Good college governance consultation: analysis of responses

Section 4: Good Governance Task Group Recommendation 9: more sanctions are considered so that a wider range of measures is available, if necessary

Possible sanctions

Recommendation 9(a) of Task Group report

Scottish Ministers will consult on:

i) Ministerial powers

i. to suspend any or all board members (except the principal) when considering a removal order.

ii. bar people from college boards, even if they have since left the board.

iii. to direct colleges in the face of a board not governing appropriately.

ii) requiring co-operation of assigned colleges in SFC reviews. Meantime, this should be given effect through the Financial Memorandum mechanisms.

iii) SFC's powers to attend and address meetings in failing to meet criteria to be publicly funded.

iv) SFC and regional strategic body powers to attend and address relevant to committee meetings.

v) extending the powers of the Auditor General for Scotland to conduct economy, efficiency and effectiveness examinations so that all publicly funded colleges can be subject to such examinations.

vi) clarifying that the powers of an appointing body's powers include a power to suspend, in line with other appointments.

Question 7: Should Ministers have powers to suspend any or all board members (except the principal) in circumstances where they consider this appropriate while they carry out further consideration as to whether a removal order is warranted?

4.1 28 respondents answered the closed aspect of this question. A majority of 21 respondents (75%) considered that Ministers should have powers to suspend any or all board members, except the principal, where they consider this appropriate in order to carry out further consideration as to whether a removal order is warranted.

Seven respondents disagreed, five individuals, one college and one college board.

4.2 29 respondents provided commentary on the proposal and their views are summarised below.

4.3 Many of those supporting the proposal did so on the proviso that:

• The powers should apply only in exceptional circumstances, as a last resort. (6 mentions)
• There are very clear criteria setting out when the powers should be used. (5 mentions)
• There is a time limit set in order to ensure consideration is undertaken in a timely manner. (2 mentions)
• Interim arrangements are set up so as to ensure the efficient operation of the college during the investigation. (2 mentions)
• There is a right of appeal against suspension. (2 mentions)
• The process is transparent. (1 mention)
• If the investigation subsequently shows no failings, then this is publicised. (1 mention)
• Suspension should not be portrayed as a punishment or a pre-judgement of outcome. (1 mention)

Views on the benefits of the proposal

4.4 The most frequently identified benefit was that the proposal will make boards more accountable for their actions (7 mentions across three respondent categories). Other potential benefits identified by only a few respondents were: provides Ministers with clout; makes for more effective governance; protects colleges; protects the person involved; and helps maintain high standards.

Views against supporting the proposal as it stands

4.5 A few respondents considered that more clarification is required on the circumstances in which suspension would take place and how the board would operate in the interim. Another view held by a few individuals and a college board was that suspending voluntary, unremunerated, non-executive members is very different from suspension of other board members, with the former unlikely to return to the post whether or not they are found to have warranted their suspension.

4.6 A few individuals questioned the legitimacy of Ministers suspending without robust evidence, in order for further consideration to take place, pointing out the serious impact that a suspension will have on the reputation of the individual involved.

4.7 One individual questioned whether Ministers should have jurisdiction over the two elected staff members.

Question 8: Should Ministers have power, when making a removal order, to include someone who has since left the board but was a member during the period for which Ministers consider there was board failure with the effect that the person is disqualified from any other boards?

4.8 29 respondents answered the closed aspect of this question. A majority of 21 respondents (72%) considered that Ministers should have power, when making a removal order, to include someone who has since left the board but was a member during the period during which board failure was found, with the effect that the person is disqualified from any other boards. Eight respondents disagreed, four colleges, three individuals and one college board.

4.9 29 respondents provided commentary on the proposal and their views are summarised below.

Views in support of the proposal

4.10 A recurring view across a range of sectors was that individuals should not be able to abdicate their responsibilities by resigning ahead of the outcome of considerations, and should remain accountable along with the remaining members of the board.

4.11 An individual commented that the proposal will ensure that the principle of the board being collectively responsible and accountable for decisions will be upheld by the proposal; a local authority remarked that the proposal will maintain the integrity of the process.

4.12 A few colleges expressed their support, but emphasised that Ministers will need to be totally satisfied that the person was implicated in the failure of the board, and that failings occurred during their period in office.

4.13 Two respondents supported the proposal so long as a right to appeal is established. One respondent from the "Other" category suggested that just as in criminal cases, the principles of rehabilitation should be considered to counter-balance the powers of Ministers to suspend.

Concerns about the proposal

4.14 A prominent view was that the proposal does not allow for valid reasons for a person to resign from the board, for example, if they are concerned about the board's decisions and conduct. To be held responsible for board failings, over which a member has resigned on principle, was viewed by a few respondents as overly punitive, particularly given the voluntary nature of some board positions.

4.15 A few colleges suggested that the arrangements for ensuring that a person does not become a member of a board subsequently, could be complex and may require a new, centralised register. The question was posed over whether disqualification would apply to all public body boards or just college boards.

Question 9: Should Ministers have powers to direct (a) incorporated colleges and (b) Regional Boards?

4.16 27 respondents answered this question. A majority of 18 respondents (67%) considered that Ministers should have the powers to direct both incorporated colleges and regional boards; eight respondents considered that Ministers should have neither of these powers; one individual supported Ministers having these powers in relation to regional boards only. The majority of colleges who responded opposed Ministers having powers to direct incorporated colleges and regional boards. Table 4.1 shows views by respondent category.

Table 4.1 Views on whether Ministers should have powers to direct incorporated colleges and regional boards

Category	Powers to direct both	No such powers	Powers to direct regional boards only	Total responding
Colleges	3	5	0	8
College Boards	3	1	0	4
Unions and Student Associations	3	0	0	3
Local Authorities	1	0	0	1
Non-Ministerial Government Departments	0	0	0	0
Representative Body	0	1	0	1
Other	0	0	0	0
Total Organisations	10	7	0	17
Total Individuals	8	1	1	10
Grand total	18	8	1	27

Question 10 (1): If Ministers were to have such powers, should they be limited to circumstances where they consider a board is not governing appropriately?

4.17 23 respondents answered this question. A majority of 18 respondents (78%) considered that if Ministers were to have such powers, they should be limited to circumstances where they consider a board is not governing appropriately. Amongst the organisations, two unions and student associations and Colleges Scotland (the Representative Body) disagreed. Table 4.2 shows views by respondent category.

Table 4.2 Views on whether such powers should be limited to circumstances where Ministers consider a board is not governing appropriately.

Category	Agree	Disagree	Total responding
Colleges	5	0	5
College Boards	5	0	5
Unions and Student Associations	0	2	2
Local Authorities	1	0	1
Non-Ministerial Government Departments	0	0	0
Representative Body	0	1	1
Other	0	0	0
Total Organisations	11	3	14
Total Individuals	7	2	9
Grand total	18	5	23

Question 10 (2): If Ministers were to have such powers, should these be in addition to, or instead of, the current power of direction that vests with regional strategic bodies?

4.18 19 respondents answered this question. A majority of 16 respondents (84%) considered that if Ministers were to have such powers, these should be in addition to the current power of direction that vests with regional strategic bodies. Two individuals and one college board considered Ministerial powers should be instead of regional strategic body powers.

Question 11: Should assigned colleges be required by legislation to co-operate with a SFC review under section 7C(7) of the 2005 Act?

4.19 27 respondents answered the closed aspect of this question. A majority of 21 respondents (78%) agreed that assigned colleges should be required by legislation to co-operate with a SFC review under section 7C(7) of the 2005 Act. Six respondents disagreed: three individuals, two colleges and one college board.

4.20 27 respondents provided commentary on the proposal and their views are summarised below.

Views in support of the proposal

4.21 Six reasons to support the proposal were given, each by only one or two respondents:

• For the removal of all doubt; clear lines of responsibility.
• It is reasonable to expect assigned colleges to co-operate in a bona fide investigation.
• Will promote consistency and standardisation across the sector.
• In-line with other arrangements.
• For the sake of accountability.
• Provides a legislative basis for SFC to take forward appropriate action, as required.

Concerns about the proposal

4.22 A few college boards suggested colleges should not have two "masters", namely the SFC and regional strategic boards. One college advocated an entirely independent body to conduct any such reviews.

4.23 Four respondents across a range of sectors held the view that as the SFC already has sufficient powers currently, it is unnecessary to formalise these in legislation.

4.24 One individual's view was that instead of legislation, co-operating in any such review by the SFC should be a condition of grant.

Question 12: Should SFC have powers to attend and address meetings if it has concerns about an assigned college's ability to meet the criteria set out in section 7(2) of the 2005 Act?

4.25 29 respondents answered the closed aspect of this question. A majority of 23 respondents (79%) agreed that SFC should have powers to attend and address meetings if it has concerns about an assigned college's ability to meet the criteria set out in section 7(2) of the 2005 Act. Six respondents disagreed: four individuals one college and one college board.

4.26 24 respondents provided commentary on the proposal and their views are summarised below.

Views in support of the proposal

4.27 SFC's attendance at meetings, where it has concerns about the relevant assigned college, was viewed as reasonable and to be expected. Benefits of transparency and openness were identified. A few individuals commented that this provided an opportunity for the SFC to gain insight and clarification on a situation to help in damage limitation.

4.28 A local authority and two unions and student associations supported the proposal as enabling the SFC to take on a greater monitoring and regulatory role.

4.29 One individual considered the proposal acceptable only where the SFC had legitimate and proven concerns. Others suggested that boards would need to be informed in advance of the SFC attendance (college board view); and this should occur only with the agreement of the regional strategic board (college view).

Concerns about the proposal

4.30 The most common view was that attendance at and addressing meetings where there are concerns over assigned colleges should be a responsibility of the regional strategic boards and not the SFC. One college considered that attendance at meetings by the SFC was not required, as they would already be in dialogue with the chair and board if there were any concerning issues, and if colleges wished, they could invite the board to a meeting, rather than boards deciding themselves whether to attend.

Question 13: Should the existing powers of the SFC and regional strategic bodies to attend and address meetings of a governing body be extended to include relevant committee meetings?

4.31 33 respondents answered the closed aspect of this question. A majority of 17 respondents (52%) did not agree that the existing powers of the SFC and regional strategic bodies to attend and address meetings of a governing body should be extended to include relevant committee meetings. Table 4.3 overleaf shows views by respondent category, with most sectors divided in view, a notable exception being unions and staff associations who supported the proposal.

4.32 22 respondents provided commentary on the proposal and their views are summarised overleaf.

Table 4.3 Views on whether existing powers of the SFC and regional strategic bodies should be extended to include relevant committee meetings

Category	Agree	Disagree	Total responding
Colleges	5	5	10
College Boards	2	4	6
Unions and Student Associations	3	0	3
Local Authorities	1	1	2
Non-Ministerial Government Departments	0	0	0
Representative Body	0	1	1
Other	0	0	0
Total Organisations	11	11	22
Total Individuals	5	6	11
Grand total	16	17	33

Views in support of the proposal

4.33 A few respondents supported the proposal as they could not identify any reason to disagree with what appeared to them to be reasonable, albeit in exceptional circumstances and with advanced notice to college boards.

4.34 There were two substantive reasons provided by others in support:

• A union and staff association respondent and a local authority considered the proposal to be in keeping with a greater, and what they perceived as welcome, regulatory/monitoring role for the SFC. The local authority also envisaged this as an opportunity for common challenges to be identified and good practice shared across the sector.
• A college suggested that as all committee meetings are open to the public anyway, funders should be able to attend too, so long as advanced warning is given.

Concerns about the proposal

4.35 Two main concerns were raised:

• Any matter warranting the intervention of the funding body should be dealt with at full board level. It was considered that boards may invite funders to attend committee meetings, but funders should not have the powers to attend uninvited. (5 mentions)
• Committees have operational functions, whereas boards have powers over strategy. The proposal was perceived as risking the SFC straying into operational rather than strategic matters. (5 mentions)

4.36 Other concerns were raised. Two respondents, one college and one respondent from the "Other" category, considered that the proposal could undermine the role and responsibilities of boards. An individual suggested that the result could be too much external influence over college affairs; another individual commented that funding bodies have contractual arrangements with boards and not with their committees.

Role of Auditor General for Scotland: economy, efficiency and effectiveness examinations

Background

The Auditor General for Scotland (AGS) is responsible for auditing the accounts of incorporated colleges and regional boards. It also has powers to conduct economy, efficiency and effectiveness examinations of incorporated colleges, higher education institutions and the three regional strategic bodies. However, it has no such power in relation to three non-incorporated colleges, Newbattle Abbey College, Sabhal Mòr Ostaig and West Highland College UHI, which all receive public funds direction from either the Scottish Funding Council or a regional strategic body.

Question 14: Should the powers of the Auditor General for Scotland to conduct economy, efficiency and effectiveness examinations be extended to include all relevant non-incorporated colleges?

4.37 33 respondents answered the closed aspect of this question. A majority of 31 respondents (94%) considered that the powers of the AGS to conduct economy, efficiency and effectiveness examinations should be extended to include all relevant non-incorporated colleges. Two colleges disagreed.

4.38 24 respondents provided commentary on the proposal and their views are summarised below.

Views in support of the proposal

4.39 Two reasons to support the proposal dominated responses:

• Where public funds are used, the AGS should oversee how this is spent. (13 mentions)
• All colleges should be treated the same; incongruous that the AGS has powers over some and not others. (8 mentions)

4.40 One respondent commented that two of the three non-incorporated colleges mentioned in the consultation are now funded by UHI, rather than the SFC. As a university, UHI is responsible for appointing its own external auditor, and as a charity, is also accountable to OSCR. Because the AGS does not conduct the annual audit of UHI, the new regional arrangements could make access to colleges in the UHI region more difficult. This, they suggested, provided a case for statutory powers to be formally extended as proposed.

Concerns about the proposal

4.41 Two colleges raised the following concerns about the proposal:

• These colleges will already be covered by internal and external audit and reporting to the SFC.
• It is not reasonable to attempt to remove all inconsistencies between colleges.
• These colleges are governed differently to others. To be accountable to the AGS could blur lines of accountability.
• Could lead to a change in governance and an undermining of the unincorporated status of these colleges.

Question 15: Should legislation be clear that the power of a person or body to appoint college board members includes a power to suspend any board member that they have appointed?

4.42 28 respondents answered the closed aspect of this question. A majority of 23 respondents (82%) considered that legislation should make clear that the power of a person or body to appoint college board members includes a power to suspend any board member that they have appointed. Three individuals, one college and one college board disagreed.

4.43 24 respondents provided commentary on the proposal and their views are summarised below.

Views in support of the proposal

4.44 The proposal attracted very little substantive comment. Two key reasons to support it emerged:

• To be consistent with other public sector appointments made under Scottish legislation. (8 mentions)
• Logical/reasonable. (5 mentions)

4.45 A few respondents qualified their support, stating that this was subject to a right of reply and appeal being in place.

Concerns about the proposal

4.46 The key concern was that the case for change was not clear, and further assurances and clarifications are required before accepting the proposal.

4.47 One respondent from the "other" category perceived it to be beneficial for the independence of boards if they are able to decide whether to suspend an individual, in accordance with their college's constitution and internal regulations and policies. The proposal was seen as a back-up if balanced with a right of reply and appeal system.