1. Given the current governance crisis across the Lanarkshire region, which is eliciting significant negative publicity; has been the subject of parliamentary questions; has been the subject of an Audit Scotland review; has been the subject of an SFC governance review, what consideration has the Scottish Government given to additional intervention? Please provide copies of all documentation which has supported the decision-making.
2. Please provide copies of all advice which has been provided by the SFC to the Scottish Government on this matter.
3. Please confirm how the Scottish Government assures itself of the actions of the SFC, a public body, in a situation like this, where Andy Kerr, the SLC Chair and also an SFC Board member, has been stood down to allow an investigation into his conduct. Please provide all relevant documentation which support this assurance.
4. Please confirm what the driver (purpose) was for the Scottish Government intervention in Clyde College in 2015, which was not subject to the same degree of public scrutiny and public failings? Please provide all relevant documentation which supported the decision-making in and around 2015.
It is not the role of the Scottish Government to consider additional intervention as it the responsibility of the Scottish Funding Council (SFC) to investigate any potential issues around governance in Scotland’s colleges.
You also asked for “copies of all documentation which has supported the decision-making”. The Scottish Government does not have the information you have asked for as it is the responsibility of the SFC to investigate potential governance issues. Therefore SG does not hold copies of any documentation that has supported a decision making process.
This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.
While our aim is to provide information whenever possible, in this instance an exemption(s) under section(s) Section 30(b)(I) - inhibit substantially free and frank provision of advice, applies to all the information you have requested.
This exemption is subject to the ‘public interest test’ under the Act, which means the information must be disclosed unless the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption.
In undertaking this balancing exercise, SG considered the following public interest factors which are in favour of disclosing the withheld information:
- We recognise there is a public interest in understanding the current governance concerns at South Lanarkshire College, including SG involvement in investigating and supporting these concerns; and
- The general public interest in providing information held by public bodies that follow on from decisions by public bodies, as a route for public accountability, amongst others.
We also balanced these considerations against the following public interest factors in maintaining the above exemptions and withholding information from disclosure under FOISA:
- There are currently investigations at South Lanarkshire College that are materially connected to the communication between SFC and SG, and there is a public interest in maintaining the exemption to withhold information at this point in time to allow for due process and the conclusion of all live investigations;
- The public interest is best served by ensuring that the SFC is able to engage with relevant parties in a free and frank manner to ensure that improvements in governance are addressed in the interests of students, staff and other College stakeholders;
- The general public interest in preserving the ability of the SFC to conduct its public functions effectively;
- Disclosure may also prejudice the protection of an individual's right to privacy by disclosing information in regards to ongoing investigations.
Some of this background information is included for context as part of my response and is being provided outwith Freedom of Information (Scotland) Act 2002 (FOISA).
The paramount interest of the Scottish Government and Scottish Ministers is safeguarding the quality of learning, the public investment made in Scotland’s colleges, and ensuring high standards of governance. The Scottish Government therefore expects the highest standards of propriety from organisations which receive public funding.
The Scottish Funding Council (SFC) is accountable to Scottish Ministers for the use of public funds provided to it under the terms of the Further and Higher Education (Scotland) Act 2005. When giving grants to the SFC, Scottish Ministers may attach such terms and conditions as they think appropriate to impose, including a condition that when the SFC is making a payment to a college of further education that college is required to comply with any principles of governance which appear to the SFC to constitute good practice in relation to colleges of further education.
The SFC is the organisation responsible for investigating any potential issues around governance and it continues to work closely with the Regional Strategic Body to ensure arrangements are in place to secure good governance, sound leadership and positive outcomes for students.
I have interpreted your request to “Please provide all relevant documentation which support this assurance” to mean documentation outlining the agreed responsibilities, relationship and respective expectations of conduct between government and a public body representing colleges such as a constitution or charter.
All Further Education Institutions are required to comply with the terms of their Financial Memorandum with the SFC. In accordance with this Financial Memorandum, all Further Education Institutions are also required to comply with the principles of good governance set out in the Code of Good Governance for Scotland’s Colleges. The original Code of Good Governance for Scotland’s Colleges was published in December 2014. In 2016, the Good Governance Steering Group undertook a review and the Code was updated, with the then Cabinet Secretary for Education and Lifelong Learning’s Good Governance Task Group recommendations taken into account during the review of the Code. Available here: Code-of-Good-Governance-for-Scotlands-Colleges-August-2016.pdf (cdn.ac.uk).
Some of the information you have requested is available from the parliamentary statement of 8 October 2015 that the former Minister of Further Education, Higher Education and Science - Angela Constance made on the matter and is contained here: https://archive2021.parliament.scot/parliamentarybusiness/report.aspx?r=10137&mode=pdf
Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House
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