3rd Report, 2008 (Session 3)

Stage 1 Report on the Creative Scotland Bill

Remit and membership

REPORT
Introduction
Background
Purpose of the Bill
Consideration of the bill
Written evidence
Oral evidence
Issues considered by the Committee
Scottish Government consultation
Requirement for legislation
Establishment of Creative Scotland
Remit and functions of Creative Scotland
Creative Scotland’s relationship with other organisations and sectors
Terms used in the Bill
Role of education
Financial issues
Organisation and structure
Ministerial direction
Subordinate legislation
Policy Memorandum
Conclusions and recommendations

ANNEXE A: REPORT FROM THE SUBORDINATE LEGISLATION COMMITTEE
ANNEXE B: REPORT FROM THE FINANCE COMMITTEE
ANNEXE C: EXTRACTS FROM THE MINUTES

7th Meeting, 2008 (Session 3), Wednesday 19 March 2008
10th Meeting, 2008 (Session 3), Wednesday 30 April 2008
11th Meeting, 2008 (Session 3), Wednesday 7 May 2008
12th Meeting, 2008 (Session 3), Wednesday 14 May 2008
13th Meeting, 2008 (Session 3), Wednesday 21 May 2008
14th Meeting, 2008 (Session 3), Wednesday 28 May 2008

ANNEXE D: ORAL EVIDENCE AND ASSOCIATED WRITTEN EVIDENCE
ANNEXE E: LIST OF OTHER WRITTEN EVIDENCE

Remit:

To consider and report on (a) further and higher education, lifelong learning, schools, pre-school care, skills and other matters falling within the responsibility of the Cabinet Secretary for Education and Lifelong Learning; and (b) matters relating to culture and the arts falling within the responsibility of the Minister for Europe, External Affairs and Culture.

Membership:
Aileen Campbell
Rob Gibson (Deputy Convener)
Kenneth Macintosh
Christina McKelvie
Mary Mulligan
Jeremy Purvis
Elizabeth Smith
Karen Whitefield (Convener)

Committee Clerking Team:

Clerk to the Committee
Eugene Windsor

Senior Assistant Clerk
Nick Hawthorne

Assistant Clerk
Andrew Proudfoot

Committee Assistant
Paul Howell

Stage 1 Report on the Creative Scotland Bill

The Committee reports to the Parliament as follows—

introduction

Background

1. The Creative Scotland Bill¹ (“the Bill”) was introduced in the Scottish Parliament on 12 March 2008 by Alex Salmond MSP. The Bill was accompanied by Explanatory Notes² which include a Financial Memorandum, and by a Policy Memorandum³ as required by the Parliament’s Standing Orders. On 18 March 2008, under Rule 9.6 of Standing Orders, the Parliamentary Bureau referred the Bill to the Education, Lifelong Learning and Culture Committee (“the Committee”) to consider and report on the general principles of the Bill.

2. As the Bill contains provision for making subordinate legislation, a report from the Subordinate Legislation Committee is attached at Annexe A. The Finance Committee’s report on the Financial Memorandum is attached at Annexe B.

Purpose of the Bill

3. According to the Explanatory Notes the Bill has five main purposes, to—

• establish a national cultural development body, Creative Scotland;
• provide for the functions of Creative Scotland;
• give the Scottish Ministers a limited power to give directions to Creative Scotland;
• dissolve the Scottish Arts Council, a body established by Royal Charter; and
• provide for the membership of and governance of Creative Scotland.

The Policy Memorandum outlines the policy objective of the Bill—

“The body [Creative Scotland] will inherit the resources (including the staff) and general purposes of two existing public bodies, the Scottish Arts Council and Scottish Screen. The Scottish Government believes that these two organisations have achieved considerable and growing success in the pursuit of their objects, and that the arts, film and wider screen and creative industries in Scotland have benefited greatly from their efforts. However, Ministers also believe that an evolution of these organisations’ objectives and the establishment of a cultural development body fit for the 21st century is now necessary to realise the ambitions for creativity in Scotland and for the success of creative practitioners and enterprises.”⁴

consideration of the bill

Written evidence

4. At its meeting of 19 March 2008, the Committee agreed its approach to Stage 1 consideration of the Bill.⁵ The Committee issued a call for written evidence⁶ on 20 March 2008, with the deadline for responses set as 18 April 2008. The Committee invited views from interested parties on the general principles of the Bill. In addition it asked:

• How helpful do you find the Policy Memorandum and Financial Memorandum accompanying the Bill?
• Do you have any comments on the consultation the Scottish Government carried out prior to the introduction of the Bill?

5. The Committee received a total of 59 written submissions in response to its call for evidence. In addition, the Scottish Government provided additional information to the Committee on a number of issues. At the final oral evidence session of stage 1 the Scottish Government informed the Committee of the work of the Creative Industries Working Group (CIWG) and provided members with a copy of the CIWG report Public Support for Creative Industries Report.⁷ Details are provided in Annexes D and E.

6. Several main themes emerged in the written evidence. Many of these were also supported in oral evidence. These themes are explored in detail below.

Oral evidence

7. The Committee took oral evidence on the Bill over the course of three meetings as follows:

30 April 2008

• Heather Jack, Deputy Director, Culture and Gaelic Division; Greig Chalmers, Head of Creative Scotland and Broadcasting Team; and Yvonne Georgeson, Creative Scotland and Broadcasting Team, Bill Project Manager, Scottish Government;

 and then from—

• Jim Tough, Acting Chief Executive, Scottish Arts Council; Dr Richard Holloway, Chair, Joint Board for the Scottish Arts Council and Scottish Screen; Ken Hay, Chief Executive, Scottish Screen; and Anne Bonnar, Transition Director, Creative Scotland Transition Project Team.

7 May 2008

• Barbara Absolon, International Events Director - Culture, EventScotland; Lorne Boswell, Scottish Secretary, Equity; and Dr Donald Smith, Director, Scottish Storytelling Centre;

and then from—

• David Caldwell, Director, Universities Scotland; and Professor Jan McDonald, Vice-President (Arts and Humanities), Royal Society of Edinburgh.

14 May 2008

• Calum Davidson, Head of Key Sectors, Highlands and Islands Enterprise; Adrian Gillespie, Director of Digital Markets and Enabling Technologies, Scottish Enterprise; and Councillor Harry McGuigan, Community Well-Being and Safety Spokesperson, COSLA;

and then from—

• Linda Fabiani MSP, Minister for Europe, External Affairs and Culture; Heather Jack, Deputy Director, Culture and Gaelic Division; and Greig Chalmers, Head of Creative Scotland and Broadcasting Team, Scottish Government.

8. Extracts from the Minutes of all the meetings at which the Bill was considered are attached at Annexe C. Where written submissions were made in support of oral evidence these are reproduced, together with the extracts of the Official Reports of each of the relevant meetings, at Annexe D. All other written submissions, including supplementary written evidence, are detailed at Annexe E.

9. The Committee would like to thank all those who provided written or oral evidence.

issues considered by the committee

Scottish Government consultation

10. The previous administration published a draft Culture (Scotland) Bill⁸ and associated guidance for consultation on 14 December 2006. This draft Bill included the intention to establish a new national cultural development body to be called ‘Creative Scotland’. The consultation period ran for 12 weeks, closing on 30 March 2007. 212 responses were received. All responses not marked confidential were published online.⁹ A factual report of the responses to the consultation was published on 24 August 2007 and is also available online.¹⁰

11. Most evidence to the Committee expressed satisfaction that the consultation which had been conducted for the previous administration’s draft Culture (Scotland) Bill was used to inform the drafting of the Creative Scotland Bill. Some respondents welcomed the fact that no additional consultation had taken place, as this would have delayed the Bill’s introduction.

12. Some respondents considered that it would have been appropriate for the Scottish Government to have consulted on the specific contents of its proposed Bill, rather than drawing solely on the responses to consultation conducted for different, though related, proposed legislation.

13. Giving evidence to the Committee on 14 May 2008, Councillor Harry McGuigan, Community Well-Being and Safety Spokesperson at COSLA, expressed disappointment that COSLA had not been more involved in the transition process along with the Scottish Arts Council, Scottish Screen and Creative Scotland. Councillor McGuigan said—

“The consultation process was fair. However, more could have been done on transition planning for Creative Scotland. We would have liked to be more involved in gaining a shared understanding of why certain prioritisations took place. We wanted to be in on that. That was a disappointment.”¹¹

14. The Committee also notes that the consultation on the previous draft Bill addressed many areas not included in the Creative Scotland Bill. Some respondents, such as the City of Edinburgh Council, expressed a degree of frustration with this, commenting that—

“From the perspective of the arts sector, the establishment of the conjoined body is essentially the only significant outcome (other than the change to the way in which national performing arts bodies will be monitored) of a consultation process addressing the cultural landscape of the country as a whole. This process excited a high degree of expectation around significant change and potential for substantive improvement of funding and profile for the cultural sector in the country. The full extent of anticipated change has not been realised.”¹²

15. The National Trust for Scotland also raised this point in its written submission—

“One of the key points made in our response was the strong support given to the proposed legislation to introduce an offence of dealing in tainted cultural objects to cover Scotland (Part 4 of the draft Bill). The Trust is therefore concerned that the Creative Scotland Bill does not address this issue, particularly as it is not clear when another opportunity to resolve the current anomaly will arise.”¹³

16. The Committee is satisfied that the consultation conducted for the previous administration’s draft Culture (Scotland) Bill was sufficiently relevant to the Creative Scotland Bill and believes it was appropriate to use the responses to inform the drafting of the current Bill. However, the Committee was concerned that specific issues raised during the previous consultation have not been addressed in the current Bill and that there has been no opportunity for further consultation to take place on these issues. The Committee asks that the Scottish Government clarifies its position with regard to these issues as soon as is practical.

Requirement for legislation

17. The majority of evidence received by the Committee broadly welcomed the Bill. However, there was some disagreement and confusion concerning the requirement for legislation to achieve the broad aims of the Bill.

18. Giving evidence to the Committee on 14 May 2008, the Minister for Europe, External Affairs and Culture explained the Scottish Government’s rationale for bringing forward the Bill—

“[…] I do not require legislation to create Creative Scotland. We could have taken away the Royal Charter and abolished the Scottish Arts Council without legislation, but we decided that having legislation for Creative Scotland was important, for many reasons. One reason was that a draft Bill already existed. A lot of discussion had taken place about the way forward for the arts in Scotland. That started in 2003 with the then First Minister’s St Andrew’s day speech, which created many expectations about the arts and culture. That was followed by the Cultural Commission’s report and a response to it from the Executive of the time. I felt that we had to send out the message that action was now being taken. I looked at the draft Bill, which contained a lot. I took soundings from key people in the field and decided that what was most important was the creation of a development body—an inspirational body to take forward how we see the arts, culture and the creative industries … It is also important to give the Parliament the chance to scrutinise the Government’s plans. It is far better to do that through primary legislation and to go through all the processes than otherwise.”¹⁴

19. However, the Minister also stated that­—

“We need the legislation to allow parliamentary scrutiny and to send out the message that what we are doing here is extremely important, in that we are transforming the development of arts and culture in Scotland.”¹⁵

20. The Committee was concerned that there was a lack of clarity from the Minister as to what legislative measures are required to abolish the Scottish Arts Council and establish Creative Scotland, and asks for clarification on this before stage 2.

21. In written evidence to the Committee, Equity remarked—

“It is hard not to see that the apparent objective of this Bill could be achieved without legislation.”¹⁶

22. At its meeting on 7 May 2008, the Committee questioned witnesses on the extent to which the Bill’s provisions would ensure that the aims and ambitions being proposed for the new body would be realised. In response, Lorne Boswell, Scottish Secretary for Equity, said—

“My understanding is that the Bill will get rid of the name Scottish Arts Council and change it to Creative Scotland. From my reading of it, everything else in the Bill could be achieved without legislating. If you are asking me whether the Bill is absolutely necessary and will lead to the betterment of the creative sector in Scotland, I am afraid that the answer must be no.”¹⁷

23. The Policy Memorandum for the Bill states that the new body will have “new and wider functions than its antecedent bodies.”¹⁸ A comparison between the Royal Charter that established the Scottish Arts Council, and the provisions of the Creative Scotland Bill indicates that the main difference between the two bodies appears to lie in the addition of a role in the development and support of the creative industries. This is a role not currently held either by the Scottish Arts Council or by Scottish Screen.

24. The Policy Memorandum for the Bill outlines a number of alternative approaches to the Bill as introduced. These would include amending the current Royal Charter, establishing the body through a new Royal Charter or establishing the new body under company law. However, the Scottish Government decided that primary legislation was the most appropriate mechanism for the establishment of the new body—

“[…] the Government feels it would be best to establish such a significant body in a way that permits direct Parliamentary scrutiny of its purposes and powers, and so do this through legislation.”¹⁹ 

25. The Minister told the Committee that she saw the Bill as “enabling” legislation, adding that it was important to be mindful of what legislation should and should not cover—

“The Bill is enabling legislation, and it is crucial that all those who have a role in a sector get together and work out how best to serve those whom they, as public bodies, exist to serve. I do not believe that everything has necessarily to be detailed in legislation. The Government gives strategic direction, and our public bodies are on board to ensure that they are seen to work together to deliver the strategy.”²⁰

26. The Committee is concerned that the extent to which the new body is able to achieve its objectives will depend on a number of factors largely unrelated to the way it is to be established as set out in the Bill.

27. The Minister also told the Committee that the Bill—

“[…] sends a message to the arts and culture sector and the creative industry sector, which have been waiting about for an awful long time to see the Government’s aspirations for their sectors and how importantly we view them. It lets them know that we are serious about moving forward and letting them take the lead in what they do artistically.”²¹

28. The Committee also recognises that there is a desire within the arts, culture and creative industry sectors for a new body to be established sooner rather than later. The Committee recognises and shares the enthusiasm expressed by the Minister for the potential of a new national cultural development body. It is only that shared enthusiasm and optimism that outweighs the Committee’s concerns at the limited scope of the Creative Scotland Bill. The Committee is concerned that the measures included in the Bill do not match the rhetoric from the Scottish Government.

Establishment of Creative Scotland

29. The Committee notes that the majority of evidence it received was supportive of the principle of establishing a new national cultural development agency. Many respondents echoed the sentiments of East Ayrshire Council which welcomed the establishment of the new body, adding that it “represents an opportunity to improve and develop support to the arts and cultural sector across Scotland.”²²

30. Giving evidence to the Committee, Professor Jan McDonald, Vice President of arts and humanities at the Royal Society of Edinburgh, suggested that the establishment of Creative Scotland provided a new opportunity for the sector in Scotland, stating—

“The Royal Society of Edinburgh welcomes the Bill because it offers new opportunities. I like the idea of evolution—of things emerging from the amalgamation of the Scottish Arts Council and Scottish Screen—that is in the Policy Memorandum. It is important to look forward in that way because—let us leave aside the structures and the money for two seconds—the art forms are joining together. Funding councils find it awful trying to decide whether something is a film project or a visual arts project. They are no longer discrete, so having a body that really has the expertise to judge cross-disciplinary applications—projects that are no longer theatre, painting or film but involve many of the arts—will be really splendid. That is absolutely an artistic positive; we can come to the other issues later.”²³

31. The Committee notes that the majority of responses to the consultation on the previous administration’s draft Culture (Scotland) Bill were also in favour of the principle of establishing a new body. The Committee further noted that no respondents to its call for evidence directly opposed the abolition of the Scottish Arts Council and Scottish Screen.

32. Some respondents noted that it was important that Creative Scotland was sufficiently different from the Scottish Arts Council both in order to realise its ambition and to justify the expenditure of public funds on legislation to establish it.

33. The Committee agrees with comments made by Highland Council, which stated—

“We would like to stress that the new national body, Creative Scotland, must think and act truly nationally, and strive to avoid cultural practice and opportunity becoming geographical fragmented: the cultural nation should be regarded and developed as a cultural whole. Similarly, in the promotion of Scottish culture to the wider world, Creative Scotland must strive to equally represent and support all areas of the country.”²⁴

34. Given the strong support in the evidence received by the Committee, it accepts that the Bill’s central provision, to replace the Scottish Arts Council and Scottish Screen with a new strategic national cultural development agency, to be called ‘Creative Scotland’, is appropriate.

Remit and functions of Creative Scotland

35. Much of the evidence received by the Committee was generally welcoming of the broad objectives for Creative Scotland as set out in the Bill. There was support, for example, of the vision “to inspire and support a culturally ambitious Scotland.”²⁵

36. The Federation of Scottish Theatre commented in its evidence that—

“We fully support the four general functions of Creative Scotland outlined in the Bill [in Sections] 2(1)(a,b,c,d) and are encouraged that promotion of the understanding, appreciation and enjoyment of arts and culture is to be the primary function of the new body.”²⁶

37. With regard to widening access, East Dunbartonshire Council was similarly supportive in its evidence, stating that—

“It is welcomed that the Bill clarifies the context within which the organisation’s functions are to be approached – that promoting arts and culture must be pursued in ways which promote wider access to and participation in the arts; which assist others to enable as many people as possible to access arts and culture; and which increases the diversity of people who access and participate in the arts.”²⁷

38. However, some of the evidence the Committee received expressed a degree of concern and disappointment in relation to the details of the intended role and functions of Creative Scotland. In its written evidence to the Committee, the Scottish Artists Union stated that—

“We have waited for a considerable length of time for a definitive statement about Creative Scotland and it is disappointing to see how little of the organisation’s ultimate form and function is delineated in the Bill.”²⁸

39. Dr Donald Smith, the Director of the Scottish Storytelling Centre, giving evidence to the Committee, said—

“I have come here not to oppose the formation of Creative Scotland, but to ask for Creative Scotland to have a clear purpose and remit. To be successful, any organisation—above all a public sector organisation—must be set up with a clear mission and purpose. After the welter of discussions, commissions and policies that we have experienced over the past nine years, it is critical that we have something that will succeed and deliver.”²⁹

40. Some witnesses considered that the Bill struck a desirable balance between the potential economic, artistic and social benefits of art, culture and creativity in Scotland. Argyll and Bute Council, for example, commented—

“It is positive that [the] Policy Memorandum acknowledges that Creative Scotland can give support on the basis of creative merit as well as the contribution it can make to the economy.”³⁰

41. However, there was also some concern from other respondents about the body’s focus and the balance between the artistic, social and economic benefits of arts and culture. Dr Donald Smith told the Committee—

“The problem with the Bill—and even more so with the transition process—is that Creative Scotland’s remit appears to be edging into the area of investing for economic purposes. In other words, the economic element will become less of a benefit of the activity than a major if not the prime purpose. This is where confusion might arise with the many other agencies that have an economic remit, including EventScotland, Skills Development Scotland and Scottish Enterprise. This is the one element of the public budget that is supposed to be led by artistic purpose. Although all the other benefits are recognised, the prime purpose is investment in the artistic work.”³¹

42. Much of the comment received by the Committee on the remit of Creative Scotland focussed on the creative industries. There was clearly some confusion over the extent to which Creative Scotland should and would be the lead agency for the development of the creative industries. This issue is considered in more detail later in this report.

43. The Committee believes it is essential that Creative Scotland has a remit that is clearly understood, not only within the organisation itself, but by the organisations with which it will work most closely, and by the wider arts, culture and creative industry sectors. The Committee agrees with the broad aims laid down for Creative Scotland to support the arts in Scotland, to help develop and stimulate the creative economy, and to widen access to culture, but is concerned that without further clarification of the organisation’s priorities these goals could overlap, compete and confuse. The economic role and functions of Creative Scotland in particular need to be further defined.

Creative Scotland’s relationship with other organisations and sectors

Enterprise agencies

44. The issue of Creative Scotland’s role in supporting the creative industries and its relationship with the enterprise agencies emerged as an important theme in the evidence the Committee received.

45. The Bill lists the fourth of four general functions of Creative Scotland as being “supporting activities which involve the application of creative skills to the development of products and processes.”³² The Bill also provides that Creative Scotland shall have a role in giving Scottish Ministers advice, information and assistance in relation to “the application of creative skills.”³³

46. The Explanatory Notes for the Bill expand on this general function, stating—

“Subsection (1)(d) [of Section 2] gives Creative Scotland functions in relation to the application of creative skills. This paragraph allows Creative Scotland to support persons engaging in creative enterprise. This could be applicable generally but there is also a grouping of industries referred to often as the creative industries where it may be particularly relevant. These industries include advertising; architecture; crafts; design; designer fashion; film; interactive leisure software; music; performing arts; publishing; TV and radio; and visual arts. It will be for Creative Scotland to judge how to support activities in these areas where they involve the application of creative skills to the development of products and processes.”³⁴

47. In its written evidence, the Creative Scotland Transition Project Team told the Committee that “Creative Scotland is intended to be the leading national development organisation for the arts and creative industries in Scotland.”³⁵ It also listed, as the first of three identified priorities for the new body, “achieving sustained growth in the creative economy.”³⁶

48. However, in its written evidence to the Committee, Scottish Enterprise commented—

“Given the range of enterprise, innovation and investment support provided to companies by SE, Creative Scotland’s role in ‘supporting’ activities for product and process development is open to interpretation, and we would recommend that the Committee considers how this could be clarified. It is not clear whether Creative Scotland is intended to act in an advisory capacity or to provide direct support. If direct support is intended, consideration would need to be given as to how support could be delivered in such a way that it did not lead to confusion with the roles of SE, Business Gateway and Skills Development Scotland.”³⁷

49. In giving evidence to the Committee on 14 May 2008, Adrian Gillespie, Director of Digital Markets and Enabling Technologies at Scottish Enterprise, said that Scottish Enterprise was very clear on its own role and remit and added that discussions with Creative Scotland were currently taking place on this issue. He also stated—

 “We know from our organisational experience that clarity of role is extremely important. We must be able to deliver what is expected of us … We have been in discussion with Creative Scotland through the forum that the transition team has put together. That has been a useful process for everybody, although I venture to suggest that it has been especially useful for Creative Scotland. The forum has offered an opportunity to demonstrate what is happening in other organisations, which has helped Creative Scotland to decide where its priorities should lie.”³⁸

50. Adrian Gillespie was asked by the Committee whether it was necessary for the Bill to set out more specifically the details of the relationship between Creative Scotland and the enterprise agencies. He replied—

“I am not sure whether the legislation needs to be as specific as that or whether the role of Creative Scotland needs to be more clearly expressed so that, as other organisations change, its role remains clear.”³⁹

51. Other evidence received by the Committee suggested there was a lack of clarity, and indeed a significant degree of confusion, surrounding the proposed relationship between Creative Scotland and the enterprise agencies, and which would take the lead on working with the creative industries.  Many of those who gave evidence to the Committee argued that it was vital that this issue was addressed.

52. At its meeting on 7 May 2008, the Committee was told by Equity that there was a “massive lack of clarity” on this issue. In its written evidence to the Committee, the Gaelic Media Service added that—

“[…] greater clarity is required on the role that Creative Scotland will play in economic development for the creative industries and how this will co-ordinate with the remits of enterprise agencies and other bodies.”⁴⁰

53. In response to questions about which agency a small business operating within the creative industries should approach for support in the first instance, Scottish Government officials told the Committee—

“At this point, I am not sure whether we can provide an absolutely explicit answer to that question. The business in question might well have a conversation with both agencies as it travels through its business development.”⁴¹

54. Heather Jack, Deputy Director, Culture and Gaelic Division at the Scottish Government explained that discussions were taking place to determine how the relationship between Creative Scotland and the enterprise agencies would work—

“[…] our priority is to get a much more integrated and co-ordinated approach to support for the sector across the piece. The specific details of how that will work, who does what and whether it is appropriate to identify parts of the creative industries in which the organisations have a particular locus are being discussed.”⁴²

55. Giving evidence to the Committee on 14 May 2008, the Minister said that she  and the Cabinet Secretary for Finance and Sustainable Growth had asked the Creative Scotland Transition Project Team to convene a short-term working group, involving the enterprise agencies, to consider how best to support the creative economy and creative industries. The Minister told the Committee that the short-term working group had now reported to the Scottish Government and produced a number of recommendations—

“The first recommendation is for our public bodies to establish a creative economy forum, involving all of the relevant national bodies and engaging with local government in the spirit of our concordat with it. Local authorities have a key role to play, and we consider them as partners. The creative economy forum is not another public body; it is a group of professionals who are charged with agreeing a shared framework to support and develop the creative economy. Their challenge will be to allow no opportunity in the area to pass us by, and to ensure that we learn from and implement best practice. That will inform other processes, such as the work of Scottish Enterprise’s digital media industry group. The report makes clear that we need imaginative co-operation—a team Scotland approach—that combines ambitious targets with simple, accessible delivery.

We intend that Creative Scotland will bring specialised skills and add value to the team approach, therefore our second key recommendation is that Creative Scotland should be the leading public body in advocating for the creative industries. It will share its intelligence and expertise, and perhaps people, with the enterprise bodies to help develop and form their strategies and actions in accelerating growth in the creative industries, similar to how they currently work with VisitScotland.

In that context, we also propose that Creative Scotland will build on and evolve existing good practice—in the cultural enterprise office, for example—in providing complementary tailored services for creative entrepreneurs in the first stages of business development. Those services will dovetail with those that are offered by the business gateway and the enterprise bodies.

That leads to the third key recommendation: that Creative Scotland cannot and should not be a competitor agency. It should not duplicate activity in the enterprise bodies or business gateway. They will continue to provide their agreed functions and maintain their emphasis on accelerating economic growth in their respective areas, through key sectors and companies with particular growth potential. Creative Scotland will support the important work that Scottish Enterprise and Highlands and Islands Enterprise are carrying out. Through the partnership model that I have set out this morning, together with our new initiatives to support Scotland’s creative community, Creative Scotland will enable the enterprise bodies to deliver on their responsibilities to the creative industries, as set out in the Government’s economic strategy.”⁴³

56. The Minister subsequently made a copy of the CIWG report on Public Support for the Creative Industries available to the Committee. In her covering note, sent with the report, the Minister states that—

“[…] Ministers have not yet had an opportunity to consider the report of the working group in detail, and its contents do not therefore represent either Government policy or the general views of Ministers. I will, however, be considering how the report can usefully inform our ongoing consideration of how to ensure the best possible integrated support to the creative industries sector in Scotland.”⁴⁴

57. The Committee considers that it is difficult to assess properly the remit and functions of Creative Scotland when details of how it will carry out one of its primary functions are not clear. The Committee further considers it would have been helpful for the relationship between Creative Scotland and the enterprise agencies to have been clearly determined before the introduction of the Bill.

58. However, the Committee acknowledges that the CIWG report, made available to the Committee on 20 May 2008, does provide further recommendations on the role of Creative Scotland with regard to the creative industries, and how it will work with other bodies in the sector, but the Committee is concerned this is neither Scottish Government policy nor the view of Ministers, which further compounds confusion rather than providing clarification.

59. When asked if Creative Scotland will be the lead organisation that deals with the creative industries, Scottish Enterprise told the Committee—

“It will not be the lead organisation in the development of the strategy for the sector or in the context of economic development, but it will lead in the promotion and championing of creativity. The devil is in the detail of what “lead organisation” means.”⁴⁵

60. The Creative Scotland Transition Project Team stated in its written evidence that, “Creative Scotland is intended to be the leading national development agency for the arts and creative industries in Scotland.”⁴⁶ However, the Minister told the Committee that Creative Scotland “should be the leading public body in advocating for the creative industries.”⁴⁷

61. The Committee is not satisfied that there is sufficient clarity regarding, firstly, which is the lead agency for the creative industries and secondly, what Creative Scotland having a “leading advocacy role” means in practice. The Committee calls on the Minister to clarify these issues and provide the Committee with an official response to the CIWG report before stage 2.

Local authorities

62. Several respondents to the call for written evidence commented on the lack of clarity in the Bill concerning the relationship between Creative Scotland and local authorities. In its written submission, Aberdeenshire Council commented—

“[…] there is a lack of clarity about how Creative Scotland will relate to local authorities. This relationship is important not only in terms of policy and strategy but on cultural delivery at local level. Concerns remain about the extent to which Creative Scotland will collaborate with local authorities on developing and supporting local arts initiatives and how it will take decisions on grant aiding arts organisations.”⁴⁸

63. Concern was also expressed about possible duplication of remit between Creative Scotland and local authorities. The City of Edinburgh Council noted—

“[…] there appears to be some overlap between local authority functions and those of Creative Scotland … the delivery of the national remit of such a body will affect local authority arts development and service delivery; it is crucial that this remit be clear and understood by all parties.”⁴⁹

64. The Creative Scotland Bill does not place any additional financial burdens or direct responsibilities on local authorities, and this was broadly welcomed by the authorities who gave evidence to the Committee. However, South Lanarkshire Council stated—

“The Bill’s provision encourages Creative Scotland to work in partnership with local authorities as it deems appropriate without imposing any additional burden or responsibility on local authorities. However, we feel that potential contradiction and conflict may arise unless this relationship is duly formalised with COSLA and/or the Voice of Chief Officers for Cultural, Community and Leisure Services in Scotland (VOCAL) to ensure clear guidance, working practices and relationships are established and provided which would thus enable both Creative Scotland and local authority to work together to achieve common objectives and ultimately Scottish Government targets. We feel that to leave this element of the Bill as reading “encourage” is not sufficiently strong or formal enough to achieve an impact or lasting result and should be reconsidered.”⁵⁰

65. The Federation of Scottish Theatre (FST) argued that additional responsibilities were required to be imposed on local authorities in order for Creative Scotland to achieve its aims, stating—

“FST believes that without such imposition and obligation [on local government], and in light of the budgetary issues currently facing local authorities across Scotland, there is the potential for decreased spend on the delivery of culture by local authorities. As the majority of arts and cultural organisations in Scotland are funded to some degree by their local authority, the ambition of the Bill and the Scottish Government for a culturally ambitious Scotland will be diminished should the organisations and artists of the creative community who comprise the infrastructure of Scotland’s cultural landscape be weakened.”⁵¹

66. Giving evidence to the Committee on 14 May 2008, Councillor Harry McGuigan of COSLA spoke about the partnership working that COSLA felt was important in order for Creative Scotland to realise its ambitions—

“[…] it [partnership working] should be a fundamental element of the relationship between the Scottish Government, the Parliament and local authorities. It would be a tragedy if we, as the elected entities for Scotland, did not have a common agenda and the will to identify how we might improve cultural experiences in Scotland and assist the various developments that emerge from them.”⁵²

67. The Committee notes the points made by COSLA and others. It considers that the Bill, if enacted, will leave local authorities with a vital role to play both in supporting the development of the creative industries though their new Business Gateway function, and in supporting the development of arts activity and experience in local communities.

68. The Committee considers that in order for local authorities to fulfil this role and for Creative Scotland to achieve its wider objectives, Creative Scotland will need to establish productive relationships with local authorities. There will also need to be negotiation and clear agreement on the roles to be played by Creative Scotland, the enterprise agencies and local authorities.  The Bill does not set out details of how the relationships between the various bodies, in particular the local authorities, are to be developed. The Committee calls on the Minister to explain, before stage 2, how she envisages Creative Scotland’s relationships with local government are to be developed and what resources will be provided to enable local authorities to play a full role in support of arts and culture in their areas.

Other bodies

69. Other bodies that submitted evidence to the Committee emphasised that Creative Scotland, when established formally, should continue the active and constructive engagement begun by the Creative Scotland Transition Project Team with its respective agencies, and argued that this was essential if the new body was to maximise its potential.

70. Many respondents felt that Creative Scotland could play a key leadership role amongst the many and varied organisations which already exist in the arts, culture and creative industry sectors.

71. Several respondents expressed disappointment that the Bill did not seek to de-clutter the landscape further by including the work of other bodies within the remit of Creative Scotland. Aberdeenshire Council commented—

“It is not clear why Creative Scotland could not have included responsibility for museums and libraries when it will have responsibility for cultural heritage and literature.”⁵³

72. In terms of the remit of Creative Scotland as set out in the Bill, many respondents felt that clarification was required on how the new body would work with bodies such as Museums Galleries Scotland, EventScotland, the Scottish Library and Information Council and the national performing companies, to ensure there would be no duplication of effort. Museums Galleries Scotland, for example, stated that—

“Scottish Ministers must be made aware that Creative Scotland is not the sole source of advice on arts and culture in Scotland. It cannot function in isolation.”⁵⁴

73. The Policy Memorandum addresses this point, stating that—

“Ministers understand these concerns and in no way want Creative Scotland to duplicate the work being provided by these existing national advisory bodies, who have expertise in particular areas. On the contrary, Ministers look to Creative Scotland to work in partnership with a wide variety of interested organisations.”⁵⁵

74. The Committee notes the need for clarification of Creative Scotland’s relationship with all the other arts and culture bodies currently operating within the sector and asks the Minister to detail how the ‘partnership’ working mentioned in the Policy Memorandum will operate in practice.

Voluntary sector

75. The Committee notes written evidence submitted by Voluntary Arts Scotland which expresses concern about potential duplication of effort in the voluntary sector. In its written submission it stated that—

“We take issue that in the Policy Memorandum, the example given in this point about [Creative Scotland being asked to] ‘develop and disseminate good practice advice on strategic matters to creative individuals, organisations and enterprises (e.g. ways to develop further the voluntary cultural sector)’ without referring to the fact that there is already an organisation set up by the voluntary cultural sector over 15 years ago to do just this – i.e. Voluntary Arts Network – operating in this country as Voluntary Arts Scotland. We will be speaking to the Transition Team of Creative Scotland in due course to try and avoid such duplication. Ideally we would deliver this remit on their behalf, but would look for the level of resources required to do the job effectively.”⁵⁶

76. The Committee notes the need for clarification of Creative Scotland’s relationship with the voluntary sector and asks the Minister to address the concerns raised by Voluntary Arts Scotland. 

Relationships with other bodies: conclusions

77. Much of the evidence received by the Committee concentrated on the ways in which Creative Scotland will work alongside other agencies and bodies and how relationships and roles are to be defined. The Committee accepts that this is likely to be one of the key factors in the success of the new body, and is concerned at the lack of any specification or details of such relationships on the face of the Bill, in accompanying notes or in further evidence from the Minister.

78. The CIWG considered the need to establish a shared vision of key principles that should underpin public sector support for creative enterprise and the key parameters of a successful creative economy strategy. Its report, made available to the Committee following the Minister’s evidence, notes that one of the key challenges is achieving greater coordination. It notes—

“Improving the performance of the creative economy requires the effective coordination of engaged players (enterprise agencies; HE sector; skills councils; investors; businesses; local authorities etc). This requires clarity of roles and relationships.

Whilst much good work is being done by the individual agencies, coordination and joint working needs to improve, underpinned by a greater clarity about responsibilities, and the shared vision of success offered here.”⁵⁷

79. The Committee welcomes the recognition by the CIWG of the need to develop strong partnership working arrangements between the relevant agencies and bodies, but would appreciate receiving more details of progress on this work as the Bill progresses.

Terms used in the Bill

80. The Committee noted that the Scottish Government decided against providing any definitions of culture in the Bill. The Scottish Government position on this point is set out in the Policy Memorandum—

“[…] the Government sees no advantage in a statutory definition of “culture”. Any such definition might end up unnecessarily constraining or confusing the actions of Creative Scotland and possibly other public bodies. It could have the perverse effect of ruling out support for certain types or combinations of creative activity. It also appears to Ministers that a definition would be opposed to the principles of artistic freedom and creative freedom, which demand that funding bodies must be able to evolve their interpretations on the basis of their own views. Indeed, even if it were possible to agree a definition of “culture” in the Parliament, it seems inevitable that it would very quickly become redundant. Ministers therefore consider a statutory definition of the “arts and culture” inappropriate and generally undesirable.”⁵⁸

81. This approach was supported by a number of submissions to the Committee. A joint submission from Glasgow City Council and Culture and Sport Glasgow,⁵⁹ for example, stated—

“Glasgow City Council had previously voiced concerns in relation to the narrow definition of culture that was provided in the draft Culture (Scotland) Bill and accompanying guidance. We note that Ministers now consider a statutory definition of the arts and culture would be “opposed to the principles of artistic and creative freedom” and therefore do not propose providing such a definition. We support this approach insofar as it will ensure that certain types of cultural activity are not excluded from support.”

82. The National Galleries of Scotland in its written submission stated—

“We are satisfied that there is to be no definition of what is classed as culture and that further unnecessary debate on this subject only stifles activity.”⁶⁰

83. A large number of respondents, however, were critical of the lack of definitions of certain terms used throughout the Bill. In particular the words “arts”, “culture” and “creativity” were highlighted as being used repeatedly with no definition. Many respondents felt that these terms should either be defined within the Bill or not be used at all. The Association for Scottish Literacy Studies posed the question, “how can you legislate on something you can’t even describe?”⁶¹

84. Dr Donald Smith of the Scottish Storytelling Centre told the Committee—

“It is possible to define the terms. The arts are at the core of it, and for centuries, they have been understood to be music, literature, drama and the visual arts, with the addition of film and the new media. A definition that relates to the practical activities would be hugely helpful. Otherwise, how can the remit be the basis for prioritisation, accountability or even comprehensibility among the general public about what the organisation is supposed to be about?”⁶²

85. The Literature Forum for Scotland supported this position in written evidence, stating—

“We are concerned that the Bill does not attempt to define or describe ‘culture’ despite the existence of useful definitions presented and utilised by organisations such as UNESCO and The United States Congress. The open use then made of the term throughout the Bill seems to us to lack sufficient guarantee of the central importance to culture of the specific and enduring arts forms of Scotland […]”⁶³

86. In giving evidence to the Committee, Dr Richard Holloway, the Chair of the joint board of the Scottish Arts Council and Scottish Screen suggested definitions tended to exclude. He added that by not defining certain terms the Bill was being open rather than vague, adding that, “if we define [these terms] too precisely, we limit the future.”⁶⁴

87. The Committee noted the evidence both in favour of and against the provision of definitions of arts and culture.

88. The Committee understands some of the concerns surrounding this issue. The Committee accepts that there is a danger that setting out firm definitions of arts and culture in the Bill could indeed limit the ability of Creative Scotland to support arts and culture in their widest sense. On the other hand, there is an argument that the provision of a simple, inclusive definition, which could be amended, perhaps through secondary legislation as society and culture changes over time, might be useful in helping to clarify the role of Creative Scotland. On balance, the Committee agrees with the Bill’s approach regarding definition of terms such as ‘arts and culture’ and ‘creativity’, but believes how Creative Scotland interprets these is of significance in terms of how it delivers its functions.

Role of education

89. Several respondents expressed concern and disappointment that the role of school, further and higher education had not been adequately covered in the Bill. The Literature Forum for Scotland stated that—

“We think that there is a serious lack of attention to the importance of education (through schools, universities and many other cognate bodies) in the Bill and its related documents, none of which refer to the importance of the role of education in developing and underpinning “[…] understanding, appreciation, and enjoyment of the arts and culture”, section 2(1). We would make a plea for this matter to be addressed before the Bill is finalised.”⁶⁵

90. The Scots Language Society added thoughts on this point too, stating that—

“There is no explicit mention here [in section 2(2) of the Bill] of arts and culture within the educational system. Promotion of language and literature as part of an arts and culture programme within the school curriculum and as part of lifelong education could be given a tangible link here to bodies such as the Scottish Qualifications Authority.”

91. The Edinburgh College of Art described the lack of reference to higher education institutions in particular as being a “serious omission.”⁶⁶

92. The written submission by Universities Scotland stated—

“[…] we think that the key role that universities play in supporting the arts and culture has not been significantly recognised in this Bill … Universities are pivotal to the success of Scottish arts and culture through the role we have in nurturing Scotland’s creative talent, provided training and continuing professional development for the industry, in our innovative research, in being custodians of some of Scotland’s finest art and culture and in our ability to attract other talented and creative people to Scotland.”⁶⁷

93. The Director of Universities Scotland, David Caldwell, added to this point when he gave evidence to the Committee, stating—

“One of the disappointing things about the Bill is that it seems to reflect a mindset that does not fully appreciate the central role of the universities in the work of the creative sector. If we are to make the Bill work, we need to develop a better understanding of the contributions that various institutions—including, but not only, the universities—can make to the work of Creative Scotland […]” ⁶⁸

94. The Committee applauds the work being done through the Curriculum for Excellence to raise the profile of arts and culture in education but notes the concerns raised on this issue and urges the Scottish Government to clarify the proposed role of further and higher education in relation to the work of Creative Scotland.

Financial issues

95. The Committee is obliged, under Standing Orders Rule 9.6.3, to consider and report on the Bill’s Financial Memorandum and to consider any views submitted to it by the Finance Committee. This section of the report considers the report submitted by the Finance Committee. It then goes on to make more general comments on other financial issues arising from the Bill.

Finance Committee report

96. The Finance Committee reported to the Committee on the Financial Memorandum on 7 May 2008. A copy of its report is attached at Annexe B.

97. Members of the Education, Lifelong Learning and Culture Committee were struck by the strong language in the Finance Committee’s report, which states—

“The Committee has serious concerns about the Financial Memorandum and considers it to be the weakest that has been produced in the current parliamentary session.”

98. The primary concerns of the Finance Committee related to the transition costs involved in the amalgamation of the Scottish Arts Council and Scottish Screen into the new body, Creative Scotland. The Finance Committee considered that the estimate for these costs given in the Financial Memorandum was not sufficiently detailed and had not taken consideration of issues such as the potential cost of redundancies (particularly regarding senior staff), pension issues, senior staff recruitment or office relocation. The estimate also contained no margin of uncertainty and gave no details on the assumptions upon which it had been based.

99. The Finance Committee noted that the new body will have the same grant in aid that would have been provided to the Scottish Arts Council and Scottish Screen despite Creative Scotland having “new and wider functions than its antecedent bodies”. The Finance Committee received written evidence from the PCS and Unite trades unions, which represent staff at the Scottish Arts Council and Scottish Screen. The unions expressed concerns regarding the possible effects that an increase in remit without an increase in budget could have on the workforce, stating that it could put “considerable pressure on the budget for staff and workloads” and that it would be “left to an increasingly demoralised workforce to create something new and radical.”

100. The Finance Committee requested additional information from the Scottish Government on these issues and received a response on 30 April 2008. This response contained some further detail, and advised that estimated transition costs would be likely to be over £1,000,000 rather than the estimated £700,000 figure quoted in the Financial Memorandum. The Finance Committee was “extremely concerned” that as the estimated figures in the Financial Memorandum appeared to be unreliable, there could be serious implications for the budgets of the new organisation, particularly in terms of staffing.

101. The Education, Lifelong Learning and Culture Committee questioned the Minister for Europe, External Affairs and Culture on the points raised by the Finance Committee.

102. On the question of transition costs, the Minister told the Committee—

“[…] we decided to move quickly on Creative Scotland. Doing so has caused some issues relating to the absolute clarity that we were able to give on the costs. We have given much more detailed information on the financial memorandum to the Finance Committee, and I have pledged to give a lot of further information prior to stage 2. It is difficult to provide detailed information about staff and potential staffing costs in particular … We have detailed those costs that we can. Although there are certain costs that we cannot yet provide, we are working towards doing so.”⁶⁹

103. When questioned by the Committee on the possible need for additional transition expenditure, and how such expenditure might be funded, the Minister replied that—

“The Government will, of course, consider any request for additional funding from any public body, as any Government would. Such requests will be considered and decided on.”⁷⁰

104. With regard to the overall robustness of the Financial Memorandum, the Minister stated—

“I have, of course, taken on board the points that [the Finance] Committee made and we are working closely on the implementation plan with the Creative Scotland transition team so that we can provide much more detailed information prior to stage 2. We have accelerated work on that, and I have pledged to give further details in addition to the further details that we have already given.”⁷¹

105. The Committee endorses the findings of the Finance Committee and agrees that the Financial Memorandum is the weakest that has been presented in the current parliamentary session.

Committee consideration of financial issues

106. The Committee noted that Creative Scotland is to receive the same levels of grant in aid as would have been available to the Scottish Arts Council and Scottish Screen. However, it is clear from the Bill and its associated documents that Creative Scotland will have responsibilities and functions not currently held by the two merging organisations.

107. Much of the evidence the Committee received expressed concern that the new body was expected to carry out a wider range of functions than its antecedent bodies with a reduced budget in real terms over the spending review period. It was also noted that the Scottish Government’s 2% efficiency saving targets and a reduction in available lottery funds may further affect the amount of funding available to the new body.

108. Equity expressed concern that without appropriate levels of additional resource, areas currently being funded could be under threat—

“Looking at the Scottish Government’s budgets for the next three years, the new body is not to be given an increase in its resources that is commensurate with its increased responsibility. This begs the question of what it is going to cease to fund in order to be able to resource its new responsibilities.”⁷²

109. Evidence in similar terms was also received by the Finance Committee, in its consideration of the Financial Memorandum, from trade unions representing some of the employees of the Scottish Arts Council and Scottish Screen. The unions expressed concern that the expectation that Creative Scotland would carry out a wider range of functions than its antecedent bodies without any additional resource could place a significant additional burden on staff.

110. Dr Richard Holloway, the Chair of the joint board of the Scottish Arts Council and Scottish Screen, told the Committee that—

“If Creative Scotland is given new work to do, we expect the appropriate resource to be made available … if a body is given a bigger job to do with bigger responsibilities, it needs the resource to do the work.”⁷³

111. On the question of financial support for Creative Scotland’s role in supporting the creative industries Dr Holloway told the Committee that he would be “disappointed”⁷⁴ if the Scottish Government did not transfer some of Scottish Enterprise’s budget for support of the creative industries to Creative Scotland.

112. Giving evidence to the Committee on 14 May 2008, however, Adrian Gillespie from Scottish Enterprise and Calum Davidson from Highlands and Islands Enterprise both told the Committee that there had been no discussions with Creative Scotland regarding possible transfer of budgets. Adrian Gillespie stated that—

“Given the budgets and the projects that we support, I do not envisage that that will be the case. Our projects and our expenditure are focused on issues that we see as being clearly part of our remit … There has been a budget transfer for the cultural enterprise office—well, the responsibility for the office has been handed over. I do not expect our discussions to result in budget transfer, because that is not what we are talking about.”⁷⁵

113. The Committee asked the Minister how much of the creative industries budget would be transferred from Scottish Enterprise to Creative Scotland. The Minister directly contradicted this when she replied “that is currently being discussed as we move forward”⁷⁶, going on to add that—

“[…] a high-level working group, which was made up of representatives from Highlands and Islands Enterprise, Scottish Enterprise and Creative Scotland and my officials, submitted a report, in which it proposed the setting up of a creative economy forum, which will consider how the sector can best be serviced. There are no firm plans about transferring money … there is nothing on the table. The forum will discuss the best way to service the sector through joint and partnership working … The working group came to us to say that it wants to set up a forum to move things forward. When a route map of support for the activities that are so important has been set out and the best possible solutions for service users have been found, we will have to consider how best to fund things.”⁷⁷

114. The Committee is concerned over contradictory evidence received on the transfer of resources. The Committee further noted that witnesses presented evidence that Creative Scotland is being asked to do more with a diminishing budget and the Committee shares these concerns.

115. The Committee considers that the Financial Memorandum could have been more helpful in setting out alternative organisational structure options and their possible impact on transition costs.

116. The Committee also endorses the other findings of the Finance Committee and agrees that the Financial Memorandum is the weakest that has been presented in the current parliamentary session.

Organisation and structure

117. Several points on the organisation and structure of Creative Scotland were raised in the evidence to the Committee. Many of those centred on the role of Chief Executive and the appointment and make up of the board.

Appointments to the board

118. Many respondents, both inside and outside local authorities, felt that there should be a specific place on the board for a representative from local government. There were also proposals that places on the board should be reserved for representatives from a variety of constituencies of interest, such as, for example, Gaelic speakers, various types of creative practitioners or people with disabilities.

119. In the Policy Memorandum, the Scottish Government states that it—

“agrees that Creative Scotland should be led by a diverse group of individuals, who between them should certainly have knowledge and experience of creative practices, be alive to the diversity of individuals and organisations that play important roles in the success of Scotland’s culture and who in their membership reflect the diversity of Scotland.”⁷⁸

120. The Scottish Government goes on to note that the present joint board of the Scottish Arts Council and Scottish Screen provides a good example of the diversity it seeks in the Creative Scotland board, with a balance of experienced practitioners, those with a business background and those with experience of overseeing significant national organisations. The Policy Memorandum concludes that—

“Ministers consider that the best way to achieve this balance among the members is to give them discretion in the selection of members, rather than reserving places for the many important sectors and sections of the community.”⁷⁹

121. This view was supported by Universities Scotland in evidence given to the Committee—

“I agree that there should not be constituency representation. That is not the right way to form a board for any organisation because the board member's commitment must be to work for the organisation, not to represent a constituency. However, that said, it is important that the membership consists of people from a variety of backgrounds with valuable contributions to make to the board’s work.”⁸⁰

122. The Committee notes the arguments by COSLA and others for formal representation of constituencies of interest on the Creative Scotland board. However, the Committee is not convinced by these arguments. The Committee considers that although it will no doubt be helpful for the Creative Scotland board to have members who have senior experience in, for example, local government, higher education or the performing arts, the overriding concern in making appointments to the board should be the contribution that the individual in question can make and what they bring to the collective experience, knowledge and expertise of the board.

Size of the board

123. Some respondents considered that the minimum number of board members, at eight, was too low.  Highland Council noted—

“This strikes us as rather low, if the board is to achieve the stated objective of achieving a broad, diverse and representative balance of skills and expertise – we would suggest a minimum membership of at least 11.”⁸¹

124. The Committee notes this point but considers that the exact number of board members should be determined by Scottish Ministers, having regard to the need for a well balanced board with a broad range of relevant experience and expertise.

Bar on elected members serving on the board

125. The Committee noted that elected members of the Scottish Parliament, House of Commons and European Parliament are to be disqualified from serving on the Creative Scotland board, but no such ban is to apply to members of the House of Lords. Some witnesses, including the Centre for Cultural Policy Research at the University of Glasgow, considered that this was inconsistent—

“We find it both curious and anomalous that members of the House of Lords are not disqualified. They are as much part of the political class as elected members.”⁸²

126. The Committee questioned the Minister on this issue. She told the Committee—

“Elected members are not able to serve on the board in a personal capacity, but members of the House of Lords are not excluded from doing so. I do not see a strong argument for not allowing someone to apply just because they are in the House of Lords. After all, a life peer could have extensive knowledge of the arts and culture, and the public appointments process would clearly show whether their skills would be valuable to the board.”⁸³

127. The Committee notes the concern raised by the Centre for Cultural Policy Research at the University of Glasgow. However, the Committee agrees with the Minister that there is no strong argument against members of the House of Lords being eligible to serve on the board of Creative Scotland.

Ministerial direction

128. The consultation responses to the previous administration’s draft Culture (Scotland) Bill highlighted some concern in the arts, culture and creative industry sectors regarding the extent of ministerial direction. The Scottish Government has sought to address these concerns in Section 5(1) and 5(2) of the Bill, which state that—

“(1) The Scottish Ministers may give Creative Scotland directions (of a general or specific nature) as to the exercise of its function.

(2) But the Scottish Ministers may not give directions so far as relating to artistic or cultural judgement in respect of the exercise of Creative Scotland’s functions under section 2(1) or (3), 3(3) or 4(4).”⁸⁴

129. Some respondents to the Committee, such as the Federation of Scottish Theatre (FST), welcomed this clarification by the Scottish Government. The FST commented—

“FST particularly welcomes Section 5, Directions and Guidance. We recognise that the Scottish Government has taken heed of the content of much of the consultation submitted for the former administration’s draft Culture (Scotland) Bill regarding the sector’s concern of ministerial intervention in artistic judgements. Clarification of the parameters of the “arm’s length policy” (the restrictions outlined in Section 5(2) in regard to 2(1), (3), 3(3) and 4(4)) is to be applauded and FST is heartened by the Scottish Ministers’ implicit acknowledgement of their trust in the skills and expertise [that] the Chair and Board of Creative Scotland bring to the execution of their responsibilities in these matters.”⁸⁵

130. However, others felt that there was still an ambiguity surrounding this issue. Equity commented that—

“The current Bill gives an undertaking that Ministers will not get involved in artistic decisions but since the body will be the primary channel of government support for artistic organisations, directions from Ministers that relate to resources and priorities will quickly have artistic implications.”⁸⁶

131. The Royal Society of Edinburgh welcomed the clarification of the arm’s length principle but felt it could go further still, and questioned the need for Section 5(3) of the Bill which reads—

“Creative Scotland must—

(a) comply with any direction given to it by the Scottish Ministers under this Act,

(b) have regard to any guidance issued by the Scottish Ministers in relation to the exercise of its functions.”

132. The Committee welcomes the Scottish Government’s clarification of the areas in which Ministers can and cannot give direction. The Committee acknowledges that this clarification takes account of responses to the previous administration’s consultation. The Committee also feels that an appropriate balance on this point exists in the Bill. The Committee considers that although the powers of direction set out in the Bill are unlikely to be used very often, they are required to allow for an appropriate degree of accountability and to allow the public interest to be safeguarded.

subordinate legislation

133. As the Bill contains provision for subordinate legislation, the Subordinate Legislation Committee’s report is attached at Annexe A.

134. The Committee notes the points raised and fully endorses the conclusions and recommendations of the Subordinate Legislation Committee.

policy memorandum

135. Many of those who gave evidence stated that they found the Policy Memorandum to be a helpful document, particularly in terms of it giving some detail which was not contained in the Bill itself and in detailing alternative approaches that were considered. Culture and Sport Glasgow and Glasgow City Council stated that—

“[…] we found the Policy Memorandum particularly helpful. It assisted in gaining an understanding of some of the key proposals contained within the Bill, clarified legal definitions, and provided a useful overview of the rationale and wider stakeholder views that have helped inform the legislation.”⁸⁷

136. Other points that were raised in evidence with regard to the Policy Memorandum related to issues considered separately by the Committee and have been detailed above.

137. The Committee notes the points made in relation to the Policy Memorandum.

Footnotes: