The Scottish Government amendments in the group are focused chiefly on setting out the process that Scottish higher education institutions would be required to follow in appointing their senior lay member. Throughout stage 1, we listened to the views of stakeholders and took note of the evidence that was gathered by the committee. In addition, we engaged senior sector stakeholders in workshops related to this and other parts of the bill at the end of last year.
Amendment 5 is the first in a suite of amendments that effectively replaces section 1 as introduced with provision on the face of the bill—rather than in regulations—for a single model for the appointment of the elected senior lay member of higher education institutions’ governing bodies. The amendment obliges a higher education institution, when a vacancy for the senior lay member arises, to delegate responsibility for the recruitment process to a committee featuring at least one student and one staff member drawn from the institution.
Those committees are commonly known as nominations committees. However, the role of the committee that is formed to appoint an elected senior lay member is not one of nomination, but rather of selection to stand for election against criteria devised by that committee. Subsection (2) of amendment 5 allows for the committee to determine relevant criteria for the role of senior lay member that encompass key principles of competence. The intention is to allay previously raised concerns from some stakeholders about who might be elected to lead governance of an institution.
Amendment 6 obliges higher education institutions to advertise a vacancy for the post of senior lay member to the general public through established methods to attract interest from a wide range of candidates. Subsection (2) of amendment 6 sets out plainly the obligations required in relation to the advertisement. The intention is to advertise widely and fully inform potential applicants of the nature of the role and what the recruitment process will involve further down the line.
The requirement for an application to be in a certain form and for the relevant criteria to be made available will ensure that there is a fair playing field for all applicants and that their applications are considered in a consistent way. It is worth noting that existing legislation already obliges an institution to make appointments to its governing body in a way that encourages equal opportunities and does not discriminate against any individual with characteristics that are protected by equalities legislation, such as race, gender or disability, to name a few.
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The advertisement and application stage is an important part of improving access to the position of senior lay member. Amendment 7 seeks to ensure that, if in response to the advertisement of a vacancy in the position of senior lay member, an applicant has submitted an application on the correct form and met the criteria that are set out for the role of senior lay member by presenting sufficient relevant evidence on the application form, the committee must invite that applicant to attend an interview for the role. In short, that is very much like any transparent and modern recruitment exercise. If at the interview the applicant again satisfies the committee that they meet the criteria for the post, they will be entitled to stand for election for the role of senior lay member.
Subsection (3) of amendment 7 requires every HEI to offer applicants reimbursement of reasonable expenses that are incurred in connection with attending an interview. In keeping with the bill’s intention to respect the autonomous nature of HEIs, it will be for each HEI to determine what is reasonable.
Amendment 8 provides that a higher education institution will be required to convene an election for the position of senior lay member of the governing body if, after interviews, more than one candidate is entitled to stand and confirms their intention to stand. If an institution fails to identify two candidates who fit the criteria for the role, the bill will require that it repeats the process from the point of advertisement. In that way, the bill ensures a real and meaningful election in keeping with its overall aim of establishing an open, transparent and more democratic appointment process across all higher education institutions for the role of senior lay member.
Amendment 9 provides details on the franchise, mechanism and result of the election of a senior lay member of the governing body. Specifically, it provides that the franchise must consist of the governing body itself and all staff and students of the HEI. That makes clear the Government’s intention to democratise the process of appointing a senior lay member and allow everyone in the institution’s community a say in who that should be.
Amendment 10, which sets out the final step in the recruitment process, provides that the winning candidate at the preceding election must be appointed to the position of senior lay member and that that is the only way in which such a position may be filled.
On a connected note, amendment 11 replaces section 2 of the bill with provision on the face of the bill rather than in regulations for remuneration of the senior lay member. That ensures that a senior lay member of the governing body can request and will be paid reasonable remuneration from the higher education institution that is commensurate with carrying out the functions of that office. That payment will not amount to a salary. The relevant amount must be reasonable and commensurate with work that has been done.
Given that amendments 3 to 11 make provision on the face of the bill for the appointment and remuneration of the senior lay member, amendments 12 and 13 remove the regulation-making powers in sections 1 and 2 of the bill as introduced.
The purpose of amendment 14 is to remove section 3 of the bill as introduced, which obliges the Scottish ministers to consult higher education institutions and other appropriate persons prior to making regulations under sections 1 or 2 of the bill as introduced.
Amendment 15 is a consequential amendment that ensures that all Scottish HEIs must include the new elected senior lay member as a member of their governing bodies. The amendment is necessary in order to replace reference to “the chairing member” in section 4(1)(a) of the bill as introduced.
I hope that the committee can support amendments 5 to 15.
Amendment 31, which was lodged by Liz Smith, is not necessary, as it provides for a power that already exists. Higher education institutions can currently provide remuneration if they wish. Compliance with the code of good HE governance in that respect is also currently required.
My amendment 11 ensures that a senior lay member or chair of the governing body can request and will be paid reasonable remuneration that is commensurate with the responsibilities of carrying out the functions of that office. That is not akin to a salary or unlimited payment, but it is a right for a senior lay member to request reasonable remuneration and allowances for the work that they have done and a duty on higher education institutions to make such payments where reasonable. I therefore cannot support amendment 31, which describes a discretion that HE institutions already have. I ask Liz Smith not to move the amendment, and I ask the committee to reject it if she moves it.
I do not believe that amendments 27 to 29, in the name of Liam McArthur, would have a positive impact on the process for the appointment of the chairing member. The bill’s principal aim is to enable the development of a framework of governance that is more modern, accountable and inclusive. I consider that Liam McArthur’s amendments would make little substantive change to current practice, effectively returning us to the status quo and leaving the decision making in the process of appointing the chairing member—as at present—to the governing body to create its own rules and restrict the electorate for the chairing member to the members of the governing body only.
Although Mr McArthur’s amendments would require the rules to include provision for students and staff to be represented in the process of selecting candidates for election, they would simply allow for, rather than require, an institution to undertake an election. As such, the amendments make no provision for consistency across the sector, as they would allow different rules to be developed by different institutions, albeit with regard to the Scottish code of good higher education governance.
The principles underpinning the bill are to enhance inclusion, participation, transparency and consistency in governance arrangements in our HEIs. Unfortunately, none of Mr McArthur’s amendments would meet any of those principles at the most basic level. For that reason, I ask Mr McArthur not to move his amendments, and I ask the committee to reject them if he moves them.
The amendments in my name in this group provide for consistency, robust selection and a fair election. We have consulted and listened to stakeholders and responded to their concerns by setting out what should happen on the face of the bill. I hope that they are supportive of that considered approach.
I ask the committee to support my amendments. For the reasons that I have given, I ask the committee to reject amendments 27 to 29 if they are moved, and amendment 31 if it is moved by Liz Smith.
I move amendment 5.