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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.

Amendment 47 seeks to add a new section to the 2005 act, stating that the SFC must have due regard to

“the economic, social and environmental priorities of the Scottish Ministers”.

The issue of a lack of policy coherence and direction from Government across the post-16 education landscape has been raised frequently in evidence. In their reports, Audit Scotland and James Withers made it clear that the core issue in relation to skills delivery has been the lack of clear leadership from the Scottish Government.

I will quote from James Withers’s report, because he made a recommendation that crystallises that point. He said:

“there must be a clear articulation of the areas that are a national priority. This goes beyond signalling ‘economic transformation’ or ‘net zero’ into a specific articulation, aligned to strategic policy intentions, of the sectors and occupations that will be critical to their delivery and their workforce needs.”

That was backed up by the Construction Industry Training Board and other industry stakeholders.

The SFC and SDS are not independent organisations. They are public bodies, but, albeit for different reasons in each case, they have not aligned well enough with the rest of the system. I think that there is more of an alignment issue with SDS than with the SFC, but, given the legislative underpinning, we can set the requirements of the SFC in a way that we cannot with SDS.

I do not think that ministers should be micromanaging here, which is why the amendment seeks to put an obligation on the SFC to have due regard to the priorities that ministers have set out, instead of putting additional requirements on ministers to involve themselves further, because broad alignment is necessary. Placing a requirement on the SFC to give due regard to the Government’s priorities is relatively light touch, and it would mirror the approach that we took just a couple of months ago in relation to Qualifications Scotland. I hope, therefore, that the amendment is not controversial.

The aim here is to give the SFC a clear direction. We expect it to be broadly aligned with the priorities set out by ministers, because what has come back from Audit Scotland, James Withers, industry stakeholders and others is that we need clear alignment in the sector. Amendment 47 would not, in and of itself, solve all of that, but it sets out the clear principle upon which the SFC should operate.

Amendment 178 would add

“persons who have experience of the interests of persons undertaking a Scottish apprenticeship or work-based learning”

to the list of people who should be considered when appointing members. I admit that that language is tortuous, but it reflects the language that we landed on in relation to a similar provision in the Education (Scotland) Bill. The aim is to recognise that it is good to include people who can represent a particular group—in this case, those doing apprenticeships—while also recognising that someone who is on the council is not there to represent the interests of a particular group. As I said, I admit that that is tortuous language, but it is language that already exists in relevant legislation for very similar bodies.

The amendment would simply have the effect of ensuring that the voice of those who are undertaking an apprenticeship or work-based learning is heard directly on the board of the SFC. As with every other institution or organisation that operates in this sector, I would expect those who are at the receiving end of decisions that are being made by the SFC to be involved in making those decisions.

Similarly, amendment 179 would add persons who are representative of the interests of the council’s staff. That would solidify current practice and ensure that, because it is in legislation, it cannot be changed or drawn back on in the future. Again, that mirrors amendments that were made to the Education (Scotland) Bill earlier this year.

Will the member take an intervention?

Amendment 128 would encourage public bodies to be open and proactive in their publication of data. That has been a bit of a hobby horse of mine—John Mason will be familiar with that from Finance and Public Administration Committee meetings.

The David Hume Institute did some pretty thorough research on the issue a couple of years ago and found that there was around an astonishing £2 billion-worth of lost value to the Scottish economy each year because of the huge volume of public data that, in practice, is not available to the public, either because it is not being proactively published or because it is published only on copyrighted websites and is therefore often essentially unusable for a lot of the purposes that people would want to use it for. As things stand, the Scottish Funding Council, Skills Development Scotland and a number of colleges all have copyrighted websites. There is not a clear rationale for that, but that is the case. They restrict the use of even the most basic information that they have.

To its credit, the SFC has been engaging with my office on the issue, so it is now looking at adopting the same open government licence that the Scottish Government, some councils and other public bodies use, which is essentially an alternative to traditional copyright. As an example of what that means in practice, any information that is on the Scottish Government’s website, other than the Government’s own logo—its brand—is freely available for anyone else to use for any purpose. It is public information, so it is not copyrighted. Amendment 128 would require the council and any fundable body that receives payment from it to take steps to adopt a proactive approach to the publication of data that is appropriate for disclosure in the public domain. It defines “proactive approach” as

“the routine identification and publication of appropriate information without the need for specific requests.”

That means that the information should be accessible without the need to submit a freedom of information request.

The definition of what is appropriate to be in the public domain will vary. For example, universities will have far more commercially sensitive research information. Some information that is held by Scottish universities is also classified under national security legislation because it comes from joint research projects with UK Government departments. That is obviously not suitable for the public domain, and the amendment contains the flexibility to deal with that.

I honestly wish that we could just expect institutions to do what the amendment calls for, but, despite the efforts of the David Hume Institute, myself and others, uptake of even the open government licence, which I think is the lowest rung on the ladder, has been absolutely glacial.

In its report, the institute said:

“The vast majority of institutions make no provision for open data and some have stated vague plans. Universities and colleges play a crucial role in planning the future workforce, understanding population and migration trends and the development of research.”

More proactively published data from higher and further education institutions would have a valuable impact on businesses and on planning for the economy. Even at the most basic level, if we take the example of businesses that require the use of meeting rooms and conference facilities around the country, the fact that most councils, universities and colleges have copyrighted websites means that it is not even legal for any organisation to create a central database of all publicly available meeting rooms that can be booked, the capacity of those rooms, the rate and so on, because most of that information is held on copyrighted websites, despite that not being remotely necessary. It would be much more efficient for the institutions if they were proactively putting appropriate, publicly available data into the public domain and did not constantly have to respond to freedom of information requests.

Will the minister take an intervention?

Yes, the intention is absolutely for trade union representatives to be included. If we are talking about those who can represent the interests of a particular group—in this case, the staff of the organisation—it is trade union reps who are in a position to do that. Without rehearsing the debates that we had at stages 2 and 3 of the Education (Scotland) Bill around the language that we need to use, and the debates that we have already had around the need to avoid straying into reserved territory in relation to employment law, trade union law and so on, I can say that the intention of the amendments is absolutely to make sure that there is a place on the council for trade union representation.

As I mentioned, that is currently the case in relation to the representative of the staff of the SFC, and my intention is to ensure that we are solidifying that in legislation. It is true that the language that I have used does not say that specifically, but, for reasons that are already well rehearsed, that is certainly my intention. I cannot think of anybody else who would be able to represent those interests nearly as effectively as a trade union representative, and there is certainly no one who would have the equivalent democratic mandate from those workers.