Response by the National Library of Scotland to the Scottish Government's consultation on the role and governance of the National Library of Scotland (NLS), 2010.
NLS is pleased to respond to this consultation. We believe that there is a broad consensus that the 1925 founding legislation of the National Library is in need of modernisation and we welcome this consultation and look forward to receiving the feedback of other bodies on the proposals and to assisting with the development of new legislation as proposed.
With regard to the specific questions included in the consultation, the Board of Trustees makes the following responses:
Do you agree with our proposals to reduce the size of the NLS Board of Trustees? If yes/no please outline the reasons for your response.
Yes. We believe that the Board should, however, be of sufficient size to accommodate members who can reflect NLS' broad range of activities and stakeholders; some 12-14 Trustees may therefore be appropriate.
Do you agree that the ex-officio and reserved membership of the Board of Trustees should be removed? If yes/no please outline the reasons for your response.
Yes. Ex-officio membership is problematic for a number of reasons, not least the difficulty in reconciling this with the duties of trustees under modern Scottish charity legislation.
Do you agree that the Faculty of Advocates should retain an involvement with the NLS Board of Trustees? If yes/no please outline the reasons for your response.
Yes. It is important that the Faculty is represented on the Board. This is not only because of the historic links between NLS and the Faculty, but also because of the continuing roles of NLS and the Faculty in managing the collection and preservation of, and access to, current legal publications. It is important therefore that whoever is appointed has the confidence of the Faculty and is not simply an Advocate selected by a process which ignores any input from that body.
Do you agree with our proposals to specify the length of terms of appointment for NLS Trustees? If yes/no please outline the reasons for your response.
Yes. Given the 'learning curve' of the range of activities and interests of NLS, and the fact that the Board, at least currently, only meets 6 times a year, our preference is for each Trustee to have an initial term of 4 years which may be renewed once.
Do you think the powers and functions proposed for NLS reflect the needs of NLS as a modern organisation? If yes/no please outline the reasons for your response.
In broad terms we agree that these are appropriate powers and functions. However, there are some specific aspects of the proposed functions and powers which we believe need to be drafted more explicitly.
Firstly, with regard to the functions, we believe that the clause 'Encourage links with other organisations to promote collaboration and understanding' is too passive. NLS should have a strong advocacy role, facilitating links and co-operation between other bodies, as well as with NLS. We would welcome a statutory acknowledgement of a strong (though not exclusive) role for NLS in promoting co-operation and best practice across Scotland?s library and Information sector.
Secondly we suggest amending the clause starting 'Power to charge for the provision ...' so that it is clear where Ministerial approval is required and where it is not. This might result in two separate clauses such as 'Power to charge for the provision of goods and services' and 'Power to raise and borrow money with Ministerial approval'.
Should any further provisions be considered in relation to the powers and functions of NLS? If yes/no please outline the reasons for your response.
We accept that the principal purpose of the consultation and subsequent legislation is to reform the governance of the National Library, and we would not wish the passage of the Bill to be compromised by possible dispute over other matters, should these prove to be controversial. However, we would wish to draw attention to a need to improve the scope and operation of legal deposit legislation, and request that the Scottish Government gives consideration to legislative opportunities to enhance legal deposit in Scotland.
As an example, legal deposit does not at present cover websites which primarily consist of moving images and audio resources. This means that NLS (and other legal deposit libraries) cannot preserve some websites which may be a valuable resource for the long term benefit of society and the economy. This is an anomaly which requires to be addressed and we would wish the Scottish Government to legislate so that NLS can collect such Scottish material.
There are many other areas in which legal deposit might be improved, and we believe that the Scottish Government should seek the first legislative opportunity to address these deficiencies through new powers for NLS. However, we recognise that the current consultation may not be the appropriate vehicle to deliver this.
We would also draw attention to the fact that there are no current legislative arrangements for preservation of computer games. Scotland is a world leader in this fast-developing creative industry, but there is no legal mechanism in place to ensure that games are archived and kept for posterity. This may have serious adverse consequences for the understanding of future researchers on how the industry developed and for the development of new games and businesses. While NLS may not be the most appropriate body for this task, we do think that some attention should be given to this issue, especially as more and more games become web-based.
The consultation document makes a number of references to 'the collections', 'objects in the Library's collections', etc. NLS collections have complex origins, with some items bought, deposited or donated subject to specific conditions. It will be important that any legislation recognises that while our general functions are to preserve and make all items accessible, this complexity means that various conditions and constraints will apply to specific items.
Do you agree that the proposed qualified power of direction strikes the right balance between Ministers' responsibilities for public bodies and the proposed powers and duties of the NLS Trustees? If yes/no please outline the reasons for your response.
No. NLS fully recognises that it is appropriate for Ministers to indicate how public funding is used. The Scottish Government gives guidance to NLS and other bodies to ensure that the Grant-in-Aid money it receives contributes to meeting Scottish Government priorities. Ministers may sometimes go further and specifically direct how funding that they distribute may or may not be used (for example with regard to capital spending). In these ways, control can be exercised without a statutory power of direction.
As a national 'memory institution', NLS manages cultural, learning and knowledge assets for the nation in the long term; this is a role that is distinct from those many NDPBs [Non-Departmental Public Bodies] which are effectively delivery agents of government. NLS receives gifts and donations (in the form of money, collection items, etc) from a range of individuals, trusts and other bodies. It is important that NLS Trustees retain full power to use these resources in support of the purposes and activities of the Library. Without this, donors may be discouraged from future giving.
In addition, as a charity, NLS Trustees are required to act independently at all times. For these reasons we believe that it would not be appropriate for NLS to be subject to a general power of ministerial direction.
However, should it be decided that a power of Ministerial direction be nevertheless included in the bill, it is essential that at least the same protections provided for bodies such as NLS within the Public Services Reform (Scotland) Act Section 18 be applied in any legislation. This offers wide ranging protections to the Library preventing Ministerial direction from being applied to areas such as collecting, holding, care, preservation and access to the Library's collections.
Approved by Board of Trustees
18 June 2010