RESPONSES TO "A CHANGING LANDSCAPE FOR TERTIARY EDUCATION AND RESEARCH IN SCOTLAND".
A Consultation Paper on the merger of the Scottish Further Education Funding Council
and the Scottish Higher Education Funding Council.
This document is also available in pdf format (127k)
Introduction
In "A Partnership for a Better Scotland", the Scottish Executive reinforced its commitment to the merger of the Scottish Further Education Funding Council (SFEFC) and the Scottish Higher Education Funding Council (SHEFC). A comprehensive consultation process was undertaken to fulfil this commitment.
An initial round of meetings with key stakeholders took place in November and December 2003 to establish the broad principles which should support the merger. From this, a Consultation Paper "A Changing Landscape for Tertiary Education and Research in Scotland" and Draft Bill were published on 30 April 2004. The period for receipt of written responses ended on 15 July 2004. Seventy-eight written responses were received to the formal consultation (respondents have been listed in Annex A). To supplement the written responses, additional consultation has taken place through five public meetings, held in Aberdeen, Dundee, Edinburgh, Glasgow and Inverness in early June, and through another series of one-to-one meetings with key stakeholders.
This report seeks to summarise the views expressed by respondents to the written consultation, and those expressed in the open meetings. Views on the consultation draft Bill are summarised first of all. These have been structured by the sections of the revised Bill which has been laid before Parliament. Since the revised Bill has been re-ordered, had sections deleted and others added, the relationship to sections in the consultation draft Bill has been outlined in the text. An attempt has been made to show where respondents' comments have led to changes in the Bill, and where comments have not resulted in changes. The report then summarises views expressed on issues raised in the consultation paper that do not relate directly to the content of the legislation.
The consultation responses were, on the whole, very detailed. We have sought to provide a representative overview, but it has been impossible in this report to address every single point made. Even though this is the case, and though not all could be acted on, no responses have been overlooked in the redrafting of the legislation. We are grateful to all those who responded. Where permission has been given by the respondent, full written responses are available on the Scottish Executive website.
The final Bill as introduced to Parliament and accompanying documents are available on the Parliament's website at: http://www.scottish.parliament.uk/business/bills/billsInProgress/furtherEd.htm
Comments on the Draft Bill and changes to the revised Bill
In the period after the formal consultation was launched, much of the discussion and concerns raised have centred around the terminology used in the Bill. Where possible we have tried to address these concerns without changing our overall policy intention to create a single body able to take a coherent strategic overview of investment in both sectors.
In the following analysis, sections where no comments were received have not been included. Before exploring the section by section comments it may be useful first of all to address comments on the overall purpose of the Bill.
Purpose of the merger
Most respondents stated that they supported the merger in principle. Reasons for this included the Council being better placed to support lifelong learning; to create a more coherent system for learners; to improve opportunities for institutional collaboration; and to increase parity of esteem. A number of those welcoming the merger then went on to state reservations about aspects of the legislation, or to set conditions on their support. Those reservations and conditions are summarised in this report. It was felt by many of these respondents that a simple administrative change was all that was needed, but that the proposed legislation went much further than this.
The message sent by many respondents is that they were not clear what vision lay behind the legislation. Other respondents did not have reservations and were highly supportive of the proposals. Some expressed a view that if the merger leads to improved service to institutions, or to learners, or leads to the more effective operation of institutions, then it will be welcome. Only one respondent opposed the merger outright.
Due to time constraints at the time of drafting, the Executive was not able to include drafts of the accompanying documents with the consultation. The Policy Memorandum, now available with the Bill, should prove useful in setting out in more detail the purpose and vision behind the merger proposal. The Explanatory notes meanwhile will give a section by section overview of what each clause in the Bill is expected to do. Our belief is that these documents should clarify many of these concerns.
Section 1 - Scottish Further and Higher Education Funding Council
Section 9 in consultation draft
The Council is to be named the Scottish Further and Higher Education Funding Council. There was some support for the suggested name, Scottish Tertiary Education Funding Council, either because it supported the notion of parity of esteem between the two sectors, or simply because it was an accurate expression to use.
However, the majority of respondents who expressed an opinion on this matter were unhappy with the proposed inclusion of 'tertiary education' in the name. For some, this was because they felt it was a term not sufficiently understood by the wider public. For others, this view was linked to a wider concern about the implications of using a single name to describe the further and higher education sectors, and the accompanying dangers of failing to recognise the distinctive roles of the two sectors.
In the consultation paper, and throughout our discussions, the Executive has clearly stated that we recognise and value the distinctive nature of the sectors. The purpose of this legislation is to merge the funding councils, not the sectors. To avoid any confusion on this matter, we have therefore chosen a name that makes explicit our continued support for both sectors. It should be noted, however, that some respondents felt the use of 'tertiary education' was a positive move.
It was also stated by a number of respondents that the establishment of the new Funding Council should be the first section in the Bill, as it is now, to make clear the principal purpose of the legislation. This has been done.
Section 3 - The Council: general duty; and
Section 4 - The Scottish Ministers: general duty
Section 1 in consultation draft
Section 3 sets out the general duty of the new Council. The wording used in the consultation draft Bill to describe this duty met with a large number of concerns, primarily around the extension of the phrase 'adequate and efficient' to HE. Respondents from the FE sector, where this is already in statute, in particular commented on the experience in the sector of the difficulty in defining and measuring these qualities. Even in cases where there was support for extending this duty to the HE sector, it was felt that it was important to be clear who would be setting and measuring these qualities. There were also several comments on the possibility of this duty leading to duplication of provision of colleges and higher education institutions. It was in addition suggested that there was a danger of efficiency gains superseding a commitment to quality.
In response to these comments, the revised Bill separates the general duty of the Council (Section 3) from that of Scottish Ministers (Section 4) to provide clarity on the relationship between Scottish Ministers and the Council, and on the duty of each of them with regard to fundable further and higher education. This makes it clear that Ministers have high level responsibilities to set the policy context for further and higher education. The Council will operate at a strategic level, and will have the detailed responsibility for administering the funds made available for this purpose in an appropriate way and with appropriate safeguards. The duty of the Council is now stated as being to secure coherent provision of a high quality of further and higher education.
A further concern in relation to the consultation draft Bill was around the linking of 'adequate and efficient' to the undertaking of research. A duty on Ministers to secure adequate and efficient undertaking of research was seen as inappropriate, particularly by higher education institutions, as they are funded to undertake research by organisations other than the Scottish Executive. We have taken these concerns on board and have instead given Ministers a duty to support the undertaking of research. This support will be in the form of investment to support the Scottish research base, but also in such other ways as Ministers determine appropriate.
The subsection which allowed Ministers to do 'anything which is necessary or expedient' in connection with this function was also a point of contention for a large number of respondents. This was interpreted as giving Ministers wide ranging powers to intervene in fundable bodies, regardless of what else was contained in the Bill, and therefore severely threatened institutional autonomy. There was also a concern expressed that this power had the potential to be abused in future. This was never our policy intention and to reflect this, the subsection has now been removed.
Finally, a number of respondents stated that the duty of Ministers should be to 'fund' rather than 'secure' provision, as this was the correct definition of the role of a Funding Council. We believe that the new spilt of the duties between the Council and Ministers should be more effective in communicating the roles and relationships effectively.
Section 5 - Fundable further and higher education
Section 2 in consultation draft
This section has been changed to split fundable further and further higher education. The consultation draft included a definition of tertiary education, which was based on the 1992 Act definitions of further and higher education. This caused concern among some respondents who felt that this indicated an intention to merge the FE and HE sectors. We believe this to be presentational matter and have reintroduced the split between further and higher education.
A large number of respondents had questioned the omission of the Scottish Credit and Qualifications Framework in the definition of further and higher education. Although we have not included reference to a credit and qualifications framework in this section, we have added a section (Section 14) that gives the Council a duty to promote a credit and qualifications framework. In addition, arrangements for making use of a credit and qualifications framework are also now a condition of fundable body status (S7(2)(f)).
Section 6 - Fundable bodies
Section 21 in consultation draft
The term 'fundable bodies' has replaced 'Specified Tertiary Education Providers (STEPs)'. The majority of respondents who expressed a view on this were not comfortable with the term STEPs. Though only intended as administrative shorthand for the collection of institutions eligible to receive funding from the Council, this was misinterpreted by some as an intention to rename institutions, and potentially therefore damaging to reputations and confusing to the public. As this was not the intention, it has now been changed to 'fundable bodies', a term that a number of respondents suggested would be preferable.
Section 7 - Fundable bodies: further provision
Section 22 in consultation draft
Most respondents expressed concern that the provision for the list of fundable bodies to be increased in the future would lead to institutions other than universities or colleges becoming eligible for Council funding. Many felt there was no recognised need for this provision, or that it would be counterproductive as it would lead to resources being spread more thinly. It was felt to be important that before any organisations were made into fundable bodies, it should first be established that no existing fundable bodies could meet the proposed new provision.
Under the new legislation, the Council will recommend who should or should not become a fundable body. This section is not intended to support a major influx of new private providers, but it is necessary to give the Council the flexibility to fund other institutions where there is a strategic gap that cannot be filled by existing providers. SFEFC already has such flexibility, but this merely puts a formal framework in place to ensure any new fundable bodies operate on the same basis as existing providers to protect public investment. It is also important to note that becoming a fundable body does not necessarily mean that an institution will receive funds. That will be for the Council to determine.
Many respondents stated that the criteria that any new fundable body would have to meet should be clearly laid out. This was seen as particularly important to ensure that any private providers capable of delivering quality, are sustainable in the long term and accountable for the funds they receive. Specific requests were made to include a criterion that fundable bodies should engage with their learners through their representative structures; and have procedures for considering and resolving any grievances held by staff of the fundable body. The former point relates to comments received on the consultation draft Bill that learner needs could be given a more prominent focus. These comments were given primarily in response to Section 23 of the consultation draft Bill.
It was largely felt in relation to Section 23, particularly by higher education institutions, that a duty of provision with regard to the area in which the provider is situated was inappropriate to institutions with a broader Scotland, UK and international focus, and that it would be more appropriate to concentrate on learner needs. The addition of S7(2)(g) addresses these comments.
With regard more generally to the request for inclusion of additional criteria, the criteria listed in the legislation are at a high level, and the Council will supplement these with more detail through other mechanisms such as the financial memorandum and conditions of grant.
In S7(2)(f) we have also taken on board the view of a large number of respondents that greater reference should be made to the Scottish Credit and Qualification Framework. The SCQF itself cannot be referred to in the legislation as it is not an entity recognised in law. It is essential that if it changes its name, any future credit or qualifications framework is covered by this legislation.
A specific point raised by several respondents was that the possibility of private providers becoming fundable bodies suggested that education was being treated as a tradeable commodity and eligible for inclusion in GATS. As we make clear above, there is no intention to make a number of private providers fundable bodies. The primary function of this section is to provide guarantees that bodies in receipt of public funding have sound mechanisms in place to protect public investment. We believe all current providers have this and if others are to funded in the future, they must subscribe to the same high standards.
One respondent commented that the Bill allows fundable bodies to be formed but does not have adequate safeguards to regulate them. The Bill sets out what Ministers see as the broad principles of a good organisation e.g. sound governance, robust grievance procedures, evidence of strategic planning. It will be for the Council itself to work with fundable bodies, to define the detail under these and to evaluate how institutions meet them.
One respondent stated that transfer between sectors through a simple change in category list could create confusion about mission, so it would be important to have clear criteria related to sector mission for transfer to take place. Schedule 2 of the Bill splits all fundable bodies into two categories those formerly eligible for funding through SFEFC or SHEFC. This creates the current delineation between the two sectors in institutional terms, but does not confer any status. At the moment all institutions in the HE sector are either universities or designated higher education institutions. The procedure for achieving university title will not change. To become a university an institution will still be required to first become a designated higher education institution. This legislation which supports this process will remain in force in the 1992 Act.
One respondent felt there was a need to show that becoming a fundable body does not automatically mean funding is provided from the public purse. This is the case. It will be for the Funding Council to decide how best to allocate funds to meet Ministerial priorities. Therefore new bodies which meet the fundable body criteria, but do not offer provision which fills a strategic gap, will not necessarily be funded.
The reference to development plans in the consultation draft Bill (Section 24) met with a reasonably large amount of criticism. Some respondents felt the requirement to produce development plans was unnecessary or undeliverable; unreasonable since a large proportion of institutions' funding comes from sources other than the Scottish Ministers; a threat to institutional autonomy; or unclear in its purpose. Some felt it was reasonable to ask institutions to produce plans, but that it was unnecessary to dictate the form. It was also suggested that existing mechanisms such as condition of grant were the appropriate locus for effective planning. One respondent supported the measure, stating that the Council should have the power to reject plans that do not meet the objectives set by Ministers and the Council.
The requirement for development plans to be produced has been removed from the revised Bill, and replaced with S7(2)(e), which includes a condition of status as a fundable body to be provision for the purposes of planning and development of the body's activities. We believe this is a better way to achieve our initial aim which was to create a statutory framework for the strategic planning process which institutions already engage in with the Councils.
Section 8 - Funding of the Council
Section 4 in consultation draft
This section relates to the funding of the Council. The corresponding section in the consultation draft Bill received little in the way of comment. Respondents' views on wider funding issues were numerous, but largely fell outside the scope of this legislation, and are summarised later in the report.
Although not to address respondents' comments, this section has been changed slightly as a result of recent policy developments in relation concerns about cross-border flows of students from the rest of the UK when variable fees are introduced in England. The Executive has proposed a policy to increase fee levels in order to control demand for places in the Scottish HE system from students from the rest of the UK. This plan also raises the possibility that in specific areas such as medicine, where demand is especially high, fees could be raised to a higher level again. The accompanying documents make it clear that this power would only be used sparingly, if required at all, as use of this power will be dependent on the result of an ongoing consultation with the sector.
Although this policy is one on which the Executive is still consulting, if it is agreed to legislation would be required to implement it. We therefore believe the revision of legislation which we are undertaking in introducing this Bill gives an opportunity to make provision for these potential future policy changes.
This section makes provision for Ministers to use an affirmative order if they wish to stipulate a maximum fee level. Depending on the result of the consultation, such an order could also be used to set different fee levels for different subjects, such as medicine.
It is important to be clear that there is no intention that this power would be used widely, if at all. Its purpose is to allow Ministers the flexibility to act in situations where Scottish students may be disadvantaged in specific subject areas by an increasing flow of students from elsewhere in the UK. At the moment, the only area this will potentially apply to is medicine, and it is essential that any further differentiation is carefully focused and has the express approval of Parliament.
In framing Section 8, we have had to exclude fee setting from subsection (12) which protects the 'academic freedom' of institutions by preventing Scottish Ministers from framing terms and conditions in reference to programmes of learning or courses of education or research. However, this provision will still apply to all the core funding allocated to the Council and, importantly, this will be extended from higher education institutions to cover colleges as well. Extending this clause to colleges recognises the maturity of the sector and emphasises the Executive's belief that well-run, autonomous and independent institutions are best placed to respond to the needs of learners and others to deliver Ministerial priorities.
The one direct comment made in relation to this section in the consultation draft Bill was that it should be amended so that fundable bodies have to make arrangements for additional support needs and publish statements about that provision. While it is for the Council to decide on the issues on detail in Section 7 of the revised Bill, we feel that such matters could be addressed under S7(2)(g) which requires fundable bodies to take into account the education and related needs of all students. In addition, Section 12 places a duty on the Council to have regard to the needs of those with learning difficulties.
Section 9 - Funding of the Council: additional grants
Sections 5 and 26 in consultation draft
The views on the equivalent section of the consultation draft Bill (Section 5) were mixed. The power of Ministers to make additional grants to the Council was welcomed by some. Others were more cautious, welcoming the power subject to conditions which included: it should not be a way of directing substantial funding; funding should meet the full cost of additional provision; it should be preserved for courses of benefit to the public sector. Others expressed concern that Ministers would have the power to earmark funds for particular public services.
This section now states the purposes for which additional grants may be directed towards a particular fundable body (S9(2)). This includes a grant made for the purposes of restructuring among the fundable bodies, including merger and demerger. This subsection replaces Section 26 in the consultation draft Bill relating to merger evaluation, with which there was widespread disagreement. That power was viewed as an attempt to impose mergers, and therefore counterproductive to achieving a successful merger, which would require initiation by the institutions concerned. Others felt that the power impinged on institutional autonomy.
Again, we took on board these concerns as they did not reflect our policy intentions. Some stated that rather than initiate merger evaluations, the Council should be in a position to support institutions that wished to investigate the possibility of a merger, and forms of restructuring other than merger. We agree that this is the correct role for Ministers and believe that S9(2)(a) will be more successful in achieving this.
Section 12 - Persons with learning difficulties
Section 3 in consultation draft
The extension to higher education of a duty with regard to people with learning difficulties was strongly welcomed by the respondent who commented on this. However, in view of their comment that the definition of persons with a learning difficulty in the consultation draft Bill could be perceived as offensive, this definition has been redrafted accordingly.
We have also changed this from a duty of the Scottish Ministers to a duty of the Council, as this is the more appropriate level of responsibility on this issue.
Section 13 - Quality of fundable further and higher education
Section 15 in consultation draft
Some respondents commented on their wish for the audit burden to be reduced, and for there to be a single method of quality assurance for all post-16 education. The specifics of quality assurance and enhancement processes are a matter for the Council and are not appropriate for inclusion in this legislation.
A further comment was that the duty was wider than required to satisfy the need for proper accountability of public funds. We believe that the nature of this duty is similar to that which has applied to HE in the 1992 Act and therefore did not feel it appropriate to change it, as the general consensus is that it is working well in HE. The assurance and enhancement of quality is essential in guaranteeing the effectiveness of Executive investment in further and higher education.
Section 14 - Credit and qualification framework
New provision - not in consultation draft
This new section has been included to address the comments of respondents who felt that the SCQF should be recognised within the legislation for the role it can play in encouraging coherence and progression within and between the sectors. As the SCQF is not an entity recognised in law, it has been necessary to use the general term 'credit and qualification framework' and to define that term.
Section 15 - Efficiency studies
Section 14 in consultation draft
A few respondents expressed concern about this section. One felt that it infringed on the authority of governing bodies; and another that it appeared wider than necessary to satisfy the need for proper accountability of public funds. Another respondent commented that this section should include a requirement to consult with bodies which represent the interests of learners or potential learners. Again, this is a clause which was in the 1992 Act for HE and as such we did not see a strong enough case for changing the terms in the new Bill.
Section 16 - Council's right to address meetings
Section 13 in consultation draft
This section is an amended version of Section 13 of the consultation draft Bill, which was largely criticised as a serious undermining of institutional autonomy. It was felt that appearing to undermine the authority of governing bodies in this way could prevent the recruitment of high quality people to governing bodies. Some felt that it should be made clear that this would only take place in exceptional circumstances, and define those circumstances. Some felt such a definition should refer to financial mismanagement. A concern was also expressed that calling an extraordinary meeting would unreasonably disrupt the cycle of meetings of the governing body. It should also be noted, however, that there was some support for this power.
In response to the concerns raised, this power has been amended to the right to attend and address a meeting of the governing body, rather than call one. As we had stated in the consultation draft Bill, this power should only be used where the Council has concerns about any matters relating to the financial support that the fundable body is entitled to receive. We fully support the autonomy of the governing bodies, and therefore this power is not intended to be used regularly. We are aware that the Council has a number of avenues open to it to communicate with the bodies it funds and would expect these to remain the main levers for the Council. However, this is an essential power for the Council to retain to use in the extreme, and unlikely, event that there is evidence of serious concerns around the use of public funds and relations between the Council and the fundable body have broken down.
Section 17 - Advisory functions
Section 15 in consultation draft
One respondent stated that if this implies a move towards the central planning of research then it would be both impractical and undesirable. This is not what this section implies.
Section 20 - Council to have regard to particular matters
Sections 17 and 23 in consultation draft
This section replaces that in the consultation draft Bill that refers to skills needs (Section 17) and that which refers to the duty to provide tertiary education (Section 23). With regard to the former Section 17, there was some criticism of the focus on meeting skills needs rather than the broader function further and higher education can serve. Some questioned whether Scottish Ministers' were best placed to predict the future skills needs of Scotland, and were concerned that this implied workforce planning. S20(1) now takes a broader perspective than that of skills needs.
With regard to the former Section 23, there was concern, particularly among HEIs, that the duty of provision being tied to the area in which the provider is situated did not take into account the wider UK and international context in which HEIs, and other institutions, work. S20(2) addresses this, by explicitly referring to the UK and international context in which fundable bodies carry out their activities. The former Section 23 also referred to the duty on fundable bodies, rather than the Council, which a number of respondents felt was redundant since their governing instruments and conditions of grant already placed the duty on them to meet educational needs. Section 20 places these duties on the Council in the exercise of its functions.
Finally, the former Section 23 referred to a duty to provide a 'suitable range' of tertiary education. S7(2)(h) now states that it is the duty of the Council, not the fundable bodies, to take into account the range of fundable FE and HE provided at the other fundable bodies.
Section 21 - Equal opportunities
Section 19 in consultation draft
One respondent stated that encouraging equal opportunities was already covered in existing legislation, and that including it in a second piece of legislation will reduce clarity. While we take these comments on board, we feel it is important to make explicit mention of this in the Bill and in drafting the provision have been careful to ensure that there is no confusion between this and the existing legislation.
Section 22 - Consultation and collaboration
Section 18 in consultation draft
There was a strong level of support given by the majority of respondents to increasing collaboration, articulation and progression between fundable bodies, but there were questions raised about how the legislation would further facilitate this. The duty on the Council to promote collaboration between the fundable bodies has been added (S22(6)).
One respondent stated that two separate budgets allow more transparency, so it would be difficult to see how collaborations between institutions can be promoted when there is a single budget. We do not agree that this is an issue. Greater transparency and openness in the funding mechanisms was one of the key reasons for merging the Councils set out in the lifelong learning strategy.
In relation to this particular section, there was a reasonable level of support for requiring the Council to seek to consult and collaborate with the listed persons. There were others who felt that other persons should be added to the list, including Community Planning Partnerships, Quality Assurance Agency (or any successor body), Careers Scotland, FutureSkills Scotland, staff, students, trade unions and other representative bodies in FE and HE. A few respondents specifically asked that the Council be obliged to work with the Enterprise Networks in taking forward the skills agenda.
While we agree that the new Council should work with all of these groups, Community Planning Partnerships are locally based, and the linkages are more appropriate with institutions. The QAA directly contracts with SHEFC to fulfil its duty to assure quality in HE. Careers Scotland, FutureSkills Scotland and the Enterprise networks are all covered through the inclusion of Scottish Enterprise in the list. Staff and students' representation is also extremely important, but we feel that there is sufficient provision for these groups elsewhere in the Bill.
One respondent argued that this section places too much emphasis on gathering information on skills at the expense of the broader educative role of universities. We believe that the changes to the Bill properly reflect the wider mission of our institutions.
Section 23 - General powers
Section 20 in consultation draft
Three respondents from the HE sector felt either that the power of the Council to do anything that is 'necessary or expedient' in connection with its functions is excessive, or should be restricted by reference to other relevant sections of the Bill. This section came directly from the 1992 Act and it was not felt that there had been sufficient evidence of any misuse which would suggest it should be changed.
Section 24 - Requirements of the Council's functions
Section 6 in consultation draft
This section is a change to Section 6 in the consultation draft Bill ('Directions to the Council'). Two respondents felt that this represented an extension to ministerial power that could not be justified. This section now limits the functions in relation to which requirements can be made, and states that these requirements can only be imposed by Scottish Ministers by order.
Section 25 - Directions where financial mismanagement
Section 7 in consultation draft
The version of this section in the consultation draft Bill (Section 7) was criticised by some respondents for having removed the duty to consult with the Council and the institution. This duty has now been included (S25(2)). There was a suggestion by one respondent that this section could not be applied to universities because of their chartered and statutory bases. As the directions would be given in relation to the funding offered by the Council, we do not believe that this is an issue.
Section 26 - Application of the Scottish Public Services Ombudsman Act 2002
New provision - not in consultation draft
This section has been included following a separate consultation process on bringing further and higher education institutions under the remit of the Scottish Public Services Ombudsman. A separate document summarising responses to this consultation has been published. It can be found on the Scottish Executive website at: http://www.scotland.gov.uk/library5/education/nclhesresonse-00.asp
Section 27 - Inspection of accounts
Section 25 in consultation draft
Two respondents asked for this to be clarified as being just a restatement of the existing rights of the Auditor General. Two further respondents from the FE sector expressed concern about overlap between the powers of the Council and those currently exercised by Audit Scotland.
This section replicates existing provisions for colleges and universities and extends it to all fundable bodies.
Section 29 - Information about recorded children
Section 28 in consultation draft
One respondent asked whether this should now refer to the Education (Additional Support for Learning)(Scotland) Act. This Act is not yet in force.
Schedule 1 - The Scottish Further and Higher Education Funding Council
One respondent was concerned that there was no obligation in Section 3 of the Schedule for members to have knowledge or experience of higher or further education. This was because the term 'tertiary education' had been used. This has now been replaced with 'fundable further education or fundable higher education'. A few felt that experience of research should be added to criteria in appointing members of the new Council. Another suggested that it would be desirable to include the appointment of persons with knowledge and understanding of conveying student views.
Research experience has been added to the list of criteria. We believe that experience of fundable further education and fundable higher education is broad enough to cover students.
A few respondents questioned the need for Ministers to approve appointments to the Council (Section 7). As an NDPB, Ministers make appointments to the Council. This is a requirement of this office for the Commissioner of Public Appointment and covers all NDPBs. As such it is something we would not want to be able to change.
Other comments noted that there was no provision for the Chief Executive to be a member of the Council. This has now been added to the schedule.
In terms of committees of the Council, the majority of responses were in relation to the establishment of a research committee. This was welcomed, but some concern was expressed that there was no requirement specified for members to have knowledge or experience of research, including the Convenor. Many felt that the Convenor should also be a member of the Council. In response to this, S11(2) states that the chair of the Committee meetings will be a member of the Council. One respondent stated that FE representation should be ensured on the Committee. S11(3) does not specify the sector from which members should be appointed, only that it is desirable that they have had experience of research or its application, and are currently engaged in research or its application. This could apply just as well to someone working in the FE sector as the HE sector.
A concern was expressed that the Bill did not state that only designated HEIs would be eligible for RAE money. Others felt that the inclusion of new institutions eligible for research grant support or Knowledge Transfer Grant would require new money. These are all administrative matters for the Council and cannot be addressed in the legislation.
Some respondents suggested that a Skills Committee should also be set up. While we considered this, we feel that it is important to leave the Council with the flexibility to set up whatever committees it sees fit. The research committee was the only one to be put in statute as it was seen as essential to have a specific committee for research in the Council where there would potentially be fewer research experts.
Schedule 2 - Fundable bodies
Many felt that the inclusion of four sub-categories of fundable bodies was an attempt to create new distinctions between institutions, reintroduce or even double up the binary line. The categorisation of institutions was not intended as anything more than a simple listing exercise, and was based on existing legislative arrangements. The sub-categories had no impact on the way the institutions within them would be treated by the Council or Ministers. However, this was clearly a matter that caused confusion and concern, and they are therefore now more simply listed as 'Institutions formerly eligible for funding by SFEFC' and 'Institutions formerly eligible for funding by SHEFC'.
The exclusion of the Scottish Agricultural College (SAC) was disputed by one respondent, but it was omitted as it is not possible at this stage to determine whether it would be eligible for funding from SHEFC or SFEFC. The Bill would allow SAC to come under the remit of the new body in future if Ministers considered this to be desirable. If this did happen it would then go into a third category in the schedule.
Issues raised in the Consultation Paper
As well as responses in relation to the detail of the Bill, issues raised in the consultation paper were addressed by respondents.
Funding
An issue which generated strong views (both of concern and of hope) from the majority of respondents, was the future funding formulae for further and higher education. These issues are not explicitly the subject of the legislation and will therefore not be determined by the legislation. They will be the subject of future discussion through spending reviews to set the level of investment and through the Council to decide on allocation mechanisms. The responses provide us with a very useful understanding of the broad views held by institutions, students, trade unions and professional bodies, and will therefore help to form a future basis on which to have these discussions. It is certainly not the case that any decisions have been made on future funding formulae.
The issue of future funding of research and knowledge transfer was also raised. Likewise, this will not be determined by this legislation and will be a matter for the new Council.
Autonomy and Accountability
There was also a strong message sent by respondents that the legislation was being perceived as intended to give the Council a central planning role. The majority of those who thought this to be the case objected strongly to this idea, believing that it should be up to institutions and potential students to judge what provision each institution should be offering, and that any attempt at central planning was an infringement on institutional autonomy. It was felt by most institutions that they were sufficiently accountable for the public funding they received.
On the issue of accountability, a good deal of HE sector respondents referred to the Lambert Report (on the governance of HEIs), which recommended a lighter touch regulatory and accountability regime for well run universities.
We believe that it is important that fundable bodies are accountable for the very significant amount of public funding they receive (not only allocations from SHEFC, but funding they receive through SAAS and the Funding Councils, for example). We also believe that as autonomous institutions, colleges and higher education institutions have been largely well-run, and we do not wish to add significantly to the regulatory burden on those institutions that continue to be well-run.
This has always been our position, and we are confident that the changes that have been made to the Bill make this clearer. However, this legislation applies not just to existing further and higher education institutions and the way they have been run in the past, but to future institutions and the way they may be run in the future. It is therefore important that Ministers and Parliament have scope to ensure the accountability of institutions in receipt of public funds.
The importance of accountability to students and institutions, and not just Ministers and Parliament, was commented on.
Distinctiveness, diversity and parity of esteem
Almost all respondents commented on the need to retain the distinctiveness of the two sectors, and of individual institutions within the sectors. One respondent, however, felt the divisions between the two sectors were greatly exaggerated. Whilst 'parity of esteem' as a concept was generally welcomed, this was tempered by a concern for the impact on this distinctiveness and diversity of mission, and for its potential impact on quality. We have already stated that this is not legislation to merge the FE and HE sectors. We believe the two sectors, and the individual institutions within them, serve important roles, and there is no wish to create an homogenous sector, or even an homogenous FE sector and an homogenous HE sector. We do believe, however, that the overall mission of the two sectors are equally important for Scotland and for individual learners. Greater recognition of this is what we mean by parity of esteem.
Teaching qualification for FE lecturers
In the comments made about the requirement for FE lecturers to have a teaching qualification, it was clear that there had been some misunderstanding over this point. A number of respondents from the HE sector thought that this requirement extended to HE lecturers. It does not, for the reasons that some HE respondents gave - because of the existing rigorous external academic quality assurance; in order that HEIs will not be at a disadvantage in recruiting staff from overseas and the rest of the UK where this is no such requirement; and because it would undermine innovative approaches to teaching using other professionals such as clinicians and business leaders. The few respondents who commented on this requirement for the FE sector were supportive of the idea, but stated there would need to be resources provided.
We are currently consulting on the need for a professional body for staff in Scotland's Colleges. The consultation can be found at:
http://www.scotland.gov.uk/consultations/lifelonglearning/npbssc-00.asp
Size of the Council
A number of respondents commented that the Council should be small and strategically focused. Some also felt that cost savings should be made. The aim of the Bill is to ensure that the new Council is able to play a strategic role in supporting Scotland's colleges and higher education institutions in delivering on the significant investment we are making in further and higher education and research. The importance of HEIs and colleges in delivering Ministerial priorities, such as economic growth, is continuing to expand, as is the level of funding in both sectors. As such, it is important that the Council has the resources and manpower available to work with the sectors to deliver best value on this important and significant investment.
The recent Performance and Financial Management Review (PFMR) of SHEFC and the similar review currently being undertaken for SFEFC have not highlighted any strong concerns about the size of the Councils' Executive, but have suggested it should take a strategic approach. This will be considered further during the PFMR of SHEFC.
ANNEX A - RESPONDENTS TO THE WRITTEN CONSULTATION
Administrative, Clerical, Technical and Supervisory (ACTS) Committee at the Scottish Funding Councils
Anniesland College
Association of Scottish Colleges
Association of University Administrators
Association of University Teachers Scotland
Banff and Buchan College
Bell College
Central College of Commerce
Chartered Institute of Public Finance and Accountancy (CIPFA) Scotland
Coalition of Higher Education Students in Scotland (CHESS)
Committee of Chairmen of Scottish Higher Education Institutions
COSLA
Crichton Foundation
East Lothian Council
Edinburgh College of Art
Edinburgh's Telford College
Elmwood College
Falkirk College of Further & Higher Education
Glasgow Caledonian University
Glasgow City Council
Glasgow School of Art
Heriot-Watt University
Institute of Physics in Scotland
Inverness College
Jewel and Esk Valley College
Kilmarnock College
Langside College
Learning Link Scotland
Lews Castle College
Motherwell College
Mr R F Jamieson
Napier University
Napier University Court
National Postgraduate Committee
National Union of Students (NUS) Scotland
Orkney College
Perth College
Professor G O B Thomson
QAA Scotland Office
Queen Margaret University College
Reid Kerr College
Scotland's Rural Colleges
Scottish Academic Heads of Nursing / Council of Deans and Heads of UK University Faculties for Nursing and Health Professions
Scottish Enterprise
Scottish Funding Councils for Further and Higher Education
Scottish Further Education Funding Council
Scottish Public Services Ombudsman
Scottish Qualifications Authority
Scottish Youth Parliament
Skill Scotland
South Lanarkshire College
Stow College
Scottish Trades Union Congress
The Educational Institute of Scotland
The Open University in Scotland
The Robert Gordon University
The Robert Gordon University (Principal and Vice-Chancellor)
The Royal Incorporation of Architects in Scotland
The Royal Society of Edinburgh
The Scottish Agricultural College
UHI Millennium Institute
Universities Scotland
Universities Scotland / Association of Scottish Colleges Joint Response
University of Aberdeen
University of Abertay Dundee
University of Dundee
University of Edinburgh
University of Edinburgh and University of Glasgow Joint Response
University of Edinburgh General Council
University of Glasgow
University of Paisley
University of Paisley Court
University of St Andrews
University of Stirling
University of Strathclyde
Workers' Educational Association (WEA) Scotland
West Lothian College
West Lothian Council