April 2025. We provided a briefing for members of the Education, Children and Young People Committee ahead of their consideration of amendments to this bill.

Children’s right to participate

Our priority for this Bill is to ensure that children’s right to participate in the new education bodies is fully respected and enshrined in law. We expressed our disappointment that this was not the case in both our Stage 1 written[1] and oral[2] evidence. We still feel that amendments brought by members of this Committee and by the Scottish Government do not fully achieve this. In particular, there are amendments that we cannot support simply because they do not include children. We would welcome revised amendments at Stage 3, explicitly including children.

Definition of young people

We recognise that there is also a need to ensure that the interests and views of young people aged 18+ and of adult learners are addressed through this Bill. We currently take no position on the upper age limit for a young person. We remind the Committee that the UN Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 states that “a child means every human being below the age of eighteen years.”[3] We would caution against establishing new legal definitions which differ from this.

Our approach to considering these amendments

Amongst these amendments are alternative approaches which would, in our view, equally meet children’s rights. The choice between these is primarily a political decision for the Committee and ultimately parliament to make. For example, we have not taken a position on the independence of the Chief Inspector. In human rights terms, a system of inspection of schools is one approach that a State can take to ensure that all children’s rights are respected in education, but there is no human rights basis for preferring any particular model. As a result, there are some groupings in which we are making no comments and taking no position. Likewise we have not taken a position on some consequential and minor amendments.

Qualifications Scotland: founding principle

We support amendment 2

Accreditation function

We take no position on whether or not the accreditation function should sit within Qualifications Scotland or any of the alternatives proposed. This clearly needs further exploration, so we support the Cabinet Secretary’s proposal for a review. We would welcome a commitment from the Cabinet Secretary that the review will include properly resourced participation opportunities for children and young people.

Membership of Qualifications Scotland

Our view is that the diverse views of children, could be represented on the board by one or more organisations with knowledge of their interests.[4] At present, neither the Bill or proposed amendments will secure this and we call on the Cabinet Secretary to remedy this at Stage 3.

Likewise, we would support inclusion of one or more young people, but they should not be expected to represent the interests of all young people unless they are affiliated with an organisation that supports them to do so. We also support inclusion of an organisation representing the interests of parents and carers.  

We support amendment 220 which provides scope for additional members to be co-opted. We take no position on the inclusion of teachers and/or their representatives on the board of Qualifications Scotland, save that we agree they should be represented.

As stated in our Stage 1 oral evidence, placing a single child on the board to represent the interests of all children is not an effective means of ensuring participation. As we said in our Stage 1 oral evidence, “Children … need to be included in the processes in a way that encourages them to participate actively rather than in ways that are tokenistic”.  

The effectiveness of the Qualifications Scotland board in fulfilling children’s right to participate will depend on the structures it has in place to support, engage with and respond to the Learner Interest Committee. The development of a properly resourced participation structure within Qualifications Scotland will be required to support this.

Duty of care

We take no position on these amendments, but would caution that the proposed duty has not been consulted on, is very broad and may have significant unintended consequences.

Committees of Qualifications Scotland

We are disappointed that even with these amendments, the Bill may still not guarantee effective participation of children (i.e. everyone under the age of 18) in the Learner Interest Committee.

We support the proposal for a minimum of 25% Learner representation, but there needs to be an explicit minimum representation for children, who make up the majority of current SQA candidates. We believe there is also a place for groups representative of the interests of children, with particular attention to the interests of children least likely to have their right to education fulfilled (such as those with additional support needs including care experience). This would also provide an opportunity to represent the interest of future candidates. We would also support the inclusion of an organisation representing the interests of parents.

We echo our view in our Stage 1 evidence that the Learner Interest Committee is not, nor can it be, the only way in which children are able to participate in the operations of Qualifications Scotland. It is essential that the new body invest resource in developing a participation strategy that allows participation from a broad range of children and for the results to be shared with all levels of staff, with the board and with the Learner Interest Committee.

We take no position on the composition of the Practitioner Interest Committee.

We oppose amendment 120 which introduces a definition of young people as under 18. In Scots law, a person under 18 is a child. The definition as written may exclude young people aged 18 and over. We believe that 119 could be workable without defining young people.

We are unable to support amendments 1 and 50 which do not explicitly include children.

We support the principle of amendment 227, but not its current form. Any parent representative should be organisational rather than individual (much as the interests of staff are represented by trade unions).

Awarding qualifications and quality assurance functions

We support both amendments in this section.

Scottish Credit and Qualifications Framework

We draw the Committee’s attention to the briefing they have received from the Scottish Credit and Qualifications Framework Partnership outlining their history and function and directly addressing these amendments. They raise important concerns about unintended consequences of some of the amendments.,

We support amendment 229 which will increase awareness of the SCQF framework and may help break down differentiation between different types of qualification, together with amendments 238 and 354.

Qualifications Scotland: working with others

We support the amendments in this section.

Qualifications Scotland: duties when exercising functions

We support the majority of amendments in this section. We welcome the Cabinet Secretary’s amendments on British Sign Language, which we called for at Stage 1. We support the intention of amendment 4 on prioritising the needs of service users, but are concerned that this amendment may have unintended consequences as it may be interpreted as prioritising the listed categories. We welcome amendment 239 which may help address concerns raised by the OECD review into Curriculum for Excellence.[5]  

Consultation by Qualifications Scotland

We note that this grouping amends section 8 of the Bill as published, which sets out “Qualifications Scotland’s obligations to consult the Strategic Advisory Board”.[6] Some amendments, for example amendment 60 which we would otherwise support, seem to have a broader intent and perhaps belong elsewhere.

Learner number and data sharing

We understand the positive and important intent behind these amendments and note that the Children’s Wellbeing and Schools Bill at Westminster includes similar provisions for a “consistent identifier” and data sharing duties.

In Scotland, children already have a CHI number[7] from first registration with the NHS (usually at birth) and an SCN[8] allocated when the child first enters the education system (usually when they are registered for funded nursery aged 2 or 3). We understand that there are already data sharing processes in place to link the two. The SCN is used as a unique identifier by all state schools in Scotland and by the SQA, it is already shared with colleges and universities.

Strategic Advisory Council

We see the Strategic Advisory Council as fulfilling a strategic and technical advisory role and it should not seek to replicate the representative nature of the Interest Committees. We oppose amendment 248 which is overly prescriptive. This could inadvertently work to exclude other important organisations.

Amendments 64 and 9 have similar intent, on balance we prefer amendment 64, but our support is dependent on improving children’s representation on the Learner Interest Committee.

Review of qualifications

We understand the intent behind this amendment and support the need for review of qualifications, but have no position on whether this is an appropriate mechanism.

Charters

Our focus in this section is on the Learner Charter, we support a number of amendments that strengthen it. Our priority remains ensuring that children’s right to participate in the development of the Charter is explicitly referenced in the Bill.

We support the Cabinet Secretary’s amendment 69 which guarantees a place for children on the Learner Interest Committee. We also welcome amendments 262 and 263, but on balance prefer 69. We could not have supported amendment 68 which does not explicitly include children.

We feel that amendment 266 (and 279) has the potential to give too much power to the Strategic Advisory Council, which could potentially eclipse the views of children. It is an advisory council not a governing council.

We oppose the creation of a Parent Charter (amendments 130 and 208). The focus of Qualifications Scotland needs to be on those sitting qualifications. Article 5 of the UNCRC outlines parents’ role in children’s decision making and introduces the concept of the evolving capacities of the child, with parents’ role developing from one of direction to one of guidance. Given the age of children undertaking these qualifications, we feel a Parent Charter would not strike an appropriate balance between their interests and those of their child. We do, however, support the inclusion of organisations representing parents on the Learner Interest Committee.

We have not taken a position on the proposal for a Post-school learner and practitioner charter, but we note this would have considerable overlaps with both the Learner Charter and the Practitioner Charter.

We welcome and support amendment 285 which will improve transparency and accountability where there is a failure to meet the expectations of the charters.

Additional support for learning guidance

This amendment is unworkable in practice and could act against the best interests of some children with additional support needs who require additional time for examinations. It could require all such children to sit in a single room in which, for example, children requiring a scribe would be saying answers out loud, readers would be saying questions out loud and those entitled to break would be requesting breaks.

Qualifications Scotland: corporate plan

We support amendment 282 which makes the Strategic Advisory Council part of the Corporate Plan development process. We also support amendment 71 which will aid transparency. We cannot support amendment 35 in its current form as it does not explicitly include children.

Qualifications Scotland: annual reports

We support all amendments in this group.

Publication of documents

We support all amendments and have no specific preference for any alternative options.

Curriculum function

We have no position on these options. We note that with the exception of HMIE, the functions of Education Scotland have not been consulted on.

Regulation of examinations

We have no position on these amendments. This function was not consulted on and would require careful consideration. It is not clear how this would progress the recommendations of the Hayward review. Any proposal for new SPCB supported bodies needs to take account of outcome of SPCB Support Bodies review.

Chief Inspector: removal of Sovereign’s role

We have no position on this issue.

Independence of the Chief Inspector

A number of different models have been proposed to increase the independence of the Chief Inspector of Education. We have no position on which is preferable.

Appointment of the Chief Inspector

We have no position on these amendments.

Advisory Council: name, membership and functions

We have no position on these amendments. Should they support these amendments, members will need to decide whether this Council should have a governing or advisory role and how that would impact the independence of the Chief Inspector. We would caution against being over-prescriptive, this could affect the ability to adjust membership in reaction a changing educational landscape.

Inspections: purpose and matters to be considered

We note that the Committee has discussed the independence of the Chief Inspector at length and would ask them to exercise caution regarding amendments which could restrict or undermine this independence.

Frequency of inspections

We have no position on these amendments.

Raising concerns

We are on record as being supportive of the principle of a whistleblowing function covering education and have stated that it should not sit within our office.[9] We have no position on the proposals in these amendments. Any complaints or whistleblower function must provide access to children.

Safeguarding: people and buildings

We asked the Cabinet Secretary and Committee to bring forward amendments to strengthen the inspection of safeguarding functions in education authorities. We welcome these amendments and on balance prefer the wording of amendment 88 to amendments 308 and 332, but they do not yet fully addresses our concerns.

We would welcome a commitment from the Cabinet Secretary to strengthen this with a stage 3 amendment to cover education authorities not just individual establishments.

Chief Inspector: working with others

These amendments are generally positive but we have no specific preference for any particular proposal.

Chief Inspector: duties when exercising functions

We would again caution members to consider the impact some of these amendments would have on the independence of the Chief Inspector.

We support the amendments on BSL brought by the Cabinet Secretary and we would have supported amendment 171 had its definition of “relevant persons” included children. We also welcome amendment 322 which requires the Chief Inspector to have regard for the needs and of children who have protection characteristics and additional support needs.

We thank the member for including our office in amendment 168, however in practice there are no barriers to this happening already.

Restraint and seclusion

We thank the member for bringing forward these amendments which seek to address, on an urgent basis, a new gap identified in human rights protections for children deprived of their liberty by the state in secure accommodation. This is an emerging issue, there are discussions being convened by the Care Inspectorate aimed at addressing this. We would therefore ask the member not to press these amendments at Stage 2. Should it be needed, a slightly different approach could be taken to support emerging solutions during Stage 3.

Inspection plans: preparation and matters to be covered

We support amendment 39 which requires the Chief Inspector to publish reports in child friendly and/or accessible formats where they consider it appropriate.

Reports on inspections

We support amendments 40 for same reasons as amendment 39 in the previous group. Amendment 11 places existing practice into statute by requiring the Chief Inspector to send a copy of the report to the educational establishment before publishing.

Amendments 18 and 19 asks the Chief Inspector to include how the school has demonstrated it is working in compliance with the UNCRC. We support these amendments.

Chief Inspector: annual reports

We have no position on this amendment.

Reports on performance of education system

We support amendment 21, which requires education establishments to have regard to reports on the performance of the education system prepared by HMIE. We think this will increase the impact of any such reports.

SQA dissolution and transition

We have no position on these amendments.

[1] CYPCS, 2024. Education (Scotland) Bill.  https://www.cypcs.org.uk/resources/ed-bill-2024/

[2] Education, Children and Young People Committee Wednesday, October 2, 2024 Official Report. https://www.parliament.scot/api/sitecore/CustomMedia/OfficialReport?meetingId=16032

[3] United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024, Schedule

[4] By way of clarification, we do not seek for this to be CYPCS.

[5] OECD, 2021. Scotland’s Curriculum for Excellence. https://www.oecd.org/en/publications/scotland-s-curriculum-for-excellence_bf624417-en.html

[6] Education (Scotland) Bill – Explanatory Notes. https://www.parliament.scot/-/media/files/legislation/bills/s6-bills/education-scotland-bill/introduced/explanatory-notes-accessible.pdf para 20

[7] Community Health Index

[8] Scottish Candidate Number

[9] see our submission to the Citizen Participation and Public Petitions Committee on PE1979: https://www.parliament.scot/-/media/files/committees/citizen-participation-and-public-petitions-committee/correspondence/2022/pe1979/pe1979_q.pdf