MINISTERIAL intervention in the affairs of the Scottish Qualifications Authority was "the nuclear option", a leading Scottish Executive official told the first parliamentary hearing into the exams debacle on Wednesday. Such a power had only ever been exercised to order Caledonian MacBrayne to sell a ferry.
David Stewart, former head of the qualifications and skills division, said it would not be necessary to use the power of direction to the SQA under Section 9 of the Education (Scotland) Act 1996, particularly if the organisation itself was taking steps to rectify the situation.
Officials stonewalled under close questioning from MSPs on the enterprise and lifelong learning committee, who were anxious to establish the extent of the Executive's powers over the agency. The committee is looking at the governance of the SQA and its relationship with the Executive's Enterprise and Lifelong Learning Department, which supervises the authority.
The education committee begins taking evidence next Wednesday, focusing instead on what went wrong and why.
It now seems clear that ministers would have been told that their powers were limited and intervention would be unwise. This was the basis of the somewhat ambiguous statement which led Sam Galbraith, Children and Education Minister, into political hot water when he told the Parliament on September 6 he had "absolutely no powers" to intervene and the SQA hadassured him it was dealing with the problems.
In any case, the man who would have intervened would have been Henry McLeish, Enterprise and Lifelong Learning Minister, on behalf of all Scottish ministers collectively. The Act states that ministers can give any direction they like to the SQA, provided they consult it first, and that "it shall be the duty of the SQA to comply".
But Mike Foulis, a senior civil servant in Mr McLeish's department, told the committee that such "bald words" were somewhat misleading. "You would have to have an action which the body was refusing to take and which it was capable of taking and which would have to have some positive effect. Otherwise you would have nothing to fasten on to. There would be no point in issuing a direction on something that the organisation was willing to do anyway."
Mr Foulis said agreement and consensus were preferable options. The power of direction was "the big stick that allows you to speak softly and be heard". Any direction would also have to be preceded by consultation for which time would have to be allowed, he pointed out.
"You can't ring them up and say you are about to consult them in 30 seconds."
Mr Foulis told Annabel Goldie, Tory deputy convener of the committee, that the Executive had powers to sack the SQA board but there were also legal constraints in that any such move had to pass the test of "reasonableness".