Clause 126 — General Duties

Part of Bill Presented – in the House of Commons at 7:15 pm on 11 November 2009.

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Photo of Iain Wright Iain Wright Parliamentary Under-Secretary (Department for Children, Schools and Families) (14-19 Reform and Apprenticeships) 7:15, 11 November 2009

The establishment of an independent regulator for qualifications and assessments is an important part of this Bill, and I think that there is a strong and welcome consensus behind the establishment of Ofqual. We are all sick and tired of clichéd, lazy and untrue accusations of the dumbing down of standards in exams. By making Ofqual truly independent from the Executive-it will report directly to Parliament, not Ministers-this reform provides the opportunity to ensure that qualifications standards are maintained, and that the public can have well-founded confidence in those standards.

A large number of amendments have been tabled in response to concerns raised in this House and in the other place regarding Ofqual. With your permission, Mr. Deputy Speaker, I should like to group my speech around four main themes: the governance of Ofqual; the powers that the regulator has and, within that, the crucial relationship between Ofqual and the Secretary of State; Ofqual's reporting requirements; and minor and technical amendments.

It is, of course, of paramount importance that Ofqual is, and is clearly seen to be, independent, and its governance arrangements are crucial to establishing that independence. We listened carefully to concerns raised in both Houses and were grateful for the support for the amendments that we tabled in another place. Lords amendments 188, 192 and 193 amend schedule 9, so that the power to appoint and dismiss Ofqual's deputy chair lies with Ofqual, rather than the Secretary of State. We agreed that there should be a duty on the Secretary of State to consult the chief regulator before appointing or dismissing members of Ofqual, and Lords amendments 190 and 194 allow that to happen. The provisions also allow for circumstances in which it is not practicable to consult the chief regulator or their deputy. The Secretary of State can appoint or dismiss before consulting only in exceptional circumstances-where it is considered necessary to do so.

Under clause 126(6) the Secretary of State can require Ofqual to have regard to specified aspects of Government policy. It is important to stress that Ministers cannot use that power to force Ofqual to do anything; it is only a requirement for Ofqual to "have regard", but the regulator must at least consider the policy in question. Again, we listened to the concerns of those in another place and we tabled an amendment-Lords amendment 118-requiring the Secretary of State to publish any such direction given to Ofqual, in the name of transparency. These amendments all help to reinforce Ofqual's independence of governance, and ensure the transparency of its relationships with Government.

We need a regulator that can protect standards and ensure that qualifications provide value for money. It is therefore important that Ofqual has the ability to cap fees and to withdraw recognition, for example. Those powers are absolutely essential if Ofqual is to be the robust and effective regulator to which we are all committed to having. They enable it to deliver its efficiency and standards objectives. However, we have recognised and appreciated concerns about the extent of the powers and whether there is sufficient accountability over their use, and we have tabled amendments to increase the safeguards around their use.

I turn to amendments 119 to 121, and in particular the capping of fees charged by an awarding body for a qualification. The amendments do two things. First, Ofqual may now impose a fee-capping condition only if it is necessary to do so to ensure value for money. Secondly, any reviews of fee-capping decisions must now be the responsibility of someone independent of Ofqual with relevant skills. In the interests of transparency, we have also placed a new duty on the Secretary of State through amendment 121 to publish any fee-capping guidance given to Ofqual, paralleling the requirement to publish any directions on Government policy that I mentioned earlier. We are similarly proposing to amend clause 146 through Lords amendment 127, so that any reviews of a decision to withdraw recognition must be carried out by someone independent of Ofqual.

The power of the Secretary of State to determine the minimum requirements of qualifications is important: it reflects the fact that Ministers-not Ofqual-are accountable for the curriculum, even though the curriculum is often, in part, specified through Ofqual's qualifications criteria. Ministers have a perfectly legitimate interest in the content of qualifications and are accountable to Parliament in doing so.

In the light of concerns expressed here and in another place that the power might appear to damage the independence of Ofqual, and the perception of that independence, we have proposed amendments to introduce extra safeguards for its use. Clause 138, which hon. Members will recall with affection, is therefore replaced with four new clauses. It remains the case that minimum requirements can relate only to the minimum knowledge, skills or understanding required to pass the qualification, but these amendments introduce two further requirements.

First, amendment 122 states that minimum requirements must relate to a qualification that will be or will probably be used by young people studying in publicly funded institutions. Secondly, it would have to be necessary to specify minimum requirements to ensure that the curriculum is appropriate for those of an age likely to be taking the qualification. The House will therefore recognise that that narrows the types of qualifications that are potentially in scope. There is now only one reason why the Secretary of State could intervene: if there is a gap in the curriculum that Ofqual needs to fill through its qualifications criteria.

In addition, we have two new process hurdles to jump before specifying minimum requirements. Amendment 123 inserts a new clause that states that the Secretary of State will have to consult, including consulting Ofqual, and to publish a document explaining his thinking. Amendments 159, 162 and 164 insert clauses on the minimum requirements, which must be set out in an order subject to an affirmative resolution in both Houses.

Finally, we have created one further and absolutely fundamental safeguard. Amendment 124 inserts a new clause to the effect that Ofqual would not be bound to implement the minimum requirements if doing so would mean that the level of attainment indicated by the qualification would not be consistent with that of comparable qualifications. In effect, that provides a standards veto for Ofqual.

That leads me to the Opposition's disagreeing with amendment 124 and their amendment (a) thereto. Amendment (a) would water down the standards veto by allowing Ministers to alter the standards of qualifications through specifying minimum requirements. The Government disagree strongly with that proposal for three reasons. First, it would undermine the fundamental principle, on which I believe there was strong consensus, that Ofqual should be directly accountable to Parliament for maintaining qualifications standards. If Ministers could meddle in such a way, Ofqual's independence-and certainly its credibility-would be shot.

Secondly, the Opposition's proposal implies that changing the qualifications standard from year to year is somehow acceptable. It is not. That could mean that last year's students would have an easier ride than this year's. It could mean that employers or universities comparing students with qualifications from different years, or qualifications in different subjects, would not know who was the strongest. Qualifications rely on understanding and transparency and that change would bring confusion and therefore unfairness to students.

Let me use an analogy from the world of athletics. We all want to be Usain Bolt-from listening to Mr. Hayes, one would think that he wants to be Ozzy Osbourne, Jackson Pollock or perhaps John Cleese, but let us talk about athletics-and let us suppose that we were measuring performance over 100 metres. Ministers could decide that they wanted to encourage students to run faster, and could put in place policy initiatives to help that objective happen-things such as better facilities, more nutritious food or improved equipment. Alternatively, Ministers could decide that they wanted to measure performance over 200 metres instead, but should they be able to force the regulator to redefine a metre as 105 centimetres? I do not think so, but that is what the Opposition's proposal seeks to allow.

Thirdly, the change is unnecessary. If a particular qualification had fallen out of line with other qualifications-as we saw with GCSE science earlier this year-it would be a regulatory responsibility to bring it back into line, which is what Ofqual is now doing with science. Ministers would not need to intervene. If Ministers decided they wanted different minimum content in a qualification, they could require that. The provision on minimum requirements establishes clearly in the Bill that it is Ministers who determine that aspect of content, and once Ministers have determined minimum content, it is for Ofqual to make sure that the qualification is assessed or graded in a way that maintains the standard.

Technology or the needs of society and the economy might change the curriculum, and the qualifications that assess that curriculum would need to change in a way that could impact on the standard. It would need to be down to Ofqual, as the guardian of the standard, to make sure that change could be made fairly and transparently, while respecting the interests of learners. It should not be something that Ministers could force through. The proposal would undercut the principles of Ofqual's independence. With the greatest of respect to those on the Opposition Front Bench, the proposal is poorly thought through and I urge the House to reject it.

We agreed in Committee that we would ask Ofqual to review the allocation of values to qualifications for the purposes of measuring performance in achievement and attainment tables. Following debate in another place, we concluded that we should go further and introduced amendment 128, which places a duty on Ofqual to review any system for allocating values to qualifications for such purposes.

Let me turn to Ofqual's reporting requirements. We have also made clear through amendments some specific aspects of the activities that Ofqual must include in its annual report. Amendment 130 modifies clause 164 to ensure that Ofqual must provide an assessment of the extent to which it has met its objectives. Secondly, it must provide details of information it has obtained on levels of attainment in school qualifications. Ofqual will also have to explain how it has taken this information into account when assessing how far it has met its qualification standards objectives.

Finally, we tabled four amendments in Committee to address a technical drafting problem with the paragraphs in schedule 12, amending the supplementary provisions that specify the arrangements for statutory assessments.

In summary, the amendments improve further the provisions establishing Ofqual in terms of its governance, its independence from the Secretary of State and its reporting to this House and to the other place. I urge the House to agree to Lords amendment 118 and to dismiss the Opposition's amendment if it is pressed to a vote.