abstentions 0.

Amendment 109 disagreed to.

Amendment 53 moved—[Michael Russell].

The question is, that amendment 53 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 24 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 101, Against 12, Abstentions 0.

Amendment 53 agreed to.

Group 9 is on regional strategic boards: staff transfers etc. Amendment 54, in the name of the cabinet secretary, is grouped with amendments 110, 55 to 59 and 120. I point out that, if amendment 110 is agreed to, I will not call amendments 55 to 59 because of pre-emption.

Photo of Michael Russell Michael Russell Scottish National Party

As I explained at stage 2, the basic policy intention behind the staff transfer provisions in the bill is twofold. The provisions assist in the sharing of services and ensure that, in multicollege regions, the regional strategic body has the power to give effect to its duty to plan for delivering coherent provision in the region. The judgment to be made in multicollege regions is in balancing the autonomy of the institutions with the ability of a regional body to pursue its regional plans.

I agree with what Mr Findlay seeks to achieve in amendments 55, 56 and 59, and amendment 110, in my name, achieves those things. There is no need to make specific provision for transfers outwith a region. The bodies involved have other powers to effect such transfers, so I am happy to remove the provisions from the bill that deal with such transfers. The Transfer of Undertakings (Protection of Employment) Regulations 2006 will apply to all transfers of staff made under new section 23L of the 2005 act as well as to transfers of staff from a regional strategic body to one of its assigned colleges. I know that unions wanted TUPE in the bill, and I have delivered on that.

Amendment 54 makes it clear that directions under new section 23K cannot be used to direct colleges to transfer staff. I know that some, including the Educational Institute of Scotland, support the balance that we have struck in the bill on the question of consent, but I know that the sector still has concerns, which are reflected in amendments 57 and 58, in the name of Liz Smith. I want to consult more widely on the issue and take the view of organisations that we cannot yet consult, which are the new regional boards. I therefore propose order-making powers that will enable changes to be made in the future; ministers will be under a statutory obligation to consult widely before using such powers and the order will be subject to the affirmative procedure so that there will be full parliamentary scrutiny, as provided for in amendment 120. I think that the amendments that I propose will meet the objections that are dealt with in the amendments from Mr Findlay and Liz Smith. I hope that that will be recognised in the decisions on whether to move the amendments.

I moved amendment 54.

Photo of Neil Findlay Neil Findlay Labour

Amendments 55 and 56 relate to the ability of colleges to transfer staff between regions. We believe that, in many cases, the distances involved mean that transfers could be problematic, as the commuting distances for those affected will fall outside what is reasonable. I understand that there is established employment law on the issue so, although the Government of course has the right to insert a section on it into the bill, the provision will be difficult to apply in practice. We therefore think that a straight deletion is best.

At stage 2, the cabinet secretary said that it might be beneficial for neighbouring regions to be able to transfer to one another—for example, when sharing services. Amendment 110 from the Government attempts to clarify that and how, in such a scenario, consultation would be required with colleges, trade union representatives, students and so on, with a view to getting an agreement to the proposed transfer. Although that is a little progress, we still believe that our amendment is more appropriate. Amendment 59 recognises that TUPE applies to the transfer of staff and would write that into the bill.

Photo of Elizabeth Smith Elizabeth Smith Conservative

I thank the cabinet secretary for the comment regarding the affirmative procedure, because I think that that kind of accountability is essential. As the cabinet secretary said in his remarks, there is concern within the sector that some aspects of the transfer issue are not entirely straightforward or transparent. I am willing to listen on the basis that the minister suggested, so I will not move amendments 57 and 58.

The Deputy Presiding Officer:

I call on the cabinet secretary to wind up.

Photo of Michael Russell Michael Russell Scottish National Party

I have nothing to add.

Amendment 54 agreed to.

Amendment 110 moved—[Michael Russell]—and agreed to.

Section 11—Regional boards: constitution

Amendment 60 moved—[Neil Findlay].

The Deputy Presiding Officer:

The question is, that amendment 60 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 25 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 35, Against 78, Abstentions 0.

Amendment 60 disagreed to.

Amendment 61 moved—[Neil Findlay].

The question is, that amendment 61 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 26 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 35, Against 79, Abstentions 0.

Amendment 61 disagreed to.

Amendment 62 moved—[Michael Russell]—and agreed to.

Amendment 63 moved—[Neil Findlay].

The question is, that amendment 63 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 27 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 53, Against 61, Abstentions 0.

Amendment 63 disagreed to.

Amendment 64 moved—[Michael Russell]—and agreed to.

Amendment 112 moved—[Neil Bibby].

The question is, that amendment 112 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 28 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 53, Against, 59, Abstentions 0.

Amendment 112 disagreed to.

Amendments 65 to 70 moved—[Michael Russell].

Does any member object to a single question being put on amendments 65 to 70?

Members: Yes.

The question is, that amendment 65 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 29 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 60, Against 53, Abstentions 0.

Amendment 65 agreed to.

The question is, that amendment 66 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 30 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 61, Against 53, Abstentions 0.

Amendment 66 agreed to.

Amendments 67 and 68 agreed to.

The question is, that amendment 69 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 31 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 92, Against 22, Abstentions 0.

Amendment 69 agreed to.

The question is, that amendment 70 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 32 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 61, Against 53, Abstentions 0.

Amendment 70 agreed to.

Group 10 is on collective bargaining. Amendment 1, in the name of Neil Findlay, is grouped with amendments 79 and 2.

Photo of Neil Findlay Neil Findlay Labour

We have heard for some time from the cabinet secretary that he is committed to collective bargaining in the college sector and that he desperately wants it to be reintroduced but, unfortunately, there is no mention of it in the bill. With that in mind, we moved amendments on the issue at stage 2 and we again seek to introduce them into the bill today. Amendments 1 and 2 aim to put references to collective bargaining in the bill and ensure that the Scottish Government lives up to and fulfils previous commitments.

Let us make it absolutely clear that Scottish Labour has successfully forced the issue on to the agenda. We have successfully brought the issue into the bill but, rather than accepting our sensible amendments, the cabinet secretary acts in the same manner in which he has acted throughout the passage of the bill, by taking our proposals, creating his own amendment and introducing it at this very late stage in an attempt to claim the credit. It is the same cynical approach that he has taken to so many sections of the bill.

We will, of course, support amendment 79, and I hope that the cabinet secretary will, in his usual gracious manner, recognise the work—[Interruption.] I hope that he will recognise the work that we have put in on this important issue and support amendments 1 and 2.

I move amendment 1.

Photo of Michael Russell Michael Russell Scottish National Party

I am absolutely committed to a system of national bargaining for terms and conditions in colleges. I raised the issue well before Mr Findlay was in the chamber, and I have done the—[Interruption.] Members should wait a moment, Presiding Officer. I hope that they will find it interesting to hear from me about the discussions that I have had with Mr Findlay on the matter. I now feel quite at liberty to divulge that information, given that we have just heard what I must say was a misrepresentation of the situation.

I have backed such a system for some considerable time. I have worked with the regional leads and the trade unions, and we now have a framework in place.

Amendments 1 and 2 are exactly the same amendments that were lodged at stage 2. Before stage 2, I asked to meet the Opposition spokespeople from all the parties. Mr Findlay came to that meeting, and it was not lengthy, but I asked him twice, “Are there any amendments that you would like to lodge? Is there anything that I can do to try to bridge the gaps that exist?” The matter that we are now discussing was never mentioned by Mr Findlay—not once.

Members: Oh!

There we are. He may just have been forgetful at that stage.

When the amendments were lodged at stage 2, I explained to Mr Findlay very positively that I supported what we were both trying to do, and that I would be happy to work with him to lodge amendments that would actually work, as opposed to amendments 1 and 2, which would not work. In fact, if someone wanted national pay bargaining, those are the amendments that they would not lodge, but that is okay: everybody makes mistakes.

I said—[Interruption.] Yes, everybody makes mistakes—and members are about to hear about another one from Mr Findlay.

I said to Mr Findlay, “Come back and have a conversation with me about how we put this in the bill.” We had our second meeting. The first meeting was nine minutes long; the second was seven minutes long. At the second meeting, Mr Findlay again wanted only to see the amendments that we were lodging. We shared those amendments, and amendment 79, which is before us now, achieves the aim and objective in question. However, Mr Findlay had already lodged the same two amendments. Was he going to withdraw them? No, he was not. What we have ended up with here is what we have always seen from Mr Findlay: he is the master of grandstanding on this.

Members: Oh!

Yes.

Now, I am quite—[Interruption.] Gosh! It sounds as if a sea lion has got in here.

I am quite happy to share the credit for bringing forward the issue with any member in the chamber who wants to share it, because I hope that all members will accept that we should not back a balkanisation of pay and conditions in the college sector. It would have been of great credit to the Parliament if, instead of what we have heard from Mr Findlay, we had all said, “Yes, this is a good thing to do—let’s do it.” What we have heard from Mr Findlay has defined exactly his approach to the bill, which is regrettable. However, I am pleased that, despite those rather wasted 16 minutes of my life talking to him about it, we now have an amendment that we can agree on.

The Deputy Presiding Officer:

I call on Clare Adamson to speak briefly, as we are now quite tight for time.

Photo of Clare Adamson Clare Adamson Scottish National Party

I speak in support of amendment 79, which, as the cabinet secretary has said, concerns a very important matter for the further education system. We must understand that the reason why we have lost collective bargaining in the system is the Tory-designed incorporation of the colleges. I fully support the cabinet secretary in his aim of addressing that problem.

Photo of Liam McArthur Liam McArthur Liberal Democrat

Amendment 79, which will establish collective bargaining frameworks for college staff, has not come entirely out of left field, but that only raises the question why Mr Russell has sought to wait until stage 3 before showing his hand. I am sure that the committee as a whole would have welcomed the opportunity to take evidence on these provisions at stage 1, if nothing else to get a clearer understanding of the implications for the different colleges throughout the country and their staff.

I appreciate that the intention is to set up a national advisory committee that will make recommendations, but I assume that the Scottish Government has done some modelling. On that basis, it would be helpful—even at this late stage—to get some idea of what this will mean for the college sector as a whole and across the regions.

Photo of Neil Findlay Neil Findlay Labour

I intend to press my amendments. If this was such a high principle of the cabinet secretary, he would have put it into the bill. He put nothing into the bill. He relied on us to bring the idea forward, such are his high principles. We introduced it at stage 2, and he knows that.

The cabinet secretary will know all about misleading Parliament, as we all know; we heard that last year.

Finally, the reason why the meetings were so short is that I felt very uncomfortable at the large portrait of the cabinet secretary staring at me in the room.

The Deputy Presiding Officer:

The question is, that amendment 1 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 33 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 35, Against 78, Abstentions 0.

Amendment 1 disagreed to.

Moving swiftly on, we come to group 11, which is on colleges and regional boards: procedure and powers. Amendment 71, in the name of Liz Smith, is grouped with amendments 72 and 81 to 83.

Photo of Elizabeth Smith Elizabeth Smith Conservative

There has been a great deal of discussion of late, especially in the college sector, about the possible ramifications of the decision by the UK Office for National Statistics to reclassify institutions as public bodies. Under the status quo, colleges are private bodies and can therefore keep their private income, which is approximately £200 million, as reserves or as investment potential. The reclassification means that such private funding would be treated as public money, which could have major implications for how colleges work, including the independence test for their charitable status and how they work with other institutions such as businesses—John Henderson of Colleges Scotland raised that point earlier in the week.

Reclassification would further extend the Government’s ability to control colleges, particularly in terms of their borrowing powers. That would be detrimental to the creative and innovative practices of colleges and their ability to be fully competitive. Those are the essential features of the college sector, which allow it to rank alongside rather than be the so-called inferior relative of universities.

Likewise, there is further concern that reclassification might impact on some of the mergers that are in progress, since some of them will rely on the release of reserves that have been built up over several years and might also depend on colleges’ ability to generate additional commercial income. In turn, that has clear implications for the competitive advantage of Scotland’s colleges.

South of the border, the Government has relaxed controls on governance and borrowing, but we in Scotland seem to be moving in the opposite direction. Amendment 71 would give colleges the power to borrow money to help them to exercise their functions by allowing the regional board to grant such security and indemnity as it sees fit. Amendment 72 would remove the provisions that forbid the actions that I have just outlined. Amendments 81 to 83 would give all other college boards the same powers by amending the 1992 act.

I move amendment 71.

Photo of Liam McArthur Liam McArthur Liberal Democrat

We turn to an issue of where power and responsibility should sit between colleges on the one hand and ministers on the other. In many senses, that goes to the heart of the difficulties that I have with the bill, notwithstanding the progress that has been made in a number of areas since stage 2. This is not just a principled objection to the meddling approach that the minister is pursuing; it is borne of legitimate concerns about the consequences for our colleges.

As the ONS has consistently made clear since 2010, the risk is that our colleges are reclassified as public bodies, given the level of ministerial control and intervention. The implications of that for college reserves, income and borrowing powers are serious. Moreover, it is difficult to see what, if any, incentive there would be for our colleges to continue tendering for contracts.

However, it appears that, since being warned of that threat back in 2010, Mr Russell has done little to avert the danger; he has been content to introduce a bill that almost certainly makes the situation more clear cut in terms of ONS definitions. In the absence of any obvious action by the cabinet secretary, Liz Smith’s amendments in the group at least attempt to pick up on the threat.

Removing the need for ministerial approval for the disposal of land and property would allow a degree more discretion for colleges and their boards while providing a little more of the arm’s-length relationship that the ONS insists is required to avoid reclassification. On that basis, I encourage the Government to support the amendments, though I do so more in hope than in expectation.

Photo of Michael Russell Michael Russell Scottish National Party

As I said at education questions earlier, there is a way in which Mr McArthur and Liz Smith could help to influence the matter immediately. They should speak to their colleagues in Westminster and call off the dogs from the UK Treasury, which is involved in an unwelcome set of actions of reclassification.

There is huge inconsistency in the UK Government’s approach. The UK Government is backing actions south of the border that include the imposition of a sort of commissar for further education who would intervene in what are called failing colleges. [Interruption.] Labour no doubt supports that because it supports almost everything that the Tories and Liberals do. A moment’s rationality would make Labour think that, if that is direct intervention in the college sector south of the border, it is a type of intervention that should demand reclassification of colleges in England similar to the reclassification that we and, I have to say, Wales are suffering.

We will not allow education policy to be driven in that way from outside Scotland, either by accounting practice or by hostility from the UK Government, so we are taking a number of actions to assist colleges. I would like to ensure that the bill did the same, but it is impossible to do that, because the classification issue is reserved to Westminster. Liz Smith’s amendments would not nullify the ONS’s classification of colleges or mitigate the effects. I would like to think that it was possible to do that, but it is not possible. Unfortunately, Liz Smith is wrong or misled on the matter.

Amendments 71, 72 and 81 to 83 would mean that regional boards and incorporated college boards could borrow money without legal constraint—just think about that. They could also grant securities and give guarantees or indemnities as they saw fit. No matter what members think of them, regional boards and incorporated college boards are public bodies. Given the percentage of public funding that colleges receive, controls are not only appropriate but essential. College assets have been built up largely as a result of public investment. Colleges are public assets. It would be wholly inappropriate to have colleges’ finances managed in the proposed way. As the amendments would not nullify the ONS classification, they are ineffective and irresponsible.

Other aspects of the nature of the relationship between colleges and the Government in Scotland mean that reclassification would continue to apply. The relationship between the Government and colleges is founded on strong partnerships. It has associated governance arrangements, which we are strengthening in the bill in order to improve democratic accountability. We should remember that that was a key element of the thinking behind the bill. Democratic accountability was vastly diminished by what took place in 1992 and 1993.

We cannot work our way around ONS reclassification in the proposed way. In my view, ONS reclassification is politically driven and we need to recognise that and do as much practically on the ground as we can. That is what we will try to do. The amendments would not do that and would lead us down some very dangerous paths.

Photo of Elizabeth Smith Elizabeth Smith Conservative

It is extraordinary that the cabinet secretary says that we are being irresponsible, when the situation in Scotland is one of reversing the autonomy of colleges. The colleges are very clear about the danger of the situation. In fact, a substantial amount of money comes from private funding. There are extraordinary dangers in completely reclassifying colleges as public bodies. That is why I will press my amendments.

The Deputy Presiding Officer:

The question is, that amendment 71 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 34 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 51, Against 61, Abstentions 2.

Amendment 71 disagreed to.

Amendment 72 moved—[Liz Smith].

The question is, that amendment 72 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 35 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 51, Against 61, Abstentions 2.

Amendment 72 disagreed to.

Section 12—Regional boards: mismanagement

Amendment 73 moved—[Liz Smith].

The question is, that amendment 73 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 36 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 51, Against 60, Abstentions 0.

Amendment 73 disagreed to.

Amendment 74 moved—[Liz Smith].

The question is, that amendment 74 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 37 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 53, Against 61, Abstentions 0.

Amendment 74 disagreed to.

Amendment 75 moved—[Liz Smith]—and agreed to.

Section 13A—Further education institutions: good governance

Amendment 76 moved—[Neil Findlay].

The question is, that amendment 76 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 38 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 35, Against 75, Abstentions 0.

Amendment 76 disagreed to.

After section 13A

Amendment 4 moved—[Jenny Marra].

The question is, that amendment 4 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 39 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 40, Against 73, Abstentions 0.

Amendment 4 disagreed to.

Amendments 77 and 78 moved—[Marco Biagi]—and agreed to.

After section 14

Amendment 79 moved—[Michael Russell].

The question is, that amendment 79 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 40 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 101, Against 12, Abstentions 0.

Amendment 79 agreed to.

Amendment 80 moved—[Clare Adamson]—and agreed to.

Schedule—Modification of enactments

Amendment 81 moved—[Liz Smith].

The question is, that amendment 81 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 41 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 50, Against 60, Abstentions 2.

Amendment 81 disagreed to.

Amendments 82 and 83 not moved.

We move to group 12. As we have exceeded the agreed time limit, under rule 9.8.4A, I consider it necessary to allow the debate on group 12 to continue beyond the limit to allow those with a right to speak on the amendments in the group to do so. The cabinet secretary may, of course, accept interventions if he is prepared to do so.

Group 12 comprises minor and consequential amendments. Amendment 84, in the name of the cabinet secretary, is grouped with amendments 92, 93, 116 to 118, 94 and 98.

Photo of Michael Russell Michael Russell Scottish National Party

I would like to emulate Liz Smith and make people feel better, so I will be brief.

Amendment 84 changes the procedure in relation to an existing order-making power in section 12 of the Further and Higher Education (Scotland) Act 1992 that allows the powers of college boards of management to be modified. The change from the negative procedure to the affirmative procedure provides consistency with the changes that were made at stage 2 in response to concerns that were raised by the Subordinate Legislation Committee. It provides additional parliamentary scrutiny.

Amendment 92 ensures that the Education Act 1994 continues to apply to incorporated colleges.

The principal effect of amendment 93 is to add two new criteria to the fundable body list. First, it ensures that colleges and universities seek to ensure that there is a students association. That is a big step forward for colleges and I am glad that it is happening. Given the way in which the bill has been framed, the requirement will also apply to assigned colleges and learning providers that are directly funded by the funding council. Under the reform process, benefit for all learners should be at the heart of everything that we do. Autonomous, sustainable and appropriately funded student associations will help us to achieve that.

The second criteria in relation to fundable bodies addresses the constitutional arrangements for the type of regional strategic body that is also a university or college that is eligible for funding. Many individuals and groups have expressed serious concerns about safeguarding the nature of the UHI’s delivery of FE arrangements in its region. I pay tribute to Dr Michael Foxley and his working group, which made a series of important recommendations in that regard.

As I confirmed to Mr MacArthur, amendment 93 adds to the fundable body criteria for certain learning providers that are eligible to receive funding from the funding council. In practical terms, it means that the funding council will need to be satisfied that the UHI is delivering the arrangements in the manner agreed to by the UHI working group and articulated in its report. The UHI is an important issue for most people and I hope that that will be welcomed by the Parliament.

Amendment 94 amends section 9(4) of the Further and Higher Education (Scotland) Act 2005. It is technical in nature and I will not go into it any further.

Amendment 98 requires the funding council to inform regional colleges and regional strategic bodies of the socioeconomic groups, skills needs and economic, social and cultural issues that it has identified in Scotland that are relevant to them in discharging their duties.

Amendments 116 to 118 clarify ministers’ powers in new section 7D of the 2005 act as they extend to incorporated colleges.

I move amendment 84.

Amendment 84 agreed to.

Amendments 85 to 88 moved—[Michael Russell].

The Deputy Presiding Officer:

The question is, that amendments 85 to 88 be agreed to. Are we agreed?

Photo of Alex Fergusson Alex Fergusson Conservative

On a point of order, Presiding Officer. Should the Parliament not be asked whether it agrees that a single question be put on the amendments?

The Deputy Presiding Officer:

Yes, you are absolutely right. Does any member object to a single question being put on amendments 85 to 88?

Members: Yes.

We will therefore take the amendments individually.

The question is, that amendment 85 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 42 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 63, Against 17, Abstentions 32.

Amendment 85 agreed to.

Amendments 86 to 88 agreed to.

Amendment 115 moved—[Neil Bibby].

The question is, that amendment 115 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 43 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 52, Against 60, Abstentions 0.

Amendment 115 disagreed to.

Amendments 89 to 91 moved—[Michael Russell].

The question is, that amendment 89 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 44 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 63, Against 48, Abstentions 0.

Amendment 89 agreed to.

The question is, that amendment 90 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 45 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 62, Against 49, Abstentions 0.

Amendment 90 agreed to.

The question is, that amendment 91 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 46 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 63, Against 48, Abstentions 0.

Amendment 91 agreed to.

Amendment 2 moved—[Neil Findlay].

The question is, that amendment 2 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 47 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 32, Against 79, Abstentions 0.

Amendment 2 disagreed to.

Amendments 92, 93, 116 to 118, 94 to 98, 119, 120 and 99 moved—[Michael Russell].

Does any member object to a single question being put on the amendments?

Members: Yes.

We will go through the amendments individually.

Amendments 92, 93, 116 to 118, 94 to 98, 119 and 120 agreed to.

The question is, that amendment 99 be agreed to. Are we agreed?

Members: No.

There will be a division.

Division number 48 Post-16 Education (Scotland) Bill: Stage 3

The Deputy Presiding Officer:

The result of the division is: For 60, Against 49, Abstentions 0.

Amendment 99 agreed to.

That ends consideration of amendments. Thank you all.