Draft culture (Scotland) bill

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Content: Report
Education and Community Services
12 27 February 2007
DRAFT CULTURE [SCOTLAND] BILL I. Reason for Report To allow Members to consider a draft Council response to the Scottish Executive's consultation document on the draft Culture [Scotland] Bill and to note the publication of a draft Guidance Document which describes the new duties to which local authorities will have to have regard, and which provides guidance on putting these into practice. 2. Report Summary This report proposes a response to the Scottish Executive's consultation on the Draft Culture [Scotland] Bill. 3. Glossary of Terms SE Scottish Executive 4. Recommendations Members are asked to consider and agree the Council's response to the Scottish Executive's consultation on the Draft Culture [Scotland] Bill as detailed in sections 11A3 to 16 of this report. 5. Corporate Plan Links and Contribution 5.1 The draft Culture Bill, if enacted, has implications for the Council which will require recognition within corporate policy documents. The development of local %u/tura/rights and entitlements' will also have policy implications. 5.2 Provision of meaningful, quality cultural services can contribute significantly to the key Corporate Plan themes of Enterprising and Learning, Inclusive and Safe and Healthy Communities. 6. ResourcesNalue for Money Assessment This report has no direct implications for resources. The outcome of the legislative process will be the subject of further reports to committee which will identify any resource implications arising from any new statutory duties. 7. risk assessment The opportunity of this response to the Scottish Executive's consultation process allows the Council to mitigate any risks to the Council identified within this draft legislation. 8. Consultations The Corporate Director of Corporate Services, Corporate Director of Planning and Environmental Services, Director of Finance and Operations Manager legal services have all been consulted and are in agreement with the content of the report.
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9. Background In January 2006, the Minister for Tourism, Culture and Sport, Patricia Ferguson, MSP, announced the Scottish Executive's new cultural policy, Scofland's Culture. Its principal aims are: Nationally, to support talent and excellence in culture, to help it to develop and to encourage more people to enjoy our world class cultural national collections and national performing companies. And, to utilise the positive impact culture can have in every area of government. Locally, to encourage more people to enjoy cultural activities by asking local authorities to develop cultural `entitlements' for their area, in consultation with local people and to ask local authorities to undertake cultural planning, feeding into Community Planning. Also to support local museums and libraries. 10. The draft Culture [Scotland] Bill 10.1 The Scottish Executive considers that legislation is needed to achieve some of the proposals in Scotland's Culture. The draft Culture [Scotland] Bill makes these changes. They are: a reform of the law about local provision of culture, which will be used to encourage local authorities to develop `local cultural entitlements' as part of cultural planning; the establishment of a new public body, Creative Scotland, to be Scotland's national cultural development body; changes to the governing legislation of the National Collections, updating their functions and making it easier for them to work together; 0 a proposal to change the law in relation to dealing in `tainted' cultural objects like parts of foreign monumentsthat have been stolen; and a proposal to remedy an anomaly in local authorities' powers to broadcast, as well as publish, information about their functions. 10.2 The draft Bill also proposes a change in public library legislation which would amend the Public Libraries Consolidation [Scotland] Act 1887 in relation to the powers of local authorities to manage, regulate and control public libraries. 10.3 Each of paragraphs 11 to 15 below is a synopsis of a section or sections of the Consultation Document and incorporates the questions asked by the Scottish Executive together with a proposed response by the Council. A full copy of both the Consultation Document [which incorporates the Draft Culture [Scotland] Bill and the initial draft Guidance Document are available in the Members' Lounge. 1I. Local Cultural Planning and Cultural Entitlements 11.I Part 1 of the draft Bill is about local cultural services and activities; how they are organised by local authorities and how people in their area enjoy and participate in them. 2
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11.2 The situation now There is a lot of local cultural activity now available across Scotland. Of that which is funded publicly, much is paid for by local authorities. They support the arts, literature, theatre, local cultural traditions, craft, community facilities, festivals, museums, local heritage, libraries, local archives, cultural enterprise support and a wide range of other services. They offer these services in response to the wishes of local people and to fulfil their existing statutory duty to make adequate provision for cultural activity for the inhabitants of their area. 11.3 Local cultural entitlements The Scottish Executive want to build on this success and encourage more people from different communities to enjoy and get involved in cultural activities in their area. They also want authorities to encourage participation in culture and to respond positively and imaginatively to community aspirations. To help this, the draft Bill improves the law about the local provision of cultural activities. Under the proposed legislation Ministers will issue guidance to local authorities about what will be known as `local cultural entitlements' 11.4 Local cultural entitlements will be specific types of cultural activity or services that authorities will seek to make available to each person in their area who wishes to access them. The authority will consult people in their area about what entitlements they would like to see provided. It will consider these views, decide what the local entitlements should be and inform people in their area about what they are and how they can access them. Each local authority is expected to publish the entitlements it proposes for its area. This consultation and PLANNING PROCESS should happen as part of the authority's cultural planning, which should ideally inform the strategic Community Planning process. 11.5 There is a general entitlement to adequate cultural services for the inhabitants of each local authority area. Local authorities will also seek to make available each of the activities and services they announce as entitlements, but entitlements will not represent a guarantee of access to any particular service. 11.6 In some parts of Scotland, authorities and local people are developing provision which uses the `entitlements' approach. The Scottish Executive want this to happen and be a success in each area, in a way that develops and enhances local provision. To help, civil servants, representatives of national cultural organisations and others have been working together to think about entitlements and, in particular, how authorities can assess, evaluate and add to their success. The result of this work is the initial draft guidance which has also been published for consultation and is considered as part of this committee report. The draft Bill proposes that authorities be required to `have regard' to it. That means that, while they do not have to follow it exactly, authorities have to take account of if when deciding how to provided cultural activities in their area. 11.7 The Scottish Executive also plan to develop a quality assurance framework document, as part of the guidance. This will be a tool to help local authorities review and improve their cultural provision and allow them to report statutory information to the Scottish Executive in a uniform manner.
11.8 It will be up to local authorities to decide what the entitlements for their area should be. They may decide to make new facilities or services available. They might also provide entitlements through existing provision. 3
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11.9 As well as being about the provision of services, the draft Bill is also about the planning of culture and the way cultural activity has potential to help local authorities better pursue each of their functions, like in education, social services and economic development. In this local authorities normally work in partnership with a range of other bodies in their areas, like health boards and the police, and often through Community Planning. But, as the main provider of cultural services, the authority takes the lead role. 11.I0 Recent research highlights instances where cultural activity - with its positive and enriching individual and community experiences - has been reported to benefit a range of public objectives, like crime reduction, improvements in health and improving the confidence and skills of the most disadvantaged children and young people. Because of this evidence, Ministers consider cultural activity as one of the ways to achieve their wider objectives, including focussed on tackling poverty and disadvantage. 11.I1 A number of local authorities are evolving innovative approaches to what has become known as `cultural planning'. These are explored further in the draft guidance. This discusses the cultural planning process and how it can be creatively and successfully pursued. 11. I 2 To help this, the draft Bill proposes a new power for Ministers to collect information from local authorities about their planning of culture and the ways they consider using cultural activity across their responsibilities, how they use it and what evidence there is about the results achieved. As well as helping to guide authorities, this information will help the Scottish Executive to observe part of the wider impact of culture and cultural activity, and will inform future national policy making. 11. I 3 The Scottish Executive's questions: 11.13.1 Do you think that developing local cultural entitlements will help to increase participation in cultural activities? Developing entitlements will not, of itself, produce the desired result. Developing cultural services to suit the needs and aspirations of local communities has been part of council policy for many years. Over the years considerable effort has been devoted to ensuring that such services as are provided are both relevant and appropriate to the needs of local communities. This has been achieved by adopting standards such as Charter Mark, by direct consultation, and by using feedback systems such as Comment Cards and computerised and on-line surveys. In overall terms, finance has not been available to the Council to fully develop services to meet community aspiration. Given that resources were made available, then the resultant service developmentwould ensure that cultural entitlements, as an expression of available services, would increase participation in cultural activities. There is a concern however that the staffing and other resources required to submit statutory information to the Scottish Executive may, if no further resources are made available, have to be diverted from front-line public service.
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77.73.2 If you believe further or alternative measures are necessary, what are they? - - The development of local cultural entitlements as outlined in the draft Bill appears to be akin to a marketing exercise. The success of the exercise, if success is to be measured by participation, will very much depend on the quality of the services being marketed being sufficiently attractive to encourage people to use them initially and to then sustain that use into the future. The focus of work therefore needs to be on the quality of the services being provided and on ensuring that resources are made available to allow local authorities to invest in cultural services to meet the aspirations of the legislation and, more importantly, the aspirations of communities. The adoption of quality standards and frameworks for services is to be encouraged but the legislation needs to take account of ensuring that services are sufficiently resourced to be able to use these standards whilst continuing to provide front-line public services. It is disappointing that this need for additional resources has not been identified in the draft Bill or draft Guidance.
77.73.3
How do you think that the Scottish Executive and local authorities
can best utilise the influence and impact of cultural activity?
The draft guidance shows that the Scottish Executive has understanding of the potential role of cultural services as a driver for social change, for social development and for community well-being. The means of capturing and utilising this influence is less clear and seems to rely on the `cultural case' being argued and agreed on an authority-by-authority basis and, within each authority, almost on a colleague-by-colleague basis. However persuasive this case, the absence of any good [ie financial] reason to guarantee a transfer from the local government `for noting' pile to the top of its `for immediate action' pile is a matter of regret. If the draft Bill is enacted then considerable thought will have to be given as to how the expected local government outcomes are actually to be delivered. Within Dumfries and Galloway Council the Council's Corporate Plan will require to be changed to reflect the contribution of cultural activity and cultural planning and investment built into the Council's strategic planning. It has to be recognised however that despite the current lack of formal recognition within corporate documentation that a good deal of excellent work has been undertaken within the cultural field. Examples would be the growth of Wigtown Book Town, the success of the Kirkcudbright exhibitions and Artists' Town, and events such as Spring Fling and GaelForce.
77.73.4 Do you think the initial draft guidance under this Part of the Culture Bill is clear and helpful? Is there anything else it should contain?
The Draft Guidance, whilst quite clear on the role of culture within both the local authority and the wider community, is simply restating known facts. The documentation clearly identifies both the intrinsic value of culture and its instrumental value in linking between and bringing added value to the Council's strategic policies. I am unclear from the Draft Guidance as to what it is that this draft Culture Bill will do to change the status quo in relation to the role of culture within local authorities. The emphasis on Quality Assurance is to be welcomed so long as this can be achieved without duplication, in a coherent manner, and without diminution of front-line public service.
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12. National Bodies 12.1 Part 2 of the draft bill is about the proposed new national cultural development body, Creative Scotland, and what it will do. 12.2 At present the Scottish Arts Council is responsible for funding, developing and promoting all branches of the arts. Scottish Screen is responsible for developing screen culture and industry. Both bodies are also involved with the support and development of the `creative industries'. Ministers believe that it makes sense to have a single national cultural development body. The draft bill therefore proposes the establishment of Creative Scotland which will involve all branches of the arts, the screen industries and the creative industries. 12.3 Creative Scotland will encourage greater access to and enjoyment of the arts and culture. It will spread good practice and encourage diversity. It will develop advice on arrange of topics, for example, advice on the involvement of the voluntary sector in culture and on encouraging private sector sponsorship. Creative Scotland will also support talent and excellence in the arts and culture and will award funds to people and organisations in the arts and culture. It will work with industry, each of the cultural sectors, the educational sector and others, to add to and improve the routes through which talented artists, filmmakers and others can develop further. 12.4 As well as supporting professional creative practice Creative Scotland will have an economic development role for the creative industries and will play a central role in delivering the Executive's wider cultural policy. It [and other national bodies] will contribute to work on a quality assurance framework for local provision, embracing national cultural standards. It will also work with the Scottish Executive to encourage greater appreciation of the potential of culture and cultural activity to, for example, improve the confidence and skills of the most disadvantaged children and young people. Because of its strategic role in delivering cultural policy, Creative Scotland will have a close relationship with Ministers. Ministers will look to Creative Scotland to provide them with advice about cultural policy and its impact. It will play an important role in helping Ministers to guide local authorities in providing local cultural entitlements, and by contributing to the guidance and quality assurance framework that Ministers will give to authorities. 12.5 The draft bill also includes a power for the Scottish Ministers to give directions to Creative Scotland which they must follow. The purpose of this proposal is to ensure that Ministers and Creative Scotland pursue a consistent strategy. Creative Scotland will consist of between eight and fifteen members approved by the Scottish Ministers and will distribute National Lottery funds.
12.6 The Scottish Executive's questions: 72.6.7 Do you agree that there should be a single national cultural development body? This question would only make sense if the words `for the arts' were appended. The Consultation Document states, "Atpresent the Scottish Arts Council is responsible for funding, developing and promoting all branches of the arts. Scottish Screen is responsible for developing screen culture and industry. Both bodies are also involved with the support and development of the `creative industries'. Ministers believe that it makes sense to have a single national cultural development body. The draft bill therefore proposes the establishment of Creative Scotland which will 6
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involve all branches of the arts, the screen industries and the creative industries." This appears to take no account of the work and role of other bodies within cultural development, for example, the Scottish Museums Council or the Scottish Library and Information Council.
As the document stands it does not make sense to have a single national cultural development body.
72.6.2 Do you agree with the remit proposed for Creative Scotland? Has it the right powers and functions?
See 12.6.1 above 72.6.3 Do you agree that Creative Scotland should work in concert with the Scottish Executive to implement national cultural policy?
Creative Scotland should work alongside the other advisory bodies with the Scottish Executive and, in no sense, should be a sole partner with the Scottish Executive in implementing national cultural policy.
13. The National Collections 13.1 Part 3 of the draft Bill is about updating the governance of the National Collections. In relation to culture the `National Collections' are the National Library of Scotland [NLS], the National Museums of Scotland [NMS], the National Galleries of Scotland [NGS], the Royal Commission on the Ancient and Historical Monuments of Scotland [RCAHMS] and the National Archives of Scotland [NASI. Together, these bodies are responsible for collecting, preserving and exhibiting cultural objects of national importance and for holding and managing public records and archive collections for public access. 13.2 The Scottish Executive want the National Collections to continue to do what they do now but they want to help them to do so even more efficiently and effectively, and more closely together. They want to ensure that there are no barriers to joint-working between the bodies and to encourage increasing coordination of strategy and exhibitions. The Executive propose to keep the five Collections as independent bodies with distinctive roles and responsibilities. The legislative foundations of NLS, NMS, NGS and RCAHMS will be harmonised under the bill. A new body, to be called the National Record of Scotland [NRS], will replace RCAHMS which currently operates under a Royal Commission. NAS will remain an Executive Agency of the Scottish Executive and consequently does not feature in the bill.
13.3 The draft Bill also updates procedures for appointing Trustees for the Collections, reflecting the Executive's policy on public appointments. As a general principle this policy does not reserve places on public bodies for particular organisations or people. Historically, the Faculty of Advocates, who gifted their collection of non-legal books to provide the foundation of the National Library of Scotland, have had statutorily reserved places on the NLS Board. Ministers propose that one place on the NLS Board be reserved for the Faculty of Advocates.
13.4 The draft Bill also proposes a new statutory role for the National Collections to offer advice and assistance to local museums, galleries and libraries.
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The National Archives of Scotland already has a statutory role to provide assistance and guidance to local authorities. The National Collections and other national museums and library organisations will also contribute to work on a quality assurance framework for local provision. The Collections, in their core activities and in making their collections available in different parts of the country, will also directly contribute to entitlements.
13.5 The National Collections, although constitutionally independent, should work together to see how they can work more efficiently and, where appropriate, rationalise common support functions like human resources, information and communications technology, estates, marketing and information services. They should also continue to explore opportunities for joint exhibitions. The draft Bill includes a power for the Scottish Ministers to give directions to the National Collections which they must follow.
13.6 The Scottish Executive's questions:
73.6.7 Do you agree that the National Collections should remain constitutionally separate centres of excellence?
There does not appear to be any reason for the National Collections to retain separate status. The draft Bill has identified a number of areas where economies of scale could achieve efficiencies and it follows that a single National Collections body could achieve even more significant economies. The similarity of purpose between some of the bodies would tend to support this view. It is easy to see a solution which has the Board of the National Collections and then a series of subsidiaries - National - Collection of Scotland - Library and Archives, National Collection of Scotland - Galleries, National Collection of Scotland Museums, etc
73.6.2 Do you think that the powers and functions proposed for the Collections in the draft Bill are right? If not, how would you improve them?
The new statutory role to offer advice and assistance should be the subject of further work. There appears to be the possibility of tension between both the Scottish Museums Council and the Scottish Libraries and Information Council in relation to their respective sectors. At present the National Collections are a source of expertise, albeit perhaps less so in the case of the National Library of Scotland, which is currently valued and should not be lost. The imposition of a statutory duty could be seem to be upsetting a delicate balance.
73.6.3 Do you agree that the Faculty of Advocates should be able to contribute to the board of the National Library of Scotland by having at least one representative?
Whilst acknowledging the role of the Faculty of Advocates no comment is proposed on whether or not the Faculty should continue to be represented on the Board of the National Library. That said, the imposition of a statutory role for the National Collections in relation to the work of local government would indicate that there is a need for local government to be represented on the Boards of all the National Collections. The position of the National Archives of Scotland appears to be anomalous in this regard and should be corrected.
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73.6.4 Do you agree that the Collections have the appropriate powers to obtain, loan and dispose of objects for and from their collections? If not, what would youchange?
A condition should be added to ensure that any object considered for disposal, by whatever means, by a National Collection is first offered to any appropriate local facility [museums, library, archive] which can demonstrate a legitimate interest in the object. Such transfers should be at nil consideration. This condition would have the benefit of enforcing the decentralisation of cultural assets and prevent objects being lost to local communities simply because they are no longer required by the national collections.
73.6.5 What do you think of the name `National Record of Scotland'?
At the very least the name will cause considerable confusion between the National Archives of Scotland [archival objects being records], the National Library of Scotland [also collects records] and potentially the National Museums of Scotland. The name is not descriptive of the function of the proposed body and should be considered further, see also 13.6.1 above which might provide a remedy for this situation.
14. `Tainted' Cultural Objects 14.1 Part 4 of the draft Bill is about trading or dealing in `tainted' cultural objects, like pieces of foreign monuments that have been stolen oversees and smuggled into this country. The draft Bill proposes a specific criminal offence to outlaw these actions in Scotland. There is already a criminal offence about these activities in the rest of the United Kingdom, which was introduced by the Dealing in Cultural Objects [Offences] Act 2003.
14.2 The Scottish Executive's question:
74.2.7 Do you agree that an offence similar to that in the 2003 Act should be introduced in Scotland?
Yes, although any retrospective action may have implications for items already held within the national collections.
15. Power for Local Authorities to Broadcast Information 15.1 Section 5 of Part 1 of the draft Bill is about the ways that local authorities provide information to people in their area and, specifically, to give them a general power [but not specific permission] to use television and radio to do so.
15.2 An anomaly was created between local authorities in Scotland and those in England and Wales when the CommunicationsAct 2003 [passed by the UK Parliament] lifted restrictions contained in older legislation that prevented local authorities from holding broadcasting licences. It also gave local authorities in England and Wales a power to broadcast information about services in their area. But on the power to broadcast information about services the 2003 Act did not extend to Scotland.
15.3 The Scottish Executive propose to use the draft Bill to remedy one part of the anomaly. Legislation about the powers of Scottish local authorities is generally
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within the competence of the Scottish Parliament. The draft Bill therefore proposes a power for local authorities in Scotland to broadcast information about their services. 15.4 The Scottish Executive's questions: 15.4.1Do you agree local authorities should have a general power to broadcast information about their activities? Yes, together with the power to broadcast information on the activities of community planning and other partners. There is concern, as the draft Bill stands, that there is the possibility of local authorities being limited to broadcasting information on their own activities. I would suggest that this limitation is not within the spirit of the Bill and should be further amended. 15.4.2 Do you think it is necessary to give authorities this power in this Bill or should local authorities be left to rely on `the power to advance well-being' in section 20 of the Local Government in Scotland Act 2003?
A specific power would deliver a strong message that the Executive expect local authorities to broadcast information about their activities. Leaving local authorities to rely on the `power to advance well-being" might have the effect of introducing an element of doubt. 16 Additional comment Dumfries and Galloway Council welcomes the draft Bill as a statement of intent by the Scottish Executive to support and invest in Scotland's culture and cultural activity. It is disappointing that the opportunity has not been taken to signal significant additional financial investment in local government's cultural services or indeed to direct Scottish Enterprise to significantly increase their involvement and activity in the cultural sector at local level to aid ECONOMIC ACTIVITY and regeneration.. Such a direction has a parallel in the Highlands and Islands where Highlands and Islands Enterprise play a significant role in local cultural activity and local cultural planning.
Alastair R Johnston Operations Manager Cultural Services Community Services Date of Report: 16 February 2007 File Ref: G:CornrnRep07/ECS Feb07
Fraser Sanderson Corporate Director of Education and Community Services Woodbank, 30 Edinburgh Road DUMFRIES, DGI INW
Background Papers: 1. Implementation of the National Cultural Strategy: Guidance for Scottish Local - Authorities, March 2003, published jointly by COSLA and the Scottish Executive. 2. First Minister Jack McConnell's St Andrew's Day Speech 30 November 2003 3. Cultural Policy Statement Delivered to Parliament on April 22 2004 by the Minister for Tourism, Culture and Sport 4. Cultural Commission Interim Report October 2004
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- 5. Report dated 13 December 2004 on "Cultural Commission Review of Cultural Provision in Scotland" considered at Education and Community Services - Committee on 21 December 2004 6. Report dated 17 January 2005 "Cultural Commission Phase Two Stakeholder Consultation" considered at Education and Community Services Committee on 25 January 2005. 7. Report dated 5 April 2005 `Cultural Commission - Endorsement of CoSLA Submission' considered at Education and Community Services Committee on 26 April 2005 8. `Our Next Major Enterprise...' Final Report of the Cultural Commission, June 2005 9. Report dated 26 July 2005 `Cultural Commission - final report' considerated at Education and Community Services Committee on 23 August 2005. I O . Report dated 26 January 2006 `Cultural Commission - Review of Cultural Provision in Scotland - Scottish Executive Response on the Cultural Review' considered at Education and Community Services Committee on 28 February 2006.

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