4th Report, 2012 (Session 4): Stage 1 Report on the National Library of Scotland Bill

SP Paper 88

EC/S4/12/R4

4th Report, 2012 (Session 4)

Stage 1 Report on the National Library of Scotland Bill

CONTENTS

Remit and membership

Main Report
Introduction

Governance arrangements

The appointments process
Board size

The functions of the NLS

The power of direction
Charging for services
Charitable status and measuring success
Relationship with the Faculty of Advocates

Other issues

Legal deposit of digital material
Policy Memorandum and subordinate legislation

Conclusions
Annexes

 

Remit and membership

Remit:

The remit of the Committee is to consider and report on further and higher education, lifelong learning, schools, pre-school care, skills and other matters falling within the responsibility of the Cabinet Secretary for Education and Lifelong Learning and matters relating to culture and the arts falling within the responsibility of the Cabinet Secretary for Culture and External Affairs.

Membership:

Clare Adamson
Marco Biagi
Neil Bibby
Neil Findlay (Deputy Convener)
Stewart Maxwell (Convener)
Joan McAlpine
Liam McArthur
Liz Smith
Jean Urquhart

Committee Clerking Team:

Senior Assistant Clerk
Terry Shevlin

Assistant Clerk
Neil Stewart

Committee Assistant
Jonas Rae

Stage 1 Report on the National Library of Scotland Bill

The Committee reports to the Parliament as follows—

INTRODUCTION

1. The National Library of Scotland Bill (“the Bill”) was introduced to the Scottish Parliament on 26 October 2011.1

2. The accompanying Policy Memorandum states that the Bill will—

  • “Bring the National Library of Scotland’s governance arrangements, enacted in 1925, into line with those of many other public bodies …
  • Provide the basis to enable the National Library of Scotland to continue to evolve and realise its ambitions as a modern organisation.
  • Provide clarity as to the functions of the National Library of Scotland; update arrangements for the relationship with the Faculty of Advocates and its Library; set out the powers available to the National Library of Scotland and in particular how it manages its collections through acquisitions, deposits, disposals and loans.
  • Recognise the importance of the National Library of Scotland and the national collections it holds on behalf of the people of Scotland.”2

3. The Bill can be seen as having two primary aims: to modernise the NLS’s governance arrangements and to set out its functions in statute.

4. From the outset, the Committee wishes to make clear that it is content with the general principles of the Bill and considers that it should proceed to Stage 2 of the parliamentary scrutiny process. In particular, the Committee believes that the legislation provides a long-overdue overhaul of the NLS’s existing governance arrangements, which are unwieldy for a modern day organisation. The Committee also considers that setting out the NLS’s functions in statute provides a useful public statement of the main aims of one of Scotland’s key cultural institutions. That said, the Committee does have a number of specific concerns about these two areas, which are set out in detail in the following sections and which will inform the Stage 1 chamber debate on the Bill. The report also discusses some other issues considered by the Committee at Stage 1, including the Library’s relationship with the Faculty of Advocates.

5. The Committee would like to thank all those organisations and individuals who provided written and oral evidence. Six written submissions were received, while the Committee took oral evidence from the Scottish Government Bill Team, the Faculty of Advocates, the Scottish Library and Information Council, and the National Library of Scotland3 on Tuesday 7 February 2012, and from the Cabinet Secretary for Culture and External Affairs, Fiona Hyslop, on 21 February 2012.

6. In addition, the Committee would like to thank the NLS for organising a private visit by members to the Library, and SPICe for preparing a briefing on the Bill.

GOVERNANCE ARRANGEMENTS

7. Currently, under the National Library of Scotland Act 1925, the NLS board can have as many as 32 members. The Policy Memorandum states that this arrangement is “too big and unwieldy when compared to the size of more modern public bodies”4 and proposes a new board of between 7 and 14 members, including a chair.

8. The Bill also seeks to remove the ex-officio and reserved places provided for in the 1925 Act. For example, the current NLS board contains 11 ex-officio members, while places are also reserved for particular organisations and people; the Faculty of Advocates, Scottish universities and local authorities are all able to appoint a number of members.

9. The Scottish Government considers that the proposed reforms to the board will enable the NLS “to further develop its corporate strategy and fulfil its functions”.5

The appointments process

10. While the Bill does not set out the precise skills that new board members would be required to have, the Policy Memorandum states—

“The Government expects that NLS will be led by a diverse group of people who between them have a broad knowledge of the areas in which the NLS operates – for example, local authorities and universities who also operate library and information services – as well as others who use the NLS, in addition to the wider mix of skills required for a public body such as corporate governance, business and finance.”6

11. Scottish Ministers will appoint the NLS board, in compliance with public appointments procedures regulated by the Public Appointments Commissioner for Scotland. Scottish Ministers will also determine the terms and conditions of board members, including the period of appointment.

Board size

12. In taking oral evidence, the Committee concentrated on the proposed size of the new board.

13. There was unanimous agreement amongst the organisations that provided oral evidence that the proposed lower limit for the board was too small. For example, the current chair of the NLS board considered that seven members would not be sufficient to cover the range of skills and stakeholder interests required for an effective board, given the Library’s diversity. He also pointed out that while additional skills could be brought in through committees, this would be more difficult with a smaller board. In conclusion, he considered that the ideal board size would be 12 or 13 members7. The NLS’s chief executive, meanwhile, stressed the need for continuity during the process of transition to the new board to ensure that the Library was able to continue to deliver its functions effectively.8

14. The Committee questioned Scottish Government officials and the Cabinet Secretary as to why the board size could be as low as seven people. Scottish Government officials pointed out that the Bill provides for flexibility in increasing by order the minimum number of seven members, and that experts who are not members of the NLS could be co-opted on to committees. They also made clear that the size of the body is actively being considered by the Scottish Government.9

15. The Cabinet Secretary reiterated in oral evidence that, in response to stakeholders’ concerns, she was open-minded about increasing the minimum size of the board, from seven to nine. Ms Hyslop reassured the Committee that “the size of most boards is rarely at the low end” and pointed out that—

“The current structural shift in the boards of cultural bodies has been more towards governance, accountability and leadership. We do not necessarily want people protecting and promoting their own area of expertise at the expense of everything else … That is why we are increasingly seeing fewer designated places for particular representative groups on boards of management.”10

16. While the Cabinet Secretary was open-minded about the issue of the minimum board size, she was reluctant to see a similar increase in the maximum board size, pointing out that larger boards could become “less focused”. She also made the general point that the Scottish Government “is not in favour of large boards”.11

17. In terms of the transition to the new arrangements, Scottish Government officials considered that a small number (about four) of existing trustees might be able to form the nucleus of the new body.12

18. The Committee agrees with the concerns expressed by the NLS and other relevant organisations with expertise in this area, that a board comprising seven members would be too small. The Committee is not in a position to state what the optimum board size would be, however, it seeks an assurance from the Scottish Government that it will fully consult all relevant parties, particularly the NLS, before agreeing on a final number. The Committee also notes the Scottish Government’s presumption against large boards, but considers that the salient factor in determining the final size of the NLS’s board should be ensuring that the Library has the people it requires in order to function most effectively.

Cost of appointing the board

19. The Committee is required to report on the Financial Memorandum (FM) that accompanies the Bill. As the only significant financial issue relates to the costs of appointing the board, it is helpful to present the Committee’s views on the FM in this section.

20. According to the FM the costs associated with the Bill are minimal. No additional Scottish Government funding is required to enable NLS to implement the functions set out in the Bill, while costs associated with the recruitment process to the new board (a maximum of £22,000 over a three year period) can be absorbed within existing Scottish Government budgets. Further, the Scottish Government’s current policy is not to remunerate NLS board members.13

21. The Finance Committee has a defined role to play in scrutinising the costs associated with all bills and has established a hierarchy of scrutiny according to how great such costs are. In this case, the Finance Committee adopted the most basic level of scrutiny, which involves inviting relevant organisations’ views on the FM and then forwarding these to the lead committee.

22. The Finance Committee received written evidence from the Public Appointments Commissioner in Scotland and the NLS. The Commissioner’s response stated that, contrary to the Financial Memorandum, it would incur some costs as a result of the Bill. These costs relate to its scrutiny of the new board recruitment process and would amount to approximately £3,500 for the first set of appointments.14 The NLS submission similarly makes clear that it will face costs that are not discussed in the FM, namely the costs of recruiting a new Chair and other members of the revised Board. The NLS’s submission states that this will “present some challenges” but that the costs can be absorbed.15

23. The Committee understands that there will inevitably be costs associated with the transition to the new board and appreciates the fact that these appear to have been kept to a minimum. That said, the Committee is concerned that some costs associated with the Bill, albeit that they are minimal, were not fully set out in what should have been a comparatively straightforward FM to produce.

THE FUNCTIONS OF THE NLS

24. Section 2 of the Bill sets out the NLS’s general and particular functions, and the objectives it must seek to achieve in exercising these functions. The chair of the NLS board made the point that defining the functions in statute would not make much difference “because we do these things already”16. The Policy Memorandum notes that the Government “has taken the opportunity to consider functions that are outward and outcome focused”.17

The power of direction

25. In taking evidence on the NLS’s functions, the main issue pursued by the Committee concerned the Scottish Ministers’ powers to give NLS directions as to the exercise of certain of its functions.

26. The Scottish Government launched a consultation on the role and governance of the National Library of Scotland in March 2010, in which various respondents expressed concern about the power of direction as originally envisaged. The Policy Memorandum explains that the Bill now contains a “qualified Ministerial power of direction” and stresses that this is designed to respect NLS’s curatorial and cultural judgement. It goes on to discuss the areas where Ministers will be unable to give direction but does not actually set out the areas where the power could be used, an issue that the Committee explored in some depth.

27. The ministerial power of direction in the Bill extends to the following NLS functions—

  • “promoting collaboration between, and the adoption and sharing of good practice by, other persons providing library and information services” (section 2(2)(d)); and
  • “promoting the diversity of persons accessing the collections” (section 2(3)(c)).

28. In oral evidence, the NLS chief executive made clear his opposition to the principle of ministerial direction over the Library but also acknowledged that the settlement arrived at in the Bill was acceptable—

“Given the organisation’s responsibilities as a charity, the responsibilities of its board of trustees, my responsibilities as chief executive and accountable officer to the Scottish Government and our responsibility to report to the Scottish Parliament, we took the view that, with our very strong monitoring of the public resources that the library receives, we would not require additional direction. The fact that a very strong framework is already in place adds to our regret about the power of direction but, taking a pragmatic view, we think that, if there is to be such a power, the provision in the bill strikes a reasonable balance.”18

29. He added that “we think that the protections covering the National Library’s functions and what it exists to do are protected from ministerial direction”.19

30. The Committee asked the chief executive for his views on the specific areas where the Scottish Ministers could intervene i.e. promoting collaboration and promoting diversity. In response, he said that he did not “know fully” why there was an exemption in these areas. He added that he was “comfortable” about the provision relating to promoting diversity, as it effectively duplicated existing equalities obligations, but could not immediately think of an area in which the promoting collaboration direction would apply.20

Using the power of direction

31. In oral evidence, the Cabinet Secretary explained the general underlying principle behind the need for a ministerial power of direction—

“When an institution is funded from taxpayers’ money, it must be accountable to the taxpayer for ensuring that that money is spent wisely, and for its management and governance of the institution. That must be balanced with the institution’s artistic or—as in this case—curatorial responsibility and its freedom to ensure that it looks after our great cultural assets for the nation.”21

32. Scottish Government officials explained in general terms when Ministers may seek to use a power of direction—

“In essence, the statutory power of direction in relation to public bodies is very much a last resort. The thinking behind it is that it is to allow ministers to step in if they consider it appropriate to do so in the event of serious operational or organisational failure: in other words, when something has gone seriously wrong and all other attempts to resolve the matter without use of the statutory power have been unsuccessful.”22

33. Officials went on to provide a hypothetical example of where the power could be used in relation to the NLS—

“The Government has, for example, a policy of no compulsory redundancies across the public sector, including public bodies for which the Government is responsible. It is entirely hypothetical to say that the power over the National Library could be used in relation to that policy, although it is the sort of general Government policy that applies to a group of public bodies.”23

34. In her oral evidence, the Cabinet Secretary went on to state that the power of direction “can be used only in relation to overall management of the organisation”, a point that is not obvious from the Bill.24

Promoting collaboration

35. On the specific issue of promoting collaboration, an area where ministerial direction is expressly permitted, the Committee questioned whether this power could have a knock-on impact on those NLS functions that are not captured by the power of direction. The Cabinet Secretary confirmed that such a situation would not arise—

“Section 8(2)(a) stipulates matters on which I am not allowed to provide ministerial direction. It is clear that anything that would compromise curatorial functions is not allowed; so if we want to promote collaboration or the sharing of good practice, we can do that, but if that were to compromise exhibitions, interpretations and so on, my decisions could go to review and they could be deemed to have been illegal. There is a counterbalance for both sides, which is what we sought to achieve.”25

36. The Cabinet Secretary also went on to imply that she would, in any case, be unlikely to issue the power of direction relating to collaboration—

“We are well on the way with the collaboration agenda … However, I do not necessarily see that agenda as being a matter for ministerial direction … I do not think that using it [ministerial direction] would be a very wise thing to do, because it is a backstop as opposed to an action to make things happen proactively.”26

37. The Cabinet Secretary said she could not recall having used her ministerial power of direction for any bodies for which she had had responsibility. Scottish Government officials subsequently confirmed in supplementary written evidence that no ministerial power of direction had been given to a cultural public body.27

38. The Committee considers that the use of the ministerial power of direction is one of the more contentious issues in the Bill and has therefore explored this matter in some depth. Having done so, the Committee is of the opinion that the precise nature of the powers, when they could be used and how they would inter-relate with other functions over which ministers have no power, should have been far more clearly explained in the Bill’s accompanying Policy Memorandum. There is no explanation of why promoting collaboration and diversity have been exempted, or of the type of action that could be carried out under these headings. Given the NLS’s general reservation about the power of direction, it is also of some concern that the chief executive of the NLS did not know why there were exemptions in terms of collaboration and diversity.

39. The Committee understands why it might be helpful to the Cabinet Secretary to retain a power of direction in the event of any future unforeseen circumstance. However, the Committee notes both the NLS’s view that it is difficult to envisage when the power relating to collaboration would be used and the Cabinet Secretary’s suggestion that she would be unlikely to use it.

40. While the Bill sets out the specific areas in which the ministerial power of direction could be used – with regard to promoting collaboration and diversity – the Scottish Government’s oral evidence discussed much broader areas, such as the overall management of the NLS. The Committee considers that the Scottish Government must provide, in advance of Stage 2, clearer justification for including the ministerial power of direction in the Bill, and an explanation as to how the Bill could more accurately state how and when the power of direction could be used. Given the NLS’s concerns, the Cabinet Secretary should also confirm that she or her officials have held discussions with the NLS to provide clarity about the nature and extent of the powers of direction, particularly on collaboration.

Charging for services

41. In oral evidence, the Cabinet Secretary restated the Scottish Government’s commitment to the principle of free access to the NLS. However, the Committee discussed this issue at length, as the Bill states that the NLS may make charges for access to its collections, which caused some concern in oral evidence. For example, the Scottish Library and Information Council cautioned that—

“We must be absolutely clear that proper procedures are in place to ensure, for example, that charging for access to the library to access a book or collection is not taken as a given. The library might need to charge for some things, but we must ensure that it does not charge for that basic provision.”28

42. The Library’s chief executive echoed the Cabinet Secretary’s commitment to free access to the NLS, although he did go on to say that while exhibitions were free at the moment “it may be appropriate at certain points to charge for them”.29

43. Scottish Government officials reassured the Committee that the NLS’s proposed power to make charges (as set out in paragraph 11 of schedule one) would effectively be constrained by the over-arching functions set out for the Library in section two of the Bill. To clarify, the NLS’s particular function of making its collections accessible to the public could not be jeopardised by the separate power it has to make charges for accessing the collections.

44. Officials did confirm that the Library may legitimately seek to charge for an “added-value service” where there was an extra cost involved in providing a particular item, for example, charging users for “digitisation on demand” when content had not been made electronic or for the production of high resolution maps if these were not available as part of the NLS’s existing collections30. Even in such circumstances, however, officials stated that, under the Scottish public finance manual, if new charges were proposed, they would have to be agreed by the relevant Scottish Government directorate and by ministers31. A further check on the Library’s power to charge is that, under relevant charity legislation, it must fulfil its charity tests, which include providing a public benefit.

45. The issue of charging, and the NLS’s powers more generally, also overlaps with the discussion on the ministerial power of direction set out above. Schedule one, paragraph 11 sets out the NLS’s general powers and states, to paraphrase, that these are to be used in connection with the exercise of its functions.

46. The Committee asked the Cabinet Secretary to clarify the relationship between the ministerial power of direction and the NLS’s general powers. Ms Hyslop responded as follows—

“NLS must have regard to its functions when exercising any of its powers in schedule 1, paragraph 11 (1) and (2). The powers can in principle be directed on by Scottish Ministers, subject to the restrictions in section 8(2). A power of direction would only be used after careful consideration and as a means of last resort. Scottish Ministers would need to be satisfied that all other requirements and controls, as set out in the SPFM [Scottish Public Finance Manual] and the Memorandum to Accountable Officers, had been exhausted.”32

47. The Committee welcomes the Cabinet Secretary’s restated commitment to the principle of free access to the national library. The Committee accepts that there may be occasions where the NLS can legitimately charge for added value functions, and welcomes the fact that there are safeguards provided on this power.

48. The Committee notes the Scottish Government’s comments about the relationship between the ministerial power of direction and the NLS’s powers. The comments that the Committee has made above in relation to the power of direction generally apply equally here.

Charitable status and measuring success

49. There are two related points on the NLS’s functions that the Committee wishes to discuss briefly in this section.

50. Some respondents to the Scottish Government’s earlier consultation on the NLS (see paragraph 26) expressed concern that the power of direction may jeopardise the NLS’s charitable status. This was due to the fact that, under the Charities and Trustee Investment (Scotland) Act 2005, there is a “charity test” that requires a body’s constitution not to be directed or controlled by Scottish Ministers.

51. The Policy Memorandum makes clear that this requirement was disapplied by the Charity Test (Specified Bodies) (Scotland) Order 2006 and that the Bill’s inclusion of a power of direction is therefore compatible with charitable status. The Committee discussed this issue with Scottish Government officials and other witnesses, and is satisfied with the assurance that the powers of direction contained in the Bill will not jeopardise the Library’s charitable status.

Measuring success

52. As the Bill sets out for the first time in statute the functions of the Library, the Committee questioned how its success in achieving these functions would be measured. The Cabinet Secretary explained that the NLS will produce a corporate plan that will set out what it is trying to do and how it will measure its success.

53. The Committee welcomes the Bill’s statement of the NLS’s functions. This provides clarity on the roles that the NLS is expected to undertake and helps to encourage a degree of public accountability in ensuring that these functions are delivered.

Relationship with the Faculty of Advocates

54. The NLS has a close and long-standing relationship with the Faculty of Advocates (“the Faculty”). Indeed, between 1842 and 1925 the Advocates Library held sole right of legal deposit for Scotland, and effectively gifted its collection of non-legal books to the NLS in 1925. While the 1925 Act ensured that the NLS held the right of legal deposit for Scotland for both legal and non-legal publications, the Act required the NLS to pass all legal publications to the Advocates Library.

55. The Bill does not seek to alter these arrangements. However, there is an issue involving the NLS and the Faculty, concerning electronic legal deposit, that was discussed in oral evidence and on which the Cabinet Secretary said she may return with possible amendments at Stage 2. In brief, the Faculty and the NLS discussed the most appropriate means of establishing a process by which the NLS would be able to furnish the Faculty with the electronic legal publications it required. The Committee notes and appreciates that the two organisations are attempting to resolve this issue in an amicable manner and, more broadly, that neither institution considers that there would be any merit in including in the Bill more detailed provisions as to how they are to work together.

OTHER ISSUES

56. Having considered the issues of governance, the NLS’s functions and its relationship with the Faculty of Advocates, this section of the report looks at two other issues related to the Bill: legal deposit of digital material and the Policy Memorandum.

Legal deposit of digital material

57. Paragraph 3 of the Policy Memorandum says that the Bill has been designed to “provide sufficient scope for the further evolution of NLS and to cover future developments in Scottish Government policy.”

58. One of the most significant issues facing the Library – and libraries in general – concerns what the NLS described in its written evidence as the “digital information revolution”. The Library’s written evidence set out the challenges it faces in this area—

“As information, knowledge and creativity of all kinds – film, music etc. as well as books and journals – are increasingly produced electronically (‘born digital’), new, challenging questions emerge which NLS is actively addressing: How do we collect this material? How do we preserve it for future generations? How can people find what they need and use it?”33

59. The NLS and other witnesses expressed concern that the relevant UK legislation on collecting digital material, the 2003 Legal Deposit Act, has not been implemented.

60. The Policy Memorandum notes that regulations are being drafted by the Department for Culture, Media and Sport (DCMS) which will allow for non-print publications to be delivered to or deposited electronically with NLS. In oral evidence, the Committee questioned the reserved-devolved split in this policy area. Scottish Government officials described the area as “semi-devolved”; the power to request that publications be placed on legal deposit in the NLS is devolved, but other relevant issues, such as copyright, are reserved. The Cabinet Secretary confirmed that she would prefer to wait for comprehensive regulations from the DCMS, rather than take action on one particular area.34 In the course of the Committee’s Stage 1 scrutiny, DCMS launched a consultation on the regulations.

61. The Committee appreciates that the issue of electronic legal deposit is long-standing, complex and one on which the Bill does not contain specific provisions. Consequently, the Committee’s evidence-taking in this area was limited. However, the fundamental importance of the issue to the NLS and the fact that the Bill aims to be “future proof” together mean that the issue cannot be ignored in this report. The Committee welcomes the Cabinet Secretary’s ongoing discussions with the DCMS and looks forward to this issue being resolved as quickly as possible.

Policy Memorandum and subordinate legislation

62. The Education and Culture Committee is required to report on the Bill’s Policy Memorandum in its Stage 1 report. The Committee’s substantive comments about the PM, concerning the lack of detail on the ministerial powers of direction, have already been discussed in paragraph 38. Other than this point, the Committee considers that the Policy Memorandum effectively meets the requirements set out in the Standing Orders.35

Equalities

63. The Committee particularly welcomes the Scottish Government’s expectation that moving to a modern governance structure is likely to have a beneficial impact on equal opportunities; the Policy Memorandum states that “The proposals will help to address the current gender imbalance and increase opportunities for younger, qualified persons to be appointed to the new board on merit.”36

64. The Committee also welcomes the provision requiring the NLS to have regard to promoting the diversity of its users. The Committee expects that this will help the Library to make further progress in addressing some of the inequalities set out in the Equality Impact Assessment (EIA) that was carried out for the Bill by the Scottish Government. The EIA noted for example, that 6 per cent of NLS users declared themselves to be disabled, whereas 20 per cent of the general population were classified as disabled.

65. Finally, the Committee notes that the Subordinate Legislation Committee determined that it did not need to draw the attention of the Parliament to the delegated powers contained in the Bill.

CONCLUSIONS

66. The Committee recommends to the Parliament that its general principles be agreed to. The Committee has made various suggestions in the report as to how the Bill can be further improved during its passage and looks forward to the Cabinet Secretary’s response.

ANNEXES

ANNEXE A: EXTRACT FROM MINUTES OF THE EDUCATION AND CULTURE COMMITTEE

11th Meeting, 2011 (Session 4), Tuesday 15 November 2011

National Library of Scotland Bill (in private): The Committee considered its approach to the scrutiny of the Bill at Stage 1. A draft call for written evidence was agreed to and the Committee agreed to invite various organisations to provide oral evidence.

5th Meeting, 2012 (Session 4), Tuesday 7 February 2012

National Library of Scotland Bill: The Committee took evidence on the Bill at Stage 1 from—

Colin Miller, Head of Public Bodies Policy Unit, Carole Robinson, Bill Team Leader, and David Seers, Head of Cultural Excellence, Scottish Government; Greig Walker, Solicitor, Economy and Transport Division, Scottish Government Legal Directorate;

And then from—

Andrea Longson, Senior Librarian, and Mungo Bovey QC, Keeper of the Library, Faculty of Advocates; Elaine Fulton, Director, Scottish Library and Information Council; Martyn Wade, National Librarian and Chief Executive, and Professor Michael Anderson, Chairman of the Board of Trustees, National Library of Scotland.

6th Meeting, 2012 (Session 4), Tuesday 21 February 2012

National Library of Scotland Bill: The Committee took evidence on the Bill at Stage 1 from—

Fiona Hyslop MSP, Cabinet Secretary for Culture and External Affairs; Carole Robinson, Bill Team Leader, and David Seers, Head of Cultural Excellence, Scottish Government; Greig Walker, Solicitor, Economy and Transport Division, Scottish Government Legal Directorate.

7th Meeting, 2012 (Session 4), Tuesday 28 February 2012

National Library of Scotland Bill (in private): The Committee considered a Stage 1 draft report. Various changes were agreed to, and the Committee agreed to consider a revised draft, in private, at its next meeting.

ANNEXE B: EXTRACT FROM SUBORDINATE LEGISLATION COMMITTEE REPORT

The Committee reports to the Parliament as follows—

INTRODUCTION

At its meetings on 22 November and 13 December 2011, the Subordinate Legislation Committee considered the delegated powers provisions in the National Library of Scotland Bill at Stage 1. The Committee submits this report to the Education and Culture Committee as the lead committee for the Bill under Rule 9.6.2 of Standing Orders.

OVERVIEW OF THE BILL

1. The National Library of Scotland Bill was introduced in the Parliament on 26 October 2011. It is an Executive Bill.

2. The Scottish Government provided the Parliament with a memorandum on the delegated powers provisions in the Bill (“the DPM”).

3. In the consideration of the memorandum at its meeting on 22 November, the Committee agreed to write to the Scottish Government to raise questions on the power at section 12(2).

4. This correspondence is reproduced in the Annexe.

5. The Committee determined that it did not need to draw the attention of the Parliament to the delegated powers contained in section 8 (directions and guidance), section 10(2) (incidental or consequential provision), or schedule 1, paragraph 2(3) (variation of number of members of the National Library of Scotland).

Delegated powers provision:

Section 12(2) – Power to commence provisions (including transitional, transitory or saving provisions)

Power conferred on: The Scottish Ministers

Power exercisable by: Order

Parliamentary procedure: Default laying requirement

6. This power enables the Scottish Parliament to appoint a day or days when the provisions of the new Act are to come into force. An order which does so can also include transitional, transitory or saving provision.

7. An order made under section 12(2), whether simply commencing provisions, or whether also making transitional, transitory or saving provision, is subject only to the basic laying requirement as provided for under section 30 of the Interpretation and Legislative Reform (Scotland) Act 2010 (“the 2010 Act”).

8. The Committee contrasted the difference in procedural treatment under section 10(2) and section 12(2). An order to make incidental or consequential provision set out at section 10(2) would be subject to the negative procedure (or affirmative where amending the text of an Act). No indication was given in the DPM of circumstances in which this power might be used, whether that could potentially be significant, or why it should be subject simply to the laid only procedural requirement.

9. The Committee asked the Scottish Government why an order made under the section 12(2) power, where it includes transitional, transitory or saving provision, should be subject simply to the default “laid only” procedural requirement. Clarification was sought as to what sort of provision could be necessary in this case and for justification why exercise of this power need not attract parliamentary scrutiny.

10. The Committee notes from the reply that the Scottish Government considers the approach taken within section 12(2) to be appropriate. The Committee notes that the Bill makes major changes to the size and makeup of the board of trustees, and that the power might be required to deal with unforeseen transitional issues.

11. It is also notes that this is a Bill of narrow scope, and that it is stated by the Scottish Government that any provision is not likely to be lengthy or complex, or to affect the legal rights of the public at large. The Committee further observes that the power cannot be used to modify enactments.

12. The Committee takes the view that while, along with clarity of provision, these are important considerations, the attraction of covering transitional, transitory or saving provisions within a commencement order for those reasons requires to be balanced with an assessment of whether an appropriate level of Parliamentary input is given to such an order.

13. In this particular instance, having regard to the content of this Bill, its narrow scope, and the restricted nature of the power, the Committee is satisfied with the response provided, and the provision made.

14. The Committee, having heard further from the Scottish Government, is content with the order making power under section 12(2), relating to commencement, which may include transitional, transitory or saving provision, and furthermore, is content that an order under this power is not to be subject to Parliamentary procedure beyond the default laying requirement.

Annexe

Correspondence with the Scottish Government

Section 12(2) – Power to commence provisions (including transitional, transitory or saving provisions)

The Committee asks the Scottish Government why an order made under section 12(2), where it includes transitional, transitory or saving provision, should be subject simply to the default “laid only” procedural requirement (in contrast to an order which makes incidental or consequential provision under section 10(2), which would be subject to (at minimum) the negative procedure)?

The Committee further asks the Scottish Government to explain, with reference to this power, what sort of provision might be necessary, and for justification why exercise of the power need not attract Parliamentary scrutiny?

Scottish Government Response

Thank you for your letter of 22 November 2011 seeking an explanation on the power to commence provision at Section 12 (2) of the National Library of Scotland Bill.

As a general policy, the Scottish Government does not consider that commencement orders should be subject to Parliamentary procedure and sees no reason why transitional, transitory or saving provisions should not be included in such orders. It is clearer for the users of the legislation to be able to see any transitional, transitory or saving provisions in the commencement order(s).

The type of provision which might be necessary for the National Library of Scotland Bill might relate to the transition from the current board of trustees of 32 members, of whom only 5 are appointed on the recommendation of the Scottish Ministers, to a board of between 7 and 14 members appointed directly by the Scottish Ministers. As stated in the Delegated Powers Memorandum, the power is to deal with any unforeseen transitional issues. Given the narrow scope of the Bill it can be anticipated that any provision is not likely to be lengthy or complex or affect the legal rights of the public at large. The power cannot be used to modify enactments. Accordingly, it is felt that any transitional, transitory or saving provisions need not be subject to Parliamentary procedure beyond the default laying requirement.

ANNEXE C: FINANCE COMMITTEE CONSIDERATION OF THE FINANCIAL MEMORANDUM

The following call for evidence was issued by the Finance Committee on the 11 January 2012.

To—

National Library of Scotland

Faculty of Advocates

Scottish Library and Information Council

Chartered Institute of Library and Information Professionals in Scotland

Society of Antiquaries in Scotland

COSLA

Scottish Confederation of University and Research Libraries

Public Appointments Commissioner for Scotland

11 January 2012

Dear Sir/Madam,

NATIONAL LIBRARY OF SCOTLAND BILL: FINANCIAL MEMORANDUM

The above Bill was introduced in the Parliament by the Scottish Government on 26 October 2011.

The Bill defines the functions of the National Library of Scotland (NLS) and updates its powers in line with those of modern public bodies. The National Library of Scotland Act 1925 did not specifically provide for the board’s functions, which have evolved over time. The functions will reflect the role of the NLS in relation to—

  • preserving, conserving and developing its collections;
  • making the collections accessible to the public and to persons wishing to carry out study and research;
  • exhibiting and interpreting objects in the collections; and
  • promoting collaborations and shared practice amongst the library community.

Financial considerations

This Bill is accompanied by a Financial Memorandum, the purpose of which is to set out estimates of the expected costs of the Bill to the Scottish Administration (i.e. the Scottish Government, in the broad sense of Ministers, departments and agencies), to local authorities and other bodies, individuals and businesses.

The Bill’s FM shows, at present the Scottish Government’s core grant-in-aid for NLS totals £13.275m. The FM indicates that none of the provisions in relation to the functions and powers of NLS, or in relation to legal publications, impose any new or additional costs on it, therefore no further funding will be required from the Scottish Government to enable NLS to implement the functions and powers of the Bill.

The Bill sets out to reduce the size of the NLS board from 32 members to between 7 and 14 members, all of whom will be appointed by Scottish Ministers. It also sets a definitive period of appointments in which each round will be run every two to three years. The FM states—

“The costs of this, which will fall to the Scottish Government, will be for advertising the appointments to ensure a wide range of applicants from diverse backgrounds and for the implementation of the process for selecting the appointees. It is anticipated that any such cost would be a maximum of £10,000 over a three year period. There will be additional costs in the first year as the Scottish Ministers appoint a chair and members and therefore it is estimated that costs in that year could be between £10,000 to £12,000. All of these costs will be absorbed within existing budgets.”

Under current Scottish Government policy NLS members do not receive remuneration. However, the Bill has been drafted to allow remuneration if Scottish Ministers wish to change this policy. The FM indicates the estimated costs for the introduction of remuneration would be between £22,000 and £45,000 per year for the whole board (based on current expected levels of board activity).

The FM suggests there are likely to be savings to the amount of expenses claimed and administrative costs due to the Bill reducing the number of board members. The FM states—

“It is estimated that total savings, from expenses and administrative costs, will be around £1,300 per annum or 30% of the current costs.”

The FM indicates there will be no additional costs on local authorities or any other bodies, individuals and businesses.

Purpose

The Finance Committee has responsibility, within the parliamentary scrutiny process, to examine the cost implications of Bills. The Committee, at its meeting today, agreed to issue a call for evidence to the organisations identified above seeking a response to the specific questions attached to this letter. The written responses received will also be forward to the Education and Culture Committee which is the lead committee examining the policy aspects of the Bill.

To facilitate the parliamentary timetabling of the Bill, the Finance Committee invites you to respond to the attached questions by 8 February 2012. All responses should be sent electronically in MS Word (no confirmatory hard copy required) to finance@scottish.parliament.uk. Written responses will be handled in accordance with the Parliament’s policy for handling written evidence received in response to calls for evidence.

Please do not hesitate to contact me should you have any questions about this letter.

Response from the Office of the Commissioner for Public Appointments in Scotland

Consultation

1. Did you take part in the consultation exercise for the Bill and, if so, did you comment on the financial assumptions made?

No. Although the Office of the Commissioner for Public Appointments in Scotland appears on the list of bodies consulted during the consultation exercise on the Bill, we have no record of receipt of the consultation papers.

2. Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

Not applicable

3. Did you have sufficient time to contribute to the consultation exercise?

Not applicable

Costs

4. If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

The Financial Memorandum advises that there will be no financial implications for our organisation. This is not accurate.

We assign Public Appointments Assessors to provide scrutiny of regulated appointment activity. We have assigned assessors to oversee appointment rounds for this body three times since the establishment of our office. Assignments were made in 2004, 2006 and 2009. On each occasion the appointment activity was cancelled by the Scottish Ministers before any appointment was made and the costs of providing scrutiny of appointments to this body were therefore relatively low. The 2004 round had a nil cost and the 2006 and 2009 rounds cost our organisation £250 and £1,092 respectively. The Bill and FM indicate that a raft of initial new appointments will have to be made. Whilst we cannot predict the cost of providing scrutiny of this activity precisely, we anticipate that it will cost us approximately £3,500 for the first set of appointments and approximately £1,000 for each new appointment round thereafter.

5. Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

Yes

6. Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

We are unable to offer an opinion on this.

Wider Issues

7. If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

No comment

8. Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

We do not anticipate any additional costs arising for our organisation over and above those we have identified and set out in response to question 4.

We are unable to offer an opinion on costs that may arise for other parties as a consequence of developed guidance or subordinate legislation.

Response from the National Library of Scotland

Consultation

1 Did you take part in the consultation exercise for the Bill and, if so, did you comment on the financial assumptions made?

NLS has been fully involved in the consultation and preparation of the Bill.

2 Do you believe your comments on the financial assumptions have been accurately reflected in the Financial Memorandum?

Yes

3 Did you have sufficient time to contribute to the consultation exercise?

Yes

Costs

4 If the Bill has any financial implications for your organisation, do you believe that these have been accurately reflected in the Financial Memorandum? If not, please provide details.

Yes

5 Are you content that your organisation can meet the financial costs associated with the Bill? If not, how do you think these costs should be met?

NLS will need to meet the costs of recruiting a new Chair and other members of the revised Board; at a time of restricted funding, this presents some challenges, but the costs can be taken account of in our draft budget for 2012-13. The Bill and its consequences require considerable investment of time from Trustees and senior management, but NLS agrees that this investment is worthwhile to provide a clear statutory basis for the functions of the Library and to improve governance.

6 Does the Financial Memorandum accurately reflect the margins of uncertainty associated with the estimates and the timescales over which such costs would be expected to arise?

Yes

Wider Issues

7 If the Bill is part of a wider policy initiative, do you believe that these associated costs are accurately reflected in the Financial Memorandum?

Not applicable.

8 Do you believe that there may be future costs associated with the Bill, for example through subordinate legislation or more developed guidance? If so, is it possible to quantify these costs?

No

ANNEXE D: ORAL EVIDENCE AND ASSOCIATED WRITTEN EVIDENCE

5th Meeting, 2012 (Session 4), Tuesday 7 February 2012

ORAL EVIDENCE

Colin Miller, Head of Public Bodies Policy Unit, Carole Robinson, Bill Team Leader, and David Seers, Head of Cultural Excellence, Scottish Government; Greig Walker, Solicitor, Economy and Transport Division, Scottish Government Legal Directorate;

Andrea Longson, Senior Librarian, and Mungo Bovey QC, Keeper of the Library, Faculty of Advocates; Elaine Fulton, Director, Scottish Library and Information Council; Martyn Wade, National Librarian and Chief Executive, and Professor Michael Anderson, Chairman of the Board of Trustees, National Library of Scotland.

6th Meeting, 2012 (Session 4), Tuesday 21 February 2012

ORAL EVIDENCE

Fiona Hyslop MSP, Cabinet Secretary for Culture and External Affairs; Carole Robinson, Bill Team Leader, and David Seers, Head of Cultural Excellence, Scottish Government; Greig Walker, Solicitor, Economy and Transport Division, Scottish Government Legal Directorate.

ASSOCIATED WRITTEN EVIDENCE

Submission from Faculty of Advocates

The Faculty of Advocates welcomes the following recognition of its historic and continuing involvement with the National Library of Scotland in the Policy Memorandum for the Bill:

“Links between the Faculty of Advocates and the National Library of Scotland

12. The Faculty of Advocates is an incorporation of independent lawyers that has run and funded the Advocates Library since 1689. Legal deposit was introduced in Scotland in 1709 and between 1842 and 1925 the Advocates Library held sole right of legal deposit for Scotland. The Faculty gifted its collection of non-legal books to the nation in 1925, with the introduction of the National Library of Scotland Act in that year, to provide the foundation of the NLS.

13. The 1925 Act, alongside establishing the NLS, also ensured that NLS held the right of legal deposit for Scotland for both legal and non-legal publications (in addition to taking receipt of the Faculty’s non-legal books). However, NLS is required under the provisions of the 1925 Act to pass all legal publications to the Advocates Library. The Faculty also owns part of the land on which the NLS is situated.

14. Given both the historical and continuing partnership working between the NLS and the Faculty of Advocates, the Government recognises that it is important that this Bill will maintain and enhance this relationship. The Advocates Library is Scotland’s pre-eminent working law library and the Faculty’s collections include rare manuscripts and many of the earliest Scottish law books. The Faculty Library’s stock of legal deposit books is made available to the public, students and researchers through NLS and the public further benefits from the Faculty’s collections of legal publications through the provision by advocates of qualified and independent advice on the law of Scotland.”

The Faculty appreciates the extensive consultation by the Minister and civil servants responsible for the Bill. The key points we have made in this exercise are:

1. It should be noted that while the Faculty of Advocates does hold legal publications which have been made available pursuant to section 5 of the 2003 Act and earlier copyright legislation, it also holds substantial other collections which were not acquired by legal deposit. These, for example, would include collections of art works as well as a wide variety of manuscripts and printed material. Although the Faculty does often grant access to these collections, they are not (and never have been) available as of right to members of the public. It is therefore important that the Bill should distinguish between the material which the Faculty of Advocates holds by reason of legal deposit and other parts of the Faculty collections. A Memorandum of Agreement recently signed by the Faculty and the NLS indicates the Faculty’s willingness to lend other literary materials as freely as possible. We do not, however, consider it appropriate for the Bill to impose on the Faculty an obligation to enter into agreement with the NLS in relation to its non-legal deposit collections. In this regard, we consider the drafting of clause 6(1)(a) and (c) to be unduly wide where they refer to “collections”.

At clause 6(1)(c), we would suggest that the words “objects in the Faculty collections” be deleted and substituted therefore with “legal publications sent to the Faculty under section 5 and earlier legal deposit legislation.”

2. At clause 3(6)(b), there is permission to dispose of an object in the circumstances mentioned in section 3(2)(c) or (d), without the consent of the owner. The Faculty would not wish its property to be disposed of in these circumstances without its consent, except by being returned to the Faculty. We would be content with the Bill team’s suggestion of “words of comfort” in Ministerial statements in this regard.

3. With respect to clause 5, the Faculty would wish to ensure that NLS collect such legal publications which are online publications as it considers necessary, even if such publications do not become the property of the Faculty. The Faculty Library staff has the expertise appropriate to determining which legal publications should form part of the national collections.

In view of the foregoing we would propose the following amendments to clause 5(3):

  1. Delete “subsections (1) and (2) do” and substitute therefore “subsection (1) does.”
  2. Add a new sentence at the end to the effect that “NLS must include in a request made under the 2003 Act in relation to online electronic publications such legal publications as the Faculty may require it to include.”
  3. We also suggest that clause 6(1)(e) be widened to recognise the Faculty’s influence in requesting on-line material.

It is not clear why clause 5(3) excludes subsection 2 when section 5 of the 2003 Act only applies to printed publications in any event.

4. Finally, with respect to schedule 1 paragraph 6, the Faculty regrets the proposal to dispense with the post of “Librarian” at the head of the NLS.

Submission from the National Library of Scotland

1. Introduction

The National Library of Scotland (NLS) welcomes this opportunity to provide written evidence to the Committee on the National Library of Scotland Bill. NLS also looks forward to presenting evidence to the Committee in person on 7 February 2012.

2. What we do

In order to set the scene, we would like to describe briefly the work of the Library. Our purpose is to advance universal knowledge about Scotland and in Scotland. We play a key role in supporting education, research, business and innovation and in enhancing the reputation of Scotland as a country with a rich cultural heritage and a vibrant future. We act as a national resource for research, education, enterprise and culture, specifically by collecting material, preserving it for the future and providing access to it. The Library is one of Europe’s major research libraries, with over 14 million printed items spanning internationally-renowned historic ‘treasures’ as well as the very latest publications. A theme running through all our work is collaboration. It is no longer possible (if it ever were in the past) for a library to collect, preserve and give access to its collections by acting alone and NLS works in partnership with other organisations at the global, European, UK, Scottish and local levels.

The Library is Scotland’s only Legal Deposit library, entitled to claim a copy of all printed UK and Irish publications. Through this route we add some 4,000 new items every week to the Library’s collections, requiring three kilometres of new shelving each year. NLS also buys a significant amount of material to meet the needs of users, where we cannot obtain it through legal deposit (typically, because it is published abroad, or is in electronic form).

Access to this material continues to be provided through our reading rooms, principally at George IV Bridge, Edinburgh (as a reference library, printed material is consulted onsite). Increasingly access can also be provided through online services, allowing material to be consulted remotely in schools, homes or workplaces. NLS handles thousands of enquiries from across the world each year and has a full programme of events and exhibitions. We have a small education team that works directly with schools and teachers, and increasingly contributes material to electronic learning resources. NLS users can be anyone - family researchers, students, professional and business users, tourists or the general public. Our users come from all parts of the world.

3. Our Successes

Over the past decade or so, NLS has undertaken a concerted and sustained transformation to ensure that it is a library for all. The old notion of a ‘library of last resort’ (a place you could go only if you could not find the resources anywhere else) is a thing of the past. This is demonstrated by some figures on our usage and public awareness from 2004/5 to 2009/10:

  • public awareness of NLS among Scottish public increased from 20% to 49%;
  • reader visits increased from 58,000 to 79,000;
  • the value of NLS media coverage increased from £0.922 million to £1.487 million.

Notable recent additions to the NLS collections are the John Murray Archive, purchased in 2006 for £32 million with support from the Heritage Lottery Fund, the Scottish Government and many private individuals and trusts. The merger of the Scottish Screen Archive with NLS in 2007 added more valuable material to complement NLS collections. Other achievements include the opening of the Visitor Centre at George IV Bridge, with visitor numbers exceeding our initial ‘footfall’ target of 1.5 million in the first year. The introduction of online reader registration in June 2010 has already attracted 9,500 additional users from over 100 countries by March 2011. NLS has pioneered the negotiation of free remote access (ie in the home, school or office) to many important and valuable research resources1 for people living in Scotland. Increasingly, the Library is in close collaboration with the National Galleries of Scotland on shared administrative services.

4. Opportunities for the Future

Many of the opportunities (and challenges) currently facing the Library relate to the digital information revolution. On one level, this needs no explanation as it touches every level of modern life and is clearly continuing at pace; however, its importance for an organisation such as the National Library of Scotland cannot be over-stated. As information, knowledge and creativity of all kinds - film, music etc. as well as books and journals - are increasingly produced electronically (‘born digital’), new, challenging questions emerge which NLS is actively addressing: How do we collect this material? How do we preserve it for future generations? How can people find what they need and use it?

In order to collect digital material the key issue at present is electronic Legal Deposit. There is an urgent need to implement the 2003 Legal Deposit Act which permits NLS and other UK Legal Deposit Libraries to collect a copy of everything published electronically, just as the Library and its predecessor have been able to do for printed publications since 1710. The Department of Culture, Media and Sport is currently working on this at a UK level but it remains a concern that draft Regulations have yet to be published nine years after the Act was passed. Meantime, we have been working with the British Library and the National Library of Wales so that, collaboratively, we will all be ready to collect material when the appropriate regulations are approved.

Techniques to preserve digital media are much less well understood and developed than those for paper. As a result, while libraries like NLS contain millions of pages of paper dating back centuries, Scotland has already lost forever much valuable digital information (examples include websites from the 2005 Edinburgh congestion charging referendum and the first websites of the Scottish Parliament itself). The solution to this issue, which NLS is working to resolve, lies in collaboration at various levels - especially internationally.

NLS has a vision that all the published cultural and information resources of Scotland should be available to all who can benefit from them - subject of course to the essential protection of the rights of copyright holders. NLS sees the scope for developing a national digitisation strategy for our cultural heritage. Much, but by no means all of this published heritage is held in national institutions such as NLS and the National Records of Scotland, while local archives, libraries and museums as well as universities, professional and private collections also hold valuable and unique materials. A national strategy to digitise all this material (again subject to copyright) would put Scotland in the forefront of international best practice, providing a resource for the public and researchers in Scotland and across the world showcasing Scotland’s rich cultural heritage.

NLS also has ambitions to develop a Sound Archive for Scotland which Scotland still lacks (the UK Sound Archive is managed by the British Library in London). A major consultation document into sound preservation identified that NLS should lead the development of a Scottish Sound Archive which has the scope to ensure that Scottish content (for example, Gaelic material) is collected comprehensively, and NLS is working with partners to develop this proposal into a viable project. As with other media, digital has become the principal format for the storage and dissemination of sound (music, speech, radio etc) and we must anticipate the need to collect new formats in the future as technology continues to develop.

5. Comments on the Bill

Turning then to the NLS Bill itself, these opportunities demonstrate why the functions outlined in the Bill are so important to the Library. Our work will increasingly involve participating in networks, collaborating to develop best practice and ensuring that this is made available throughout Scotland (for example, on digital preservation); a legal basis for NLS to provide leadership and promote collaboration in Scotland is vital for NLS to maximise its contribution to Scottish society in the long run. We are therefore pleased with the drafting of the functions of the National Library in such broad terms in Section 2 of the Bill, which should provide a sound statutory basis for NLS to play its full part in the educational, economic, intellectual and cultural life of Scotland in the future.

The inclusion of a statutory Ministerial power of direction has attracted some attention, both within NLS and by other educational and cultural bodies. We note that it is unusual for such a power to apply to a registered Scottish Charity. Like other national collections institutions, NLS has a mandate that spans decades and centuries and in an ideal world, NLS would have preferred to avoid the introduction of such a power in law. Nevertheless, NLS recognises that the Bill includes substantial restrictions on the Ministerial power of direction which have been extensively discussed with the Trustees of the Library. We therefore do not seek the removal of provisions relating to this power. We recognise that in any case, the Scottish Government inevitably has great influence over the Library through its provision of Grant-in-Aid; like all NDPBs and other public bodies, it is entirely reasonable that the Scottish Government expects NLS to take full account of its priorities. We are also reassured by the Office of the Scottish Charity Regulator that this power does not jeopardise NLS’s charitable status (through the Charity Test (Specified Bodies) (Scotland) Order 2006). It is essential that this status continues and that the Trustees of the reformed board continue to meet the requirements of charity law through their independent stewardship of the Library.

We also welcome the reform of the governance arrangements that were enshrined in the 1925 Act and agree that it is timely to modernise the legal basis of the Board. Both the size of the current Board (32 members) and the prescription of ex-officio places are now anomalous and NLS agrees that a smaller Board, appointed on merit and with fixed terms, would improve governance.

We have some concerns, however, that the modernised Board should not be too small. Paragraph 2(1) of schedule 1 to the Bill allows for between 7 and 14 members of the Board (including the Chair). Our current Trustees have expressed concern that the smaller end of this scale would not allow the breadth of expertise required to be represented on the Board, nor would ensure that the reformed Board maintains the appropriate level of engagement with and credibility among the full range of stakeholders. NLS would therefore like to see this provision amended to specify a larger minimum size for the Board.

6. Conclusion

To sum up, NLS therefore welcomes the Bill and the provisions contained in it, other than the minimum size of the Board as stipulated in paragraph 2(1)(b) of schedule 1. Our Trustees fully accept that the time is right for changes to the Library’s governance and that the functions of the Library are set out appropriately in the Bill.

Submission from the Scottish Library and Information Council

The Scottish Library and Information Council (SLIC) is the advisory body to the Scottish Government and Scottish Ministers on library and information matters. The Council was established in 1991 to create an organisation to support and lead strategic development for all library and information services in Scotland. SLIC members include local authority, higher education, further education organisations, NHS Trust library services as well as other specialist library and information organisations, including the National Library of Scotland.

SLIC welcomes the opportunity to comment on the Bill. As advisory body for all libraries in Scotland, SLIC is pleased that revision of the 1925 legislation is before Parliament to bring the governance standards of the National Library of Scotland into line with those other NDPBs. This legislation should ensure that NLS is fit for the future.

SLIC will be happy to work with Scottish Government and the National Library of Scotland to assist them deliver their functions. It is crucial that NLS is able to add value to the library sector in Scotland, without confusion to the library community and the general public or through duplication of effort with other bodies.

Overall SLIC feels the Bill provides a platform to deliver, but take this opportunity to comment on a few minor aspects of the Bill and its possible implementation.

Section 2

2 (d) Promotion between, and the adoption and sharing of good practice by other persons providing library and information service.

SLIC is clear that the NLS has a leading partnership role in collaboration in relation to its collections and making access to them should be a priority. Scotland has a good track record of collaboration, in particular through the work of SLIC and others. For example NLS, SCURL (Scottish Confederation of University and Research Libraries) and SLIC worked together to develop the Scottish Collections Policy which provides a framework for collaborative retention of Scottish Material in the NLS, university and public libraries. NLS are also partners in the Digital Access Scotland strategy and memorandum.

SLIC is the advisory and library development body and we would advocate that NLS should work with SLIC to ensure that there is not duplication of effort. NLS should support libraries in other sectors through easier access to resources and the significant expertise it has in preservation, and its knowledge base including the international showcasing of its Scottish Collections. In the context of the wider library community – it is a relatively small but fundamental part of the landscape. NLS attracted 70000 visits to reading room which is a welcome and significant improvement in recent years. In comparison, university libraries attracted over 12m visits and public libraries attracted 28m physical visits, with 11.6m virtual visits and 27.7million issues. NLS should ensure that in its implementation of any subsequent act, it recognises this and works in partnership with others in the sector. NLS should continue to work with SLIC to encourage collaboration, which to deliver joint outcomes is an important part of the Public Service Reform agenda.

Section 6 – Faculty

SLIC supports the reduction in the number of trustees as a whole and those representing the Faculty of Advocates and bringing it more into line with modern governance practice. In particular, the clarity between operational matters in relation to the Faculty of Advocates and their representation on NLS Board as a trustee.

We welcome the operational agreement intended for this relationship, but not having seen it would recommend that it should include clear focus on functions in relation to bill, arbitration and dispute resolution, timescale and review process.

There may in future be issues around digital licensing which mean that agreements are acceptable now but may not for the future. It is crucial that NLS controls acquisition and its format, licensing and disposal. The agreement with the Faculty should focus on access collections. It should not be based print on which this historic agreement is based.

Section 8 – Direction

There is a delicate balance between accountability, independence and the core neutrality and ethical functions of a library. Libraries should be without political control in their main functions to provide free access to information. SLIC is pleased that this current Bill has taken this on board. SLIC would advise that the power of direction would only be used if there was a compelling operational matter requiring Ministerial attention and where all other levers of influence had been exhausted and that It would be seen as a measure of last resort to ensure that public bodies act effectively and efficiently on an operational level.

Schedule

Membership of NLS

Lowering the number of trustees is in line with good practice.

From our experience as independent advisory body, which currently has 13 trustee and a maximum of 15 who can serve for a maximum of 2 sequential three year terms, including the Chair. This does work well works well but a smaller number of trustees can lead to difficulties in being quorate and potential issues of transparency and knowledge.

Therefore SLIC is of the view that the lower number suggested is too low and 9 trustees might be a better number given the range of NLS stakeholders.

It is also necessary to ensure that trustee recruitment strikes a balance between experience and a balance of skills.

Committees

The Bill recognises that good governance of NLS will require the involvement of a range of partners and stakeholders. Implementation of the legislation should ensure that there is no duplication from wider library community.

SLIC is the most effective way of ensuring that the functions of the NLS reach the wider library community in local government and higher and further education, and to widen access.

Procedures

SLIC is pleased that trusteeship of the NLS appointment of board members by advertisement and "fair and transparent process of selection based on merit" is welcomed and that it will be agreed by Government.

NLS have an automatic place on the Board of SLIC since its establishment. Reciprocation has not been possible due to 1925 governance structure. SLIC believes that greater collaboration and co-operation would be enabled through a reciprocal agreement for SLIC on the NLS Board, should this not happen by due process.

Charges for access to collections

SLIC has concerns about the potential impact of any charges on the ability of NLS to deliver its core functions. SLIC advises that any proposals for charging need to demonstrate that they do not conflict with NLS’ function of making the collections accessible to the public and to researchers (section 2). The introduction of any new charging regimes should be agreed with the Scottish Government. Scottish Ministers should continue to implement a policy of general free access to the national collections.

Digital Legal Deposit

Whilst the intent of this Bill does not cover legal deposit, SLIC remains concerned that the 2003 Act has not been implemented and digital legal deposit giving real cause for concern for future collection of Scotland’s culture and heritage, not least given the current licensing and copyright challenges which all libraries are facing, It may be that at some point in the future consideration may need to be given to this aspect of the libraries functions as it relates to UK legislation.

Summary

The introduction of the Bill is a huge step forward for the NLS, providing focus on function and form and whilst a procedural Bill, is important for the library. SLIC looks forward to working with Scottish Government and NLS on its implementation.

SUPPLEMENTARY WRITTEN EVIDENCE

Letter from Fiona Hyslop, Cabinet Secretary for Culture and External Affairs

I am writing to update the Committee on developments around the National Library of Scotland (NLS) Bill.

Two Memoranda of Agreement (MoA) between the National Library of Scotland and the Faculty of Advocates have been agreed and were signed on 22 December 2011. The signing of the two MoA re-enforces the close working relationship between the two organisations. The MoA complement provisions in section 6 of the draft Bill which requires NLS and the Faculty to make joint arrangements for the management and interaction of their libraries and collections.

The first MoA (Annex A) outlines how both organisations will work together to maintain, preserve and provide access to the published record of the UK and Scotland, especially those items received under legal deposit.

The second MoA (Annex B) supplements the NLS Act 1925, the Legal Deposits Libraries Act 2003 and previous agreements on the allocation of books and manuscripts between the bodies. The agreement recognises items which are held by NLS but are the property of the Faculty; sets out arrangements for future claims of ownership; the procedure should there be a disagreement about an item in a party’s possession and requirements for the bodies to draw up a deposit agreement for items held.

I have not included the appendix for this MOA due to the size (98 pages). This appendix lists Faculty owned law books which NLS hold. The appendix can be viewed on the NLS website at: http://www.nls.uk/collections/british/historical.

I hope that this update is useful to the Committee at this stage.

Fiona Hyslop

12 January 2012

Annex A

Annex B

Letter from Bill Manager, Cultural Excellence, Culture Directorate

During the stakeholder evidence session on 7 February the Convener stated that he regretted not asking officials for further information about why the Bill proposes Ministers have a power of direction over some of the National Library’s particular functions and objectives in section 2. I am writing to follow up this point.

The intention behind section 8 is to restrict Ministers’ powers of direction to prevent any interference with the cultural and curatorial functions and powers of the National Library. These restrictions are listed in section 8(2) and are wide ranging.

The NLS function of promoting collaboration between, and the adoption and sharing of good practice by, other persons providing library and information services gives NLS a place in a broader landscape of public services in Scotland. The function thus reaches beyond the National Library’s particular curatorial and cultural functions. The Bill therefore does not exempt section 2(2)(d) from Ministers’ power of direction in section 8.

The Scottish Government considers that the objective of promoting the diversity of people having access to NLS is a matter of public policy and is not confined to being a cultural and curatorial matter for NLS. As with all public bodies, the National Library is also subject to equalities and anti-discrimination legislation, but the diversity function in the Bill could also encompass other factors such as geographical diversity in the Library’s work. The Bill does not, therefore, exempt section 2(3)(c) from Ministers’ power of direction in section 8. This is similar to the approach to diversity taken in relation to Ministers’ power of direction for Creative Scotland – see section 37(2) and section 40(2) of the Public Services Reform (Scotland) Act 2010.

15 February 2012

Letter from Fiona Hyslop, Cabinet Secretary for Culture and External Affairs

During my evidence session on 21 February I undertook to address some of the points made by members of the Committee in writing.

The Scottish Public Finance Manual (SPFM) has the legal status of "applicable guidance" issued by the Scottish Ministers as referred to in the Public Finance and Accountability (Scotland) Act 2000 (specifically section 22(1)(c)). The SPFM sets out the public sector accountability standards required by the Accountable Officer of each public body, including NLS. More information about the legislative background of the SPFM can be found at—

http://www.scotland.gov.uk/Topics/Government/Finance/spfm/Intro

Members asked for more information about the charges that NLS currently applies. There are instances when NLS provide a charge to meet any additional “added value” costs it might incur. For instance whilst NLS provide most digitised material free of charge on its website they charge users for “digitisation on demand” when content has not been made electronic. Members of the public are charged for the production of high resolution maps if this is not available as part of NLS’s existing collections. This charge covers the cost of digitising. The charges applied for digital images are published on the NLS website at

http://www.nls.uk/using-the-library/copying-services/digital-imaging

As I made clear during my evidence session the essential point is that the Scottish Government is committed to free access.

Following the evidence session my officials were asked to clarify the relationship between section 8(2)(a) and (b), and schedule 1, paragraph 11(1) and (2). I understand that members would find it useful to understand whether the Ministerial power of direction could be extended to some of NLS’s general powers in some circumstances.

NLS must have regard to its functions when exercising any of its powers in schedule 1, paragraph 11 (1) and (2). The powers can in principle be directed on by Scottish Ministers, subject to the restrictions in section 8(2). A power of direction would only be used after careful consideration and as a means of last resort. Scottish Ministers would need to be satisfied that all other requirements and controls, as set out in the SPFM and the Memorandum to Accountable Officers, had been exhausted.

I can confirm that there has to date been no Ministerial power of direction given to a cultural public body.

Fiona Hyslop

23 February 2012

ANNEXE E – OTHER WRITTEN EVIDENCE

Submission from Aberdeen City Council

We welcome the National Library of Scotland Bill as a much needed modernisation of the 1925 legislation. The National Library of Scotland governance arrangements will now be aligned with similar public bodies such as that for the National Galleries of Scotland and National Museums of Scotland.

Issues we may have had regarding the collection and of lending of non-print materials have also been dealt with by the Bill even although UK regulations are not yet in place. However the UK Department for Media, Culture and Sport has consulted on draft regulations.

We are happy to note that whilst there is to be a reduction in the number of Board members from the current 32 trustees a minimum of 6 and a maximum of 13 has been stipulated. We would argue that the minimum is on the low side to accurately reflect the National Library of Scotland’s broad remit and range of stakeholders.

The Bill reflects comments submitted from the 2010 consultation relating to the balance between Ministers’ responsibilities and the powers of National Library of Scotland trustees. In particular we are pleased to note that the Bill covers areas where ministerial direction is precluded such as collecting, preservation, care and access to the Library’s collections.

One area of concern is the omission from the Bill of any mention of the National Library’s role in advocacy across Scotland in particular in promoting use of libraries, facilitating best practice and co-operation both with the NLS and the wider library & information sector. We believe that the National Library plays a key role in library advocacy and that this should be explicitly reflected in the Bill.

Submission from the Law Society of Scotland

The Council of the Law Society of Scotland has had the opportunity to consider this Bill and agrees with the general purpose that the law relating to the National Library of Scotland (NLS) should be improved and modernised.

Nevertheless, the Council has the following comments to make in relation to the Bill:-

Section 2

Section 2(3) provides that NLS is to exercise its functions with a view to inter alia “promoting, understanding and enjoyment of the collections”. This is a difficult objective to comply with as “understanding and enjoyment” are very subjective. It would be much simpler to require NLS to exercise its functions with a view to inter alia promoting the “use” of the collections. Those who use the collections will derive some understanding and/or enjoyment from that use and the use of the collections is a more identifiable objective.

Section 2(5)

Section 2(5) requires that any advice, information or assistance under sub-section (4) must be provided in such a manner as the Scottish Ministers may determine. This provision could undermine the independence which NLS has in the provision of advice, information or assistance to Ministers. It is suggested that there should be a provision in the Bill, reinforcing the independence of NLS in fulfilling its obligations under the statute.

Section 3 – Acquisitions, deposits and disposal of objects

Section 3(1) provides that NLS may “

a) acquire (by purchase, exchange or gift)

b) accept on deposit

Any object which it considers it is desirable to add to its collections”

Provisions regarding the borrowing and lending of objects are to be found in Section 4 which implies that the reference to acceptance on deposit in Section 3(1)(b) refers to the real contract of deposit.

Deposit is a form of contract where the owner of corporeal movables delivers them to another for custody on his or her account; the depository undertaking gratuitously to keep them safe and restore them on demand. The contract is perfected by delivery of the subject deposited and may be proved by parole evidence.

A depository is under a duty of care to take reasonable care of the thing deposited, such as a person of reasonable prudence generally exercises about his or her own property and not use it unless such use is permitted by the owner.

A depository must restore the thing on demand or as otherwise agreed with any fruits or accessories.

Section 3(2) allows NLS to dispose of an object from its collections under Section 3(1) for various reasons including:-

  • duplication of the object;
  • that the object is not required for the purpose of the collections;
  • that the object has been damaged or is hazardous; or
  • in any other case the Scottish Ministers agree to the disposal.

A disposal may, in terms of Section 3(3) be:-

  • by sale;
  • exchange gift; return; or
  • destruction.

In relation to those items which are accepted on deposit, the provisions of sale, exchange, gift or destruction should not apply and NLS should be under an obligation to restore to the original owner the item accepted on deposit.

Schedule 1

Schedule 1(11)(2) provides that NLS may enter into contracts and, with the approval of Scottish Ministers, acquire and dispose of land. This paragraph also provides that NLS may form (alone or with others) companies within the meaning of the Companies Act 2006 and undertake or execute any charitable trust. The provision is unclear as to whether or not a limited company or a charitable trust, established by NLS may acquire and dispose of land without the approval of Scottish Ministers and this matter should be addressed in the Bill.


Footnotes:

1 Throughout this report the National Library of Scotland is referred to as the “NLS” or “the Library”.

2 National Library of Scotland Bill. Policy Memorandum (SP Bill 2-PM, Session 4 (2012)), paragraph 2. Available at: http://www.scottish.parliament.uk/S4_Bills/National%20Library%20of%20Scotland%20Bill/Policy_Memo.pdf.

3 The Committee took evidence from both the National Librarian/ Chief Executive and the current Chairman of the Board of Trustees (“the chair”).

Scotland.

4 National Library of Scotland Bill. Policy Memorandum (SP Bill 2-PM, Session 4 (2012)), paragraph 21. Available at:
http://www.scottish.parliament.uk/S4_Bills/National%20Library%20of%20Scotland%20Bill/Policy_Memo.pdf.

5 National Library of Scotland Bill. Policy Memorandum (SP Bill 2-PM, Session 4 (2012)), paragraph 20. Available at:
http://www.scottish.parliament.uk/S4_Bills/National%20Library%20of%20Scotland%20Bill/Policy_Memo.pdf.

6 National Library of Scotland Bill. Policy Memorandum (SP Bill 2-PM, Session 4 (2012)), paragraph 26. Available at:
http://www.scottish.parliament.uk/S4_Bills/National%20Library%20of%20Scotland%20Bill/Policy_Memo.pdf.

7 Scottish Parliament Education and Culture Committee. Official Report, 7 February 2012, Col 700.

8 Scottish Parliament Education and Culture Committee. Official Report, 7 February 2012, Col 703.

9 Scottish Parliament Education and Culture Committee. Official Report, 7 February 2012, Col 691.

10 Scottish Parliament Education and Culture Committee. Official Report, 21 February 2012, Col 733.

11 Scottish Parliament Education and Culture Committee. Official Report, 21 February 2012, Col 734.

12 Scottish Parliament Education and Culture Committee. Official Report, 7 February 2012, Col 703.

13 National Library of Scotland Bill. Explanatory Notes (and other accompanying documents) (SP Bill 2-PM, Session 4 (2012)). Available at: http://www.scottish.parliament.uk/S4_Bills/National%20Library%20of%20Scotland%20Bill/Policy_Memo.pdf.

14 Office of the Commissioner for Public Appointments in Scotland. Written submission to the Finance Committee.

15 National Library of Scotland. Written submission to the Finance Committee.

16 Scottish Parliament Education and Culture Committee. Official Report, 7 February 2012, Col 711.

17 National Library of Scotland Bill. Policy Memorandum (SP Bill 2-PM, Session 4 (2012)), paragraph 16. Available at: http://www.scottish.parliament.uk/S4_Bills/National%20Library%20of%20Scotland%20Bill/Policy_Memo.pdf.

18 Scottish Parliament Education and Culture Committee. Official Report, 7 February 2012, Col 705.

19 Scottish Parliament Education and Culture Committee. Official Report, 7 February 2012, Col 705.

20 Scottish Parliament Education and Culture Committee. Official Report, 7 February 2012, Col 706.

21 Scottish Parliament Education and Culture Committee. Official Report, 21 February 2012, Col 736.

22 Scottish Parliament Education and Culture Committee. Official Report, 7 February 2012, Col 693.

23 Scottish Parliament Education and Culture Committee. Official Report, 7 February 2012, Col 693.

24 Scottish Parliament Education and Culture Committee. Official Report, 21 February 2012, Col 737.

25 Scottish Parliament Education and Culture Committee. Official Report, 21 February 2012, Col 739.

26 Scottish Parliament Education and Culture Committee. Official Report, 21 February 2012, Col 741.

27 Scottish Government. Supplementary written submission.

28 Scottish Parliament Education and Culture Committee. Official Report, 7 February 2012, Col 704.

29 Scottish Parliament Education and Culture Committee. Official Report, 7 February 2012, Col 708.

30 Scottish Government. Supplementary written submission.

31 The Scottish Government confirmed in supplementary written evidence that the Scottish Public Finance Manual (SPFM) has the legal status of "applicable guidance" issued by the Scottish Ministers, as referred to in the Public Finance and Accountability (Scotland) Act 2000.

32 Scottish Government. Supplementary written submission.

33 The National Library of Scotland. Written submission.

34 Scottish Parliament Education and Culture Committee. Official Report, 21 February 2012, Col 750.

35 A Policy Memorandum should set out—
(i) the policy objectives of the Bill;
(ii) whether alternative ways of meeting those objectives were considered and, if so, why the approach taken in the Bill was adopted;
(iii) the consultation, if any, which was undertaken on those objectives and the ways of meeting them or on the detail of the Bill and a summary of the outcome of that consultation; and
(iv) an assessment of the effects, if any, of the Bill on equal opportunities, human rights, island communities, local government, sustainable development and any other matter which the Scottish Ministers consider relevant.

36 National Library of Scotland Bill. Policy Memorandum (SP Bill 2-PM, Session 4 (2012)), paragraph 56. Available at: http://www.scottish.parliament.uk/S4_Bills/National%20Library%20of%20Scotland%20Bill/Policy_Memo.pdf.

1 Examples include the Scotsman Archive, a full-text digital archive of every issue of The Scotsman newspaper, from 1817 to 1950, in its original published context; and Credo reference, a full-text collection of over 400 high-quality reference books from the world's leading publishers, with over 4 million entries and 1 million images on subjects ranging from art, language, business, and history, to geography, music, literature, science and religion, and biography.

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