Education (Scotland) Bill: business and regulatory impact assessment

Consultation

Within Government

The following Government agencies, directorates and enforcement bodies were consulted during the formulation of the policy proposals.

• Directorate for Learning
• Directorate for Legal Services
• Parliamentary Counsel Office
• Directorate for Communications and Ministerial Support
• Directorate for Digital Health and Care
• Directorate for Early Learning & Childcare
• Directorate for People
• Directorate for Lifelong Learning and Skills
• Public Appointments Team
• Public Bodies Unit

Since the beginning of the work on the Education (Scotland) Bill there has been engagement with other parts of government. This includes Education Scotland and the current HM Inspectorate for Education to support the development of plans to remove the inspectorate function from its current location. Relevant internal colleagues have had the opportunity to give input and feedback during various stages of policy development, which has shaped the final policy approach and the legislation itself.

There has been continued engagement on this, and wider education and skills reform work, with other public bodies, local authorities and connected associations, such as Skills Development Scotland, Scottish Funding Council, Care Inspectorate and COSLA.

Public Consultation

Independent Reviews

In 2020 Scottish Ministers commissioned a review to be undertaken by the Organisation for Economic Co-operation and Development (OECD) to help better understand how the curriculum is being designed and implemented in schools in Scotland and to identify areas for improvement. The OECD met with a broad range of education organisations, researchers, schools, learners and their parents from across Scotland. The OECD reported in June 2021. It set out twelve recommendations and a number of actions that should be taken to strengthen the Curriculum for Excellence (CfE) and tackle ongoing implementation challenges as part of a structured approach to the future of CfE.

The specific OECD recommendation being addressed through the Bill is to “Simplify policies and institutions for clarity and coherence. To align the institutional structures with clear ownership of CfE, Scotland could explore assigning leadership and development responsibilities for curriculum (and perhaps assessment) to a specialist stand-alone agency; and consider refreshing the remit of an inspectorate of education regarding CfE”. In addition to this recommendation, the OECD commented that having the inspectorate as part of an organisation that is also responsible for supporting school leaders, curriculum design and support, teacher professional learning and a range of other initiatives is an “unusual configuration”.

In respect of the SQA, the report acknowledged that the SQA’s role and remit had expanded since its creation, creating some confusion regarding its functions and services and how these cross over with the functions and services of other national institutions. It also commented on the unusual arrangement for the SQA to be both an awarding body and body responsible for accrediting qualifications.

The Cabinet Secretary for Education and Skills subsequently appointed an independent Advisor, Professor Ken Muir, in August 2021 to engage widely with stakeholders and report findings and recommendations to the Scottish Government on the implementation of the OECD’s recommendations.

Professor Muir’s report, ‘Putting Learners at the Centre: Towards a Future Vision for Scottish Education’, was published in March 2022^[9]. Respondents to the consultation were generally supportive of the reform proposals which included removing the inspection function from Education Scotland and replacing the SQA, although there were mixed views regarding whether the SQA should be replaced or reformed, most respondents agreed some form of change was required. In response to Professor Muir’s report, the Scottish Government announced in March 2022^[10] that the SQA would be replaced by a new qualifications body, and, that Education Scotland would be replaced by a new national agency for education (which does not require legislation) and an independent inspectorate.

Scottish Government Consultation

Following the decision by the Cabinet Secretary for Education and Skills in June 2023 to reschedule the Bill, a public consultation^[11] on the proposed content of the Bill was undertaken between 7 November and 18 December 2023. The purpose was to seek specific views on the detail of creating a new qualifications body, as well as views on the purpose and priorities of education inspection and on options for taking forward a new approach to inspection, whether that be to establish the inspectorate as a separate Executive Agency or by establishing the role of HM Chief Inspector of Education in Scotland as an office-holder in legislation. The consultation responses reemphasised much of Professor Muir’s report, reaffirming support to establish a new qualifications body, and removing inspection from Education Scotland.

For Qualifications Scotland, key points also included the need for a range of learner-centred qualification pathways with parity of esteem and equality of access between different qualifications, as well as a collaborative approach to developing and understanding new qualifications.

There was strong support from respondents for greater involvement and representation from teaching professionals and learners in decision making, but that there was a need to ensure this included a sufficient number of individuals from these groups to avoid tokenism. Changes were made to include a greater number and better balance of these groups within the governance structures of the body.

The importance of the independence of accreditation from government was stressed, whilst others questioned this function operating alongside the awarding functions, suggesting that a separate body is needed. Some additional legislative measures have been added to strengthen the separation of these two functions, and the intention is to further strengthen these within the organisational and operational design of the body.

For the Office of HM Chief Inspector for Education in Scotland, there were some key themes. Around two thirds of all respondents agreed with the purposes of inspection as well as support for inspection covering the range of education establishments and services that are currently inspected. There were mixed views on the need for legislation to establish a new approach to inspection, although broad agreement for it to be separated from Education Scotland.

For both organisations, a significant proportion of responses focused on how the organisations should deliver their day-to-day activities and operations. This feedback will support the design of how the new organisations deliver their services, although future operational decisions will be the responsibility of the organisations themselves.

In total, 386 consultation responses were received and analysed. This consisted of 234 individuals and 152 responses submitted on behalf of organisations. A higher number of people contributed overall as several organisations had conducted their own consultation to inform their response. In addition, nine online consultation events were held which were attended by nearly 1,000 people.

Business

Muir Review

In respect of Qualifications Scotland, there was a significant response to Professor Muir’s report from a range of different organisations and businesses who use, deliver, develop, award and recognise qualifications. This included education and training establishments in the post-school sector, employers and industry sectors, as well as organisations that create and deliver their own qualifications, (known as awarding bodies). Relevant businesses included:

• 43 Third Sector organisations, which include a range of different stakeholder associations, community organisations, and charitable bodies, many of which shape, create and influence skills, training and qualifications.
• 18 organisations from the post-school sector which include colleges and training providers.
• 8 industry organisations, including private employers and training bodies.
• 11 awarding bodies.

There were a range of different views from these organisational or business groups regarding Qualifications Scotland’s two separate functions.

For the qualifications and assessment services of Qualifications Scotland, in general, more qualifications in a broader range of subjects were welcomed. Many respondents felt that despite the SQA having an adequate breadth of qualifications, there was a need to update these to reflect the changing needs of the workplace and industry landscapes. A key theme was that more collaborative links needed to be made between schools, higher education, employers and wider communities in respect of qualifications. It was highlighted apprenticeships and industry qualifications were a good model for this.

On accreditation functions, some organisations were in favour of stronger regulation of qualifications, while others commented on the positives of the current accreditation remit and the flexible and proportionate processes currently undertaken by the SQA.

In general, the SQA as an organisation was viewed more positively by employers, industry sectors and training providers compared to how they are viewed by teachers, learners, parents and carers, and schools and educational establishments. While viewed more positively, employer and training providers saw the replacement of the SQA as an opportunity to improve on some specific issues, with some highlighting the need for a smooth transition to minimise issues and avoid losing current good practice.

For example:

“Transition to a new organisation:… Problems with transition may impact income, delivery of qualifications and apprenticeships and employer buy-in and confidence” (Employer/Industry)

Regarding awarding bodies, Professor Muir’s consultation also received responses from 11 different awarding bodies. This included a response from the Federation of Awarding Bodies, a collective which represents 120 awarding bodies across the UK, 24 of these which were accredited by the SQA, with many others operating in Scotland’s qualifications market. As noted above, many respondents acknowledged the positive accreditation process and engagement with the SQA and emphasised the need for this to be retained in the transition to a new organisation. The Bill makes no changes to the legislative remit of accreditation, and work is underway to ensure positive, existing processes remain in the body.

Given Qualifications Scotland will assume the responsibilities of both SQA’s functions, we anticipate there being some associated costs incurred by businesses to reflect the change in ownership. This will likely include resource to digital and administrative updates to reflect the change in name and brand, and the replacement of any physical SQA certificate stock with Qualification Scotland’s.

Regarding HM Chief Inspector for Education in Scotland, there was little evidence provided in response to the Muir Report in terms of the specific impact on businesses resulting from the removal of the inspectorate from Education Scotland. Inspection focuses on education establishments and services, the majority of which in Scotland are provided by local authorities and publicly funded organisations. There are education establishments considered as businesses within the system that provide private education, and early learning and childcare services that are subject to inspection, and work-based training and apprenticeships, although the consultation responses did not provide data regarding this distinction. However, most respondents agreed that inspection has an important role to play in scrutiny and evaluation, enhancing improvement and building capacity, and many also agreed with the need for this function to be carried out independently. These two findings are interpreted as extending across the public, third sector and private sectors.

For some parts of the education sector there are likely to be more settings operating as private businesses, such as in the early learning and childcare sector (ELC), independent schools, private colleges and work based learning providers. Respondents from the ELC sector in general agreed with the need for inspection but emphasised the need to reduce the inspection burden on this sector, given that some settings are inspected by both the Care Inspectorate and the Education Inspectorate. It was stressed that the current inspection framework was working well and should not be changed without extensive engagement with the sector.

On 24 March 2023, the Scottish Government published its response to the findings of the 2022 consultation on inspection of early learning and childcare (ELC) and school age childcare services^[12]. The consultation response outlined some areas where work is already underway or developing in terms of improving the inspection landscape and included a commitment from the Care Inspectorate and HMIE/Education Scotland to collaborate and work in partnership with each other and the sector, sharing their expertise to develop a shared framework that will provide a more streamlined approach to inspection and reduce the inspection burden on providers.

Given the model of inspection is not changing as a result of this Bill, there are not expected to be any new costs for businesses and organisations, and any specific services, as a result of creating a new Inspectorate.

Engagement on Accreditation – Awarding Bodies, Standard Setting Organisations, and rUK Regulators

Between July 2022 and September 2022 extensive engagement on the location of the accreditation functions in the new body responsible for qualifications was undertaken. Scottish Government officials engaged with the SQA, including Union representatives, and met with standard-setting organisations, twenty-five awarding bodies and other public bodies in the Scottish education sector, as well as other UK regulation and accreditation bodies including Ofqual and Qualifications Wales.

Overall, there was a lack of appetite from stakeholders and those engaged with the accreditation functions to join another new or existing agency or Scottish public body. Some felt that a standalone agency would support independent decision making. Awarding bodies – the organisations that directly use the accreditation services – expressed little concern over the location of these functions, as long as decisions on accreditation were made independently of the awarding functions and the current accreditation model remained proportionate and flexible to change.

There has been regular engagement between the Scottish Government and the Federation of Awarding Bodies, the most recent of which was in January 2024. They remained keen to see no changes to the scope of the accreditation functions. They stressed the importance of ensuring operational transition does not negatively impact their members, for example, by ensuring the qualifications that are already accredited do not have to be unduly re-accredited by Qualifications Scotland. While this is an operational decision for the new body, there is a clear expectation this will be the case as part of the move to the new body. The design and transition work underway will seek to ensure this.

Education (Scotland) Bill consultation

A consultation on the Education (Scotland) Bill was carried out between November to December 2023^[13]. Ahead of the Bill‘s finalisation, stakeholder views were sought through the public consultation^[14] to build on the specific Scottish Government proposals following the Muir Report.

The following table sets out the number of organisations that responded to the consultation:

The public consultation received submissions from a wide range of respondents, including groups representing businesses, employers, training providers and others in the post-school landscape, such as the Scottish colleges sector, the Federation of Awarding Bodies, the Awards Network, the Scottish Training Federation, the Scottish Community and Development Centre, Third Sector education and skills organisations and children, young people and learner representatives, the ELC sector, the Construction Industry Training Board and the Engineering Construction Industry Training Board, among others.

On Qualifications Scotland in general, the responses from businesses and organisations reflected the views received in response to the Muir report. Key points included strengthening the role of employers and industry in the development and evaluation of qualifications and their processes, and the need for user “Local Market Intelligence” information to support this. It was emphasised that there needed to be sufficient engagement and communication with stakeholders, including employers and higher education providers, regarding any qualification and assessment changes, or creation of new qualifications, to ensure there is shared understanding in their value.

There were mixed views across a range of respondents regarding the location of the accreditation functions and the remit of these. This included some calls to review the decision to place the accreditation functions in Qualifications Scotland. Others welcomed the benefit of the two functions being in the same organisation but emphasised the need for clearer separation from the awarding functions (the need for further detail on the robustness of clearer separation was noted). Furthermore, there were mixed views from businesses, specifically some awarding bodies, on the scope and remit of the accreditation function itself. Some felt there was a need for all qualifications to be accredited, regulated and included on the Scottish Credit and Qualifications Framework (SCQF), while others supported a voluntary approach that enabled a more flexible and responsive model.

Given the complexity of the qualifications regulation system and diverging stakeholder views, no change to the remit of accreditation functions is proposed in this Bill.

On HM Chief Inspector, the views expressed in the above sections were similarly reflected in responses to this consultation. As with the Muir Report, it was not possible to distinguish between public and publicly funded education establishments and education services, and those which are non-public or private businesses. We are of the view that both public and non-public sector organisations and businesses share similar impacts as a result of education inspection.

There were a range of suggestions that inspections should be broadened beyond the current inspection remit. In relation to businesses, there were calls for third sector and “for profit” organisations who provide educational services to be included, as well as training providers who work in a range of different sectors. Many of the broader suggestions are already in scope of the services that are currently inspected, either by the current inspectorate or other inspection or scrutiny organisations.

Much of the evidence received from the Bill consultation relates to the detailed operations of the inspectorate, which will not be specified in legislation. However, the consultation included a request for feedback on whether to take forward the new approach to inspection by establishing the inspectorate as a separate executive agency or by establishing an independent officeholder. Whilst there was no clear consensus on this point, among those who supported the appointment of an independent officeholder, many commented that legislation would make accountability and independence more obvious and more stringent which, in turn, could maximise public and professional confidence in the inspection process. We have therefore set out to establish a new officeholder in the Scottish Administration in the Bill: the HM Chief Inspector of Education in Scotland.