Siarad y cefn threateningsc 那 Cyw takingуем Mhwphill Rwy'n gallu bwysig dechrau gyda mi i höll gyda fi em Pitts O œilig eich unio ac rwyf yng☆ Nest o'r nifer ffordd Dechreu i teimlo neu'r hyn cadetch neith Os eich drii chi hoffe dinosaurai Bench Methy那 Maith nesaf Mae hynny maith Mae hyn ranges first item is to place Anatom 5 free inimizie请. 下次 item is our final evidence session on the higher education in governance Scotland Bill and I welcome Angela Constance and Cabinet Secretary for education and life-long learning and her company officials too. Good morning to all of you and I go straight to the statements from McC Gillan, who wants to meet a fewrémpers from hellish MPs. Good morning, convener and colleagues. We are very happy to appear before committee this morning to discuss the Higher Education Governance Bill. The Scottish Government, convener, values higher education institutions and because of the faith that we have in them and in terms of what they deliver, as a government we are again investing over £1 billion this year in the sector. In a nutshell, the Scottish Government wants this bill to enable governments That is more modern, inclusive and transparent, informed by the recommendations in the 2012 review of good higher education governance in Scotland. We are of the view that elected chairs modernise governing bodies and academic boards and enhancement of the definition of academic freedom can help deliver that vision. I want to reassure you that I have listened and continue to listen to the views of committee and indeed the views of all stakeholders on this bill. We are also scrutinising the substantial amount of evidence presented to this committee and other committees considering the bill. Before I go on to talk about some of the provisions in the bill, I would like to restate some points that I have made in Parliament a few weeks ago. First, the Scottish Government does not seek to advance ministerial control of our institutions. Secondly, we are of the view that the bill does not add to any existing risk of reclassification of Scottish higher education institutions as public sector bodies by the Office for National Statistics, and I have written to the finance committee to that effect. Thirdly, further reclassification is an outcome that the Scottish Government would never want to realise. Finally, the Scottish Government has no intention of abolishing the post of rector. Turning to some key areas of provision in the bill, I want to be very clear that this Government supports the principle of elected chairs for higher education governing bodies. In terms of how elected chairs will work in practice, I remain open-minded at this stage and welcome any and all good ideas that can help us to arrive at the best model for good modern governance. My overarching aim is to ensure that access to the position of elected chair is available to the widest pool of suitably qualified and skilled people as possible. We have already started talking to all stakeholders on a model of elected chairs over the summer. That active dialogue continues. The Scottish Government would be happy to keep committee updated on those discussions. My aim is where possible to reach consensus through a continued dialogue with stakeholders. I hope that we might be able to co-produce solutions to some of the issues that the earlier consultation has shown carried out a range of views rather than simply lay down the Government's position. Generally, as we begin to plan for stage 2 of the bill's parliamentary consideration, we continue to examine all of the constructive ideas and suggestions put to us by relevant committees of the Parliament and stakeholders. As I have already indicated to the Parliament convener, I am open-minded about amendments and am willing to examine further, for example, sections 8 and 13 of the bill. I am delighted to take any questions. Thank you very much, cabinet secretary. We will go straight to questions from members. Thank you, convener. Good morning, cabinet secretary. It is very encouraging that you are trying to reach consensus with stakeholders on this. I want to ask how many principles of universities and not necessarily leaders of trade unions you and your officials have met prior to reaching this stage? I have an on-going engagement with the higher education sector. I have certainly been partied to round-table discussions in between those round-table discussions. I have met other individuals, including current and former rectors, and my officials have carried out a range of engagements with a variety of stakeholders, whether they are principles, whether they are representatives from trade unions or students organisations, and whether that engagement is on-going with regard to myself and my officials. I wonder, then, if I may ask in terms of looking at the policy memorandum and all the documents that we have all received. How does this bill improve governance? I mean, what deficiencies in governance of the universities and higher education has there been in the past? Can you give us some examples? I mean, the premise that I'm starting from, Mr Brody, is that it's not from the premise of deficit. I am not for one minute saying that governance in our university sector is poor, but I do believe that governance can be better, and based on the evidence of the von Prensenski review in 2012, there was a range of evidence gathered, some of it articulating the concerns of some stakeholders. I know that committee has heard from NUS Scotland and the UCU. The UCU put it quite well when they spoke of that lack of connectivity that can sometimes exist in any institution between staff, trade union members and management. I repeat that this is about continuous improvement. We, I think, are quite right to expect the highest standards of governance. Our universities overall are excellent, and in return for £1 billion worth of investment that this Government has continued to invest every year, I think, we're quite right to expect the very highest standards of governance. The bill is making proposals in some discrete areas that I and the Government believe will lead to improvements. This is about how we can continue to evolve university governance to the very highest standards to ensure that all voices in the university community are heard. I understand that, but you just made the point yourself that our universities are excellent, and of the highest standard, I think, with the words that you used. That's why I'm struggling with why what needs to be improved. I know that you've talked to the UCU. How many of the principles have you talked to? I would have to go away and add that up, if you like, Mr Brody, but I have probably met most principles in Scotland, either in the context or specifically of the bill or in the broader engagement that we have as a Government. The reason I ask about deficiencies in the past and why we're doing this, surely if we are to change the system, we need to know what needs to be improved. That's why I asked the question about deficiencies. If we are excellent, and we know where we sit in the top 200 universities in the world, I can understand more democratisation, which we support, but there are some very fundamental proposals here, which might be challenged. What happens? Let's play the devil's argument. What happens if there's no improvement? Or worse, there's a diminution of performance? How do we recover that? I think that the first part of your question, Mr Brody, just because an institution is good does not mean that they cannot continue to evolve. It doesn't mean that they cannot continue to improve their governance. I think that we are right to expect, bearing in mind, that our universities are good and world-leading for them to be exemplars in governance. There was a body of work completed in 2012, led by Professor Vaughan from Sinske. The bill aims to reflect the evidence gathered in that review and to implement the recommendations in that review, particularly as some of the recommendations have not been followed through in the sector's code of good governance. Ultimately, what we are striving for is a greater participation and decision making from within the institution. I fail to see how that can be a negative and how that cannot take any institution or indeed the sector forward. We know that good governance in essence has to include a range of skills, a diversity of people and that, where an organisation or an institution includes all the voices, all the interests, surely that enriches transparency and accountability and at a very fundamental level enriches the decision making process. I accept that participation in decision making is, as I mentioned, more democratisation is fine, but at the end of the day somebody has to make decisions and we will come to that later. On the basis that we cannot define what deficiencies there have been, how do you propose to measure outcomes that will indicate that we are improving? I think that some stakeholders have defined what some of those deficiencies have been and, certainly, the Von Prynsynski review gathered a range of evidence and views from different stakeholders regarding concerns. On how you monitor how the Prynsynski review as articulated in the legislation is implemented and the impact that it has, we would want to do that work in hand and glove with all the stakeholders and with the sector as a whole. There is the university sector advisory board, which is currently reviewing its function. That board could have a renewed focus on governance and monitoring impact and measuring success and progress. Just one measure that indicates a university review because the change in governance is going to be measured and monitored for improvement. It is more of a quantitative process than a quantitative binary process. Again, in terms of any measurement, we would want to come to an agreement with the stakeholders about the best way to measure progress, as opposed to Government forming a view about how we measure progress. We would not want to do that in splendid isolation. I do not understand that, but it would be unusual not to have some quantitative measures of outcome improvement. There could be an outcome improvement plan. I was very pleased to hear in the debate that there was scope to alleviate the concerns that the Government would listen. On our side, we would certainly welcome that. The bill may be meeting some delight from Professor von Prindinske, but there is no-one else in the university sector who thinks that it is hugely beneficial. I follow the points that Chick Brody was making. When Chick asked about what deficiencies there are, the bill has been described as a solution looking for a problem, your response was the lack of connectivity that can sometimes exist. It seems a bit nebulous to bring forward a huge piece of legislation for something that may sometimes exist. First, what about the review of the good higher education governance code? It seems to me that that is an excellent partnership between the Government and the universities. It seems to me that progress is being made. It is a good example of the Government working together with universities, rather than being on a collision course. My understanding is that a huge amount of progress has been made in the process of implementing that code. For example, in the past year, 42 per cent of those who have been appointed to boards have been women. Why bring forward legislation when the code of higher education governance appears to be working more constructively than that of legislation? I think that the first point that I would make to Mrs Scanlon is that there is a wider university community that is broader than principals and managers of the sector. In my experience of my engagement with a range of stakeholders, including principals and chairs of court, is that, yes, there are people who are opposed to the bill in its entirety, but there are many shades of opinions out there. I repeat, convener, that as a Government we will work hard to build consensus whenever and wherever that is possible. Mrs Scanlon is right to say that progress has been made with the code. I would never demure from that. Of course, not all aspects of the von Prensynsky review are reflected in the code. The von Prensynsky review looked at a range of evidence from Scotland, UK, Europe and beyond in terms of issues in and around governance. I suppose that we have to ask ourselves how we ensure that progress is on-going for the future and how it is anchored for the future. Although the bill is discreet in its elements and the changes that it seeks to make, it is very much about ensuring that governance can evolve to the highest of standards to ensure that our sector is operating to the very highest of standards that we would expect in 21st century Scotland. When many of our universities have been around for over 600 years, we are all justly proud of Scotland's universities that rank in the best in the world. You will have seen the evidence from people such as David Ross and Jocelyn Bell. Those are academics that, as parliamentarians, we cannot ignore. They are concerned about the bill's impact on the governance of our universities and the reputation of our universities both here and abroad. When you talk about future proofing, I cannot understand—we are all still struggling for the question that Chick Brody asked—is this going to be beneficial? Which of the identified problems will be addressed? If the bill does pass—with SNP majority, it is probably likely to—where are the measures or where are the improvements or where are the benefits in future? As a member of the audit committee, we are also looking at things like remuneration committees. The bill is very silent on taking forward the work on behalf of the governing body. I think that if there was no progress at all and if the universities were not engaging with government, I would almost see that there was a justification for the bill, but what we are looking at is tremendous progress being made over the years and a good working relationship. That is being damaged by what is called a punitive, unnecessary and counterproductive bill. I think that we are all struggling to understand why this heavy-handed legislation is necessary when there is good work on going across the sector with a constant annual review of governance on going. I suppose that I would question the premise that says that we are good, so leave us alone. There is no room for further improvement. The whole essence of striving for the highest standards and striving for excellence is the notion of continuous improvement. What I am saying on behalf of the Government is that universities are not starting from a poor base, far from it, but there is room for improvement. Surely that is in keeping with the very highest of standards. We acknowledge the progress that has been made by the code. For example, the code was devised and pulled together by senior people in the sector and did not, in its genesis, include students, staff or trade unionists. I suppose that I would question that aspect of the culture. Surely all the stakeholders working together in social partnership should be the norm. This is a discrete bill with some discrete measures. It is certainly not looking at overhauling all aspects of university governance. Mrs Scanlon is right. As parliamentarians, we do listen to all views and the views of eminent academics such as the people that Mrs Scanlon has mentioned, but we have a responsibility to listen to other academics. I certainly get correspondence from a range of academics. They may not be as high profile as Jocelyn Bell or Mr Ross, but there is a range of views out there in the academic community. As parliamentarians, we have a responsibility to listen to all stakeholders. I bear in mind that we have reached a stage 1 report that has already been indicated to Mr Brody that we can, in collaboration with all parts of the sector, look at what would be a meaningful way to measure progress and, in terms of remuneration, the newly reformed or constituted university core. I suppose that we would be looking at remuneration through that prism of more diverse voices around the table of the governing body who will be making decisions around remuneration. It was just that, convener, the committee was very careful in inviting along academics to a round table session. We took a wide range from the conservatoire to the University of Edinburgh and small, large universities. Not one academic round the table was in favour of this bill. Mrs Scanlon, convener, I mean, I am not disputing the process that committee has went through in terms of— I am looking for the evidence. I mean, up in my office, Mrs Scanlon, I have hundreds and hundreds and hundreds of postcards from members of the UCU calling on the Government to enact this bill. I think that it is fair to acknowledge, as I do, that there are a range of views, and there are a range of views from within the academic community also. Gordon, did you have a question on this? A very quick question is on a specific point. I met with one of the universities last week, and there is the question about elected student representatives. I am just looking for some clarification. I was informed that the way that legislation reads at the moment, then elected student representatives, i.e. president and vice-president who are on sabbatical, are not eligible to serve on the university court, because technically they aren't students. Is that a correct understanding of the bill, and if it is, is it something that you are intending to address to remove that anomaly? That most certainly would not be our intention, given all the policy documents when talking about student representation on the Government body. One of them is to be the president of the Students Association, and one of the two student members is to be a woman. However, we will go back and examine that carefully, but that would not be our intention. If there are some unintended consequences in terms of how matters are drafted, we will rectify that. I want to ask you about the potential risk of ons reclassification. I know that you said in your opening remarks that you do not seek to advance ministerial control and therefore bring that into being. Is there anything in your view in the bill that requires autonomous institutions to ask Government for permission to conduct their business? No, there is not. How confident are you that the provisions in the bill are compliant with what the current indicators of government control set out within the ons existing classification? Considerations regarding ons reclassification have been absolutely central to the work that has went on around the bill. We have considered the issue of ons reclassification prior to the actual introduction of the bill. I was asked to provide to the finance committee a summary of our work on this matter. That letter to the finance committee shows the consideration that the Government has given to each of the indicators of government control. We have looked closely at the European system of accounts, such as the SA guidance 2010. That guidance has various indicators of government control. We have went through all those indicators. We are confident that the bill is compliant with indicators as they lead out in that guidance. In terms of the issue of Scottish ministers' powers to make regulations, can you say something about what future proofing means? In past experience, how often are they likely to be changes that are required to governing body and academic board compositions? In terms of future proofing, in essence, the intent behind that is that, where there are modest changes required, perhaps at the bequest of the sector, there is a mechanism to do that without requiring primary legislation. I have already indicated to Parliament in the debate a few weeks ago that a willingness to go and look again at what exactly is and is not required in terms of achieving the purpose of the bill. Those sections are routine. Most legislation will have some facility to amend the legislation in the future, but those provisions are not there to make radical changes to the legislation. In terms of how often ministers have had to return to Parliament to make use of those types of provisions, I am certain that that is not something that I have been required to do as a minister as yet, but officials could perhaps give an overview of their knowledge as to when that has occurred in the past. I think that it is quite difficult to generalise, because in each piece of legislation the provisions might be used more and some in others almost never. In looking at other pieces of legislation that apply to the further and higher education sector, there is the 2005 act in the 1992 act. For example, in the 1992 act, there were powers in relation to changing the composition of college boards and the provisions in that. Those powers were never used. They were amended in 2013, but prior to that they had not been used to change the composition of the boards or the constitution of colleges. It is quite difficult to give any general answer. I think that the other points that are worth making are that, generally, those powers would not be used to make radical amendments that go against the grain of the original legislation, because they become a question of whether that kind of amendment is within the power. We would hesitate to use the powers in those ways because it is unlikely to be within the power to just completely do the opposite of what the existing legislation says. My final point is that, again in your opening remarks, you said that you never want to realise a situation in which ons reclassification takes place. However, if the ons themselves identify that classification is a real possibility, what steps can be taken by the Government to ensure that that does not happen? I will ask officials to talk through that process from a more technical standpoint. Obviously, the premise of my argument as a minister is that there is nothing in this bill that increases the risk of ons reclassification. As I said earlier, that is something that the Government would always seek to avoid, because ons reclassification, although it would not happen overnight if it occurred—I do not accept that it would occur as a result of the bill—it would not happen overnight, but if it were to happen, there would be implications flowing from that. We have a broader relationship engagement with ons as well. Do you want to say something about the more technical aspects? Perhaps my legal colleague might have a perspective, but from a policy point of view, the cabinet secretary has already covered it. If there is no intention at all to have a reclassification event happen, we would immediately set in a process of considering how to remove the legislation or not to implement or commence those parts of it, which have been cited, but in terms of the technical, the operational moves behind that, perhaps my colleague Ilsa might have a perspective. In terms of what happened in England with the reclassification of colleges, the Government was able to bring forward legislation to reverse the reclassification. There would be time given to implement any reclassification decision, in which case there could be legislation to ensure in Scotland that the universities were not reclassified. That would involve some kind of dialogue with the UNS to work out where the issues were and what their concerns were in relation to the governmental controls that they saw were leading to reclassification. The whole suite of legislation applying to universities would have to be considered. It would not just be the bill, it would be the existing legislation that applies as well. Mark Griffin, you have said this morning that you do not think that the bill presents any risk of reclassification. Previously, we have heard officials say that they believe that there is a risk, albeit a low risk. Has there been any work or legal advice taken by the Government that has resulted in a rhetoric or stance that has previously been a lower risk of reclassification? There is now no risk. There is no increased risk or additional risk as a result of the bill. Officials can speak to the on-going issues in and around UNS reclassification, but I just wanted to stress that there is no change in rhetoric here at all. Previously, we have heard from officials that there was a lower risk of reclassification as a result of the bill, so there seems to be a change in rhetoric. However, if that can be clarified, will that be helpful? I think that myself and other colleagues that were here. I think that probably the finance committee was the committee where that dialogue might have been had. We would go back and look at the record, but I think that there exists a risk that could be assessed without the bill in terms of—I think that someone may mention the Anderson Struthairn advice that University of Scotland has sought—they, in their own way of looking at it, map out a lot of the current features of the system that could be seen as part of a risk assessment. At the moment, there is absolutely no risk that reclassification would be considered without the bill. The question of the bill having an additional risk is something that is the Government's opinion. It does not advance that risk, but if there is any inconsistency between what I am saying now and what was said in the finance committee transcript, we will examine both and get back to committee on that. The review of higher education status by the ONS has been publicised that that covers English and Welsh institutions. It is to ask the cabinet secretary if the ONS has been in touch to clarify it all whether that review under existing provisions will cover Scottish higher education institutions at all? No, I am not aware of the way that the ONS has been in touch with the Scottish Government with regards to that, but I mean, Sharon, do you want to speak about our broader relationship with the ONS? They certainly have not been in touch with us around the classification work that they are doing next year with the girls in English and Welsh institutions. University of Scotland had written to the cabinet secretary on 29 October of you and I had no time to respond to the comments in that letter. We are currently working through that response, but I have received the letter and I have seen it. Some of the comments in that letter, I think that it is fair to say, criticised the Government's approach. One of the lines from that letter is that the Scottish Government risks assessment in relation to the ONS reclassification appears from the content of the letter from yourself of 5 October to the convener of the finance committee to have completely overlooked the five specific indicators of control for non-profit institutions, such as HEIs contained in paragraph 2.39 of ESA 2010. I know that you are saying that you are working through that letter, but are you able to comment on that particular criticism? In broad terms, officials have considered carefully and closely all the guidance that is produced by the ONS and the Treasury on the matter. As I said, Mr Griffin, we are closely looking at the detail of the University of Scotland's latest letter and, of course, we will respond in detail by reply to the very specific points, and that information will be shared with the committee. John Pentland, the cabinet secretary or Stephen, you said earlier that, for clarity, there was no potential risk or minimal risk of reclassification. In the letter to the finance committee, you gave a summarised analysis as to what that is. Is it possible for that analysis to be published and to be given to the committee, along with perhaps any legal advice? It is always a desire of the Government to be as helpful and forthcoming as possible. The finance committee had initially asked for a summary of our work. It has asked the Government for further information prior to the stage 1 vote. There is an opportunity there, given that we have received some very detailed remarks from the University of Scotland and other stakeholders to include some of the broader issues and some of the concerns that were raised by the University of Scotland in a future response to the finance committee, which will, of course, be shared with the committee. Can you confirm that section 8 in the bill allows ministers to modify the categories of membership of governing bodies and the number of persons to be appointed? Can you also confirm that the Government did not take any consultation on the sections of the bill? That is correct. The Government consulted on proposals for legislation in terms of the sections that relate to regulation and enabling powers. They were included in the bill that was published. Part of a stage 1 process allows scrutiny and feedback with regard to those provisions, but the Government consulted on policy, as opposed to a bill in draft. Can you explain the difference between your own comments in the chamber on 28 October and repeated this morning when you say that you are absolutely crystal clear that the Scottish Government does not seek to advance ministerial control over our HEIs and the comments that were made by officials on 6 October to the committee—I have the transcript here—who confirmed to the committee that the bill was adding powers for ministers? That is a contradiction. However, the bill does not seek to give ministers any new powers over the appointment of chairs or the actual appointment of members to the governing body or various committees. We do not have any powers to move or approve. Cabinet Secretary, it is not about the names of the people. It is about the actual powers that would exist. Your officials on 6 October confirmed that the bill was increasing that power. Because of that, that is the concern about the potential for ONS reclassification. As you know from the comments that you made before, there are certain criteria about that ONS possible reclassification. If section 8 of the bill is increasing ministerial power by definition, that means that ONS would have to look at that in the light of possibly reclassifying them as public bodies. Would you accept that that is the reason for the concern and the reason for the letter that University of Scotland has sent back to you, because they feel that the Government has not taken evidence on that? The concerns that are articulated by University of Scotland and others are not concerns that I share. Nonetheless, there is a willingness on my behalf and on behalf of the Government to look in detail at those concerns and a willingness to attempt to remove the concerns that are articulated by others. What the bill seeks to do is to provide a framework for governance. It is worth bearing in mind that membership of quote for ancient universities is set out in legislation going back to 1966, so we are not seeking to do anything that is out of the ordinary or unusual. Do you want to add anything from a fancy perspective? Yes, perhaps some of my own comments are in that transcript. It came up during that session that the indicators of control in the guidance talk about and very clearly focus on the appointment, removal and approval of individuals. It is slightly different to point to whether there is a power. Obviously section 8 is a power, it is literally a bill as a power, but it is whether that power advances control and it is about process, it is the how and not the who, but in terms of parts of the transcript, the idea that it is a power and it provides something new to Scottish ministers cannot be denied. Cabinet Secretary has just confirmed that the Scottish Government did not take any consultation on sections 8 and 13 on the bill. At the same time, you are arguing that you do not accept the concerns of University of Scotland. I am not sure how you do not accept those concerns if you do not have the evidence to be able to rebut them. The University of Scotland is extremely clear in the evidence that it has taken. It has gone to a great deal of trouble to ensure that they are well briefed on that. Where is the evidence that you do not accept their concerns? The evidence is contained in one place in the finance committee letter that the cabinet secretary said. In an earlier answer, she said that we would be looking at what the finance committee had requested in terms of seeing additional analysis before the stage 1 debate. That was the evidence then, and there would be more. In terms of sections 8 and 13, I think that it has been said many times that they are genuinely future proof in housekeeping. The intention for those sections was very much that. I respect what University of Scotland has offered in their evidence and in their take on it. They see those sections as substantially more than that. I think that the cabinet secretary has also been clear that the Government is listening very closely to all the evidence that is presented specifically on those matters. The other point is that, when it came to Aberdeen Peripheral Road, Mr Swinney took five different pages of evidence on that for the possibility of reclassification on that issue. Why is it that the Scottish Government has not done this for a huge issue relating to our universities, which, as many members have already said this morning, are our most successful part of the education system? What is the Government's answer to why that evidence has not been taken? Essentially, convener, I mean that this is an issue in and around statistical classification. I would say more as that type of issue, as opposed to a legal issue. I hope that I have been clear to the committee that officials have examined that area very carefully in terms of all the guidance that is available from the UNS and the Treasury. That consideration includes all relevant areas of Government. It is not just in terms of the world of education in Government. There is consideration using the expertise of other parts of Government that have had exposure to that type of issue in other areas. I do not know if there is anything that you would usefully want to add. It is important to say that it would not be the norm to consult on routine housekeeping sections in legislation when you are consulting on the policy intent or proposals to be placed in legislation. That is the value of the stage 1 process of the Parliament, in that people can scrutinise the absolute detail of the bill. I think that that is right. I think that we have learned a lot about the subject of the last year as a result of the work that has been undertaken around the Abery Western peripheral route, and that learning has been applied in this circumstance. Cabinet Secretary, can I finish on one question? When it comes to the bill, all stakeholders, students, staff, academics, business, they are all concerned about the aspect of ministerial control and UNS reclassification, as is the Scottish Government, so it claims. Would it not be sensible to remove sections 8 and 13 from the bill to take out any risk whatsoever? That has been actively considered whether we should look at amendment or removal, and I think that I was quite clear in Parliament that there was an open-minded and careful consideration to that, in those very matters. Good morning, Cabinet Secretary. You did say in your opening statement that you are open-minded about amendments and are willing to look at sections 8 and 13. Was that more or less to go down the routes of allaying the fears of some of the sector? Is there just a risk of repeating myself? Sometimes it's good to say things more than once in this, can I say? I've already made plain, I think, but we will consider either amendment or removal. I would like to look at some of the comments about the appointment of the chair to the governing body. There are several points that have come out of the various discussions that we have had. One is that universities are quite concerned that there is a clear link between the governing body and the chair, and that there will be real problems if the chair is appointed and elected by a group other than the governing body. Do you agree with that? No, I don't think I do. I think that when people are elected to positions or appointed to positions, they have a responsibility based on the job that they are being elected or appointed to do. As an MSP, I am elected by the good people of Amman Valley, but as a minister, I am subject to the ministerial code and have to respect the place and rights of Parliament. I hope that I have not misunderstood your question, Mr Beattie, but that is my instinctive response to it. Maybe on a related matter, who would the electorate for the chair be at unions and some of the student groups are arguing for a wider electorate? How do you feel about that? The Scottish Government has had a consistent position that we are in favour of chairs to university courts being elected, and the chair of the university court is, if you like, the senior governor, sometimes called the vice convener or convener. We are clear that that position should be an elected one. As I said in my opening remarks, that process of election is one that we are still in very close dialogue with stakeholders both individually and collectively. Mr Beattie is right to indicate that there are a range of views on the one hand. Some students and trade unions are arguing that the franchise, if you like, should be every member of staff and every student with no selection process about who is eligible to stand for election. On the other hand, we have other people within senior management in the sector who argue that there needs to be a robust selection process and that the electorate should be the reconstituted or modernised university court. From a Government's perspective, as I said in my opening remarks, we remain open-minded, but we are committed to the election of chairs that would necessitate an election as opposed to an appointment in terms of some of my own thinking. I am not closing down co-design in the sector of how we do this, but bearing in mind that we are looking to elect the senior governor, for example, I think that it is important that that individual is able to take up their post and that they are not unable to do so. Sometimes with elections of rectors, for example, a student body might elect a rector that is not able to chair court. That is their right to do that. I am not questioning that, but in terms of the senior governor, I would be strongly of the view that they need to be able to take up the post of senior governor to stroke the elected chair. Another interesting point that was raised is about the appointment process. The fact that the anticipation is that it would be an open process whereby people would have to put their names forward and go through some sort of selection and sifting. There was a feeling that this would dissuade some very competent candidates, particularly women, from standing. I think that we have to be really careful, Mr Beattie, about quite lazy assumptions about women in terms of seeking promotion or standing for some sort of public office. I think that the reason for women not necessarily putting themselves forward for these positions are quite complex. What the regulations as it stands describe regulations to enable an open process that culminates in an election. As I said, I want to remove any ambiguity, work with the sector and co-design what should be put in place of section 1 in the bill at stage 2. For example, I am not preempting where we will get to with the discussions, but for example an open process could have an obligation to advertise the post in the press. It could also include some sort of criteria, as I have alluded to about an individual being physically available to take up post. It could, again, not preempting the outcome of the on-going discussions with the sector, but it could include some sort of fit and proper persons test. I do want to ensure that we are able to consider a wide range of candidates and not have an unduly narrow focus, but there are various options that could be helpful to advertising the position and seeking a broader range of candidates to come forward. Has the Scottish Government done any assessment on how many additional candidates might be expected to come forward? You were talking about, hopefully, a much wider range presenting. Has there been any assessment on that? I think that there are opportunities potentially in terms of how any process of selection may work in terms of how positions are advertised or communicated to the wider world. It would be very disingenuous of me to sit here and say that there is a piece of work that the Government can do that can establish how many more candidates we will elicit by pursuing a particular process. I can comment on the remuneration of the board chair. There has been some criticism from University of Scotland about the bill's provisions on remuneration and the detail that has also left the regulation. How does the Scottish Government react to those criticisms in that regard? The intent of having in the bill a section on remuneration very much flowed from the von Pronzynski review. It was one of his recommendations in that, if you seek a wider range of candidates potentially putting themselves forward, consideration has to be given to remuneration. In essence, it is recognising that, given the amount of time that an elected chair currently invests—a not insubstantial amount of time in the job that they do—that remuneration is not unreasonable and, in many ways, according to von Pronzynski, desirable if you are looking for that wide range of people. As I have said with regards to other aspects of the bill in relation to regulation, we will look closely at what is in the bill and whether it is actually required or whether it is expressed in the best possible way. Just one final quick question. If statute is to provide for remuneration of the chair, should that principle be extended to other members of the governing body or relevant committees? There is a distinction between other roles and other people involved in the governing body or committees, given that it is a substantial role to chair a university court, because it does not just involve chairing. People may chair university court five, six times a year, but they will have many other duties as that senior governor with overall responsibility for good governance. They are responsible for the performance appraisal of the principle, for example. In terms of the time that a chair would have to invest, it is probably about a day a week. There is a particular case to be made in and around the remuneration of the chair as opposed to other members of courts or committees. As I said earlier, Mr Beattie will look to see whether we have the detail right in the bill with regard to that. Can I clarify, cabinet secretary? The institutions already have the power to remunerate a chair, if they so wish. I want to be clear about why it is necessary to put on the face of the bill or via regulations that the Government will decide on that matter. The recommendation came from von Brunzinski in the context of considering what was good governance, but I am intimating to the committee that I remain open-minded about it. The principle is important that remuneration should be available, whether it needs to be in legislation and whether it is articulated in the right way. On this particular issue of electing a chair, there is already a situation where the director is elected in all cases by the staff and the students and why they are elected. On the basis of the conversations that you have had with the principles, would it not be sensible to look at, rather than looking at the personalities and the election of a chair, but to look at the whole operation of the court and perhaps consider the rector, in a way, of the Plataol University, the rector being the chair of the court for policy matters and looking at co-chair appointed by the governing body? In my experience, external chairmen or chairpersons have a great difficulty unless they can take the governing body with them on decisions. Would it not be appropriate to have the rector and change the legislation if the rector is the appointed chair of the court, but there is a co-chair to look at operational issues and oversee the role of the committees? Has that been considered or will it be considered on the basis that you have said, cabinet secretary, that you are open to suggestions? I think that I understand what Mr Brodie is driving at, but we have to be clear that the role of rector is quite different in parts from that of the senior governor, stroke convener. What we are looking to do is to introduce elected chairs across all 18 institutions. They exist just now where rectors exist for the ancient universities, because rectors at the university of Highlands and Islands in Dundee do not have a statutory right to chair court, but rectors do in the ancient universities. As I have indicated consistently, the Government believes that there is a value in having an elected chair in all institutions. I stress that the role of rector is quite different from that of senior governor. A rector is ambassadorial and has a huge value in raising the profile of the sector. The rector can be representative of the views of staff and students, certainly in Edinburgh. Other ancient rectors are just elected by students. They can indeed be a point of contact for staff and students, but sometimes they are elected for broader symbolic political reasons and sometimes rectors are elected because they are more a working rector. The senior governor we should not forget is a very powerful position. He has that overall responsibility for leadership and good governance of the court. He has responsibilities to ensure that members work together. He is a critical friend of the principal and senior team without getting involved in operational matters. He ensures that the institution is well connected to other networks. He will have ex-officio roles quite often on policy and resources committees. He will make a significant contribution in areas such as remuneration and, as I said earlier, he is involved in the performance appraisal of principals. Rectors do not have that role of really overseeing the governance, so chairs of the court have very... I know that you are not, but the point of rectors should be covered policy, a chair of the court on matters of policy, and there should be a co-chair not elected by the governing body. Can you give me an example where a chairman of a large association has been elected and where it has been successful? I do not believe that universities should necessarily be compared to a business. It is very important that they have many business-like considerations, but there is an academic institution that is there for the good of the students. They are indeed a pillar of our economy and a pillar of wider society. I am not sure, although there are some parallels, that I direct contrast with the world of business. I did not say that. I said that association. In recognising, in accordance with the von Prinsinski review, that the senior governor, stroke convener, chair of the court, is a hugely powerful and influential position, and the position of this Government believes that that should be an elected position to reflect every voice on campus and that wider view of university life. Obviously, as you would appreciate, as a committee, we are trying to understand the role of a rector with that of the appointed chair. Previously, Scottish Government officials were unable to explain that point, as was the committee trying to establish a clear understanding of what that role should be. It may have been a wee bit remiss for the committee not to be a rector along for an evidence session to perhaps talk about that. The committee discussed the matter and took the view about who it wanted along as witnesses. We collectively decided that to who the witnesses would be, but I am also of the opinion chair without getting into the detail that I think it may have been an opportunity to miss to fully understand what the rector's view was. To go back to some of your answers to Chick Brody, how can you confirm with us that the relationship will come together and deliver a service? We start to think about some of the past rectors who have expressed some concern to the committee that they feel that their role may be diminished. I have that concern, and I am sure, along with others, that it will take quite a while for this relationship to come together. I know that I am on record in various places in terms of the press correspondence to this committee and Parliament when I say that we have no intention of abolishing the role of rector. I seek to minimise or remove any impact on the traditional and valuable role of rector as it stands. I suppose that the first thing that we have to do—and I suppose that we do in tandem—is that I have referred to the on-going work of working with all-interested parties in the sector about the process of electing chairs. As part of that work, we will consider the detail of rectors, but there is no desire to change the role of rector. There are complexities to consider. Rectors and the ancients have the statutory right to chair court. I have no desire to change that, but we need to look at how that would interact with provision for elected chairs across the sector. That is the sort of detail that we are in the midst of working out with all parties. As I have said previously, we are not abolishing rectors, and I would seek to minimise or remove any unintended impact on the existing role of rector. You are on record saying that you believe that diversity within the sector is one of the greatest assets of our universities. In relation to the point that we are just discussing, could you tell us what you think the model of governance might be as a result of the bill with something like the Royal Conservatoire, which is a very small institution, highly specialist and very effective. It made the point at the round table that it fears for some aspects of the bill that could condition it into a single model of governance that does not suit its kind of institution. Could you comment on that? I am very conscious that the sector is diverse. As you say, Ms Smith, the Royal Conservatoire is a small specialist institution compared with a larger, ancient university. However, what the bill seeks to do is to introduce a level of consistency in some discrete areas of governance. How we get that balance in terms of a level of consistency in the context of a sector that is quite diverse is indeed subject to the on-going discussions that we are having in and around the process of how you elect a chair. I do not think that it is unreasonable to expect some level of consistency, but we will work hard to get that balance. The point that I am making, as are other universities, is that in section 4 of the bill there could arise a situation in which some existing members of governing councils would effectively have to admit office in order to allow new proposals to take shape. Are you comfortable with that, bringing the expertise that they have, particularly in a small institution? I think that, to be clear, the code states that the size of university court is at 25. My understanding is that that is not fixed. Indeed, the chairs of court have began to lay out some of their thoughts about in the fullness of time how they will review the code. Bear in mind that university courts are currently at 25. Section 4 is looking to describe eight members of that in terms of two trade unions, two members of staff, two students and two alumni. That is eight out of 25. The majority of institutions would probably already have half or more out of those eight holes. To take section 4 to its full impact, some existing members would have to come off the governing council. Are you comfortable with that? We have also said that, in terms of the implementation of the bill, it would be implemented over a period of time, a period of four years. I do not think that we are in the business of handily removing existing members. It is back to the original situation where the Government is insisting on specific categories within governance. That is the point that is causing the concern. It does not matter which side of the debate you are on, that is the aspect that is causing concern, particularly for institutions such as Glasgow School of Art, Rural College and the Royal Conservatives. They are much smaller and much more specialist in their input. It is whether one type of governance is actually meeting the diversity of our institutions. Section 4 deals with eight members out of a university court of 25. The bill will be implemented over a period of time. I would like to talk about Government body representation. We have had the debate recently in the chamber and also evidence to the committee. One of the things that came strongly from the NUS in particular was that, under the current conditions, many of the decisions that are involved are made with regard to remuneration and capital plans before they actually get an opportunity to engage with it. Obviously, if we are going to open up this to a more democratic representation, such as trade unions, the NUS and the college and university union, how will this ensure that we have a better democratic representation? How will it lead to better governance? I believe that members of staff, trade unionists and students are well capable of taking part in making a contribution to the big strategic decisions that a university governing body has to continue with. As with other parts of the bill, we are looking at greater participation of a wider range of voices within the decision making that takes place within an institution. In terms of better governance, by definition and outcome, that broader, more inclusive approach that includes a range of voices—all voices on campus—can only be a good thing that is positive in helping the sector to move forward. That is purely my own personal view, and one of the things that I see as a positive from this is the fact that you have that diverse grouping that has the interests of the institution that they are a part of and the heart of it as well. That is some of the things that are coming from the institutions themselves. They are almost saying that some of the trade union groups may not have that interest. I do not believe that that is the case. Personally, I believe that it is a case of collective responsibility and everybody working together to make sure that their institution can be that modern and inclusive institution that we all want it to be. Do you see that, because you said that you want to have a more modern and transparent form of governance in your opening statements, does that not obviously give us—yes, it may be more difficult for universities to manage the situation, but is that not just a more modern way for us, as you said earlier on, to work and be able to show that our universities can take that next step into the 21st century? I do not see diversity and the inclusion of representatives from staff trade unions students as counterproductive to collective responsibility. The Government commissioned a body of work, which I am familiar with due to my previous portfolio in terms of the working together review. That work was led by Jim Mather, the former enterprise minister and Graham Smith from the STUC, who was essentially looking at the value of social partnership and including voices. That is obviously in the context of the world of work, strictly, as we understand it. Part of that body of evidence looked at examples of, for example, NHS Lothian, where on their board they have a director of employee relations, which is the most senior person in the trade union in NHS Lothian. They obviously have a role and responsibility to represent the interests of their members, but that director of employee relations that sits on the board of NHS Lothian quite clearly has a responsibility for good governance and the overall collegiality and collective responsibility of the board also. I can also just ask another point on what Elizabeth Smith asked about. She mentioned the Royal Conservatoire as an example. It is obviously a smaller institution compared to the rest, as we have all agreed, on the scenario. One of the scenarios that they find quite difficult was the fact that they do not have trade union representation as such within their institution. That was part of the issue for them, if there was a kind of way of going down having to have trade union representation within their board. I do not know whether that is in the workings of the Royal Conservatoire, but that seems to me that there might be a case to be made for certain institutions that have a different make-up of looking at being a bit more flexible. That sounds like an unusual situation that we will examine closely. There are all sorts of differences in diversity from institution to institution. We are not demuring from that fact, but we need to get that balance correct in terms of a level of consistency in some discrete areas of governance in terms of some of the things that we believe are fundamental, but also recognise that different institutions have different complexities in their make-up. I want to clarify a couple of points. You said in response to Mr Adam that one of the reasons for that was to have a wider range of voices on the governing bodies of higher education institutions. I am sure that you accept that all the governing bodies at the moment have staff representatives on them and approximately 70 per cent of the governing bodies currently have student representatives on them. I am wondering how you would define getting a wider range of bodies given that they all have staff representatives and 70 per cent of them currently have student representatives. As I said in my earlier answer to Mr Adam or to Ms Smith, the majority of institutions would have four out of the eight places that the legislation seeks to implement. We are not saying that institutions have not made progress or that they are not halfway there, or that, in the case of some institutions, they are almost there. I believe that it is important that the rights of staff, students and trade unions should be reflected in the bill and in terms of the work that flowed from the von Prinsenski review. You have also made it clear that your desire to have union representatives on the governing bodies is to make it clear, and I suppose that it is in a follow-up again to Mr Adam about in a situation in which a trade union represents a relatively small number, perhaps less than half, perhaps quite a small minority of the staff, is it reasonable for a trade union representative to be the staff representative, or is it more reasonable to have some other staff representative to be the representative of all the staff rather than some other from a trade union? As the bill stands, it has made provision for both staff representatives and trade union representatives. We recognise that a different proportion of the workforce in different institutions will be unionised, but we are talking about two places for trade union members out of a court of 25, representing both academic and non-academic staff. I have a letter here from a union representative in the Royal Conservatoire on behalf of members. He makes the point that one of the aspects that section 4 in the bill would change by insisting that there were union representatives on it is that other members on that board who are actually elected by staff, may I say, would no longer be there. He is pointing to the fact that their expertise is essential when it comes to the way in which the Royal Conservatoire operates. He is very clear in his letter that he feels that they have a very good relationship, he feels that unions are very much involved in what is going on, and he is again pointing to the fact that it would be preferable if there was not one model of governance, because this is working for the Royal Conservatoire and unions are fully involved in that process. Indeed, I think that that was a comment that the principal made when he came to the round table. Would you consider having some options in different models of governance as you go towards stage 1 debate? There is a broader consideration with regard to all the details as we move forward to the stage 1 debate and stage 2 of precedence. The point that Ms Smith makes is that there are shades of opinions within all stakeholders, so I can point to shades of opinions within senior managers principles. Similarly, there are shades of opinions within trade union representatives and students. What we are working hard to do as a Government is to bring as much of those diverse, at times diverse, range of opinions together in an effort to co-design and reach a position of consensus on a range of issues. However, as I said earlier, the bill will not pass one day in Parliament and then be introduced or implemented in practice the following day. There is quite a lengthy period of transition. I ask about academic boards and to ask why the Government feels that the size of those boards is a matter for Government intervention. This flows from the recommendations in the von Prinsinski review. That is where the figure of having academic boards or senates is no larger than 120. When we looked at what proportion of the academic board should be made up of students, what von Prinsinski recommended was a substantial proportion. We considered that 10% was a substantial proportion and a reasonable proportion of other people might have views about whether 10% is exactly the right figure. The committee has asked before why students specifically mentioned that 10% figure that you quoted in staff in trade unions when the Government response was that by having an inclusive and fair governing body would permeate throughout the institution. Therefore, there is no need to stipulate that there must be union or alumni representation in the academic board. Can you tell me why there was that 10% threshold for students specified, given the statement that alumni and staff were not covered? The quote that Mr Griffin read out would be our current position in terms of academic boards where academics are largely represented, but in line with von Prinsinski, we have opted to include 10% of student representation. We did not feel that it was necessary to stipulate that trade unions or alumni should be represented within the academic boards, given that the University Court is the main governing body where everybody is represented and that the range of voices included in the University Court will, of course, have a flow through into other areas of university life. We have not changed our position on that matter, so students, trade unions, alumni, staff represented in the University Court, but our position is still that the academic board is for academics and students. I have already heard concerns about how the diverse range of institutions are covered by issues relating to the governing body. I think that those concerns exist as well relating to the academic board and particularly the 120 member threshold, just to ask how and if you would respond to those specific concerns about that threshold, given the very diverse nature of the sector. I am thinking about Edinburgh University in particular. I mean, most institutions would have an academic board of around 120. There are larger institutions that have much larger academic boards that are often, or if you look at Edinburgh, I think, bigger than the House of Commons in terms of the number of MPs and certainly much larger in representatives than this Parliament. Again, it flows from the von Prenzinski review. They had received evidence about the size of academic boards and how, if a body was too large, how that could lead to less than satisfactory arrangements. I cannot remember whether it was in the actual report or evidence that this committee received, but there were some concerns about boards being dysfunctional in and around the size of them. The last question, just to ask how you think the changes that the bill is proposing will make sure that academic boards are performing effectively and are representative in their decision making and where the deficiencies are at the moment that we are looking to address? Again, in terms of the implementation of good governance and all aspects of good governance, that will be for universities in the sector to pursue overall what the bill is aiming to do, is to set a framework and to make some changes in quite discreet areas of university governance. As I said earlier, in terms of how all of that is implemented, how it is monitored, evaluated, how we reflect on progress that is made, post the bill, that is work that we will undertake to do in a very detailed manner with all stakeholders in the sector. On the question of the size of academic boards, when officials came before the committee, we were talking about this issue, they said that the figure of 120 comes from the review, that is the Von Brunsinsky review, which is the substantive evidence base that largely inspired all the provisions in the bill and then also said at the same time that it would not have been arrived at willy nilly. I imagine that it was the subject of lots of cross-sectoral dialogue and that many opinions were taken. As far as I am aware, and I could be wrong here, but as far as I am aware, I cannot find it in the Von Brunsinsky report. It may be in anx, it may be in some other evidence. Let us call it unspecified evidence. I am just wondering if you could give us some detail of how we got from this position of what it said in Von Brunsinsky and as I said, I do not know what the evidence is because I could not find it. Being in the bill, there should be a maximum of 120. I mean, my understanding of Von Brunsinsky was that the recommendation was overall academic board should not normally have more than 120 members. I will have a look to see whether that is in the body of the report, an anx or an actual recommendation, but can you cast any light on that just now, Stephen? I am pretty certain that it is a recommendation, but in terms of a supporting rationality detail, I do not think that the report has published, featured that for all the workings, if you like, for all the recommendations, that we can certainly take that up in detail. Take it up with the author, I suppose, as well. That is what I am asking, Mr White, because clearly it did say that, except that is what it said, but I do not know why it said that. It is a statement without evidence, as far as I can see it. There may well be evidence, and I am sure that there is evidence, but it would be helpful if we could find out what that is. Thank you very much, Liz Smith. That point, convener, would also be very helpful if we could get some evidence as to why the von Purzynski review said that it heard in unspecified evidence, which points towards dysfunctionality, when the membership of the academic board is too large. Where is the evidence for the dysfunctionality? We will pursue that as well, convener. I am very grateful for that. Thank you very much. Can I turn our attention just now to the section of the bill, which has not actually had a lot of attention outside, because of other matters, but it is the issue, I think, of very important issue of academic freedom. Now, I did ask at least some questions in the debate that we had recently, and also when the officials were before us, so I want to cover some points, some general points, and some specific points about this. Obviously, there was a range of evidence submitted to us about the issue of redefining, or maybe updating is a better word, the definition of academic freedom. Can you talk us through why you thought that was necessary? I think that it is fair to say, convener, that the adjustments to the existing definition of academic freedom are modest, and I think that it is only right and proper that we acknowledge that this is not a huge radical departure or a huge radical change. There are modest adjustments in terms that, instead of institutions having regard to academic freedom, they must aim to uphold academic freedom. The definition now includes explicitly, whereas it was implicitly implied that it includes freedom to develop and advance new ideas. Given that we have just been speaking about the bill and much of it coming from the Von Brunsinsky review, again, that review, as far as I can see, did not highlight any particular problems with the existing definition of academic freedom that was set out in the 2005 act. Again, I accept that this is where it comes from, the Von Brunsinsky review, but again I am asking the question, where is the evidence for a problem with the current definition that was laid out in the 2005 act that required this change that was laid out in the current bill? Speaking from the Government's perspective, we were coming from the premise of deficiency, looking at the recommendations of the Von Brunsinsky review. There was an opportunity to make modest adjustments or improvements to the definition of academic freedom. I appreciate that there are, again, a range of views about the value of these modest deficiencies as well. I am interested in your comments, Cabinet Secretary, about how modest the change is. Again, I am wondering whether or not, given that it is so modest, whether it is required. Can I move on to a more specific question about it? It has been submitted to us that the alteration to the definition of academic freedom might change the nature of some internal disputes within higher education institutions. I think that there is a specific question that I want to ask, which has come specifically from the Schodject submission to the committee, which was very detailed on that particular area of the bill. I met with representative Schodject last week to discuss it, and they certainly have concerns about what might be called the imbalance of freedoms here. They were keen to point out that the Higher Education and Governing Governance specifically talked about the freedoms and academic freedoms of staff and lecturers, etc., but they also balanced that with the rights of students and other members of staff in the institution. However, they were keen to point out that the bill itself, in making that adjustment, had no balancing rights to be referred to on the face of the bill. I wonder what your view was of the Schodject evidence. I am sure that you have an opportunity to look at it. I ask the question to you, why is there no balancing of rights contained within the bill, but it is within the core of governance? We will certainly look in detail at the concerns of Schodject. There is certainly a commitment given by ministers to yourself, convener, to meet in relation to explaining matters further or to resolve any concerns. I am certainly alive to the issues that were raised by Schodject. My official Stephen White has certainly met with him. I might be helpful if Stephen could speak about his meeting. I met Mr Efron Barowski and colleagues from Schodject. They talked me through their evidence, and I emailed the clerks. I think that the main action point was on this question of balance. What I said I would specifically do was go back and investigate the 2005 act's construction and the standing definition. From doing that to establishing what consideration of any was given to the student side of the equation, we are going through that process. I suppose that, in looking at the code in comparison, the code has a broader role than setting a legal definition of freedom for an academic. I want to establish why it was so specifically drafted and what is the origins of that and what the debate was at the time, so I am undertaking to do that and to get back to colleagues at Schodject. That is very welcome, but I suppose that in the modesty of the change, the change is effectively to now must uphold. Clearly, there is concern from Schodject and some others and I am sure that you may be aware of the number of incidents that I will not repeat in public session, particularly with Jewish students around the country, where there is concern. I share the concerns that academic freedom has been used as a cover for actions that have been taken against individual students. If we move from the current definition, which we are operating under at the moment, where some of those things have happened, to a definition that says, must uphold academic freedom, that might strengthen the hand of some individuals who, frankly, behave outwith the norms of what we expect academic staff to behave. Again, convener, I will be very careful in my response to you, given that we are in a public session. However, there is clarity that whether it is the current definition of academic freedom or, indeed, the modest proposed change to academic freedom, that does not excuse people from operating within current law. There is a wide range of legislation in terms of matters of incitement, discrimination and there is nothing in the current or proposed definition that would excuse people from their obligations to existing legislation. I can ask Ailsa to give you a legal perspective on that, if that would be helpful. I have to say that I accept completely what you have said about the law, but there is an issue about whether you strengthen the wording that you have suggested to uphold. That has raised additional concerns about the risks that we both understand. It is those concerns that we would seek to alleviate. First of all, the provision says must aim to uphold, so it is not must uphold. That is slightly weaker than must aim to uphold. I agree that it is a change from the current definition. As the cabinet secretary has said, academic freedom is not unlimited. It does not excuse people from complying with other provisions of the law, whether that is criminal law, laws on defamation, obscenity or whatever, that academic freedom is not unlimited. That will not change. I accept that. I thank you for that. We all know the small words here and there that make all the difference to how legislation is understood and implemented. We have passed plenty of legislation in this Parliament, and when it was implemented, it certainly was not always what we understood it to be. What new responsibilities would it impose on governing bodies? I ask that because of the concern that, again, Dame Jocelyn Bell raised, there was a view that legislation would lead to a suppression of critical thought. However, if you could just be precise about what responsibilities it does or does not impose on governing bodies? I do not think that there is anything in this legislation or in and around these modest adjustments to academic freedom that is going to suppress thought. In terms of new responsibilities in and around academic freedom, institutions already have to uphold existing responsibilities. It would be quite disingenuous for me to suggest that I could produce a list of new responsibilities or any onerous new responsibilities that this would place on institutions. It is part of their day-to-day business to refine what they do in response to their understanding of academic freedom. I stress that those are modest and, I think, quite subtle changes. The University of St Andrews has asked how the wording must aim to uphold would accord with separate statutory duties placed on universities. For example, section 261 of the Counter Terrorism and Security Act, for example, imposes a statutory duty on higher education bodies to have due regard to the need to prevent people from being drawn into terrorism. Have you looked at the proposed legislation in terms of what is already in place and how they both join together? In terms of answering specific points about counter terrorism legislation and how that co-exists with the definition of academic freedom, I will ask Ailsa to respond, but if there are outstanding issues in and around quite a detailed area, we will get back to the committee. In terms of the section of fair to in the Counter Terrorism Act, it applies to specified bodies, and my understanding is that at the moment it does not apply to any Scottish specified bodies, but Scottish bodies can be added to the list, so it may apply in the future. However, there is specific provision made for English universities in that act in section 31. When they are carrying out their duty to prevent people from being drawn into terrorism, they must have regard to the importance of academic freedom, so the specific provision already in that bill is for the balancing of those two duties. As I said at the moment, my understanding is that it does not apply to Scottish universities. They are not listed as specified authorities at the moment who are subject to the duty. If they were to be listed, there would probably have to be some provision that has been made in a similar way to what applies to English universities, because there is a specific reference to the definition of academic freedom as it applies in England. Given that the University of St Andrews has raised the issue, I wonder if I could ask the bill team if it is something that they might like to discuss with them prior to the bill going forward. One question, cabinet secretary. When the bill says that there will be freedom within the law to develop and advance new ideas or innovative proposals, are there something wrong in the present structure that universities do not have new ideas and innovative proposals? No, but, convener, I referred to an earlier answer. Those are modest changes and people will be free. That will be a point that people are very free to debate. I have a couple of questions around the financial memorandum that has been raised through the finance committee scrutiny. The first one was that, in standing orders, the Government is required to set out the best estimates of the administrative compliance and other costs to which the provision of the bill would give rise. Just to ask why then there is nothing in the financial memorandum around the estimated costs to higher education institutes of amending their governing instruments? As part of the core business of a university and their court to be amending their existing instruments and arrangements, the committee will be familiar with the process in and around the private council whereby universities make their proposals. The Scottish University Committee, as it is known, is the First Minister, Lord Advocate, Lord President. Their views are consulted before matters of changes in and around articles go to the private council. I say that by way of demonstrating that universities do this sort of work all the time and I would not anticipate significant new costs in and around what Mr Griffin describes in the bill. I appreciate that they may do that on a regular basis, but they do that on the basis of decisions that they take themselves, whereas, in that instance, they will incur those costs as a result of action taken by the Government. That is something that the Finance Committee has raised in the report and asked why, because they have not incurred those costs as a result of a decision of government, why that has not been included in the financial memorandum. In addition to what I said previously, convener, we have, in response to the issues raised by the Finance Committee, said that we will give consideration to provide an updated financial memorandum at stage 2. We are, of course, looking at the detail of the constructive comments raised by the Finance Committee. It does not change our current view that we do not see substantial costs arising as a result of the bill, but we will look at the detail of what the Finance Committee has submitted to the Government and, if we need to refine our thinking or the information in the financial memorandum, we certainly will. The other area of the Finance Committee has raised, and I take on board your comments that you will look to refine the financial memorandum, was a discrepancy in evidence that they received from the Government and higher education institutions and Universities Scotland around the financial costs of recruiting a chair of the Government body. Around the estimates of a time commitment required by university chairs and how that would impact on the COSOD, I would be grateful if, again, Cabinet Secretary, you commit to looking at that evidence and include that in any review of the financial memorandum. I have said that we would refine the financial memorandum at stage 2 if required. Understandably, where there are differences of opinions with regard to the impact of the bill, that will, of course, lead to differences of opinions of financial repercussions. In that spirit of openness and collegiality, we are currently looking at all the detail of that to ensure that our position is absolutely reflective of the reality on the ground. On behalf of the committee, Cabinet Secretary, I thank you and your officials for coming along this morning to give evidence on the higher education Scotland bill. Just for everybody's information, we intend to publish our stage 1 report towards the end of this year. I am sure that we have an exciting discussion for us all in terms of getting our stage 1 report together, but can I suspend briefly? Our next item is to take evidence on subordinate legislation, as is listed on the agenda. I welcome Diane Mackinn to the Schools of Scotland and Elsa Heiner from the Scottish Government. I begin by inviting brief opening remarks from Diane Mackinnon. Good morning, only just. Thank you for inviting me and my colleague Elsa from SGLD to attend this committee here and to answer your questions. Questions about the Police Act 1997 and the protection of vulnerable groups Scotland Act 2007, remedial order 2015, which amends the system of higher level disclosures in Scotland. With your agreement, I would like to provide you with a brief background to higher level disclosures and why those amendments to the disclosure system in Scotland were needed. A higher level disclosure is the phrase used to describe the overall system that allows for additional scrutiny of a person's criminal convictions. It includes the protection of vulnerable groups scheme, known as the PVG scheme, enhanced disclosures and standard disclosures. Those are used where an individual wants to work with vulnerable groups such as, for example, in a nursery or as a medical professional or in a school or where someone wants to work in a sensitive area such as providing financial advice. The changes made on 10 September affect only the regime of higher level disclosure and have no impact at all on basic disclosures. In June 2014, the UK Supreme Court found that the system of higher level disclosures, as it operated in England and Wales, breached a person's article 8 rights under the European Convention of Human Rights. The court fully accepted the need for additional scrutiny of a person's background if they wanted to work with vulnerable groups or in other sensitive roles, but it held that the automatic indiscriminate requirement for disclosure of all spent convictions was not proportionate as no assessment of the relevance of the information to the need for the disclosure was undertaken. It was suggested by the court that a proportionate system of disclosure should take into account factors such as the age of the conviction, the nature of the offence, the age of the offender and the relevance of the conviction to the role sought. The amended system of higher level disclosure takes account of those factors. It restricts the requirement for disclosure so that not all spent convictions will require to be routinely disclosed. Under the amended system, certain spent convictions become protected convictions, and those protected convictions, along with spent cautions, are not required to be disclosed by an individual, nor are they disclosed by the state on a higher level certificate. Those convictions are for offences that are deemed to be of a minor nature where disclosure, once the conviction is spent, would be disproportionate. To ensure that the right balance is struck between protecting privacy and safeguarding, there is a prescribed list of offences in the remedial order that are deemed so serious that they must always be disclosed, even when spent. Murder is not included on this list because a conviction for murder can never become spent and will therefore always be subject to disclosure. There is a further list of convictions specified in the legislation that are eligible for disclosure on higher level disclosures if prescribed rules are satisfied. The rules cover pertinent factors such as the length of time since conviction, the age of the offender at the time of conviction and the sentence received in determining whether disclosure should take place. Those rules are clear-cut and are set out in statute. There is no discretion for officials. Ministers intend the focus to remain on enabling a system of robust disclosure checking for roles that involve access to vulnerable groups. They recognise that this safeguarding purpose must be balanced with appropriate protection of rights to privacy and, indeed, for ex-offenders to be permitted to move on from a past criminal background. We believe that the amended system of higher level disclosure brought into effect by the 2015 remedial order strikes this balance, so we would be happy to answer any questions that you have. I was quite surprised to read that it is not currently possible for an individual to obtain their own disclosure and barring service disclosure certificate in advance of applying for employment or volunteering. Is there anything in the legislation that would make that easier? I think that it might discourage many people coming forward as volunteers and people knowing about convictions of 10 or 20 years ago. Is there anything that would enable an individual to obtain their own disclosure information? The PVG scheme under which disclosures are sought is a scheme for employers to seek disclosures from people. There are no rules in that scheme that allow an individual to apply for their own disclosure. We would be disclosing information to people that they already know, so the purpose of the scheme is to allow for... I am just convening her with due respect. They may not already know. It may be that the conviction is so long ago or whatever that they may be eligible to apply to do some volunteering work. Is it something that has been discussed before? As an individual, it would be quite embarrassing that the only way that you can find out whether or not you have a clean disclosure is for an employer to find out for you. It might be helpful for an individual to apply. Is it something that has been discussed in the past or is it something that you might consider adding to that legislation? I will try to explain that there are two systems of disclosure. There is the system that exists under the rehabilitation of offenders legislation, which is about self-disclosure. That has existed since 1974. People are required to disclose their unspent convictions and, in certain circumstances, require to disclose their spent convictions. The disclosure legislation sits basically below that, that is the Police Act and the Protection of Vulnerable Groups Act, to allow employers simply to verify the information that people are giving them under the Rehabilitation of Offenders Act. A person is expected, in terms of the rehabilitation of offenders legislation, to know what convictions they have and to disclose those to an employer. That has been slightly modified in the context of the legislation in that people are not required to disclose the offences on the rules list, which will only be disclosed for 15 years until the disclosure is given to the employer. In terms of all other convictions, the Rehabilitation of Offenders Act is what requires people to self-disclose and to know their own convictions. As Diane said, that is not about telling people what their convictions are. People have to know that already. That is about giving employers the opportunity to verify information and to seek a disclosure from an official source of that information. It is not about helping people to get access to their own information. I do understand all that, but I just wonder if you understand the point that I am making. If I was an ex-criminal, I might be too embarrassed to go along and apply for volunteering or other jobs, because it would mean that other people might know something about me that I did not want them to know. It is difficult to get volunteers right across Scotland, so I am just looking at it from the individual's point of view. My second point is that we have a paper from an organisation called Unlock for People with Convictions. I was slightly surprised that the disclosure time periods in England and Wales for a conviction to become protected is 11 years as an adult and 5.5 years for under-18. However, my understanding is that in Scotland, instead of 11 years, it will be 15, and the 5.5 for under-18s will be 7.5. I just wonder if they say that it is unclear how those periods have been arrived at. I wonder if you could explain or clarify that. Yes, the disclosure periods of 15 and 7.5 years have been derived within the context of the current rehabilitation periods under the Rehabilitation of Offenders Act and also the period of time that Police Scotland retained criminal history information on the criminal history system. The periods aim to strike an appropriate balance between the rights of individuals and the rights of those that they seek to work with. Under the terms of the Rehabilitation of Offenders Act, the longest period that must pass before a person can become rehabilitated is 10 years. Therefore, there would be no point in selecting a disclosure period of 10 years or less because that would render the provision relating to spent convictions for offences on the rules list absolutely meaningless. We had to select something more than 10 years. We then looked at the CHS weeding rules. The Police Scotland apply a 30-70 rule, which requires a conviction to have been on a person's criminal record for 30 years and for the person to have attained 70 years of age before it will be weeded from their criminal record. Recognising the fact that disclosure under the PVG act and under the Police Act is for the more limited purpose of employment purposes, we opted for a disclosure period of 15 years for adults and seven and a half years for young people. We do recognise comparison between Scotland and England. That was the only thing that I did not understand. We do recognise that that is different to the period in England and Wales. However, there are a number of differences between the scheme in place in Scotland and the scheme in place in England and Wales. In particular, in Scotland, we have taken an approach that allows each conviction where somebody has multiple convictions on their record. We have introduced a system where each individual conviction will be considered on its own merits. The fact that you have a conviction does not necessarily hold on another conviction in England and Wales. If you have more than one conviction, everything is disclosed regardless of how old it is. Likewise, in England and Wales, if you have any conviction that attracts a sentence of imprisonment, everything on the record will be disclosed. In Scotland, we have not adopted that approach. If you have a conviction that is over 15 years old, that is spent even though it attracted a period of imprisonment, which it would have to have been a short period of imprisonment. If it is over 15 years old, we will not disclose it if it is on the rules list. There are differences between Scotland and England and Wales. In terms of the difference in the actual disclosure period, there is also a difference in the rehabilitation period in England and Wales. It is not that their rehabilitation period is 10 years and they have only added on one and a half years. Their rehabilitation period is less than 10 years, their maximum rehabilitation period. Those differences are derived from policy choices made by the UK Government and the Scottish Government in terms of what they think is an appropriate rehabilitation period. In England, the conviction is still disclosed for some time after it is spent because of the 11 and a half year disclosure period. Thank you. Good afternoon. I am not sure that this is relevant to the legal aspects, but it certainly, in terms of disclosure, depends on databases. I could not find any mention of how we track and therefore be able to disclose those of an international nature. How are these captured? I mean, I know that the suggestion should be that they should be on the database, but I do not find anything in the legislation that mentions how we cope with that. The primary sources of information for criminal record checks are the Scottish criminal history system and the police national computer, which covers the whole of the UK. Disclosure Scotland provides disclosures for people with an address within Scotland. In terms of looking at the overseas convictions, we can access information via police forces. There are ways of accessing information about convictions abroad. Sometimes it is added on to the police databases that are used, particularly the police national computer. Regulations specify which databases Disclosure Scotland uses to access the information. Some foreign convictions are added to those databases, otherwise there are possibilities of making requests to other countries. In general, it is based on the databases. Differences between a request that would be made to another European Union country or a country that is outwith the European Union? There are arrangements within the EU. If it is a national from another European Union country who was coming to Scotland to live and work, that would be relatively straightforward. The central authority for the EU system is a police authority in England and Wales, so disclosure Scotland has to liaise with them. Yes, but there is a process involved within the EU. If somebody came from outwith the EU, it would have to be a direct request to that. Yes, I am not sure. We would not make the direct request in that circumstances for the disclosure, because in terms of the way that the legislation is set up, we can only access the information of some of the databases. Nobody asks for the foreign conviction information. If you have somebody who is living in Scotland, resident in Scotland, who applies for a job that would require that kind of process to be undertaken, but they resided previously in a country that was outwith the EU, how do you get the information? Are you saying that you do not get the information? Disclosure Scotland does not request that information. It is not part of the information that is required to be on the certificate. If it is the case that somebody comes from a non-EU country, perhaps from Eastern Europe or somewhere else, the United States, Canada, Australia and New Zealand, if they come from one of those countries and they live here and work here and apply for a job that falls under the categories where, if it had been a Scottish-born resident, you would have carried out that behaviour, you would have asked for a disclosure check. Does that person just not get the job or is it just no check? They can request a check from Disclosure Scotland. The only information that can be provided on the certificate in terms of the legislation is information that appears on the UK databases. I understand that. I am trying to ascertain whether there is any other action taken to try and figure out whether or not an individual is a risk to members of the community in Scotland. That would be a matter for the employer to consider. How would the employer find out whether somebody from Belarus had a serious conviction for sexual assault? If they are aware that the person has been resident in another country for a long period of time, they can request a police disclosure from that other country. The person is under obligations under the Rehabilitation of Offenders legislation to disclose their convictions. I am clear now that somebody from outside the EU, there is no official process by which the checks would be made in the same way that somebody from within the EU and particularly from somewhere in the UK. It would be up to the employer to write to, who would he write to, in Belarus? It would be for the applicant to provide a disclosure from. Whatever police authority or whatever, however it is done in that country. It would ask the applicant to provide a similar sort of disclosure check statement from their own country. It could do, yes. The information is not accessible. No, I understand that it is not accessible. I am just trying to clarify. If the individual does not supply it or if they do not do that, would it be the case that those individuals would then be barred from employment in those areas? Or would they be employed anyway? What is the law here with regard to whether or not an employer could then just take the view that they are not employing you on that basis? We do not have that information. That would be up to the employer to answer. No, I am asking what the legal position is. What is the legal position if somebody fails to provide the information, if it is requested by an employer, about whether or not they have convictions that are relevant and should be disclosed from a country outside the EU? Under the rehabilitation and offence legislation that the person is required to disclose that information, to self disclose that information. If they fail to do that and the employer employs them, then the employer has a potential redress against them, if they become aware of that conviction. I will bring in a second check. If the employer has a potential redress, what we are talking about here is not upsetting an employer, but surely about the safety of the community involved, whether it is working with children or other vulnerable adults, or whatever it happens to be, surely that is what we are talking about, whether or not we have upset the employer here. I am trying to understand how you can tell whether or not an individual, let us say that it is me and I have come from this country from Canada. I am asked to fill in the form and I say that it is zero. I sign the form. Who is liable if that form is now...  Have they done their job by accepting the form? What is the position? Well, the person remains liable under the real abilities and the offenders list for not having disclosed their offences to the employer. If it is a criminal offence, then obviously they will be treated and dealt with under the criminal law. I understand that. The employer... Sorry, I will bring in a check. No, you have just asked the question I wanted to ask. You will get offenders who will, in some cases, serious offenders who do not meet the requirements that we stipulate. They will not. It is very unlikely that they are going to tell an employer. So the question, which is a relevant one, is if an employer employs them, surely they have a liability under what we are trying to do with this legislation? Well, this legislation does not affect the existing position regarding foreign convictions. That position has existed since 1997 when the police act was brought in, but that was the first opportunity. I think that in terms of the practicalities of a disclosure of Scotland or whatever body in this country, trying to access conviction information for the whole world is difficult. There are reciprocal provisions in the EU so that convictions can be added to the databases. If people are barred from working with children in similar ways to the way the PVG scheme works in Scotland, if people are barred in other countries, then Disclosure Scotland is able to make requests to find out that information so that they can consider that information. Those systems that are evolving within the EU to try to do that on a verbal basis. I mean, we will go round and round and around, but it can be a really good point. On the EU country, there is no, if we can read the advice of the records, if we face someone in a circumstance who does not meet these disclosure requirements, but of course there is no record, then we are vulnerable, aren't we? Well, to an extent, yes. That is a problem that has existed. No, it is not a change. It is not a new problem. Okay. That is something that I am sure that the committee will discuss afterwards, but can I move directly to the actual order that we are discussing? My understanding is that prior to the 15-year time period elapsing, an individual can apply to a sheriff for dispensation, if that is the right word, to have the conviction information removed, so that they do not have to disclose it. Is that correct? Is on the list of offences disclosed subject to rules, yes? Yes, to 8B, I think. What is the period before 15 years? Is it any period before the 15-year period, or is it just when you are close to the... I mean, if it was only seven years since the offence, or 10 years, or 12 years, or 14 and a half years, is the point at which they cannot apply to have that roof? No, no. If somebody receives a certificate on which there is a spent conviction for an offence on 8B, they can apply to the sheriff to have that removed, regardless of whether it is 11 years old or 14 years old. Right, there is no restriction on that. They can apply to a sheriff at any point within that 15-year period. Yes, but they have to be able to show a good reason why that information should be removed. Okay, I understand that. My second question is with regard to... Could you perhaps explain how we came up with the lists that are on 8A versus 8B, where the line is drawn and why it is drawn? I look, for example, in some of the notes that have been supplied, examples of serious offences that will always be disclosed, include rape, for example. I look at 8A and it has a list of offences, including the statutory offence of rape, assault with intent to rape or ravish, and bestiality. What about other serious sexual assaults and offences?  It could be one of the other offences, but I am asking about sexual offence that puts it on 8A versus another sexual offence that puts it on 8B.  Almost all? Yes, because there are, as well as the common law offences that are specified at the beginning of schedule 8A, so the assaults with intent to rape or ravish. There are also statutory offences that are covered in the sexual offences, so I do not know if you have a copy of the order in front of you, but on page 8, at paragraph 37, a sexual offence within the meaning given by section 210A of the Criminal Procedure Scotland Act, that is a very extensive list of sexual offences. All of those specified sexual offences are covered under paragraph 37 here, with the exception of sexual offences involving two older children, which we have put on to the rules list, to allow for a scenario where, for example, there may be two consenting 17-year-olds. I understand that provision, and that seems reasonable to me. I want to understand the difference between the extensive list that you mentioned, which would fall under 8A, and the difference on schedule 8B, where, at point 18, public indecency is listed as one of the offences that falls under 8B. Public indecency would be quite a wide spectrum of activity, if I can call it that. Considering the offence list, we looked at a range of criteria that determined what went on, which lists. We looked at whether the offences resulted in serious harm, for example, whether they represented a significant breach of trust, whether they represented dishonesty, and there were a range of criteria that we considered. There are a whole number of offences that can cover a very broad spectrum of types of behaviour. Public indecency is one of those. We have taken the view that the public indecency offences predominantly tend to be offences at the lower end of the spectrum of seriousness, and that more serious sexual offences tend to be covered under charges of luden lividness practices, which are covered in schedule A. We have to draw a line somewhere in the sand. We have recognised in drawing that line that we have to take account of the sentence imposed by the court when they have convicted somebody. For any of these offences on either of the lists, the severity of the sentence is a reflection of the seriousness of the offence, so somebody may have been convicted of a public indecency offence. If the nature of that specific act was very serious, they will have received a serious sentence for that, which may in fact remove them from the realm of the conviction becoming spent at all. Even though it is on schedule 8B, it may continue to always be disclosed if the severity of the sentence determines that that should be the case. Would the same argument apply to, for example, again on 8B, you have things like fraud and embezzlement, etc? Yes. The same argument, logic, would apply for job that you are applying for? Yes. The offence of extortion is on schedule 8A, and the offence of fraud is on 8B. Again, that was because fraud can cover an extremely wide range of offending behaviour from very small frauds to massive frauds. There was an example just in the media today, in fact, of somebody convicted of an £8 million fraud for which a sentence of four and a half years was imposed. That will always be disclosed because the sentence determines that it will never be spent. Thank you very much. Does anybody get any other questions that they want to raise at this point? No. Thank you very much for attending this morning. I am sure that members will have a number of issues that they want to raise. Can I ask whether, given the evidence that we have just received, whether members wish to have a further discussion on this or do we wish to, for example, write to the Scottish Government to raise some of those questions? Is there another opportunity to look at this next January? Yes. We will be dealing with the order in normal fashion probably earlier than the new year. I am asking members whether, given what we have received in writing, whether we wish to write to the Scottish Government, for example, or take any other action that you feel is appropriate to find out any further information. I think we are concerned that we discussed regarding international. I do not apologise for asking a question, but I think it might be well to highlight to the Government the fact that we did question the set of circumstances. They may have to go back to Police Scotland, though I have no idea. However, I think that it is worth asking the question. I do appreciate that this legislation is for employers in terms of deciding who to recruit. However, as we have the opportunity, if we can ask the Government if any consideration has been given to, if a potential volunteer or employee may have access to see what is on the record? Can I suggest that, effectively, the clerks draft a letter to the Scottish Government? We will bring that back to the committee. We can have a discussion in private if members are agreed to that, and then we can decide whether we want to amend that letter or send that letter as is. Is that agreeable? I thank the witnesses for coming along this morning. The next item is to move a motion on consideration of the Order of the Education Scotland bill at stage 2. Therefore, I wish to move S.M.414740 that the Education and Culture Committee considers the Education Scotland bill at stage 2 in the following order, sections 5 to 17, the schedule, sections 1 to 4, sections 18 to 28 and the long title. Do members agree? That is agreed. Thank you very much. The committee has agreed to hold the next item in private, so I therefore now close the meeting to the public.