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3 Governance of an Independent General Teaching Council for Scotland

3.1 Introduction

35. This chapter focuses on the governance arrangements for an independent Council. It seeks views on issues such as how the new Council should be formed, how it should operate, who should sit on it and what size it should be. It also seeks views on how best to make the Council accountable as an independent, profession-led, public body while seeking views on the best way to ensure the public interest is fully represented.

36. The GTCS was established under the Teaching Council (Scotland) Act 1965, and as such, the composition and structure of the organisation was designed more than
40 years ago. It is widely acknowledged as an effective and professional organisation that carries out its functions to a high standard. Changing the status of the GTCS provides an opportunity to examine, and make amendments to the way in which the Council operates. It is also an opportunity to reflect on recent developments in the regulatory landscape. For example, many other regulatory bodies have reduced the size of their councils and now operate a system through which members are independently appointed to Council, rather than elected or appointed by a named organisation. (Annex A gives more detail on the size of regulatory body Councils.)

37. The organisational structure of the GTCS needs to support the continued delivery of its core functions. It must also be well positioned to respond flexibly and strategically to the fast-moving education policy environment while ensuring that the public interest is well represented.

Professional Majority in Council

38. Currently, elected teachers outnumber appointed and nominated members by 26 to 24 in a Council comprising 50 ³ members. However, many other regulatory bodies now have parity between professional members and lay members in their Councils. Parity was introduced to the membership of these Councils to help increase their public credibility by demonstrating that they are open, actively taking account of the public interest and not in a position by which the interests of professionals could appear to be paramount.

39. As previously discussed, the GTCS is currently well respected both by professionals and the public. While this chapter of the consultation considers the size of the Council and its composition, it does not consider changing the professional majority in Council. Although the size and composition of Council could change, the Scottish Ministers are minded to retain the professional majority in an independent GTCS as a key component of a credible self-regulating, profession-led body. The consultation does however seek views on methods by which the public interest would be properly represented on the newly independent GTCS.

3.2 Size of the Council

40. The current Council has 50 members, 26 of which are elected, 18 are appointed and 6 are nominated by the Scottish Ministers. This size of Council and its composition is set by the 1965 Act, as amended. The Council of 50 was originally put in place so that as many bodies as possible with a significant interest in teaching in Scotland could be represented. The large Council also allows for the GTCS to ensure that their committees are all populated by Council members. While the Council of 50 has served teaching in Scotland well by allowing individuals from across Scottish education to be involved, the move to independent status gives an opportunity to review whether the current size and composition of Council should remain.

Appropriate size of the GTCS

41. The appropriate size of the Council depends partly on the role its individual members are expected to carry out. If the current committee structure continues and committees are required to contain a significant number of Council members, then a large Council may be required. However, if the Council moves to use a system of co-option more frequently, as discussed below, then the number of Council members could be reduced as their place in committees could be taken up by non-Council members.

42. The Scottish Government believes there are advantages that could be gained through reducing the size of the Council. The Scottish Government's view is that a Council reduced in size could be more effective in helping to ensure effective strategic oversight of the organisation. Fewer members could also allow Council to become a more dynamic forum for debate. While some progress has been made recently in this respect there is scope for further development.

43. It is worth noting that the Deloitte and Touche Review of June 1999 compared the size of the GTCS Council with other regulatory bodies. They felt that in terms of overall size, the GTCS was not out of line with its comparators, which included the General Medical Council and General Dental Council. Despite this, they suggested that a professional organisation fitted for the future will be one which "is focused on the wider interest" and "has an efficient and lean organisational structure". The authors went on to recommend that the size of Council was reduced to 39, on the basis that the size of committees was also reduced and the use of co-option was increased.

Why do other regulators, particularly in the Health Sector, now have smaller Councils?

44. The move to smaller Councils in the health sector reflects the final report of the February 2007 White Paper Working Group Trust, Assurance and Safety: Enhancing Confidence in Healthcare Professional Regulation, which recommended that Health regulators should move to Councils of between 9 and 15 members. The White Paper final report argued that a council cannot operate in a 'board-like' manner, holding
the executive to account, if it is overly large. The report recommended that Councils should focus on strategic rather than operational issues with the aim of assuring excellence in delivery in the long term. The report believed that in order to do this, councils will needed to be smaller to ensure effective strategic decision making, shifting away from the model of large representatives bodies that seek to include
all interests. While the report focused only on the Health Regulators, the UK Government supported this recommendation and commented that they believe
that it applies equally to all professional regulatory bodies. The Scottish Government also supported this recommendation.

Ability to co-opt non Council member to committees

45. It is acknowledged that the level of workload undertaken by Council is growing, especially in relation to disciplinary and competence work, and that current arrangements by which the Council of 50 manage the entire committee workload is gradually becoming unworkable. In the current Council, this issue has been exacerbated by the fact that a high number of Council members have resigned their position over the course of the term. Clearly reducing the number of Council members within the current committee structure would significantly increase the amount of work a smaller group of members would be required to do.

46. One potential solution could be to co-opt, or appoint, non-Council members to committees to ensure they were fully populated. ⁴ It is the intention of the Scottish Government that the GTCS is provided with suitable flexibility in its organisational structure so that it is able to determine its own committee structure. This will include the ability to co-opt Council and committee members as required.

47. The next section of the consultation discusses the composition of the independent Council and the definition of 'lay member'. As both issues may have an impact on the most appropriate size for Council, stakeholders are advised to consider the other parts of chapter 3 before answering the question below.

Question

Q5: What do you think is the most appropriate size for an independent Council?

3.3 Composition of the Council

48. If the size of the Council changed then it is likely that the number of representatives of each sector would be required to change and it is also possible that categories could be removed and new ones created. Even if it is decided that there should be no change in the size of Council, the move to independence gives an opportunity to consider the Council's composition.

49. Currently the Council is made up of a set number of individuals who are elected, appointed and nominated to serve for a term of four years. The composition of the Council is set out in the 1965 Act, as amended. There are 26 members elected from the teaching profession, 18 appointed by named organisations and 6 nominated by the Scottish Ministers. The lists below give this breakdown in more detail.

50. The 1965 Act, as amended, states that the 6 individuals nominated by the Scottish Ministers are intended to represent particular elements of the public interest. The Scottish Ministers shall:

• ensure that at least one nominee represents the interests of parents and pupils;
• ensure that at least one nominee is engaged in, or represents the interests of persons engaged in, commerce or industry;
• ensure that at least one nominee is engaged in, or represents the interests of persons engaged in, the teaching of children or young persons with additional support needs; and
• have regard to the desirability of the membership of the Council reflecting the interests of the public.

51. As the GTCS will no longer be an advisory NDPB, it is not appropriate that Ministers retain a power to influence the composition of the Council. Accordingly the Scottish Ministers will no longer nominate individuals to sit on Council subject to alternate provision being made to ensure that the public interest is adequately represented in the newly constituted Council.

Strengths and Weaknesses of the current Council model

52. Before examining the merits of the above model it is worth noting that the current composition of the GTCS has a number of core strengths that should be acknowledged:

• as a profession-led regulatory body, the teacher majority gives confidence to teachers that teaching is being regulated by individuals that understand and have direct experience of the profession;
• the election process is a democratic method by which teachers from all sectors of the profession are able to become Council members;
• having fixed organisations that appoint individuals to Council means that a wide range of key interests are represented;
• although there are a significant number of registered teachers appointed/nominated to Council, they have a genuine interest in teaching and often bring highly relevant experience from working in the sector; and
• although not particularly significant in terms of the overall Council membership, the interests of the general public are represented through the six Ministerial nominees.

53. In considering these strengths, it is also appropriate to identify what could be perceived as potential weaknesses in the composition of the current Council:

• the process by which the members are appointed by their parent organisations is not transparent;
• the number of lay members (members who are not registered teachers, or formerly registered teachers) is very low;
• it could be argued key elements of the public interest, such as parents, pupils and the business community, are not adequately represented;
• it could be argued that some bodies who appoint members to Council are
  over-represented; and
• some organisations, such as the Scottish Qualifications Authority, Learning Teaching Scotland and the Police, who have a role to play in education or more broadly in children's welfare, are not represented on Council.

Alternative models for the composition of Council

54. It will be crucial that an independent GTCS retains the trust of the public. The public must continue to be assured that fully trained, appropriate individuals are employed as teachers in state funded schools and accordingly the GTCS must take into account the public interest. It will also be important for GTCS to retain the trust and respect of the teaching profession, the Scottish Government and other players in Scottish Education more widely. To retain the high level of trust and respect from all sectors, an independent Council must be publicly accountable and the Council's composition, and the way in which individuals are appointed, are important aspect of this.

55. A process by which individuals with an interest can apply and are then appointed on merit, as opposed to being elected or appointed by a parent organisation directly related to teaching could act as a mechanism through which the Council could contain a more diverse membership. This section seeks views on two potential models for the composition of Council. They both retain a guaranteed majority of teachers and both contain elements of an appointments process, but would change the overall composition and would act to increase the level of members representing elements of the public interest. While the consultation only details two models, there are many variables of each that could be adopted. If stakeholders believe there are other, more appropriate models, or variables, that should be considered then we would be pleased to receive details of them.

Model 1 - Retain elections/amend appointments process

56. Under this model, registered teachers would continue to be elected to Council. However, the proportion of Council members that are currently appointed by named organisations would be replaced by a system through which these members would be appointed on the basis of their skills, through an independent process, possibly administered by the Council under a duty to follow current best practice and overseen by an independent adjudicator. Key aspects of this model would be as follows:

• retention of a teacher majority;
• retention of professional election process/retention of current teacher categories;
• no guaranteed seats on Council for any named organisations;
• open, skills based appointments process for a proportion of seats; and
• appointments process designed so the Council contains a good balance of experience and skills.

Benefits of this model include:

• election process is seen as being democratic and a good way for teachers to become Council members;
• creates a more open and accountable appointments process;
• would allow for an increase in lay members being appointed to help balance the interests of the teacher majority; and
• the criteria set for the open appointments process could help to increase the diversity of backgrounds of Council members.

Challenges to this model include:

• organisations with a legitimate interest in teaching, and education in Scotland more broadly, would no longer have guaranteed seats on Council. These organisations, such as the universities that provide teacher education courses and local authority Directors of Education, are important actors in Scottish education and are seen as being good contributors to the work of Council. While individuals from these organisations could apply to join the Council, they would not have a guaranteed seat; and
• the election process, while being a democratic method by which individuals can become Council members, is not supported by strict eligibility criteria in terms of the skills elected teachers should have as Council members.

57. A variant of this model would be to guarantee seats for some particular bodies whose contribution to Council is seen as being particularly relevant. Individuals could be appointed to these seats by their own organisation as per current procedure, or, as set out above, the seats could be reserved and potential candidates would be required to apply. For example, seats could be reserved for parents, employers of teachers or representatives of the university sector. As employers of teachers and representatives of the university sector are often registered teachers, setting aside seats for these groups could result in the Council being heavily populated, as it is now, by registered teachers. A potential disadvantage of this approach could be to reduce the seats in Council available for lay members, unless there were also a fixed number of seats set aside for this group.

Model 2 - Appoint all Council members

58. Under this model the current framework by which teachers are elected by their peers and organisations appoint individuals to Council would be replaced by a system under which all Council members are appointed. The model set out below is therefore similar to the one adopted by the other regulatory bodies and would give the GTCS a very similar governance structure to its contemporaries. Key aspects of this model would be as follows:

• retention of a teacher majority;
• open, skills based appointments process for all Council members;
• no election for registered teachers;
• the categories from which teachers are elected would be retained;
• no guaranteed seats on Council for any organisations; and
• appointments process designed so the Council contains a good balance of experience and skills.

Benefits of this model include:

• method by which the Council is appointed is open and accountable;
• should lead to a mixture of teachers and lay members with the skills to fully contribute;
• would allow for an increase in lay members being appointed to help balance the interests of the teacher majority; and
• tailoring the open appointments process would help to increase the diversity of backgrounds of Council members; and
• as with Model 1, it would be possible to set aside seats for particular interests on Council.

Challenges to this model include:

• the democratic election process would no longer exist for registered teachers as they would instead be appointed; and
• as with Model 1 organisations with a legitimate interest in teaching, and education in Scotland more broadly, would no longer have guaranteed seats on Council.

59. There can be no doubt that the adoption of either model would result in a very significant change to the way in which the Council is currently established. The Scottish Government is aware that the election process is greatly valued by parts of the teaching profession and from the perspective of some stakeholders the removal of elections would be an unwelcome development. Despite this, the Scottish Government is cognisant of developments in other regulatory bodies and believe the move to independent status is an appropriate opportunity to seek the views of stakeholders on the relative merits of these, and other models. All parties should continue to be mindful of the over-arching purpose of the GTCS to ensure children receive a high standard of teaching. Accordingly, the Council should have a composition that can help ensure it achieves this primary goal.

How would the appointments process to an independent GTCS work?

60. If either of the models above (or any variants thereof) were to be adopted, then a process would need to be developed through which Council members could be appointed. If an appointments process is required for the new Council, then the Scottish Government will work with the GTCS to ensure that the process that is developed is open, transparent and takes into account current best practice including the Nolan principles.

Ensuring the Public Interest is well represented - Definition of Lay Member

61. Currently the 1965 Act only requires that the 26 teachers elected to Council are registered with the GTCS. ⁵ The Act does not prevent other individuals from the appointed and nominated member categories who are registered with the GTCS from being appointed or nominated to Council. In the current Council 37 of 48 members are registered teachers and many others have a background in education provision. Of the 24 appointed or nominated members 12 are registered teachers. ⁶

62. Given the organisations ( ADES, Teacher Education Universities, etc) that can appoint individuals to the GTCS, it is perhaps not surprising that a large number of registered teachers are appointed to Council. Their background in teaching means they have an understanding of the profession allowing them to contribute effectively to the work of the Council. However, the number of lay members within Council is relatively low and adopting a definition of lay person such as the one used by the GMC set out below, could help the independent GTCS to demonstrate that, while being a profession-led organisation, its membership reflects the wider public interest and is not dominated by those with a vested interest in teaching.

63. The definition of lay member adopted by the Health Regulators such as the General Medical Council and Nursing and Midwifery Council is as follows: ⁷

Lay members, that is members who:

(i) are not and never have been provisionally registered or fully registered; and

(ii) do not hold qualifications which would entitle them to apply for provisional or full registration.

64. If the definition above was applied to the GTCS, then the number of teachers on Council would reduce and a guaranteed space would be created for members that could represent the public interest. The Scottish Government is seeking views as to whether a more tightly defined definition of lay member should therefore be adopted by the GTCS.

Questions

Q6: How best can we ensure that the public interest is well represented on an independent Council? In answering this question stakeholders may wish to consider factors such as the composition, appointments process and definition of lay member which could all play a role in ensuring the public interest is well represented.

Q7: In terms of models the independent Council could adopt, do you prefer Model 1 or Model 2, a variant of either model, the status quo, or something completely different?

Q8: In considering the composition of the current Council, do you think that there are groups missing from whose input the Council would benefit?

3.4 Other Relevant Issues

Accountability to the Scottish Parliament

65. The GTCS carries out, and will continue to carry out, a crucial role in ensuring that teachers working in Scotland have the skills that make them competent to teach. In this way, the GTCS plays an important role in ensuring that the standard of education provided across publicly funded schools in Scotland remains high. In becoming independent from Government, it is crucial that the Council is open, transparent and publicly accountable. As a public body it is also important that the GTCS continue to be accountable to Parliament.

66. It is a requirement of the 1965 Act that the GTCS submits its annual report to the Scottish Ministers. ⁸ The Scottish Government proposes that an independent GTCS will be required to submit its annual report, Strategic Plan and Diversity Action Plan to the Scottish Parliament. GTCS members and officials should also be willing to continue to attend Committees of the Scottish Parliament as required.

Financial Issues

67. Currently the GTCS are required to seek the approval of the Scottish Ministers if they wish to borrow money. ⁹ In addition, while the Council may pay their members travelling, subsistence and other allowances as they see fit, this process must first be approved by the Scottish Ministers. ¹⁰ The Scottish Government believes that an independent, self-financing, body should have control over its own finances and these provisions will be revoked when the GTCS becomes independent.

Removal of Council Members

68. Schedule 1, Part 1, paragraphs, 4 (2(b), (e) and 4A) of the 1965 Act make provision for the disqualification or removal of members. It is the intention of the Scottish Government that flexibility will be given to the GTCS to set more detailed criteria for the removal of individuals from Council. This could include issues such as being convicted of a criminal offence involving dishonesty or deception which may have a material impact on an individuals ability to continue to act as a member of Council.

Terms of Office

69. Currently Council members are elected or appointed for terms of four years. Further to completing the four year term, they are then free to stand again for election, or to be re-appointed/nominated. Ministerial nominees are in a slightly different position as their position on Council is bound by the Office of the Commissioner for Public Appointments ( OCPAS) Code of Practice which dictates that normally members should only serve for two terms. There are currently no restrictions on the number of terms that an individual can stand as a member of the Council.

70. The Scottish Government is aware that the practice in many other regulatory bodies is to place a cap on membership. For example, the GMC allow Council members to stand for two terms of four years within a period of twenty years. In addition the Office of the Commissioner for Public Appointments ( OCPAS) Code of Practice for appointments to public bodies normally only allows members to stand for two terms for appointments that are governed by the code. The Scottish Government is therefore seeking views as to whether the length of time members should be allowed to serve on GTCS should be capped.

Questions

Q9: Do you have any comments relating to the issues raised in this section?

Q10: Do you believe the length of time individuals should be allowed to serve on Council should be capped?

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