Learner protection in Scotland? Not really

But threaded through the session were amendments on governance, financial sustainability and learner protection that also matter.

The most significant HE-relevant amendments concerned the SFC’s powers to monitor and investigate institutions’ financial health – the legislative response to the University of Dundee crisis.

Minister Ben Macpherson’s Amendment 14 enables the SFC to:

…secure the carrying out of independent examinations into financial sustainability.

Governing bodies would be required to provide information and make accounts available for inspection. The minister anticipated this power being used:

…where the SFC is unable to obtain the information they require from a post-16 education body or the SFC is dissatisfied with the information with which they have been provided.

Scottish Green MSP Ross Greer’s Amendment 14B extended the scope from financial sustainability to include financial governance – a direct response to the McGillis report’s findings that Dundee’s crisis stemmed from “failure of financial oversight, poor internal controls, lack of transparency, weak governance and a culture that discouraged dissent or scrutiny.” The minister supported 14B, and both amendments passed.

On efficiency studies, the minister’s Amendment 13 requires the SFC to consult the relevant institution before publishing any recommendations following such a study. This responded to Universities Scotland’s concern that the SFC had “sole discretion” over publication – and that publishing certain recommendations “could raise issues for staff or creditors” that the SFC might not be fully aware of.

Conservative MSP Miles Briggs’s Amendment 132 also passed, enabling efficiency studies to consider “the extent to which the needs and interests of staff are being met, including in relation to fair work principles.” The minister supported the aim but flagged he may refine the drafting at Stage 3.

Learner protection

One of the more consequential debates of the session concerned what happens to students when institutions get into serious financial difficulty. Scottish Labour’s Pam Duncan-Glancy tabled Amendment 139, which would have created a statutory early warning and intervention system – and the government’s reasons for resisting it reveal a significant gap in Scotland’s student protection framework.

Amendment 139 would have inserted a new Section 15B into the 2005 Act on “Continuity of learner provision.” The trigger was the SFC reasonably considering “that there is a material risk of a post-16 education body being unable at any point in the next 6 months to deliver contracted learner provision without significant disruption.”

Once that threshold was met, the SFC would have been required to:

• notify the governing body
• require the institution to prepare a “recovery and continuity plan” setting out intentions for “securing financial stability and continuity of education”
• provide “reasonable advice and support to enable it to continue to deliver contracted learner provision”

The definition of “contracted learner provision” – “a course of education the delivery of which has commenced, and has not concluded, for one or more individuals” – meant this was specifically about protecting students mid-way through their programmes. The people who can’t easily transfer elsewhere, whose qualifications depend on their institution remaining functional.

Duncan-Glancy’s argument drew on recent experience:

We’ve seen various institutions in recent months have to take some very, very difficult decisions, some catastrophic for courses, students, and staff. And this amendment seeks to try and empower the Scottish Funding Council or the government, through the Funding Council, to help these organizations recognize that there could be a disruption to continuity of provision and plan for it. And I struggle to understand why the Minister thinks that that’s not a good thing.

The Dundee situation is the obvious reference point, but it’s not the only one. Across the college sector, merger after merger has disrupted provision. Course closures at universities facing financial pressure have left students with reduced modules. The pattern is familiar – institutions get into difficulty, make emergency decisions, and students discover their programme is being “taught out, discontinued or reduced with limited notice.

A statutory requirement would have meant the SFC couldn’t look the other way. The six-month horizon was designed to ensure intervention came early enough to matter – not after the crisis had already broken.

The minister agreed with “the sentiment” but argued against legislation:

I am not convinced that this legislative framework is the right way to approach it. The circumstances in each situation will be very different and it is better for the SFC to be able to tailor their response accordingly.

He offered “more dialogue” ahead of Stage 3. Duncan-Glancy ultimately didn’t move the amendment – banking the undertaking for future engagement rather than forcing a vote she would lose.

The minister’s flexibility argument deserves scrutiny. What does SFC discretion actually mean for students?

It means the SFC can intervene early when it spots trouble – but doesn’t have to. It means there’s no statutory requirement for institutions to produce recovery plans. It means no guaranteed support from the funding council. It means each situation gets “tailored” responses – which is another way of saying there’s no baseline students can rely on.

In England the Office for Students requires registered providers to have student protection plans as a condition of registration. Scotland has no equivalent requirement. The SFC monitors financial sustainability – and the Bill strengthens those monitoring powers – but there’s no mandatory student protection planning, no published commitments about what happens when things go wrong.

Amendment 139 wouldn’t have replicated the OfS model exactly, but it would have created a statutory trigger point – once risk was identified, planning and support would be required rather than optional.

Related amendments

Amendment 139 sat alongside several other Duncan-Glancy amendments on institutional oversight:

• Amendment 137 would have required the SFC to prepare an annual report on financial sustainability of the post-16 education sector and submit it to ministers
• Amendment 138 was consequential to 137
• Amendment 140 would have required reporting on participation of learners from socio-economically disadvantaged backgrounds

The minister’s response to all of these was that he wanted to consider “reporting requirements together in the round” and potentially bring forward a government amendment at Stage 3. None were moved.

The risk is obvious – “in the round” consideration produces a lowest-common-denominator compromise, or nothing at all. The specific protections Duncan-Glancy sought – early warning, mandatory planning, support requirements – could easily get lost in a general tidying-up exercise.

As things stand after Stage 2, Scotland’s approach to learner protection in institutional distress remains:

• Monitoring: The SFC has enhanced powers to monitor financial sustainability and commission independent examinations (including into financial governance, following Greer’s Amendment 14B)
• Efficiency studies: Can now consider staff interests and fair work principles (Amendment 132)
• Consultation before publication: Institutions must be consulted before efficiency study recommendations are published (Amendment 13)
• Consultation before major decisions: From day one, Amendment 66 (Duncan-Glancy) requires fundable bodies to inform and consult with unions, students and external partners before decisions on provision, staffing and sustainability

But none of this amounts to a student protection regime.

The open data question

Greer’s Amendment 128 would have required the SFC and fundable bodies to “take steps to adopt a proactive approach to the publication of data which is appropriate for disclosure in the public domain.”

His argument drew on David Hume Institute research finding “about £2 billion worth of lost value to the Scottish economy each year because of the huge volume of public data that is not in practice available to the public” – either because it’s not proactively published or because it sits on copyrighted websites.

As things stand at the moment, the Funding Council, Skills Development Scotland and a number of colleges all have copyrighted websites. There’s not a clear rationale for that, but that’s the case. So they restrict even the use of the most basic information that they have.

Greer noted the SFC has been engaging with his office on adopting the Open Government License – the same approach the Scottish Government uses, where any information on the website (other than logos) is freely available for any purpose.

The minister didn’t support the amendment but offered to take the matter away and write to Greer. Liberal Democrat MSP Willie Rennie’s intervention cut through:

The government is so fond of control, it should be able to control this. Why can’t you just tell them to do it?

The minister’s answer – that the relationship between government and our institutions is one of respect and autonomy – sits interestingly alongside the day’s other theme of enhanced SFC monitoring powers.

The flexibility doctrine

Across both days of Stage 2, a clear pattern has emerged – the government’s preference for administrative flexibility over statutory requirements.

The minister repeatedly argued that putting things in legislation:

…limits the ability for future governments to change tack and adapt to different circumstances, or for flexible and agile operation by the SFC.

This was the justification for resisting amendments on learner protection plans, detailed reporting requirements, and various transparency measures. The counter-argument, made repeatedly by Duncan-Glancy, is that:

…if something isn’t statutory and in primary legislation, when the going gets tough it usually has to get going.

Given the funding pressures across the sector – and the recent evidence of what happens when institutional governance fails – that’s not an abstract concern.

What passed and what’s next

The governance-relevant amendments that made it through:

• Amendment 13 (Minister) – SFC must consult institutions before publishing efficiency study recommendations
• Amendment 14 as amended (Minister + Greer) – independent examinations into financial sustainability and financial governance
• Amendment 15 (Minister) – clarifies types of content SFC guidance might include
• Amendment 132 (Briggs, Conservative) – efficiency studies can consider staff needs and fair work principles
• Amendment 197 (Briggs, Conservative) – statement on financial implications of function transfers

The Bill now proceeds to Stage 3, trailing behind it an extensive list of ministerial undertakings from both days of committee consideration. From day one – further engagement on gender-based violence conditions, Fair Work First as a funding condition, consultation with apprentices and trade unions, foundation apprenticeship frameworks, industry-led oversight bodies, and pay ratios and zero hours contracts.

From day two – considering reporting requirements “in the round,” further dialogue on learner protection, engagement on the Open Government License question, and a cross-party meeting on what else might be included in the financial implications statement.

Whether any of this jam tomorrow materialises into government amendments at Stage 3 remains to be seen.

The governance provisions that passed are a genuine response to Dundee, independent examinations now cover financial governance as well as sustainability, efficiency studies can consider staff interests and institutions must be consulted before recommendations are published. These are real changes.

But whether they’re sufficient to prevent the next Dundee – or just to investigate it more thoroughly afterwards – depends considerably on what the SFC chooses to do with its enhanced but still discretionary powers.

For students, the practical question remains – if your institution gets into serious financial trouble next year, what can you actually rely on? After Stage 2, the answer is still the SFC’s good judgment and willingness to act.