Seòmar agus comataidhean

The minister will be glad to hear that I will be very brief.

Amendment 191, in the name of Lorna Slater, would simply change “may” to “must” in section 17(4). The effect is that it would require ministers to issue guidance to the council regarding the composition of the apprenticeship committee and its functions, closing off the possibility of ministers not issuing that guidance. I hope that the amendment is therefore seen as straightforward and that committee members will agree to it.

It is a tricky balance to strike. At the moment, in the region of 90 per cent of all public data in Scotland is not proactively published—it is not immediately available to the public—so we are not at the tipping point into a data dumping situation. There might be specific situations in which us cynical Opposition members feel that, for example, the Government has done a data dump on a Friday afternoon to try and mask something but, on the whole, the balance is skewed massively towards public information not being routinely published and available to the public. The aim of amendment 128 is to provide a clear steer that such publication should be happening routinely, without becoming so prescriptive about what should or should not be published that either we force the publication of something that should not be in the public domain or we get it wrong and give institutions the excuse they need simply not to publish information that they should. It is always tricky to strike a balance. My aim is to set a clear direction of travel and, ultimately, trust institutions to make a judgment about what is or is not appropriate.

I appreciate the length of time for which the minister has been in his current role, but I have raised this issue with the Government in this portfolio and across the board for a number of years.

If the Government believes that this does not need to be in legislation, why has it not just instructed every public body in Scotland, at the very least, to adopt the same open government licence that the Scottish Government itself adopted some years ago?

Will the minister give way?

I do not entirely agree with it, but I understand the minister’s position that penalties for non-compliance should be laid out in grant letters. However, I am concerned that there seems to be a disconnect between what the Government is saying and the SFC’s position. My understanding is that the SFC wants a wider suite of powers than just clawback. If the Government’s position is that the SFC can already set out other penalties, has it engaged with the SFC on that? It seems that the minister’s position and that of the SFC are not aligned. Everybody seems to agree broadly that clawback is not an ideal penalty and other options should be available. The SFC does not seem to think that other options are available to it, however.

The minister has already set out the purpose and effect of amendments 14A and 14B and indicated that he would support amendment 14B. I will not run through it all again, other than to say that I will not move amendment 14A but I will move amendment 14B.

I want to put on the record that I engaged with the SFC specifically on the amendments, and my understanding is that it is sympathetic to the intention of what I am trying to do, particularly given the issues highlighted by the situation at the University of Dundee. The core issue there is one of governance, which resulted in a crisis of financial sustainability, but it is important that we broaden that out. I am glad that the Government is able to support amendment 14B.

I will expand a little on amendment 144. The rationale for it is best explained in the context of the situation at the University of Dundee and the Gillies review. My understanding is that the university complied with that investigation, but ultimately it was not under any obligation to do so. If there was an investigation in the future, the SFC or whoever conducts the investigation could face more significant barriers.

Amendment 144 would provide that the bill would specify that the council may, where it considers it to be necessary, carry out an independent investigation into the compliance of a fundable body, with terms and conditions imposed on any payments made, and that the governing bodies of the fundable bodies, such as university courts, for example, must provide anyone who is carrying out the investigation with the relevant information and documentation.

Clearly, there is a difference between my position and that of the Government on what is already required of the governing bodies.

My understanding is that there was no legal obligation on the court of the University of Dundee to provide the information that it did. It chose to comply, which was absolutely the right thing to do and I welcome it, but there is no guarantee that that would happen in the future.

As I elaborated on in my intervention on the minister, I am keen for the Funding Council to be able to set out non-financial penalties. We have discussed, in the committee and in the chamber, the drawbacks of the financial clawback power. I think that we, collectively, recognise that it is necessary, but it would be a rare situation in which taking money out of an institution would actually resolve whatever problem has arisen.

My understanding is that the SFC itself is keen to have a wider suite of powers available to it. I recognise, however, that, at stage 1, we did not get into the question of what those other penalties might be. I am proposing, therefore, that that is laid out in regulation by ministers. That is the rationale for—

I have engaged on these amendments with the SFC, which is sympathetic to the intention behind them.

With regard to engagement with universities, I highlight—without meaning to sound cynical—my frustration with the engagement from the university sector on this matter, in that it very much mirrors the engagement that we saw in 2015 around the bill that became the Higher Education Governance (Scotland) Act 2016. It feels a little bit like the boy who cried wolf, in that, as much as I respect the leadership of Scotland’s university sector, it has, on almost every occasion that proposals have been made to strengthen the governance of its institutions, claimed that that would compromise ONS classification. At no point, as of now, has that actually been the case.

I struggle, therefore, to accept the position that Universities Scotland most often puts forward, which is that many of the proposals that have been made in these stage 2 proceedings would potentially endanger ONS classification.

To be blunt—I say this with respect to those in the lobbying organisation and in the individual institutions—we have been here before. The sector has objected to almost every single proposal that has been made to strengthen governance arrangements. When those proposals have been passed in legislation—in the 2016 act, for example—they have not resulted in the situation that the sector claimed at the time would arise. I therefore struggle to accept the arguments that universities have put forward in relation to ONS classification here, and I would welcome further engagement with universities ahead of stage 3.

To go back to the debates that we had last week, I think that it would be beneficial for the committee and the Government if we engaged collectively with the ONS on—I think that it was John Mason who made this point—exactly what would trigger potential reclassification. It is fair to say that there is still some ambiguity around that, and further clarification on the matter from the ONS itself would be useful. Nevertheless, I treat the position of Universities Scotland on that specific issue with a bit of scepticism, because I feel like we have been here before and the potential risks have never been borne out.

On that point, I am happy to conclude.

I very much appreciate the case that Willie Rennie has made, and, on that basis, I will not be moving amendment 144. However, if the minister moves amendment 14, which I think he should—he has indicated that he will—I will certainly move amendment 14B, but not amendment 14A.

I agree that we should discuss the matter further ahead of stage 3. This is perhaps a matter for that wider discussion, but I am interested in Mr Rennie’s position on the point about compulsion and respecting the autonomy of those institutions. As we have seen, the University of Dundee is too big to fail. There is a collective agreement across the Parliament—and there is certainly an expectation from the public—that we cannot allow it to fail. It seems that there is a tension between those two things: it is an independent institution, but we cannot allow it—or its management, I should say—to independently run itself into the ground.

How does Mr Rennie reconcile those positions? It seems to me that, at a certain point, when an institution is at risk of failure and collapse, there is an unavoidable need for public institutions to step in and safeguard it, if it is an institution that we collectively agree is, indeed, too big to fail. How do we do that without having the backstop ability to compel the institution to do what we need it to do to maintain its survival?

I am aware that the levy was set up by a UK Conservative Government that decided—rightly, I think—not to ring fence the proceeds that it then passed on to the Scottish Government. Miles Briggs says that employers pay the levy with a certain expectation. Is that not ultimately the responsibility of the previous UK Conservative Government, which set up the fund and applied the levy to employers in Scotland but then—correctly, I think, out of respect for devolution—did not ring fence it?

Ultimately, a UK Government took that policy decision in 2016. As John Mason outlined, the Scottish Parliament is simply exercising its right to make its decisions, as the people of Scotland voted for in 1997. I struggle with Miles Briggs’s argument that employers have an expectation of how the money is spent, because the UK Conservative Government made a conscious choice to apply the levy in Scotland but not to require that the proceeds were ring fenced. It was his party that made that decision, was it not?

I wrestled with that point when I was drafting the amendment. My first instinct was to be a bit more prescriptive. However, in recognition of the fact that universities are fundable but are not public bodies, it is appropriate for there to be greater flexibility.

Ultimately, what I am trying to do is to trust fundable bodies. We are primarily talking about universities and colleges. I am trying to place a degree of trust in them by saying that it is their decision what is appropriate information to put in the public domain. By putting it in legislation, we are providing them with a clear steer that they should be proactively doing that. Until this point, they have been encouraged and cajoled and so on, and that has not worked. With colleges in particular, as public bodies, we might get to the point at which we have to be really quite prescriptive to get them simply to do this. I would suggest that more ministerial direction in this area would be welcome and would perhaps be an alternative to putting the provision into primary legislation. That is why I landed on the language that I used. I want us to set a clear direction of travel and expectation for those institutions, but without becoming too prescriptive about exactly what kind of information we are talking about.