Scottish Government response to consultation - Role and Governance of the National Library of Scotland
As part of the Scottish Government's commitment to the continuous improvement of public services this consultation proposed a number of changes to reform the governance arrangements of the National Library of Scotland (NLS).
The NLS, as one of Scotland's National Collection institutions, has an impressive history in collecting and preserving Scotland's cultural heritage and plays a vital role in enhancing the Scottish economy and society of today through supporting education and research. Its founding legislation however, which was enacted in 1925, needs to be revised to reflect the modern organisation the National Library of Scotland is, and to enable NLS to realise its ambitions for the future.
As well as contributing to National Outcome 15 within the Scottish Government National Performance Framework, which states that the Government's aim is to ensure that 'our public services are high quality, continually improving, efficient and responsive to people's needs', the proposals set out in this consultation also contribute towards the NLS's own core theme of 'Developing the Organisation', which would maintain 'key roles, but also turn the NLS into a much more outward looking organisation, widely accessible and relevant and taking full advantage of the opportunities presented by new technology'.
We are very grateful to all of those who took the time to respond to the consultation paper. In total we received 31 responses, with a third coming from local councils, and another third coming from the library sector in the UK.
It should be noted that the findings presented in this report are those drawn from the 31 responses received. The findings do not therefore necessarily reflect the weight or range of views within the population as a whole, as the respondents have not been representatively or purposely sampled.
This document sets out the proposals made in the consultation paper, and reflects the wide range of opinions expressed by the respondents, as well as outlining potential next steps in this process.
Summary of Response to the Consultation
Do you agree with our proposals to reduce the size of the NLS Board of Trustees?
Proposal - The Scottish Government proposes the reduction in the size of the NLS Board of Trustees. A Board of 32 members is considered large when compared to most other public bodies which have Boards of between 7 and 14 members. It is within this range (including chair) that we seek reform for the NLS Board.
The great majority of those responding to the consultation agreed with the proposal to downsize the Board of Trustees. The views expressed in the responses were largely that the current Board was too large, and because of this was unwieldy, unrepresentative and unreactive. A number of respondents offered suggestions on what size the new board should be, with the consensus being that there should between 12 and 15 members. One respondent referenced a recent report produced by the Office of the Scottish Charity Regulator which indicated that charities with too few trustees were more likely to fail, and recommended between 9 and 15 members.
A couple of the respondents did voice concerns around reducing the size of the Board, for example one made the point that smaller Boards can have issues around attendance levels at meetings. Another concern was that while the current Board was too large, the reduced Board should still be of a sufficient size to be able to accommodate members who can best reflect the NLS's broad range of activities and stakeholders.
Do you agree that the ex-officio and reserved membership of the Board of Trustees should be removed?
Proposal - The Scottish Government proposes that the NLS remove the ex-officio and reserved membership. This would not only reduce the size of the Board, but would also ensure that appointments made to the Board are based on merit.
Again the great majority of the respondents agreed with what had been proposed. Some respondents suggested that the Board should be made up of people with the necessary skills to offer the library, and with the vision and the understanding needed to respond to new technologies. One respondent highlighted the fact that ex-officio members may have no interest or knowledge of the work of the NLS and its roles and responsibilities. A number of those responding made the point that removing these ex-officio members would allow other interested parties to become involved. One comment echoed by many of the respondents was that appointments to the Board should be made on merit, rather than by right of office.
Of those who partly agreed with the proposal, one commented that the number of ex-officio and reserved members should be reduced, but not entirely removed; highlighting that the NLS should continue to have a close relationship with the higher education sector, and it would be valuable for this sector to have a seat on the Board. Another commented that only one ex-officio member should be retained, but that this should only be done based on their suitability to meet the criteria laid down for all trustees.
The two organisations who were opposed to the proposal both made the same point that ex-officio members can bring a wide knowledge base to the Board.
Do you agree that the Faculty of Advocates should retain an involvement with the NLS's Board of Trustees?
Proposal - As a principal, the Scottish Government does not reserve places on public bodies for particular organisations or people. This approach differs however, from the historic legislation that covers the NLS, where organisations like the Faculty of Advocates has statutorily reserved places on its Board. Given both the historic and continuing partnership working between the NLS and the Faculty of Advocates, the Scottish Government feels it is important to consider how the Faculty may be involved in the future with the Board of the NLS. Two potential options for this are:
- This could be achieved administratively by including membership of the Faculty in the essential criteria for one member of the NLS Board; or
- This could be achieved by allowing the Dean of the Faculty of Advocates to nominate Advocates, to Scottish Ministers, whom he considers suitable based on the criteria specified for all candidates.
Support option 1
Support option 2
The majority of those answering this question were in favour of the Faculty of Advocates retaining their involvement with the Board. The reason behind this for many was the recognition of the historical links between the Faculty and the NLS, and the need for this relationship to continue. A number of respondents also made the point that the Faculty was still heavily involved with the library around the collection and preservation of, and access to, current legal publications, and as such it would be reasonable for the Faculty to retain its involvement on the NLS Board, though on the proviso that they were appointed on merit. One respondent commented that because the Faculty doesn't have any say in the running of the library, other than through the Board, the retention of their reserved places wouldn't be out of place, even if similar positions were to be abolished.
One of the responses that was partly in favour of this proposal also made the point that no single organisation should have an automatic right to representation. While the Faculty should definitely be encouraged to nominate trustees, ultimately it would be the selection criteria which determines who would be on the Board.
The 2 respondents that disagreed also reiterated this point, commenting that the appointment of Board members should be through the merits seen during the selection board, and not solely because they are a member of the Faculty.
While the majority of responses did not make any comment on which option they would prefer to be used to take this issue forward, those that did comment were split evenly between option 1 and 2. Option 1 seemed to some to be the simplest way of arranging the membership of a member of the Faculty; however option 2 was also seen to be an effective method of doing this. One respondent highlighted their concerns with the wording of option 2 however, stating that as it currently reads, it would suggest that Ministers could decline any nomination from the Faculty. It was also suggested by a couple of respondents that it might be best to consult with the Faculty themselves to see how they would best like to manage the process.
Do you agree with our proposal to specify the length of terms of appointment for the NLS Trustees?
Proposal - Appointments to the NLS Board are currently based on an indefinite term which is inconsistent with other public appointments made by Scottish Ministers. Specifying the length of appointments would ensure that there was a periodic turnover in members which would benefit the Board by enabling the input of new ideas and varied expertise. It would also allow flexibility in the appointment process and make it possible to recruit members according to specific business needs.
All of those who answered this question in the consultation were of the opinion that this was a necessary change. There was generally a view that a specified term would be consistent with current good practice for public appointments. Some of the other arguments in favour of this change were that it would encourage fresh thinking; that indefinite membership can lead to ineffective members; and that it would allow for a periodic turnover of members, which would help NLS to acquire the skills and knowledge, necessary for moving forward.
Some of those responding also made suggestions about how long the appointment term should run for, common feeling being that either 4 or 5 years was a good length, with the option of renewing this membership once.
Do you think the powers and functions proposed for the NLS reflect the needs of the NLS as a modern organisation?
Proposal - Powers and functions for the Board of Trustees were set out in the National Library of Scotland Act 1925. Since the NLS was founded, its functions have developed. The Scottish Government propose to readdress these in order to ensure that they reflect the modern, forward thinking nature of the NLS. To achieve this, we propose that the NLS should have all the powers associated with a corporate body, as follows:
- Power to enter into contracts, acquire, purchase, hold and dispose of heritable property;
- Power to accept trusts and gifts, acquire by loan, contract, purchase, and hold moveable property, commission research related to its objects and publish information and advice;
- Power to lend objects in its collection (taking into account any risks, the physical condition and rarity of an object and the interest in the object by students and visitors to the collection);
- Power to exchange, sell or dispose of objects in its collection;
- Power to create and own companies under the Companies Act 2006;
- Power to make grants and loans;
- Power to charge for the provision of goods and services and raise and borrow money with Ministerial approval;
- Power to make, revoke or vary regulations for the administration of the Library; and
- Power to do anything which is conducive or incidental to the exercise of its functions.
Again the majority of those responding did agree with the proposals set out. A number of the respondents were very positive about what had been suggested. One comment was that over the last 5 years NLS has adopted a much higher public profile, reflecting a more dynamic organisation with clear view of its national significance, and that the modernisation of it's powers and functions provide a platform from which the NLS can continue to develop.
Other respondents stated that these were appropriate powers and functions, reflecting the needs of the NLS as a modern organisation, and that the powers listed were in line with those of most large organisations and businesses.
However, there were a number of issues raised regarding some of the powers suggested.
The one which received the most comment was the 'power to exchange, sell or dispose of objects in its collection'. A number of respondents felt that this power required more definition. One respondent highlighted that in certain circumstances it might be desirable to use this power, for example if duplicate copies of a book are held, but it would not be appropriate, for example in the case of disposing of works that hadn't been consulted for a considerable period. This respondent made the point that a major function of the National Library of Scotland is to preserve indefinitely written and printed works for the nation; another is to make available important works printed elsewhere; and neither of these functions should be prejudiced. This was echoed in another response which agreed that this power to exchange, sell or dispose of objects should be based on a rigorous policy that safeguards the cultural assets of the nation as a first priority.
One of the responses also urged caution around the power associated with the ability to charge for goods and services, stressing that care would be required in the wording of such a power to balance this against ensuring that there was equal access to the collections and services provided by the NLS.
Another response also noted that throughout the consultation document there were a number of references made to "the collections", and "objects in the libraries collections". They wanted it noted that some of these collections had complex origins, with some being bought or donated subject to specific conditions, and it would be vital that any new legislation recognises that while it is the libraries general function to preserve and make items accessible, some of these complexities would mean that various conditions and constraints would apply to specific items.
There were also questions asked around the library's function to 'provide Scottish Ministers with advice'. One respondent agreed that in the areas where the library could offer advice, this advice was usually invaluable, however, it was felt that this point required more clarification as there is no evidence that there is any problem with the current arrangements, and the respondent questioned if there was a need to include this in legislation. If this were to be included in a Bill, it was suggested that this could be re-worded to read 'to provide advice as considered appropriate to its functions and expertise', in particular, matters pertaining to the business of the NLS, and the collection, preservation and accessibility of the recorded knowledge and culture of Scotland.
This was also picked up on in a number of other responses which commented that whilst the NLS is a member of Scotland's library community, and plays a unique role in the Scottish library scene, it does not have a mandate from the wider library community to advise Scottish Ministers about their devolved responsibility for local authority library services or academic or special libraries. For this level of advice, it is suggested that the Scottish Library and Information Council should continue to provide cross-sectoral advice about matters concerning Scotland's library community to Scottish Ministers.
Another issue raised was around the clause 'encourage links with other organisations to promote collaboration and understanding'. It was felt that this clause was too passive, and it would be more appealing to have statutory acknowledgement of a strong role for the NLS in promoting co-operation and best practice across Scotland's library and information sector.
One respondent also mentioned that while they were in favour of the NLS taking the lead as Scotland's national resource for reference, study, etc, there should be some recognition of the fact that other institutions within Scotland also hold collections of national importance, and that they would encourage increasing partnerships with local library services in this regard.
Finally, the 'power to charge for the provision of goods and services and raise and borrow money with Ministerial approval' also received some comments. One respondent suggested amending the clause to make it clear under what circumstances Ministerial approval was required. This could result in two phrases such as 'power to charge for the provision of goods and services' and 'power to raise and borrow money with Ministerial approval'. On this same point, another respondent commented that while it was appreciated that the NLS needed to undertake commercial activities in order to provide financial support for its key functions, this should be of secondary importance to the functions of the NLS and the range of services offered to the public.
Should any further provisions be considered in relation to the powers and functions of the NLS?
Whilst a number of the respondents felt that there were no further changes required to the powers and functions of the NLS, and that the proposed changes were sufficient, some made further suggestions for improvement.
One issue raised in a couple of the responses was around the NLS's need to improve the scope and operation of Legal Deposit legislation, and the need to consider legislative opportunities to enhance Legal Deposit in Scotland.
The point was made that at the current time, Legal Deposit legislation does not cover websites primarily consisting of moving images and audio resources. This means that the NLS (and other Legal Deposit libraries) cannot preserve some websites which may be a valuable resource for the long term benefit of society and the economy. Any enhancement of Legal Deposit in Scotland however, should be considered in the context of, and coordinated with, the Legal Deposit responsibilities of all the UK Legal Deposit libraries, and especially with the British Library, given its UK wide responsibilities.
Similarly, the issue of capturing digital information; including the preservation of computer games, electronic data, and other digital media sources; was raised in a number of responses. The general feeling was that while this consultation possibly wasn't the most appropriate vehicle to deliver these changes, it was important that this matter was raised, and consideration given to these concerns. Currently there is no legal mechanism in place to ensure that this electronic data is archived and kept for posterity, and this could have serious consequences in the future. One respondent made the point that a core function should be included that sets out the NLS's ability (and responsibility) to provide a national information framework for Scotland's distributed collections - print and digital. This will necessitate a governance structure that can support innovation.
Two of the responses also mentioned the potential that the NLS had for strengthening their links with other public sector libraries in Scotland. While ensuring that the NLS acts as the overall national resource, they would like to see them work collaboratively with other libraries in providing expertise across a range of functions, but also in developing wider access to resources held both nationally and locally. This was echoed in a further response which also suggested that NLS's collaborative role featured in legislation.
Finally, one respondent added that while it was important to consider the proposed changes to the functions and powers of the NLS, that these should not be at the exclusion of bodies such as the Chartered Institute of Library and Information Professionals in Scotland (CILIPS) or the Scottish Confederation of University and Research Libraries (SCURL). Instead, any changes should be balanced against the functions and powers that these organisations currently have.
Do you agree that the proposed qualified power of direction strikes the right balance between Ministers responsibilities for public bodies and the proposed powers and duties of the NLS Trustees?
Proposal - The Scottish Government propose to include power for the Scottish Ministers to give directions of a general or specific nature to NLS as to the exercise of its functions. The Scottish Government also proposes that the power is restricted in order to protect the NLS's cultural, artistic and curatorial judgement and its duties to preserve its collections on behalf of the nation and to make them accessible to the public.
Of all the questions in this consultation, this was the one which prompted the largest number of comments from respondents.
Of the 14 who agreed with the proposal, some also made additional observations. For example they suggested that the proposals struck a reasonable balance, and that this measure would bring the NLS in line with other public bodies, and would be consistent with recent legislation: the example was given of the establishment of Creative Scotland by virtue of the Public Services Reform (Scotland) Act 2010. One response made the point that this was an entirely appropriate measure to include as Trustees should be answerable to the Scottish Government who provide funding.
Of those that partly agreed with this proposal, their comments were more precautionary than negative. For example respondents remarked that the balance seemed fine, but there should be appropriate safeguards in place, appointments to the Board should be politically independent, and Ministers' power of direction should be restricted to protect the NLS's cultural, artistic and curatorial judgement (as provided for in relation to Creative Scotland under section 18 of the Public Services Reform (Scotland) Act 2010). NLS 's ethical role of providing access to information should not be subject to Ministerial direction.
One final precautionary remark was that until it was known exactly what the proposed restrictions were going to be, that it would be difficult to make a definitive response. However, the restrictions would need to be robust and clearly stated to avoid differences of interpretation if a Minister and the NLS Board were in disagreement.
Of those that disagreed with the proposal, it was possible to group the comments. They are as follows:
Issues around NLS's independence
NDPB's, (Non-departmental public bodies), such as the libraries, have traditionally worked at "arms length" from Government Ministers. Should a power of direction be introduced, a couple of the respondents remarked that it is unclear how independent the NLS would remain in the long term, even if appropriate safeguards were put in place. Concerns were also raised that this same power of direction could be applied to other National Collection bodies which would have implications for their independence if the proposal were to be accepted in this instance.
There were also suggestions made as to how Ministers could still exercise control over the NLS without the need for the power of direction to be included in legislation, particularly in respect of the financial relationship that exists between NLS and the Scottish Government. Ministers can direct how funding may or may not be used through the grant-in-aid arrangements. Similarly, another respondent highlighted the current practice in Wales where a balance has been struck between the Minister's legitimate concern that Government money should be spent in a way that is consistent with Government policies, but also with the professional judgement of the Trustees. Following this Welsh model, a general provision via an annual remit letter and regular monitoring mechanisms may be sufficient for the Minister, leaving the Trustees and Librarian to decide how resources are best allocated.
A number of those responding considered how NLS's charitable status could be compromised by a Ministerial power of direction. As a charity, NLS Trustees are required to act independently at all times, and the maintenance of this charitable status is seen as an important feature of the unique position of National Collection bodies in Scottish society.
Recruitment of board members
One response highlighted a potential problem around the power of direction, and the affect that this could have on prospective Trustees. Their issue was that the NLS should be looking to fill the Board with talented, dynamic and innovative Trustees, however, it is possible that these people would feel restricted by Ministerial direction, which could lead to a possible 'blanding' of the Board. An alternative suggestion would be to have a more positive protection put in place, whereby the Government undertakes to positively promote a forward-looking, innovative and entrepreneurial approach.
This issue was raised in a couple of the responses. Currently the NLS receives gifts and donations (in the form of money, books, other collection items etc.) from a wide range of individuals, trusts and other bodies. Respondents were concerned that the independence of the NLS Board might be compromised by a power of direction and donors could be discouraged from future giving.
A couple of the responses mentioned the need for the power of direction to be restricted for political reasons. One of the responses commented that this restriction was necessary to avoid the possibility of a short term political "whim" resulting in a loss of important resources or functions. Another issue was around the possible use of political pressure to censure libraries, or to restrict the public's access to the information available. In which case, the power of direction should be restricted to not only protect curatorial judgement, but also to proactively promote a collection free from censorship and prescription.
Issue around power of direction as a whole
In the consultation paper it states that 'such Ministerial powers of direction are a standard feature of modern public body legislation, and are an important part of the accountability and governance framework which runs from public bodies to Ministers and ultimately the Parliament'. One of the respondents however, challenges this statement, and claims that having carried out some enquiries, there is no National Collection body in Scotland or the UK that has a provision regarding Ministerial powers of direction in their founding legislation. They were also unable to identify a charitable public body in another sphere of activity where there are Ministerial powers of direction. They therefore make the point that such powers of direction are highly unusual for such a body as the NLS, as well as contentious and a radical departure from the current statutory arrangements for such bodies.
Drawing together some conclusions from the responses received, it can be surmised that with regards the first 4 questions, the great majority of the respondents agreed with the proposals set out. The areas of consensus were around the plans to reduce the overall size of the Board, remove the ex-officio and reserved membership of the Board, retain the involvement of the Faculty of Advocates, and introduce a cap on the length of terms of appointment.
However, should work on the Bill progress, further discussion would be needed between the NLS, stakeholders and the Scottish Government on the points raised around the final 3 questions.
Examining the responses to questions 5 and 6, it can be observed that while around two thirds of the respondents did agree that the powers and functions proposed would be suitable for the NLS, some of the issues raised will necessitate further discussion in order to ensure that they fully meet the needs of the NLS as a modern organisation.
Similarly on question 7, there will need to be further consultation around the Ministerial power of direction; is it required, how will it be worded, how would it affect the NLS's charitable status, and what safeguards would be included; would all be points needing to be addressed.
On September 8 2010, the First Minister announced the legislative programme that the Scottish Government would introduce in the final session of the Parliament for 2010/11.
Due to the short period of time left in this Parliamentary session, and competing priorities for space in the legislative programme, plans for a Bill to reform the governance arrangements of the National Library will not be introduced to the Parliament before the next Scottish Parliamentary elections.
Subject to Cabinet clearance, it is hoped that it may be picked up again in the next Parliamentary session in 2011/12.
The Scottish Government would like to take this opportunity to thank again those who took the time to contribute towards this consultation.
Total number of respondents - 31
Total number of invited respondents - 28
Number of library bodies responding - 8
Number of local councils responding - 9
Number of respondents that agreed to all proposals - 4*
(* - these respondents are not included in the breakdown of question responses below)
Total number answering - 26
Agree - 26
No comment - 1
Total number answering - 26
Agree - 21
Disagree - 2
Partly agree - 2
No comment - 1
Total number answering - 24
Agree - 22
Disagree - 2
Total number answering - 25
Agree - 25
Total number answering - 25
Agree - 20
Partly agree - 4
Neither agree nor disagree - 1
Total number answering - 24
Agree - 12
Disagree - 12
Total number answering - 25
Agree - 14
Partly agree - 6
Disagree - 5
List of Respondents*
Aberdeen City Council
City of Edinburgh Council
Culture and Sport Glasgow
East Ayrshire Council
East Lothian Council
Faculty of Advocates
Museums Galleries Scotland
National Library of Scotland
National Museums Scotland
National Library of Wales
Robert Burns Birthplace Museum
Royal Botanic Garden
Shetland Islands Council
Society of Antiquaries of Scotland
South Lanarkshire Council
Plus 2 individuals
*List only includes those respondents who agreed to their participation being made public.