Education (Scotland) Act 2025

Schedule 4 – Consequential Modifications

Part 1: Qualifications Scotland

Chapter 1: Application of legislation relating to public bodies

227. This Chapter of schedule 4 amends relevant public bodies legislation so as to encompass Qualifications Scotland.

Ethical Standards in Public Life etc. (Scotland) Act 2000

228. Paragraph 1 adds Qualifications Scotland to the list of devolved public bodies in schedule 3 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 (“the 2000 Act”). This means that Qualifications Scotland will need to:

• have a code of conduct for its members, whose compliance with the code will be policed by the Standards Commission for Scotland (see sections 3 and 9 of the 2000 Act), and

• maintain a public register of its members’ interests (see section 7 of the 2000 Act).

Scottish Public Services Ombudsman Act 2002

229. Paragraph 2 adds Qualifications Scotland to the list of authorities in schedule 2 of the Scottish Public Services Ombudsman Act 2002 (“the 2002 Act”). The effect of this is to:

• make the exercise of administrative functions by Qualifications Scotland amenable to investigation by the ombudsman (see section 5 of the 2002 Act),

• oblige Qualifications Scotland to have its own complaints handling procedure that complies with the statement of principles published by the ombudsman under section 16A of the 2002 Act,

• permit Qualifications Scotland to be made subject to the further requirement to have a complaints handling procedure that complies with a model complaints handling procedure prepared by the ombudsman (see sections 16B and 16C of the 2002 Act).

Freedom of Information (Scotland) Act 2002

230. Paragraph 3 adds Qualifications Scotland to the list of Scottish public authorities in schedule 1 of the Freedom of Information (Scotland) Act 2002 (“the FOI (S) Act”). This means that Qualifications Scotland will be subject to the requirements which the FOI (S) Act places on public bodies, including requirements to provide information to the public on request and to have in place a scheme under section 23 of that Act for the pro-active publication of information it holds.

231. Being a public authority within the meaning of the FOI (S) Act also makes Qualifications Scotland a “Scottish public authority” to which the Environmental Information (Scotland) Regulations 2004 apply.

232. In addition, it means that Qualifications Scotland falls within the definition of a “public body” under section 44 of the Climate Change (Scotland) Act 2009. This means that it must act in a way calculated to contribute to the delivery of climate change targets and any climate change adaptation programme and in the way that it considers is most sustainable. It can also have further duties, including reporting duties, imposed upon it.

233. Further, as a public authority within the meaning of the FOI (S) Act, Qualifications Scotland is a “public authority” or “public body” for the purposes of the General Data Protection Regulation by virtue of section 7 of the Data Protection Act 2018 (provided the power under that section to remove such status is not exercised). The General Data Protection Regulation (also commonly referred to by the acronym “GDPR”) is Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. There are particular rules applied to bodies classified as “public authorities” (over and above those applied to all data processors) in the GDPR and the Data Protection Act 2018. An analysis of those rules is beyond the scope of these Notes.

Public Appointments and Public Bodies etc. (Scotland) Act 2003

234. Paragraph 4 adds Qualifications Scotland to the list of specified authorities in schedule 2 of the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (“the 2003 Act”). This means that the Scottish Ministers, when appointing Qualifications Scotland’s members, will need (under section 2 of the 2003 Act) to comply with the code of practice on public appointments produced by the Commissioner for Ethical Standards in Public Life in Scotland.

Public Services Reform (Scotland) Act 2010

235. Paragraph 5(2) adds Qualifications Scotland to the list of bodies in schedule 5 of the Public Services Reform (Scotland) Act 2010 (“the 2010 Act”). This means that Qualifications Scotland is a body in relation to which an order can be made under section 14 of the 2010 Act where it would improve the exercise of public functions, having regard to efficiency, effectiveness or economy. An order under section 14 of the 2010 Act can (subject to restrictions, and only after the Scottish Parliament has approved a draft of the order):

• modify, confer, abolish, transfer or provide for the delegation of any function of a public body,

• amend the constitution of a public body.

236. Paragraph 5(3) adds Qualifications Scotland to the list of bodies in schedule 8 of the 2010 Act. This means that Qualifications Scotland will be subject to the duties to report after each financial year on:

• expenditure (see section 31 of the 2010 Act), and

• the steps it has taken to promote and increase sustainable growth and improve its efficiency, effectiveness and economy (see section 32 of the 2010 Act).

Public Records (Scotland) Act 2011

237. Paragraph 6 makes Qualifications Scotland subject to the duties created by the Public Records (Scotland) Act 2011 to produce, implement and keep under review a records management plan.

Procurement Reform (Scotland) Act 2014

238. Paragraph 7 makes Qualifications Scotland subject to the procurement rules applicable to contracting authorities in the Procurement Reform (Scotland) Act 2014 regarding their procurement activities and some specific measures aimed at promoting good, transparent and consistent practice in procurement.

Gender Representation on Public Boards (Scotland) Act 2018

239. Paragraph 8 adds Qualifications Scotland to the list of bodies in schedule 1 of the Gender Representation on Public Boards (Scotland) Act 2018 (“the 2018 Act”). This means that in appointing members to Qualifications Scotland, the Scottish Ministers must ordinarily give preference to a woman if there are equally qualified candidates – one who is a woman and one who is not – where appointing a woman would result in, or be a step towards, 50% of the body’s membership being women (see section 4 of the 2018 Act).

240. addition, the 2018 Act requires that steps be taken to encourage women to apply to be members of Qualifications Scotland (see section 5 of the 2018 Act), and further steps to be taken to promote gender balance in the membership if the 50% target has not been reached by particular dates (see section 6 of the 2018 Act).

Islands (Scotland) Act 2018

241. Paragraph 9 adds Qualifications Scotland to the list of relevant authorities in the schedule of the Islands (Scotland) Act 2018. This means that Qualifications Scotland must have regard to island communities in carrying out its functions (see section 7(1) of the Islands (Scotland) Act 2018).

Chapter 2: Other modifications

Further and Higher Education (Scotland) Act 1992

242. Paragraph 10 replaces reference to the Scottish Qualifications Authority in the Further and Higher Education (Scotland) Act 1992 with reference to Qualifications Scotland. This will have the effect of bringing qualifications awarded by Qualifications Scotland within the definition of “further education” in section 1 of that Act, and including any qualification known as the Qualifications Scotland national certificate in the list of courses which set the standard above which education is treated as “higher education”.

Education (Scotland) Act 1996

243. Paragraph 11 repeals the bulk of the Education (Scotland) Act 1996, which amongst other matters established the Scottish Qualifications Authority. The provisions which are repealed all relate to the Authority’s establishment.

Scottish Qualifications Authority Act 2002

244. Paragraph 12 repeals the Scottish Qualifications Authority Act 2002, which made provision for the membership and procedures of the Scottish Qualifications Authority and established a committee to consider and advise on qualifications awarded by it. The functions of the Authority will now be undertaken by Qualifications Scotland and the Accreditation Committee.

Further and Higher Education (Scotland) Act 2005

245. Paragraph 13 modifies the Further and Higher Education (Scotland) Act 2005 to replace references to the Scottish Qualifications Authority with references to Qualifications Scotland. This ensures that references to things which were previously done by the Scottish Qualifications Authority will continue to apply when those things are done by Qualifications Scotland.

Children and Young People (Scotland) Act 2014

246. Paragraph 14 modifies the Children and Young People (Scotland) Act 2014 so that Qualifications Scotland assumes the duty to publish a report of what steps it has taken to secure better or further effect of the rights and obligations set out in Part 1 of the United Nations Convention on the Rights of the Child and specified parts of the protocols to it, in place of the Scottish Qualifications Authority.

Coronavirus (Recovery and Reform) (Scotland) Act 2022

247. Paragraph 15 modifies the Coronavirus (Recovery and Reform) (Scotland) Act 2022 to replace references to the Scottish Qualifications Authority approving education and training establishments with references to Qualifications Scotland doing so.

Part 2: The Office of His Majesty’s Chief Inspector of Education in Scotland

Chapter 1: Application of legislation relating to office-holders

248. This Chapter of schedule 4 amends relevant public bodies legislation so as to encompass His Majesty’s Chief Inspector of Education in Scotland.

Freedom of Information (Scotland) Act 2002

249. Paragraph 16 of schedule 4 adds the Chief Inspector to the list of non-ministerial office holders in the Scottish Administration in schedule 1 of the FOI (S) Act. This means that the Chief Inspector will be subject to the requirements which the FOI (S) Act places on public bodies, including requirements to provide information to the public on request and to have in place a scheme under section 23 of that Act for the pro-active publication of information it holds.

250. Being a public authority within the meaning of the FOI (S) Act also makes the Chief Inspector a “Scottish public authority” to which the Environmental Information (Scotland) Regulations 2004 apply.

251. In addition, it means that the Chief Inspector falls within the definition of a “public body” under section 44 of the Climate Change (Scotland) Act 2009. This means that the Chief Inspector must act in a way calculated to contribute to the delivery of climate change targets and any climate change adaptation programme and in the way that the Chief Inspector considers is most sustainable. The Chief Inspector can also be made subject to further duties, including reporting duties.

252. Further, as a public authority within the meaning of the FOI (S) Act, the Chief Inspector is a “public authority” or “public body” for the purposes of the General Data Protection Regulation by virtue of section 7 of the Data Protection Act 2018 (provided the power under that section to remove such status is not exercised). The General Data Protection Regulation (also commonly referred to by the acronym “GDPR”) is Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. There are particular rules applied to bodies classified as “public authorities” (over and above those applied to all data processors) in the GDPR and the Data Protection Act 2018. An analysis of those rules is beyond the scope of these Notes.

Protection of Vulnerable Groups (Scotland) Act 2007

253. The Protection of Vulnerable Groups (Scotland) Act 2007 relates to the inclusion of individuals on a “children’s list” and an “adult’s list”. Section 19(3) of the 2007 Act names persons who may be required to provide information to the Scottish Ministers under section 19(1)(b) for the purpose of assisting Ministers in deciding whether to list an individual. “HM Inspectors of Schools” is named here, and section 97 of the 2007 Act provides a definition for that term, which is repeated in the index in schedule 5 of the 2007 Act. Paragraph 17 of schedule 4 of this Act updates these references by substituting them for the Chief Inspector.

Public Services Reform (Scotland) Act 2010

254. Paragraph 18 of schedule 4 adds the Chief Inspector to the list of bodies in schedule 19 of the 2010 Act. This means that the Chief Inspector is subject to the user focus scrutiny duty set out in section 112 of the 2010 Act. This will require the Chief Inspector to secure continuous improvement in the involvement of users in the design and delivery of scrutiny functions, such as the inspection function set out in section 38.

255. It also adds the Chief Inspector to the list of bodies in schedule 20 of the 2010 Act. This means that the Chief Inspector is subject to section 114 of the 2010 Act and must co-operate and co-ordinate activity with the other bodies listed there and, where appropriate, the Scottish Ministers with a view to achieving the purpose of improving the exercise of the scrutiny functions of, among other things, local authorities.

Public Records (Scotland) Act 2011

256. Paragraph 19 of schedule 4 makes the Chief Inspector subject to the duties created by the Public Records (Scotland) Act 2011 to produce, implement and keep under review a records management plan.

Procurement Reform (Scotland) Act 2014

257. Paragraph 20 of schedule 4 makes the Chief Inspector subject to the procurement rules applicable to contracting authorities in the Procurement Reform (Scotland) Act 2014 regarding their procurement activities and some specific measures aimed at promoting good, transparent and consistent practice in procurement.

Chapter 2: Other modifications

Education (Scotland) Act 1980

258. Paragraph 21 of schedule 4 modifies the Education (Scotland) Act 1980 to remove the following provisions regarding inspections of educational establishments, as they are no longer required in light of the provision made by the Act:

• the power of the Scottish Ministers to request inspections of schools by Her Majesty’s Inspectors (section 66 of the 1980 Act),

• provision regarding the issuing of a code of practice for inspections (section 66A of the 1980 Act),

• Her Majesty’s Inspectors’ duty to make a reference to the Scottish Ministers in relation to a failing identified in an inspection (section 66B of the 1980 Act),

• provision regarding the issuing of preliminary notices (section 66C of the 1980 Act),

• provision regarding the giving of enforcement directions (section 66D of the 1980 Act).

259. It also removes provisions permitting the Scottish Ministers to recover expenses from educational establishments following inspections requested by the establishment, and the power to inspect residential accommodation to ensure the safeguarding and promotion of a child’s welfare. Both of these are superseded by the provision now made in the Act. This paragraph further removes the definitions of enforcement direction, Her Majesty’s Inspections, and preliminary notice from the Act.

Standards in Scotland’s Schools etc. Act 2000

260. Paragraph 22 of schedule 4 modifies the Standards in Scotland’s Schools etc. Act 2000. It repeals the provisions in the 2000 Act that complement those that were repealed in the Education (Scotland) Act 1980 by paragraph 21 (see paragraph 258 of these Notes). These provisions related to the inspection of education authorities, which is now provided for in the Act instead.

Scottish Schools (Parental Involvement) Act 2006

261. Paragraph 23 of schedule 4 modifies the Scottish Schools (Parental Involvement) Act 2006 to replace references to Her Majesty’s inspectors with references to His Majesty’s Chief Inspector of Education in Scotland. This ensures that the current rules about when the Parent Council can make representations to Her Majesty’s inspectors, and what must be done on receipt of such representations, will apply to representations which are made by the Parent Council to His Majesty’s Chief Inspector of Education in Scotland.

Schools (Consultation) (Scotland) Act 2010

262. Paragraph 24 of schedule 4 modifies the Schools (Consultation) (Scotland) Act 2010 to replace references to Her Majesty’s Inspectors of Education (HMIE) with references to the Chief Inspector of Education in Scotland. This ensures that references to things that were previously done by or in relation to HMIE will now apply to things that are done by or in relation to the Chief Inspector. Specifically, this means that the Chief Inspector will require to be involved in any relevant proposals made by an education authority. A relevant proposal is defined in schedule 1 of that Act but includes, for example, a proposal to permanently discontinue a school.

Public Services Reform (Scotland) Act 2010

263. Paragraph 25 of schedule 4 modifies the Public Services Reform (Scotland) Act 2010 to replace the reference in section 115(6) of that Act to Her Majesty’s inspectors of schools with a reference to His Majesty’s Chief Inspector of Education in Scotland. This ensures that this section will apply to His Majesty’s Chief Inspector of Education in Scotland as it applied to Her Majesty’s inspectors of schools. This means that the Scottish Ministers will be able to require the Chief Inspector to carry out a joint inspection with another specified body of children’s or other services.

Education (Scotland) Act 2016

264. Paragraph 26 of schedule 4 modifies the Education (Scotland) Act 2016 to replace the reference in section 12(3) of that Act to Her Majesty’s inspectors of schools with a reference to His Majesty’s Chief Inspector of Education in Scotland. This ensures that this section will apply to His Majesty’s Chief Inspector of Education in Scotland as it applied to Her Majesty’s inspectors of schools. This means that the Chief Inspector must be notified by an education authority if it receives a request to assess the need for Gaelic medium primary education and decides to carry out a full assessment of that need.

Schools General (Scotland) Regulations 1975

265. Paragraph 27 of schedule 4 revokes part 4 of the Schools General (Scotland) Regulations 1975, which permits Inspectors acting under section 67 of the Education (Scotland) Act 1962 to visit schools under their management without notice and to inspect documents kept in the school.