- The Convener:
The second item on the agenda is consideration of an affirmative instrument, the first of a number of Scottish statutory instruments on today’s agenda. I am pleased to welcome Michael Russell, the Cabinet Secretary for Education and Lifelong Learning, who is joined by David Roy and Laurence Sullivan from the Scottish Government. I invite the minister to make an opening statement.
12:00
- Michael Russell (Cabinet Secretary for Education and Lifelong Learning):
I am grateful for this opportunity to discuss the draft Public Services Reform (General Teaching Council for Scotland) Order 2011. I welcome the chance to make these opening remarks about the importance of the order and the GTCS itself. I will then, of course, be happy to answer questions.
In simple terms, the order repeals the Teaching Council (Scotland) Act 1965, which governs the way in which the GTCS works, replacing it with an improved constitution. As I am sure the committee is aware, the GTCS is currently an advisory non-departmental public body. The order will alter that arrangement, and the GTCS will become fully independent of the Scottish Government.
The change in the council’s status reflects the Government’s desire to reduce the number of NDPBs in Scotland. However, more than that, the draft order, and the new constitution that it enshrines, represent nearly 50 years of consistent good performance from GTC Scotland. GTCS has traditionally carried out its functions without significant interference, and the draft order recognises that. Through its history, it has shown a strong commitment to maintaining and improving the standard of teaching in Scotland and the order will allow that to continue and, indeed, intensify.
The order brings in a number of changes to the role of the GTCS and the way in which it operates. Commensurate with the council’s status as an independent body, the order gives the GTCS far greater operational flexibility. The structure of the independent council will no longer be bound by a restrictive statutory base. It will be possible to co-opt members more readily and decisions relating to the organisation’s finance will be for the council to take. That will be supported by a slimmed-down council membership, while retaining a teacher majority and seats for representatives of key interests. There will also be an increased number of members who are not teachers.
As for the revised role, I am happy that the order gives the council increased responsibility for setting entry requirements for teacher education courses and for approving the courses themselves. I have taken the opportunity to widen GTCS powers with respect to competence cases. The order places on the council a duty to develop a system of reaccreditation, and development work for that is now well under way.
It is no secret that the teaching profession in Scotland is undergoing a period of significant change. An independent GTCS, with a refreshed constitution, expanded responsibilities and a clear focus on the maintenance and development of teaching standards, will help Scottish education to meet the challenges that lie ahead.
I have gone on record many times, stating my belief that there are hundreds of thousands of good pupils in Scotland, being taught by tens of thousands of good teachers in thousands of good schools. Ultimately, the GTCS regulates those teachers. It helps to drive up standards. In the most serious of cases, it ensures that the most unsuitable teachers are removed from the classroom. Those powers are strengthened under the draft order. The order provides an opportunity for the GTCS to continue, and indeed improve, its good work in helping to ensure that pupils receive the best possible teaching experience.
I hope that those remarks have been helpful. Together with my colleagues, I am happy to answer questions.
- The Convener:
The committee will have questions for you, but not necessarily about the intention behind the proposed change—which the majority of the committee probably agree with and indeed support, as we think that it will be a positive change. You will be aware that the Subordinate Legislation Committee has contacted the committee to raise its concern that the way in which the Government is attempting to make the changes is perhaps not appropriate. The Subordinate Legislation Committee raised the issue during the consultation period, and the Government chose to continue with its present course of action. Having heard earlier this morning from the Subordinate Legislation Committee’s legal advisers, it might be helpful if this committee could now hear from you why you think that the Government has the ability to make the changes in the way that is proposed, and why you think it is appropriate to do so.
- Michael Russell:
Of course. I will ask Mr Sullivan to address the matter in a moment, but I will make one key point first. I am familiar with the difference of opinion that exists—there is a difference of opinion between my lawyers and the Subordinate Legislation Committee’s lawyers. I understand that. Negotiation has taken place, and Mr Sullivan will refer to it.
However, I understand that there is no recommendation to reject the draft order. The ultimate responsibility for the legal position of the order lies with the courts, not the committee or me. Where there is a difference of legal opinion, those who have a vires to raise the matter with the courts may do so. When we reach such a situation, that becomes the resolution.
As you say, convener, the policy intention of the order has been agreed right across the Parliament. Certain things in it are absolutely essential in taking forward the teaching profession—for example, on teachers who are underperforming and reaccreditation. The work that the GTCS has done over the past almost three years is considerable. If there is a difference of legal opinion, there is another place for that to be tested. In my view that would be the right thing to happen, rather than to derail the order at the very last minute—that would be most unfortunate given our shared concern about these vital issues.
I ask Mr Sullivan to address the legal issues.
- Laurence Sullivan (Scottish Government Directorate for Legal Services):
As the minister said, the order is the first significant use of the powers that the Parliament gave ministers under the Public Services Reform (Scotland) Act 2010. It is therefore entirely right and proper that the Subordinate Legislation Committee has subjected the order to extremely close scrutiny, and we are extremely grateful to it for doing that.
We have had extensive engagement with the SLC’s lawyers over the past nearly six months. They raised a number of issues with us and we fully considered and took into account all of them. In consequence of some of its points, we made amendments to the order during the consultation period in the autumn and winter of last year. There are a couple of matters on which we carefully considered their views but chose not to make changes to the order because we were of the view that the order in those respects was and is intra vires.
If the committee wants, I can go into some detail on what I understand are the two outstanding doubts that the SLC has expressed, but—
- Michael Russell:
I think you should do that.
- The Convener:
That would be helpful.
- Laurence Sullivan:
They fall into two categories. The SLC’s first concern, as I understand it from the engagement that we have had, is about the power that the order gives the GTCS to make rules and schemes and whether, by gaining that power, the GTCS is having a function of legislating conferred upon it.
As the committee will be aware, the function of legislating usually lies with ministers, or with the Lord President, in some circumstances, or the Lord Advocate, in others. Under the order, the GTCS will have the power to make various rules and schemes for various matters. We are of the view that the powers that are being granted do not amount to granting a function of legislating and so do not breach section 20 of the Public Services Reform (Scotland) Act 2010. Therefore, they are intra vires. Simply conferring on the GTCS a power to make rules or schemes does not mean that those rules or schemes will be legislating.
On one level, we would view the rules and schemes that the GTCS will have powers to make as being similar to the rules and schemes that any private organisation or club could make. The GTCS is, of course, a very important body, but in the same way as a bowling club or tennis club can make rules governing the conditions of membership of its members, so the GTCS will have the power to do so for people who choose to be registered teachers.
It is important to note that teachers’ relationship with the GTCS is based entirely on consent. The requirement for teachers to be registered with the GTCS is based elsewhere. We view it as a body that is being made substantially independent of Government under the order and so it will have the power internally to organise its own rules and schemes and to do things such as making schemes and procedures for the selection of its members. Our disagreement with the SLC is based on what is and is not a function of legislating and whether something must be legislative in nature. We would be of the view that a decision on where that boundary between legislative and non-legislative falls is actually a policy choice for ministers, which is then subject to the approval of the Parliament, and that many of the things that the GTCS will have the power to make rules and schemes about are administrative or procedural in nature rather than legislative.
The second area that remained outstanding following our extensive engagement with the SLC was on the appointment of members to the GTCS. Our position is that the order abolishes ministers’ existing powers on the nominating function under the Teaching Council (Scotland) Act 1965 and creates instead a new appointment function for the GTCS that gives it the ability to co-opt its own members. Our view is that there is a significant distinction between transferring ministers’ power of appointment to a third party, which the PSR act would not permit, and granting a body the power to co-opt its own members, which we believe the order does and which the PSR act would allow.
The new appointment power granted to the GTCS is substantially different from the old ministerial nomination power. The power cannot be said to be being transferred, because the character of the power is changing so substantially and completely. We do not think that ministers’ power to nominate members of the GTCS was a necessary protection—the idea of necessary protection is an important element of the limitations and restrictions within the PSR act. However, we are also of the view that the substance of the provision delivers a similar protection in an alternative manner, which is also a characteristic that is referred to in the PSR act. The substance is that rather than ministers appointing members to the GTCS—to retain that would be contrary to the entire policy drive of making the GTCS an autonomous, profession-led body—it will co-opt its own members and will be under an obligation to do so from as wide a spectrum of civic life as possible.
Those are the parameters of the two issues that we understand the SLC remains concerned about.
- The Convener:
Thank you for that, Mr Sullivan. Do members wish to ask further questions?
- Elizabeth Smith:
I declare an interest in that I am a member of the GTCS.
I support the GTCS to the hilt in the good work that has been done to improve the teaching profession. I also support the measures that the cabinet secretary has taken in recent times to enhance that professional attitude.
I fully understand the principles behind this order and why it would be appropriate to have an independent and autonomous body. Notwithstanding that, having listened carefully to what the SLC’s legal team said to us, I remain concerned that there is considerable dispute about the definition of legislative function. Mr Sullivan said that the principle of power would change so substantially that it would mitigate any concern in that regard. Nonetheless, power is power and how it is defined matters. I am not a lawyer, but I think that a principle is involved regarding who can discharge that function. My gut instinct is to support the order, but I would be more comfortable if I felt that the legal advice that we were receiving was very clear, because I think that it could have ramifications that may derail other aspects. I am not entirely comfortable with things as they stand.
12:15
- Michael Russell:
The matter boils down to there being two sets of advice. I entirely accept that that is where we are. I would hope that the policy prescription, for which Liz Smith has given strong support, is what we are trying to achieve. There is no point in elaborating further on this. The fact is that there is a difference of opinion between two sets of lawyers. The test for that, if it came, would have to come in the courts, because neither the committee nor I are courts of final resort.
The alternative—not having the order—would create such chaos at the end of a long period as to be very much the worst possible option. I must accept, in light of where you are now, that there is, of course, a risk: there could be a challenge to the legislation. I think that the courts would want to deal with that challenge speedily, but I do not think that to derail the legislation at this stage would be anything other than pretty disastrous for the whole function of what we are trying to achieve, particularly in relation to the constant improvement of teaching standards.
The Donaldson review suggests that there are roles that it wants the GTCS to take on pretty quickly, but that is dependent on the new functions being in place.
There is also the issue of the responsibility for teacher training courses, which we are trying to build and develop, which would remain with ministers—it would be entirely inappropriate for that to happen, and contrary to what Donaldson is recommending.
There is a web built up here. The greater good demands that the order goes through. We are certainly of the opinion that if there was a challenge, the Government would firmly defend the position that we have taken, because we believe that our interpretation is correct.
I commend the work that has been done between the Subordinate Legislation Committee and our lawyers. There has been a long process of negotiation. The fact that it now boils down to two issues is quite an achievement on both sides.
- Ken Macintosh:
I certainly do not disagree with the minister that there are two conflicting legal views. However, I disagree fundamentally with his statement that it is somehow up to the courts to decide whether the order is legally competent. That is fundamentally our job, not the job of the courts. The courts might test that, but the idea that this Parliament should pass legislation when it is not satisfied that it is legally sound and just leave it up to the courts to decide is entirely unsatisfactory and, in fact, untrue.
- Michael Russell:
Convener, I suggest that in this debate we should try not to accuse each other of telling untruths. I am trying to put a point of view. Mr Macintosh clearly disagrees with that point of view, but I am not peddling untruths.
- Ken Macintosh:
I am suggesting that the point of view that you put is not factually correct. It is not for the courts to decide.
- Michael Russell:
In your opinion, Mr Macintosh.
- Ken Macintosh:
That is absolutely my opinion, just as it is your opinion that it is up to the courts to decide whether what we pass is legally sound.
The suggestion that we should somehow treat the GTCS as a bowling club or a tennis club is quite unsettling.
If this situation results in chaos—I do not think that it will, although it is certainly a very unhappy situation—that will be fundamentally because the Government has failed to put the order through in a manner that, so far, has convinced the Parliament.
This situation could have been entirely avoided if the order had been a piece of primary legislation. Why is it not primary legislation? Why on earth are we dealing with this order with two weeks until the end of the session, with no ability to amend it or address the fundamental concerns?
- Michael Russell:
The Parliament gave ministers the power, under the Public Services Reform (Scotland) Act 2010, to undertake this action. It is entirely appropriate that we should do so. You were an opponent of that move. I understand that politically, but I am trying not to follow you into a political debate about this. I am trying to make entirely clear that that power was appropriately given and is being appropriately exercised. There is now a difference of opinion between two sets of lawyers.
I repeat that the committee is, of course, entitled to take its view of this, but the committee is not a court—that is a fact. The final determinant would be a court. It is less good not to carry on than to carry on.
Mr Sullivan is reminding me—very usefully—that the GTCS process was specifically mentioned during the passage of the 2010 act, so it could hardly come as a surprise that we are taking this route.
Mr Macintosh disagrees that this route should be taken. I am afraid that we will have to agree to disagree on that. We are where we are today. We are, some two and a half weeks before the dissolution of the Parliament, considering a very important piece of secondary legislation, which has been under discussion since 2008 and has been before the Parliament since last September. To see it derailed today would be very disadvantageous. I understand that there is a dispute about legal advice, but if we were to go into the realms of Mr Macintosh’s political objections, that would be even more difficult.
- Ken Macintosh:
The measure has, as far as I can tell, almost unanimous support. There is a huge amount of support for it and consensus on it among the education community, and it has entire cross-party agreement in the Parliament; yet, the minister and the Executive have brought a statutory instrument before the committee, with two weeks to go before dissolution, about whose competence we have serious questions.
I would like an answer to my original question. Why did the minister decide to introduce the measure through a piece of subordinate legislation rather than through primary legislation? It is an important measure for the future of the teaching profession and education in Scotland, and it deserves the full scrutiny of the Parliament. I do not understand, even now, why the Parliament was not offered that opportunity through the Executive lodging primary legislation.
- The Convener:
Before I invite the cabinet secretary to respond, I remind members that the session in which we are engaged just now involves questions and answers to the cabinet secretary. There will be an opportunity for members to make their debating points under the next agenda item. At the moment, it would be helpful if we could just have questions from members and responses from the minister. There will be ample opportunity for all members to put forward their various debating points.
- Michael Russell:
I point out that the instrument was lodged in draft form in September. Therefore, it has not arrived at the last minute. What has arrived at the last minute is this difficulty, which we need to overcome. The Public Services Reform (Scotland) Bill anticipated—even on this subject—that subordinate legislation would be used in this way and the Parliament passed that bill. There is no surprise about this, and Mr Macintosh could have raised these issues and problems at any stage. We must now decide whether we can proceed with the instrument—which is much needed and on which a great deal of work has been done—or whether, for other reasons, it will be derailed. That is the simple choice that we face.
- Ken Macintosh:
I have another question for the minister. One of the new powers that the GTCS will be given is the power to introduce a reaccreditation scheme. What is the difference between that scheme and the relicensing scheme that is being discussed in England and Wales?
- Michael Russell:
The reaccreditation scheme will be more supportive and more bound up with continuing professional development. It will also be more consultative and, provided that the instrument is passed, will be based within the General Teaching Council, whereas the general teaching council south of the border has been abolished. We will have it within our supportive activity for teaching and the regulation of the teaching profession. I would say that it is a very positive scheme, but it is needed—and it is needed now.
- Ken Macintosh:
What concerns, other than those over reaccreditation, were raised during the consultation?
- Michael Russell:
A range of concerns were expressed, which were taken into account when the instrument was drafted. I refer Mr Macintosh to the published consultation materials.
- Ken Macintosh:
What were they? Has the subordinate legislation been amended to take account of the responses to that consultation?
- Michael Russell:
The subordinate legislation was drafted on the basis of a process of wide consultation. I should point out that it was supported across the Parliament. However, if there are specific objections even at this very late stage, Mr Macintosh, I would be interested in hearing them.
- Ken Macintosh:
I asked specifically what the main objections that were raised in the consultation were and in what way the subordinate legislation was amended to take account of them.
- Michael Russell:
As I said earlier, the order was amended as a result of discussions with the Subordinate Legislation Committee and other considerations were taken into account. I am happy to provide a full, blow-by-blow account of that process in writing to Mr Macintosh should he wish it. However, I think that a more urgent issue is that we resolve the difference of opinion on the two legal issues. That is where we are now.
- The Convener:
Did I see Margaret Smith’s hand raised?
- Margaret Smith (Edinburgh West) (LD):
Yes, unfortunately.
It is unfortunate that the minister has decided to go down the route of trying to turn this into a partisan issue. Committee members are signed up to the policy changes that are involved in the approach to the GTCS that the minister has pursued over the past year. I am sure that the GTCS would confirm that, based on the meetings that it has had probably with us all. It is, therefore, with a great deal of concern and not a small amount of disappointment that we have received the concerns of the Subordinate Legislation Committee, which we must now deal with.
I have had the privilege of being a member of this Parliament for 12 years and I am not in the habit of giving away my responsibility to take seriously any part that I may have to play in the passing of legislation.
The lawyers behind the Subordinate Legislation Committee have brought a range of issues to us, and they give us great cause for concern. I accept that this order could end up at court—as could any law passed by the Parliament—and it is our responsibility to ask the minister questions and to see whether the answers will allow us to break the deadlock between two different legal opinions.
At the heart of the issue is the difference between what is legislative and what is administrative. I agree with the point made by Ken Macintosh: I really do not care who becomes a member of a bowling club, but I care greatly about who is teaching my children. Without going down the route of discussing the membership of a bowling club or a tennis club, will the minister tell me the difference between something that is described as administrative and something that is described as legislative? That seems to lie at the heart of the difference of opinion between your lawyers and the Parliament’s lawyers.
- Michael Russell:
I am happy to offer what help I can. Mr Sullivan’s analogy involving a bowling club and a tennis club was a fair one, and I am sorry that Margaret Smith did not like it. If I had the Official Report with me, I would read it out; I think that the evidence will show that I am trying to be as helpful as possible. I would only go into political matters if I felt that they were being raised with me, so let me be very positive about this. I am not a lawyer, so I will have to be careful in explaining this, but I think that the issue is the difference between rules and schemes, as described by Mr Sullivan, and legislation. The GTCS can set rules and schemes—but there is a difference between the force of rules and schemes and the force of legislation. The Public Services Reform Bill indicated that. Clearly, the focus for and function of legislating lies with the Parliament; that is what we do. However, other bodies can set for their members rules and schemes that do not have the force of legislation. One such body is the GTCS.
Margaret Smith may not like the analogy using clubs, but we could use other organisations such as professional bodies. The Law Society of Scotland is one that might occur to lawyers. Bodies can have rules and schemes that do not have the force of legislation. The opinion that I am following says that this statutory instrument indicates that difference. The advisers to the Subordinate Legislation Committee have a different opinion, but Mr Sullivan described the difference very well. I could go on describing the difference, perhaps using examples other than bowling clubs and tennis clubs—the Law Society for example.
- Laurence Sullivan:
May I—
- Michael Russell:
Mr Sullivan wants to add something—and I presume that it will not be about tennis clubs or bowling clubs, but about serious bodies.
- Laurence Sullivan:
My apologies if my comparison did not find favour with the committee.
We are arguing that some of the functions of legislating that were contained in the Teaching Council (Scotland) Act 1965 are, in fact, being removed. The rules that the GTCS will have the power to make in this context do not have the nature of legislation. The GTCS internal rules will be applied by a particular body to a particular group, and we think that the true characteristics of legislation will not be present. The rules will be of limited application across the population; they will apply to teachers but not to the generality of the population of Scotland. The rules will not be contained in a Scottish statutory instrument, made by ministers and approved by this Parliament; they will not be considered and approved by the legislature.
We consider that a better view of the GTCS rules is that they are more akin to a contractual agreement and are therefore non-legislative in nature. That is linked to the consent-based relationship between the GTCS and its members. The GTCS is a consent-based body for the registration of teachers. When this Parliament enacts legislation to apply generally across the entire country, the population must follow that rule or law. In that sense, once the law is passed, it is not consent based.
On the generality of the issue and our genuine disagreement with the opinion of the SLC’s lawyers on the two outstanding matters, the Government’s unambiguous legal position is that the order before the committee today is intra vires and we are confident that, if at any future point the order was challenged in a court of law, the court would find the order to be lawful and intra vires with regard to the Public Services Reform (Scotland) Act 2010.
12:30
- Margaret Smith:
Ultimately, the concern that we all have is not that we will pass a piece of legislation that could be subject to a decision in court—that may happen to any legislation that we pass—but that from day 1 there could be a query. We can envisage a number of people—for example, someone who had been deregistered or who had previously been appointed but was no longer appointed—who would have an interest in going to court early in the process. You are saying that you are as sure as you could ever be, on the legal advice that you have been given, that anyone who took a case to court would find that the order was competent and they would not win the case on the concerns raised by the Parliament’s lawyers.
- Michael Russell:
That is our view—that is what it boils down to. There is always a risk of challenge to any piece of legislation.
There are three positions that we can take. One is that the order is ultra vires and would be subject to a successful challenge. Another is that it is intra vires and that there would not be a successful challenge. A third position is that we need to go away and do the work again. In actual fact, the third option does not exist. The order has been on the table since September. There have been extensive debates among lawyers—quite properly, as that happens all the time—and we have reached this final stage. We strongly believe that a challenge would fail, and we have indicated why it would fail.
I appreciate that Margaret Smith is raising the issue with genuine concern, but this is the point at which we are. There are two points on which there is a difference of legal opinion. We are confident. Indeed, I do not want to hide behind my lawyer: I must say that I am confident that we would win any case, because the order is intra vires. We have worked hard to get an important policy to this stage.
- Margaret Smith:
I will pick up on your point that there are three ways of looking at the issue. One option is, in effect, to go away and look at the order. Although there is cross-party support for the policies behind the order, and any concerns are simply about its legal standing, there is always a possibility that you will not win the day in Parliament. You are saying that the third option to go away and start again does not exist, but I question how you can say that when there is always a possibility that you will not win a vote in Parliament. We are all signed up to the bigger prize—if we can look at it that way—of reaccreditation, the independence of the GTCS and so on, and we all see that as something that is worth striving for. Ultimately, therefore, I presume that the third option would have to be taken forward by a Government—whichever Government that might be.
- Michael Russell:
I am afraid that all the process has been done. The arrangements are in place, this is the conclusion of the process, and we have a difference of opinion at this conclusion. Everything else has been ironed out, apart from two differences of legal opinion. If we do not pass the order, certain important powers that we need to take forward will not exist. The GTCS is ready to operate them, and the new organisation has prepared itself for this moment. I do not think that there is the luxury of stepping back from this conclusion in the hope that something will happen in the future.
There is a difference of opinion. I am being honest with the committee about where we are. I believe strongly that our legal advice is correct, but it goes against the advice that the committee has received from the Subordinate Legislation Committee. That is a decision that the committee has to make.
I also suggest—although Mr Macintosh thinks that I am wrong about this—that the committee is not a court and, in essence, the decision on the two legal points might have to be tested no matter what happens. There are no conceivable alternatives. It is inconceivable that we could have a body such as the GTCS that could not set its own rules and schemes, therefore the order is an important part of the whole. We have a set of arrangements that have been on the table since September. The time has come to conclude the matter. We are where we are.
- Margaret Smith:
I accept the minister’s point that we are not a court, but we are also not a rubber stamp.
- Michael Russell:
I agree.
- Margaret Smith:
It is up to us to ensure that we are content with what we put forward. We either send out the message that we accept the order or we say that we still have concerns, in which case we put that to the Parliament as a whole to make a decision. I am happy to accept that we are not a court but, equally, we cannot accept that, because we are running out of time, as the minister sees it, we should be forced into doing something that is against our better judgment as members of the committee and Parliament.
- Michael Russell:
Of course. With respect, there weighs in that balance the issue of the policy objectives, which we all agree we wish to achieve.
- Margaret Smith:
The policy is not in any doubt.
- Michael Russell:
But the implementation of the policy would be in doubt, and that is an issue.
- The Convener:
The Government will have considered several options in reaching the conclusion that the order is the appropriate vehicle to make the changes. Margaret Smith suggested that there might be a third option, but you disagree, which is fine. Based on the advice that you got from the lawyers, is it the case that we would end up in the same situation even if the committee chose not to endorse the order, because it is the only way to go? There might be a legal dispute about whether the order is appropriate, but is it the case that the only way in which we will definitively test the issue is in court? If so, the committee can never reach a definitive answer on the issue. It would be helpful to us in reaching a conclusion if we knew that that was the case. I am genuinely trying to be helpful.
- Michael Russell:
That is helpful. That is my position. The GTCS needs to undertake certain functions, such as the rules and schemes function that I mentioned. I cannot imagine how we could establish a body to do the job without the ability to set its own rules and schemes. Therefore, although one should never say never, it is difficult to conceive of another way in which to proceed that would secure the independence of the GTCS and enhance its functions.
We have a piece of subordinate legislation that does the job that it needs to do. It has been consulted on extensively and has been through a long process, as was anticipated in the Public Services Reform (Scotland) Act 2010, with a draft having been introduced in September. Given all those circumstances, we have the best possible piece of legislation. I regret that we have a difference of opinion. My colleagues know that I have worked with them to try to avoid that over a long period. However, we have been unable to avoid that difference, because we have boiled it down to its irreducible essence. That is where we are.
- Kenneth Gibson:
My question follows on from the convener’s questions. I was going to ask a question along similar lines. To be honest, I am interested in the practicalities and not so much in which side’s lawyers are correct, so I would like a bit more information on what will happen if we do not recommend approval of the order today. First, what would be the impact on the GTCS’s ability to carry out the functions that we all want it to carry out? Secondly, what would be the timescale for getting us back to the situation that we are in now? Before we vote one way or the other, we need to know clearly what the impact would be on the ground.
- Michael Russell:
My officials tell me that if we had to reintroduce the order, it could not be done until September. Given the length of time that orders take, we might be back here in a year’s time, which would be a very long time.
There are a number of implications to consider, Mr Gibson. The GTCS has been preparing for the change since 2008. Its focus has been so great that it will deeply regret the difficulty caused, if it comes to that. Its credibility and that of the teaching profession would be damaged. We need a strong and independent GTCS to maintain and drive up standards in Scottish teaching, and we will not have that if the order is not passed. Not a single one of the new functions would be available to the GTCS, including reaccreditation and an issue that I feel strongly about, which is the increased powers to deal with those few teachers who are not succeeding. Those enhanced functions would simply not be available.
The impact on implementing the Donaldson review would be considerable because—[Interruption.] I am sorry; I got so excited that I threw a pen at myself. It was not self-flagellation, I assure you.
The Donaldson review was, to a great extent, predicated upon having the new GTCS in position. There would be many difficulties if the order was not passed, and there would be no quick fix.
- The Convener:
Are there any further questions or points of clarification?
- Christina McKelvie (Central Scotland) (SNP):
I want to ask the cabinet secretary about risk and informed risk. One of the things that the committee has talked about throughout the past four years is moving away from the risk-averse attitude that we have developed.
Every piece of legislation that the Parliament passes comes with a risk. I feel that the information that we have received from the cabinet secretary’s lawyers is much clearer than that which I got from the Subordinate Legislation Committee’s lawyers, who used words like “seems” and “appears to”, which did not make the position clear to me and did not give me the information that I need to make a decision based on informed risk. We might decide not to recommend the order for approval this morning because we think that a risk is attached, but if the Parliament had operated in that way we would have done nothing for 12 years.
- Michael Russell:
I would not go to that extreme. You cannot tempt me into taking extreme positions. I will not go there. However, you are right about risk. In a sense, legislative scrutiny is about identifying risk. No action in life of any description is risk free. On this occasion, the risks are clear in two areas. We also know that there exists that worst of all things: two conflicting sets of legal advice. That is where we find ourselves. Yes, there is a risk, but we have boiled the position down to its irreducible essence, as I have said, and we know what the risk is. The proper place for any challenge to the legislation is the courts, if there is to be any challenge.
I would not in any way criticise the legal advice that I get as a minister, but there have been occasions in the past when I have had legal advice to which I have had to say that I am going in the opposite direction. That does happen.
- Elizabeth Smith:
Convener, I seek clarification, because this is not a situation that I have come across before. If we do not agree today, because the dispute is a legal one, is there any way in which the order can go before the full Parliament for further discussion?
- The Convener:
My understanding is that if the committee is not in agreement today, we will have to vote on the motion. The Government will then have two options: to withdraw the order or to contact the Parliamentary Bureau to seek parliamentary time to allow further consideration of the matter. However, I remind everyone that that might not be as easy as one would think, given that we already have some pretty late sittings coming up. In fact, time is running very short at the moment, because Parliament will convene at 1.15 pm and this meeting will have to be closed, because we cannot continue to meet as a committee while a plenary session is happening.
12:45
The option exists to go to the full chamber, but there is absolutely no guarantee that that would happen. As I have said, we would need to have the Parliamentary Bureau’s agreement, and parliamentary time would have to be available for such a debate. There is a heavy responsibility on all of us, as we all genuinely want to do the right thing and weigh up all the arguments that have been made. Ultimately, though, in weighing up those arguments, we need to focus our minds on reaching a conclusion, no matter whether that happens in committee or even in plenary session. Indeed, perhaps a court of law is the only place where a conclusion can effectively be reached.
- Elizabeth Smith:
Any delay would be unfortunate. I fully understand where the Government is coming from, but I must return to my point that there is doubt and confusion about a matter that has without question been on the table for some time. What concerns me is that this is a legal dispute rather than anything else. Margaret Smith made a very valid point about our responsibilities, and it might be helpful if, with a little extra time, we were able to consider the legal points and clear things up.
- The Convener:
I am going to allow the cabinet secretary to come in at this point, because it is important that we get some clarity on this issue. I will then move to the debate. This was supposed to be a question-and-answer session, but we have deviated from that at points.
- Michael Russell:
Although I accept Elizabeth Smith’s point, I still think that this is the point of decision. I am not sure that there is any further clarity to be had on the matter. The committee has heard from the Subordinate Legislation Committee’s lawyers, and from Mr Sullivan, who is my adviser on this matter. I do not think that there is a third position—this is it. The convener put it well. I do not want to be sceptical about lawyers, but if the committee sought further advice from a third lawyer, they might well give a third set of advice.
I cleave to my position that, regrettably, some issues are uncertain when legislation is passed and have to be clarified by the courts—or not, as the case may be. After all, sometimes people do not take the matter that far. I hope that that does not happen, but if it does the Government will, having studied the matter closely and having been willing to negotiate on a whole range of other issues with the Subordinate Legislation Committee, stand very firmly behind its interpretation.
- Laurence Sullivan:
My final point is that if we as lawyers and as a Government had thought that the order was ultra vires and that the power was not in the Public Services Reform (Scotland) Act 2010, we would not have introduced it to Parliament in this form.
- Michael Russell:
We would have been very much on a hiding to nothing had we done so.
The order is the product of lengthy negotiation. I accept that there is a dilemma, but I do not think that it can be resolved in any other place. We are down to the key issue, and making the information more widely available to everyone might just increase confusion.
- Elizabeth Smith:
But it is not something that has happened deliberately. It is a genuine legal concern. You did not envisage it happening at the start of the process, and I am sure that the GTCS did not, either; it is simply a result of different interpretations. Is that not correct?
- Michael Russell:
Yes, and I suspect that that might have been inevitable, given that the Public Services Reform (Scotland) Bill was hard fought. There are different interpretations in this area, but I must go back to my point about irreducible essence. There are some things that, because of its very nature, the GTCS will have to do, and I see no other way in which it could do them. We are confident that we have observed the legislation and we will defend our position vigorously.
- The Convener:
That concludes item 2 on our agenda.
The next item is the committee’s formal consideration of the Public Services Reform (General Teaching Council for Scotland) Order 2011. As members will know, technically we have up to 90 minutes to debate the motion. However, we do not have that time, so I ask members to concentrate their minds and keep their comments short.
I invite the cabinet secretary to speak to and move motion S3M-7861.
- Michael Russell:
I think that I have said all that I have to say on this order. I do not think that there is any dubiety in the room about where the difference of opinion lies. I would like the motion to be agreed to, because the order is important for Scottish teaching and Scottish education, and it is important that we as a Parliament show that we agree with the overall policy prescription. I accept that there is a difference of opinion, but we have to get on and do this.
I move,
That the Education, Lifelong Learning and Culture Committee recommends that the Public Services Reform (General Teaching Council for Scotland) Order 2011 be approved.
- Alasdair Allan (Western Isles) (SNP):
From what the convener has said and from what we have heard from the cabinet secretary, it is pretty clear that, unless we reach a reasonable conclusion in the next few minutes, it is likely that the order will not see the light of day until September. I have listened carefully to what has been said, but nothing has convinced me that the risks associated with approving the order are such that throwing it out, in effect for the foreseeable future, would be a proportionate response.
That is all that I have to say. I commend my brevity to others.
- Ken Macintosh:
I make it clear that I, too, intend to support the order, which is important for several reasons. I do not support it because we have to or because there is a deadline to meet and it is the only option that is open to us; I do not agree with any of those arguments. I think that many options are open to us. If we did not pass the order, the GTCS would continue to function and operate in the way that it has done. It has served Scotland in a tremendous fashion for a number of years, and it will continue to do so. There would be no crisis or chaos—I have no doubt whatsoever about that. However, the situation would be unhappy, and I suggest to the minister that it would be his and the Government’s credibility that would be shattered, not that of the GTCS.
Margaret Smith made the point that it is not the committee’s or the Parliament’s job to rubber-stamp the actions of the Executive, and it is certainly not our role not to take a view on the legality or competence of measures that we are discussing. Indeed, that is at the core of our role.
I am extremely disappointed that we have had quite a long discussion about the competence of the measure, but we have not had a chance to discuss—or even to celebrate, dare I say—the GTCS’s achievements and what it might go on to achieve as an independent body. I cannot pretend that the cabinet secretary really answered my questions about reaccreditation. I would have liked to ask him whether the GTCS will have a role in accrediting teachers in further and higher education, but we have not discussed any such issues or any of the policies on which the Parliament, parties and we as individuals have come to unite. I regret not having had the opportunity to do that. Our job is to scrutinise policy as much as anything else.
I am not convinced by the argument that has been put before the Subordinate Legislation Committee. It is simply an argument. It is a question whether the order could be challengeable because it passes the function of legislating on to the GTCS. The Subordinate Legislation Committee decides on such things week in and week out and it quite often has to take a view on the opinions of its lawyers, who quite often raise issues of this nature. I will not pretend that we are talking about a question that is other than at the more worrying end of the spectrum of questions raised by the lawyers, but it is simply that: a question, an argument that has been put.
I side with Laurence Sullivan’s view—not with what he said about a tennis or bowling club—that we are talking about schemes, rules and administrative decisions, not legislative functions. For that reason and because of those arguments, we should agree to the motion, but we should certainly not do so because we have to, because there is a deadline or because it is the only option that we have. It certainly is not. We should be pleased about the steps that we are taking unanimously to support the GTCS becoming an independent body, and we should all agree to the measure.
- Margaret Smith:
I am very unhappy about the situation in which we find ourselves. Essentially, we have come to an impasse between two legal opinions. I am not particularly persuaded that we would gain any more clarity if we carried things on for another week and the issue was considered by the Parliament as a whole. Nor am I particularly convinced that we would get any more clarity if we asked another 20 lawyers what they thought. That is part of my concern. The order has probably shown some of the issues that may arise in future under the Public Services Reform (Scotland) Act 2010. I hope that the Government and its lawyers will look clearly at the matter, if and when other instruments under the 2010 act are laid before the Parliament, because we should not in any way rejoice in the situation that we have got ourselves into.
No member of the Parliament—certainly no member of the committee—does not want changes to be made to the GTCS. I have spoken on many occasions about the fact that I have big concerns about teachers who should not be in our classrooms. There is a real need for clarity on what is legislative and what is administrative. We are dealing with administrative issues in a unique club, in which—unlike a sports club—administrative decisions about who is or is not a member feed into other legislation that allows members to teach in our schools. That makes the club’s membership particularly important for us all.
To be honest, even at this point I have not decided how I will vote. I am unhappy about the fact that we are being expected to vote through the measure at this stage. I hope that the Government will take on board the concerns that have been raised today, quite genuinely, to try to ensure that we do not find ourselves in this situation again in relation to any other instruments under the 2010 act.
- Christina McKelvie:
Much has been said in debate and questions this morning about the purpose of the committee. The point has been made clearly that we are not a court, but sometimes we need to make judgments. Those judgments must be based firmly on informed discussion. The informed discussion that I got this morning was much clearer from the Government than from the Subordinate Legislation Committee.
Every piece of legislation that the Parliament passes comes with a risk, but that risk is not insurmountable. The Parliament has been a trailblazer in passing legislation that would be deemed risky in other places. It has taken us to the cutting edge of many pieces of policy and policy development, not just in Scotland but in the United Kingdom and the wider world. We should not be averse to risk; in fact, we should be bolder. I hope that our successor committee after the election will be a bit bolder on these matters. For that reason, based on informed risk and the fact that the committee and I, as a member of it, must make a judgment, I will support the SSI.
- The Convener:
Everyone here has tried to exercise their function as a member of the committee to the best of their abilities. One reason that we discussed the issue at such length is that every one of us takes our responsibilities seriously. It weighs heavily on any politician’s mind if there is a possibility that what we are about to do is ultra vires. The committee has heard evidence that makes a legal case for that, but we have also heard the counter-argument that what the Government proposes to do is in no way ultra vires—that it is intra vires and perfectly acceptable.
Such legal opinions will always be there. No matter what the walk of life or the decision, lawyers will always argue with one another and give opposing views. The important issue is whether, in reaching the end of the process, the Government could have done anything differently or considered an alternative course of action. Given Mr Russell’s evidence to the committee, it seems to me that no matter which cabinet secretary for education or Government we had, we would end up in the same position of needing a legal debate on the issue. It is not for the committee to have such a debate, so I think that it is appropriate that we support the order. I wanted to put that personal view on the record.
13:00
The question is, that motion S3M-7861 be agreed to.
Motion agreed to,
That the Education, Lifelong Learning and Culture Committee recommends that the Public Services Reform (General Teaching Council for Scotland) Order 2011 be approved.
- The Convener:
The committee is required to report to the Parliament on the order. It might be somewhat easier just to refer the Parliament to the Official Report. More seriously, do members agree to delegate to me the authority to agree the text of the report with the clerks?
Members indicated agreement.
- The Convener:
That concludes consideration of agenda item 3. There are another six items on the agenda, but I will close the meeting in the hope that the cabinet secretary will be able to come to next week’s meeting. I hope that we will deal more speedily with the remaining subordinate legislation then, because that day’s meeting of the Parliament is scheduled to begin at 1.15 and I know that Mr Gibson has a members’ business debate for the meeting, so he is getting very anxious.
- Michael Russell:
I will certainly wish to alter whatever arrangements I have to ensure that we conclude the items that we must conclude.
- The Convener:
Thank you, cabinet secretary.
Meeting closed at 13:02.