Schedule 9

– in a Public Bill Committee at 4:45 pm on 24th March 2009.

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The Office of Qualifications and Examinations Regulation

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I beg to move amendment 50, in schedule 9, page 190, line 22, leave out ‘Secretary of State’ and insert ‘Crown’.

Photo of Joan Humble Joan Humble Labour, Blackpool North and Fleetwood

With this it will be convenient to discuss the following: amendment 197, in schedule 9, page 190, line 23, after ‘members”),’ insert

‘one of whom shall be a member of another regulatory body,’.

Amendment 529, in schedule 9, page 190, line 24, at end insert—

‘(2A) The Order in Council in sub-paragraph (1)(a) must be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.’.

Amendment 51, in schedule 9, page 190, line 25, leave out ‘The Secretary of State may appoint’ and insert ‘The ordinary members shall elect’.

Amendment 198, in schedule 9, page 190, line 29, at end insert—

‘(4) The chair and chief executive of Ofqual shall be full-time positions.’.

Amendment 385, in schedule 9, page 191, line 7, at end insert—

‘(c) failure to ensure the standard of regulated qualifications is maintained.’.

Amendment 40, in schedule 9, page 191, line 14, at end insert—

‘(2A) An ordinary member must not have financial or other occupational interests that might be regarded as constituting a conflict of interest with that of promoting the objectives of Ofqual.’.

Amendment 52, in schedule 9, page 191, line 17, leave out sub-paragraph (4) and insert—

‘(4) The ordinary members, by majority vote, may remove the deputy from office if they think it appropriate to do so.’.

Amendment 530, in schedule 9, page 191, line 17, after ‘office’, insert ‘of deputy’.

Amendment 53, in schedule 9, page 191, line 19, leave out ‘The Secretary of State’ and insert

‘The ordinary members, by majority vote,’.

Amendment 420, in schedule 9, page 191, line 23, at end insert—

‘(c) failure to ensure the standard of regulated qualifications is maintained.’.

Amendment 417, in schedule 9, page 191, line 42, at end insert—

‘(5) All payments made under this paragraph shall be published annually together with the contracts of employment and pension arrangements of the Chief Regulator and the ordinary members.’.

Amendment 418, in schedule 9, page 192, line 2, leave out ‘first’.

Amendment 54, in schedule 9, page 192, line 2, leave out ‘the Secretary of State’ and insert ‘Ofqual’.

Amendment 55, in schedule 9, page 192, line 3, leave out ‘the Secretary of State’ and insert ‘Ofqual’.

Amendment 415, in schedule 9, page 192, line 3, at end insert—

‘( ) The Secretary of State may remove the Chief Executive from office if the Secretary of State thinks it appropriate to do so.’.

Amendment 416, in schedule 9, page 192, line 3, at end insert—

‘( ) The terms of the conditions of service of the Chief Executive, including all refunds of expenses incurred by the Chief Executive in carrying out his duties shall be published annually.’.

Amendment 419, in schedule 9, page 192, line 4, leave out sub-paragraph (2).

Amendment 57, in schedule 9, page 192, line 7, leave out ‘the Secretary of State’ and insert

‘the Select Committee for Children, Schools and Families of the House of Commons.’.

Amendment 58, in schedule 9, page 192, leave out line 10 and insert

‘Select Committee for Children, Schools and Families of the House of Commons.’.

Amendment 56, in schedule 9, page 192, line 24, leave out sub-paragraph (5).

Amendment 59, in schedule 9, page 192, leave out lines 28 to 33.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

Thank you, Mrs. Humble. We come to one of the more interesting parts of the Bill. Some people outside this place have suggested that the Bill has been pulled together by the Government from a rag-bag of policy odds and ends that have been hanging around for some time, to create a sense that the Government have some momentum in education, rather a sense of a Government in their last year who are perhaps running out of momentum and direction in education. However, I think that that is not entirely fair, because two important parts to the Bill—parts 7 and 8—are both important and  controversial. Those parts have attracted a large number of amendments—some 200—about half of which were tabled by the two Opposition parties, with the Government tabling about 100, which may be a comment on something. We will reflect on what that something is later.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Is the hon. Gentleman not being unfair in criticising the Government for being at the end of their period in office and running out of steam when they have created, according to the Minister, a single portal for schools, website clarification and, of course, the bureaucracy reduction group?

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

Yes, perhaps I am, or perhaps those outside this place are being unfair and not giving the bureaucracy taskforce the credit that it deserves. We look forward to receiving the Minister’s letter to find out how much credit it deserves.

Schedule 9 introduces the Ofqual part of the debate. With your tolerance and willingness, Mrs. Humble, you will understand that it will be sensible for me to make some opening comments on why this part of the Bill and amendments 50, 51 and so on are so important. They touch on the schedule that makes provision for the constitution and governance of Ofqual, which are matters of fundamental importance. It is necessary to reflect on the reasons why Ofqual has come into existence, why it is so important that that body is seen to be properly independent of Ministers, and whether the terms in which that independence is framed are adequate for the job that Ministers require Ofqual to do. I assume that you will want us, Mrs. Humble, to have a schedule 9 stand part debate as part of the debate on the amendments, though obviously you will indicate if you are not happy with that.

I emphasise the importance of schedule 9. I have been responsible for my party’s education portfolio for the past couple of years, and it has become obvious to me that one of the problems in discussing education policy is that it is very difficult to get any sense of agreement among the individuals and groups that have an interest in education policy, even on what has happened to standards in the past 10 or 20 years. The Government are entitled to point to statistics indicating that there has been some improvement in examination results, particularly in the past decade, but others, including academic researchers, suggest that, if anything, standards have declined, and that young people, including those who go on to universities, are not as well educated as in the past. There are a great many anecdotal reports of universities and other bodies instituting additional catch-up courses for new students to compensate for the educational standards that, according to those institutions, prevail today.

The Government have responded in some ways to such concerns by introducing schedule 9, which is so important in determining the governance and independence of Ofqual. When the Secretary of State for Children, Schools and Families announced the establishment of Ofqual at the Labour party conference in September 2007, he acknowledged the scale of the problem with which the Government, through this schedule, are trying to deal. He said:

“We have not managed to persuade the public, parents and employers about the standards of exams. The more I’ve looked at this the more I’ve concluded that there are...problems that require reform.”

He then announced that a new body would be responsible for the oversight of standards and that it would be properly independent from the Government and seek to end the annual debate and uncertainty about exam standards, which usually occurs around August and September, when many of the most important exam results are announced.

It is a great pity that in pulling those proposals and measures together, the Government have ignored some of the advice from the relevant Select Committee and elsewhere that reflects the debate on educational standards, as well as what has happened to those standards and the need for more objective reporting of them. We will obviously discuss that issue when we debate clause 125, but it is worth reflecting upon present concerns, both in and outside Parliament, about the degree of autonomy that Ofqual will have, which relates directly to schedule 9.

The Secretary of State gave a number of undertakings on Second Reading. He suggested initially that Ofqual would be an independent regulator of standards; we will return to the meaning of that later. He sounded some alarm bells, however, when he spoke of the Government’s view of the nature of Ofqual’s independence and of their expectations of the new body. He said:

“We have to get away from this ridiculous, damaging and draining debate about dumbing down, when, whenever standards go up and teachers and young people have worked hard, some politicians and commentators jump up and say, ‘This must be because standards have been dumbed down.’ That is not fair, and it is not right. Rather than my making such assurances about standards, it will be much better when Ofqual, the independent regulator, makes such assurances to the public and to families.”—[Official Report, 23 February 2009; Vol. 488, c. 27.]

The Secretary of State did not say that Ofqual was going to be an independent commentator that would often criticise the Government and comment upon standards that might have declined. Whether he meant to say it or not, what he actually said was that it would be Ofqual that would give assurances about standards each year. That betrays the Government’s intentions in setting up the new body. Ofqual has not been made as independent as it should be, as we will show in our amendments. There is still a great deal of potential for the Secretary of State to influence it and there are concerns about how it will carry out its responsibilities. We will come on to that, too, later.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I am listening very carefully to the hon. Gentleman’s excellent introduction to the amendments. I do not believe that the cause of concern is just that one-off statement in the House by the Secretary of State. All the subsequent letters we have received from Ministers confirm my view that establishing Ofqual is actually about public relations and telling the public that standards are high, rather than ensuring that standards are high. That is our principal concern about the way Ofqual has been established.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I agree with the hon. Gentleman. It is interesting to note that in the September 2007 interview with the Secretary of State in The Daily Telegraph in which the announcement was trailed, the right hon. Gentleman was very explicit about a loss of confidence among the public regarding standards. However, I noticed that when the Minister for Schools and Learners gave his evidence to the Committee a couple of weeks ago, he was very clear that there had been no dumbing-down at all and that standards were as high as they had ever been.

It is dangerous for Ministers to set up a body that is charged with ensuring confidence in standards and to then pre-empt the conclusions of that body. To be fair to the Secretary of State, on Second Reading, after he made those comments about Ofqual giving assurances about standards each year, he said that he was

“not going to second-guess its work. That is Ofqual’s remit and responsibility, and it should get on with that work.”—[Official Report, 23 February 2009; Vol. 488, c. 27.]

unhindered—my word, not the Secretary of State’s. We will reflect on that as we discuss the amendments to schedule 9.

The Government’s attitude to Ofqual is important; the way that Ofqual discharges its responsibilities is also important. Early indications of how it has operated since it was established in shadow mode are not entirely reassuring. When we took evidence from Kathleen Tattersall a few weeks ago, we encountered great reticence about commenting on the standards debate over examination results in the last 10 or 20 years. That does not indicate that Ofqual will build the reputation for impartiality that is necessary to its gaining the confidence of the public and education professionals.

The Committee should consider also the comments that Ofqual made during and just after the utter shambles of marking key stage 2 and key stage 3 tests last year. It was very quick to say that, on the basis of the evidence it had seen, the quality of marking was at least as good as in previous years. That comment was made before the recent report on the number of reviews of key stage 2 and key stage 3 test results, which showed not only an explosion in the number of appeals against the marking of those tests, but a very high level of the appeals being upheld. The combination of a quadrupling of appeals with a very high rate of upholding those appeals indicates to me that there were question marks about the quality of marking last year. It makes me nervous that Ofqual should be so quick to jump to conclusions before even seeing the results of the appeals process.

We are arguing for a far more independent educational standards authority—one that is not only capable of regulating the existing approved qualifications, but able and empowered to make judgments about standards that do not rely only on looking at the existing qualifications themselves. We know that that is an important ongoing debate because we have the comments of Mike Cresswell and others from the Assessment and Qualifications Alliance about the risk there will be to the credibility of standards when the new modular GCSEs come in. He suggests that results are likely to improve because of the introduction of modular GCSEs in a way that is not related to the underlying standards. If we do not get Ofqual and the basis for its independence correct now, we will have problems in the future.

As I mentioned, schedule 9 deals with the constitution of Ofqual and touches on its independence. We are disappointed that the opportunity has not been taken to give more independence to Ofqual in the way that key staff members are selected, in how it operates, and in questions of accountability. There has been an increasing amount of debate in this place over the past five or  10 years about the important role that Select Committees should play in holding bodies such as Ofqual to account. However, schedule 9 and part 7 miss a number of opportunities to introduce that accountability, not only to the Secretary of State, but to a cross-party Select Committee that might help to preserve a greater element of independence in the way that Ofqual discharges its responsibilities.

As briefly as possible, I would like to go through some of the amendments to schedule 9 tabled in my name and those of my hon. Friends the Members for Bristol, West and for Mid-Dorset and North Poole. If the hon. Member for Bognor Regis and Littlehampton will allow me, to save time I would also like to indicate those amendments tabled by him that we particularly support, as well as a couple that appear to cut against our argument in favour of a greater degree of independence.

Amendment 50 would remove the power of the Secretary of State directly to appoint the seven to 12 ordinary members of the Ofqual board. There must be a serious concern about how independent we can expect the board of Ofqual to be if it is appointed entirely, or almost entirely, by the Secretary of State. There is a strong argument for Crown appointments to the Ofqual board, in order to try and institutionalise a greater degree of independence in the way that members of the body are chosen. The individuals on the board, the chief executive and the way that Ofqual discharges its responsibilities will make all the difference to whether the body is an effective monitor of standards or a lapdog of the Secretary of State on a tight leash. It is vital to ensure that we have a process that properly selects members to be on the board of Ofqual.

Amendment 51 would remove the power of the Secretary of State directly to appoint the deputy chair of Ofqual; instead, it would place that power with the ordinary members of the Ofqual board. It is not obvious why the Secretary of State should take it upon himself not only to have powers in relation to the chair, the chief executive and the ordinary members of Ofqual, but to dictate and determine who is the deputy chair. Those are important appointments and we think that a greater degree of independence should prevail.

Amendment 52 would remove the power of the Secretary of State to dismiss the deputy chair of Ofqual; it would instead place that power with the ordinary members of the Ofqual board. At the moment, schedule 9 gives the Secretary of State power to remove the deputy chair of Ofqual if he thinks that that is appropriate. That seems an extraordinarily far-ranging power to give the Secretary of State. The power is poorly defined and surely unnecessary if Ofqual is to be genuinely independent of the Government in the way that the Secretary of State indicated when he first made the announcement in September 2007 and when he repeated his undertakings about independence in the House of Commons on Second Reading.

Amendment 53 would remove the power of the Secretary of State to dismiss the ordinary members of the Ofqual board and place that power with the fellow members of the Ofqual board. The Bill as drafted gives powers to the Secretary of State to remove members of the Ofqual board if they are unfit to carry out their responsibilities or if they are absent. It seems very odd indeed that the Secretary of State should have to get involved in circumstances where a board member is absent for a prolonged period. It seems entirely sensible that the  Ofqual board itself should deal with that. There also seems to be no reason why the Ofqual board cannot carry out a policing responsibility in relation to the fitness of members of the board to discharge their responsibilities.

Amendment 54 would allow Ofqual the power to appoint its own chief executive, rather than have that individual chosen by the Secretary of State. Clearly, if Ofqual is to be regarded as an independent body, that is a fundamentally important power. At the moment, the fear is that the Secretary of State will use many of the powers set out in schedule 9 to select people who are likely to have a particular view in the standards debate and who are likely to echo the type of complacency about standards that we have heard from Ministers in general over the past few years.

In our view, it is vital that the individuals who are on the Ofqual board and the key officers of Ofqual, including the chief executive, should be as independent and as independent-minded as possible. Even if the individuals who are selected are independent-minded, there is a serious concern that if the Secretary of State takes to himself these powers, which we have discussed in relation to earlier amendments, to dismiss individuals in the rather cavalier and light-touch way that is allowed for in schedule 9, it might restrict the willingness of the individuals on the board and the senior officers to act in a way that is as independent and as impartial as we would want.

Amendment 55 would allow Ofqual the power to set conditions of service for its own first chief executive, rather than have them dictated by the Secretary of State. Again, if the Secretary of State really wants Ofqual to be seen to be an independent body and to manage its own affairs, as he indicated on Second Reading, it is astonishing that he should take to himself powers in these areas.

Amendment 57 would remove the power to approve the appointment and conditions of Ofqual chief executives from the Secretary of State and give it to the Children, Schools and Families Committee. That comes back to the point I made earlier about the importance of having mechanisms of accountability in this place that do not simply rely on the political leadership of the Department, which potentially has incentives to put pressure on Ofqual to say the right things and be consistent with what the Government are saying about the standards debate.

I think that amendment 58 has not only our support, but potentially that of the interim chair of Ofqual herself. It would take the power to approve the number of staff members at Ofqual, their conditions of service and their remuneration away from the Secretary of State and give that line of accountability to the Children, Schools and Families Committee. If Ofqual is to be as independent as the Secretary of State suggested only a few weeks ago in the House, it is extraordinary that paragraph 6(5) of schedule 9 gives the Secretary of State the power to approve

“the number of members of staff of Ofqual...their conditions of service” and

“the amount of remuneration, allowances and expenses paid to them.”

In the note that was sent to the Committee before the evidence session with Kathleen Tattersall, Ofqual said:

“The Bill sets out a role for the Secretary of State in the set up and appointment processes for Ofqual, for example in relation to the appointment of the ordinary members... I understand that  the proposed Ministerial involvement in appointments is in line with arrangements for many other regulators, although I would expect the Chair of Ofqual to be fully consulted. In my view the requirement for Ministerial approval of such matters as numbers of staff and terms and conditions (Schedule 9, paragraph 6(5)) is more questionable.”

Ofqual is clearly concerned about the powers in the schedule that insist on the Secretary of State’s approval even for matters such as the number of staff and their terms and conditions. That suggests a degree of micro-management that is surely not necessary.

Amendment 59 would remove the duty on Ofqual to review its committees every five years. It would be sensible of Ofqual to review its committees and to do other things relatively regularly, but it is beyond me why the Secretary of State should use the Bill to direct and micro-manage Ofqual in quite that way. That suggests an unwillingness on the part of the Secretary of State to accept that this body will be properly independent.

I will touch on a couple of the amendments tabled by the hon. Member for Bognor Regis and Littlehampton. We support amendments 385 and 420, which would make more explicit the duty to maintain the standard of regulated qualification. We will come back to that issue under clause 125. We also support amendments 416 and 417, which deal with openness on pay and pensions. Although we want Ofqual to have the flexibility and freedom to determine its own priorities, it should be held publicly accountable on some of these key issues and it must be transparent. Recently, there has been evidence of great profligacy in the public sector over the levels of pay and pensions. I am not talking only about this place.

As the hon. Member for Bognor Regis and Littlehampton might expect from my earlier comments, we have less sympathy with amendments 418 and 415. Amendment 418 would give the Secretary of State the power to appoint the head of Ofqual and amendment 415 would allow the Secretary of State to sack the chief executive of Ofqual on the basis that it is appropriate to do so. Just as it is wrong that the deputy at Ofqual can be dismissed in such a cavalier way, it would be dangerous to accept amendment 415. It would be dangerous to give the Secretary of State the power to get rid of the chief executive of Ofqual when the chief executive might say things that are not in favour of the Secretary of State or criticise the Government’s activities in relation to standards and the dumbing-down debate.

We have serious concerns about whether the Government are delivering on their promise that Ofqual will have genuine independence and be accountable to Parliament rather than just to the Secretary of State. We fear that unless some changes are made, there is a serious risk that from day one Ofqual will be seen to be not fully independent and autonomous. It will therefore not secure the reputation that it needs for the debate on standards to be resolved in the way that we all want.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools) 5:15 pm, 24th March 2009

It is a pleasure to follow the clear exposition by the hon. Member for Yeovil of the Liberal Democrat position regarding Ofqual in general and schedule 9 in particular. I agreed with some of his comments and I am pleased he agreed with some, although not all, of our amendments.

Clause 124 and schedule 9 would establish the Office of Qualifications and Examinations Regulation. We have long advocated making the regulatory side of the QCA independent. My right hon. Friend the Member for Witney (Mr. Cameron) said when he was shadow Education Secretary:

“Reform of the Qualifications and Curriculum Authority is one such positive step. It is not acceptable that the QCA, the guardian of our exams, is not independent of the Government.”

By “Government”, we mean not just Ministers but all those who are paid directly or indirectly by the taxpayer to produce and administer exams or who are paid by the taxpayer to train our teachers to teach pupils and students to pass exams. Essentially, “Government” means all those who have control or strong influence over the direction of education policy and who receive their income from the state. In other words, Ofqual needs to be independent, not just of the Department for Children, Schools and Families but the education establishment, which by definition is as important in determining the direction of education policy, the structure of our assessment system and the variation in standards over the years as any Government Minister.

Sir Michael Barber points out in his seminal book, “Instruction to Deliver”:

“Officials in the Department tried desperately to block” the announcement of a national literacy strategy.

He went on to say:

“While the civil service was not party political, it was heavily influenced by the various lobby groups who competed for influence in the Department which thus tended to see issues from the producer angle...Moreover, the lack of ambition which characterised the education service as a whole inevitably affected the Department too.”

When that lack of ambition is combined with an ideological approach to education that is Rousseauian in nature, child-centred in ideology, equivocal about the acquisition of knowledge, hostile to rote learning and testing—all of which have increasingly dominated thinking in the education establishment over the past half century—one sees the importance of ensuring the independence of Ofqual from that education establishment. Leaving aside the ideology, it is clearly in the interests of everyone in the education establishment for Ofqual to pronounce that standards in exams are as high today as they were 10 or 20 years ago and to pronounce that exam standards in any given year are as high as they were the previous year. They have a vested interest in Ofqual asserting that view. All their work, their approach, and their philosophy would be undermined if Ofqual were to say otherwise. Ensuring that Ofqual is completely independent of the education establishment and the producer interest is even more important than its independence from the Minister for Schools and Learners, the Under-Secretary of State for Children, Schools and Families, and the Secretary of State. There is no understanding of that point in the drafting of the Bill.

Over the past few years a huge amount of independent academic research has demonstrated that exam standards have fallen. Over the same period, the regulatory wing of the Qualifications and Curriculum Authority has consistently claimed that there has been no such decline, even while others in the QCA have acknowledged widening access to those same exams. Peter Tymms at CEM—the  centre for evaluation and monitoring—at the University of Durham has demonstrated that a student who obtained an E in A-level maths in 1998 would have been awarded a B in 2004. Duncan Lawson of the University of Coventry tested students’ mathematical competence on entry to university and found that those entering with a grade B in 2001 established a slightly lower level of competency in basic skills than those entering with a grade N 10 years earlier. Professor Peter Williams said in the Observer in July 2007:

“Over 20 or 30 years, I do not think there is any doubt whatsoever that absolute A-level standards have fallen. They have edged south continuously over a long period of time. I think all university academics and a good proportion of sixth-form teachers would agree with my assertion.”

That same Observer article also cited a wider study carried out at the centre for evaluation and monitoring in Durham. The article said:

“For nearly two decades up to 50,000 pupils a year have taken the same ability test before facing A-levels. Researchers found that, in most subjects, pupils of the same ability achieved two grades higher in their A-levels in 2006 than in 1988, jumping to three grades in maths.”

That is the A-level information system, or ALIS, test, which CEM introduced in 1983.

I could go on and cite much more evidence, Mrs. Humble, but I will not try your patience or that of the Committee. Although my hon. Friend the Member for South Holland and The Deepings has departed from the Committee for a short while, I do not wish to replace him in that regard.

Photo of Jeff Ennis Jeff Ennis Labour, Barnsley East and Mexborough

I know that this is one of the hon. Gentleman’s main campaign themes, as it were, which he pursues in the House on a regular basis. If we have had this grade inflation over the years, can he explain to me why we have not had a similar grade inflation for the degrees that are awarded at university? I ask the question because it appears to me that, if the students are getting worse by achieving lower A-levels or they are not rising to the same academic standard at A-level, there would be a consequential knock-on effect in the degrees that are awarded by our universities. I think that the reverse has happened. We have also seen a certain amount of inflation with degrees awarded by our universities, which seems to underline the fact that students are getting better rather than worse.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

A book that I regard as the set text on this subject is “The Schools We Need and Why We Don’t Have Them” by E.D. Hirsch, who is an American academic and has a chapter dealing with precisely that argument.

I think that the answer to the hon. Gentleman’s question is twofold. First, a lot of universities are now implementing remedial classes for students, even high-calibre students coming with very high grades and A-levels, to bring them up to the level that they need to start their university course. Secondly, I am afraid to say—this is an issue that really concerns Conservative members of the Committee—that the proportion of students from the independent sector taking places at some of the top universities is increasing and that concerns us more than anything else in this whole debate about education. It is not that we have anything against the independent sector—quite the contrary—but it is alarming that the  state sector is declining in the proportion of students from that sector going to Oxford and Cambridge, despite huge efforts to counter any possible prejudice that there might be in either of those universities.

What concerns me is the response by Ofqual to the evidence that I was just citing. Evidence has been around for a long time about a concern that has been prevalent and, indeed, growing for many years. Ofqual was informally established in early 2008, following an announcement by the Secretary of State in September 2007. Before that, the regulatory division of the QCA was responsible for regulating qualifications and maintaining standards, ever since the QCA was established in 1997. However, when the chairman of interim Ofqual, Kathleen Tattersall, was questioned in an evidence session by my hon. Friend the Member for Broxbourne, the following exchange took place. My hon. Friend asked:

“Does Ofqual believe that there is grade inflation in A-levels and GCSEs?”

Kathleen Tattersall replied:

“Ofqual will take the evidence that it has and that comes to its attention to make any pronouncement, one way or the other, on issues of that kind. That is something that we have not particularly explored and I do not think that it would be appropriate for me to come to a view without full consideration of the evidence.”

Why is that something that Ofqual has “not particularly explored”? When my hon. Friend asked if, in future, Ofqual would be exploring that issue, he received another evasive answer from Kathleen Tattersall, who said:

“What we will be doing as a regulator is looking at the evidence, particularly where there are any issues of public concern. If that issue is a matter of public concern, clearly we will be seeking evidence on it, but there are a range of other issues where our starting point would always be to look at the evidence and to come to a considered judgment on the evidence.”

Why have the QCA and Ofqual not been looking at the evidence, including that of Peter Williams, the Durham evidence, and that of Duncan Lawson, Jonathan Ramsey and John Corner? What did Kathleen Tattersall mean when she said:

“If that issue is a matter of public concern”?

When challenged by my hon. Friend the Member for Basingstoke, her response was:

“Ofqual has been set up to regulate the system, to get better public accountability for the system, to ensure that there is a better public understanding of the issues and to assure public confidence. That is what regulators do. I do not think that it has been set up to address any specific concerns, such as the one that was just mentioned.”——[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 3 March 2009; c. 70, Q182-184.]

It is depressing that she should say that Ofqual was not set up to assess standards over time or to address public concerns over grade inflations, but to ensure better public understanding of the issues and to assure public confidence—in other words to proselytise and to persuade the public that all is well with the system, but not to take evidence or examine whether standards have been maintained.

The answers by the chairman of Ofqual were not a slip of the tongue. The exact same use of words and phrases appears throughout her evidence in response to questions about standards. They are carefully crafted, rehearsed and considered replies, but there is one slip:

“When you asked me about looking at grade inflation, I should have said that several studies that have been conducted over the years involving international experts looking at our system have  concluded that there is grade inflation.”——[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 3 March 2009; c. 81, Q214.]

When I quoted that to the Minister, she responded:

“I presume that you are taking that Kathleen Tattersall quote from Hansard. She did not say that. We have asked for Hansard to be corrected.”——[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 10 March 2009; c. 156, Q350.]

Hansard is still as I quoted it on 10 March. I am concerned by the “we” in the Minister’s response. Surely Kathleen Tattersall could ask for Hansard to be corrected—not the Minister or the Minister’s officials? I am afraid that it is all too cosy. There is a desperation not to admit to a decline in standards. The chair of Ofqual refuses point blank to admit that there has been grade inflation, despite masses of evidence to the contrary, and refuses to admit that there is even public concern about grade inflation. Ofqual has been in place sufficiently long for it to have taken the evidence and pursued the issue, but it has done no such thing. It seems to see its role as assuring the public and telling them what the issues are, rather than listening to the public and being told by them what the issues are. I do not believe that Ofqual as currently configured will deliver consistent standards in our qualifications system, because I do not believe that it considers that to be its role. However, it should be, and to ensure that Ofqual does see that as its role we need to amend its objectives, which is a debate for the next clause.

We also need to ensure that the right people are appointed to the board—people who are independent of, rather than cosy with, Government, and people who are independent of the education establishments. Amendment 197 requires the board to have one member who is a member of another regulatory body. We need to be sure that Ofqual uses the same principles and approaches as other regulatory bodies, including the same rigorous approach to data collection and analysis. Amendment 198 requires the chief regulator and the chief executive to be full-time positions. That is an additional safeguard to avoid conflict and it also ensures that Ofqual’s role is taken seriously. It is not just a PR role; it is a huge job that requires application to reverse the trends in our exam system.

It is not good enough to say, as Kathleen Tattersall did, that

“wherever there are conflicts of interest we will also look for ways in which they can be managed.”

There must be no conflicts of interest, which is why amendment 40 amends schedule 9 to prevent anyone with a financial or occupational interest that might conflict with the objectives of Ofqual from serving on its board. Greg Watson, the chief executive of Oxford, Cambridge and RSA Examinations said:

“Yes, absolutely. It is important, equally, that Ofqual is independent from those that it regulates.”[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 3 March 2009; c. 64-65, Q171 and 174.]

Anyone who is a lecturer or professor at a teacher training institution, any serving teacher or head teacher, anyone involved with exam boards or publishers of school textbooks, anyone working for a local education authority and any current or past civil servant or Minister in the Department for Children, Schools and Families should not be able to serve on the board of Ofqual. All  those people have a vested interest in demonstrating that exam standards have not fallen over that period, even if they have done so. There is a need for expertise in assessments and academia, but care needs to be taken to ensure that people with that knowledge do not have a reputational or other interest in demonstrating that the UK exam system has maintained its standards over the years.

Amendment 385 adds a third reason as to why or when the chief regulator can be removed from office. Paragraph 3(7) of schedule 9 currently gives two such reasons, including

“inability or unfitness to carry out the duties of office”

and unauthorised “absence from Ofqual’s meetings” for six months. The amendment adds

“failure to ensure the standard of regulated qualifications is maintained.”

I am pleased that the hon. Member for Yeovil supports that amendment, because we might well test the Committee’s opinion. It is important that the legislation is clear that a key role of the chief regulator is to ensure the standards of regulated qualifications are maintained. The same additional grounds for removal from office are added by amendment 420.

Amendment 417 seeks to introduce transparency into the payment of public officials, by ensuring that all details of their contracts of employment are published in each annual report, including pension arrangements. Similarly, amendment 416 ensures that the same information is published for the chief executive, together with all details of expense payments.

Amendments 418 and 419 change schedule 9 so that the Secretary of State appoints not just the first chief executive of Ofqual, but subsequent ones. Amendment 415 gives the Secretary of State the power to fire the chief executive. Schedule 9 already gives the Secretary of State power to remove the chief regulator, but we believe that the power should extend to the chief executive as well. It is important in a democracy that those held accountable to the public for manifesto promises and for the quality of public services have powers to remove senior people responsible for the delivery of those public services, if they are not delivering what they should be, which is higher standards.

Ministers should also have the power to appoint people to those positions. That does not mean that Ministers will or should be able to interfere inappropriately. There are clear demarcation lines set out in the Bill and elsewhere—if a Minister seeks to interfere in, say, lowering the grade boundaries or getting more pupils to achieve a pass or A grade, the chief regulator would be perfectly within his right to refuse and could well go public with the fact if such an attempt had been made. However, it is important that the Secretary of State has the power to remove people who are clearly not delivering the key objective of maintaining standards in our exam system.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families) 5:30 pm, 24th March 2009

I understand the hon. Gentleman’s views, although I do not agree. If he is not going to go on to discuss this, does he feel that the Government ought to be micro-managing other areas, such as the regularity  with which the committees are reviewed, the number of staff or their terms and conditions? Or does he share some of the views expressed not only by me but by Kathleen Tattersall in her note to the Committee?

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I am sympathetic to the hon. Gentleman’s point about the micro-detail, such as how often to review the committee structure of Ofqual. If it is being held to account for its performance, it needs to be given as much leeway as possible to carry out its role. Having said that, there is a role for Ministers in ensuring that such non-departmental public bodies do not empire-build and expand the number of employees within their remit without recourse to the Secretary of State who is, after all, responsible to Parliament and the public for how our taxes are spent. It is important that a firm grip is kept on the number of people employed.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

Is not that necessary oversight exercised through budget control?

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Yes, but unless we keep a grip on all aspects that lead to high budgets, the result can often be regarded as the bleeding stump policy: “Oh, Minister, we have to have a 5 per cent. increase otherwise we shall have to sack 53 people.” Keeping the expenditure of such bodies under control is difficult and, of course, we must have control over the headline cash figure for them. However, to make sure that those cash figures are delivered, there is a case for ensuring that the body count is kept under control, too.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

Is the hon. Gentleman not concerned that, if this body is to be the independent assessor of standards that we want it to be, it might wish at some stage to take on more responsibility for the oversight of qualifications than was given to it originally by the Government? That might imply an increase in the number of staff, even within the budget envelope. If such powers continue to be exercisable, would there not be a risk that a Secretary of State might interfere in the number of staff if he or she did not wish the powers of oversight to be exercised in that way?

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

We have to trust Ministers in a democracy to carry out their role with integrity.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Well, if Ministers were appointed from the Conservative Benches, I am sure that they would have integrity. Ministers are accountable to Parliament and to the public.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Perhaps the hon. Lady is about to shatter my illusion about Ministers.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I merely wanted the hon. Gentleman to clarify that he was not suggesting that it was only Conservative Ministers who have integrity.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Of course not. My jocular response to the intervention was not intended to imply such matters. I was merely saying that Ministers appointed from the Conservative Benches certainly would have integrity.

We believe in creating a regulatory body that is genuinely independent. However, from observing the words of Ofqual since its establishment in 2008 and the activities of and views expressed by the quasi-independent regulatory arm of the QCA since its establishment in 1997, it is clear that more of the same approach will not serve to deliver higher or consistent standards. We need a fresh approach that divorces the regulator from those with vested producer interests so that we can all be sure that a genuine, independent regulator will not allow standards to continue a downward drift. The amendments would go some way to helping change Ofqual into such a body and I hope that the Minister will accept them.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

One thing on which we can all agree is the importance of an independent regulator so, hopefully, we can start from that premise. The difference of opinion is over how that independence is demonstrated. I am a little concerned by some of the arguments from the hon. Member for Bognor Regis and Littlehampton, which seem to suggest that, if the regulator does not say that standards have fallen, she cannot possibly be independent.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

It was not just that comment, but the fact that the regulator has not seen it as her role yet to pursue any of the evidence that has been around for many years and nor did the previous QCA regulatory body. That is what worries me. I was also worried by the fact that she said “if this is a concern”, when clearly the newspapers report massive public concern about such matters daily.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

If we promoted Government policy on the basis of what we see in the newspaper each day, we would not be in a very good position.

It is important to point out that there is no conclusive evidence. I accept that there have been reviews, such as those to which the hon. Gentleman referred, but most subject reviews have found that standards have been maintained. I wish to refer back to the report quoted by Peter Tymms. It said:

“From this perspective, it is either not really possible to say whether standards have been maintained, or, so far as one can say, the evidence suggests that they have been.”

That was probably the point that Kathleen Tattersall was trying to make. I am not trying to speak on her behalf and I would not dream of doing so. However, the inference that I took from the report was that much of the evidence is conflicting and mostly inconclusive. One of Ofqual’s new roles will be to take on the rolling programme to which the hon. Gentleman referred. It has a clear remit to ensure that standards are maintained.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

The Minister spoke about maintenance of standards. Will she clarify what she means by that? She will be aware that Mike Creswell has already gone on the record saying that when the modular GCSE is introduced, he expects there to be a consequential improvement in GCSE results. In order to keep standards constant, does the Minister expect there to be a change in the borderlining of grades so that the percentage of students in each cohort getting A, B and C grades remains roughly the same?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

That is a matter for Ofqual. I accept Mike Creswell’s point, but we have to wait until we get the evidence rather than acting on what people think might happen. It would be unwise for us to go forward saying, “Because he believes that that could be a result of a new modular GCSE”.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

Kathleen Tattersall’s evidence made it clear that she had an expectation that if a change in an exam improved results, there should be change in the grade boundaries to ensure that the same proportion of students were getting grades A, B and C as before. That is a really important issue in the standards debate. Does the Minister, therefore, agree with Ofqual on that point?

Sitting suspended for a Division in the House.

On resuming

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

To repeat to the answer that I gave to the previous question asked by the hon. Member for Yeovil, if his hypothetical example comes to pass it will be for Ofqual to decide and regulate. We have given Ofqual the powers to do that under the Bill, and it would be within its remit to do so.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

But the Minister must have a view about whether Ofqual’s duty to maintain standards means that, if a qualification changes and there is an improvement in the results as a consequence of that change, there should be an adjustment so that the standards remain the same. She must have a view on whether there should not be an adjustment and the results should be allowed to improve or whether standards should be kept level by adjusting the grade boundaries. Ofqual will not be able to do its job unless it knows what Minister means by “maintaining standards”.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

It is quite clear what that means. We are looking at consistency over time. Ofqual’s remit is to have consistency over time.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

Of maintaining the standard that has been reached. That is the purpose of Ofqual as the regulator. I am not convinced that we are getting anywhere with this exchange, so I shall move on.

I want to pick up on the point about Ofqual only saying that standards have been maintained. With interim Ofqual, most of the subject reviews have found that standards have been maintained. In one or two cases where there have been problems, interim Ofqual has not shirked from coming out and saying so and I have no reason to believe that Ofqual, as constituted, will shirk from doing that. It would be in nobody’s interests, least of all the Government’s, for Ofqual not to be independent and to demonstrate that it is independent; if it were not independent it would lose all credibility. Ofqual will have to report to Parliament and account for the reports that it makes.

I will now move on to a group of amendments—all of which, unsurprisingly, we will resist—that relate to provisions in schedule 9 about the organisation and structure of Ofqual and the appointment and conditions of service of its members and staff. Amendments 50 to 53 relate to the mechanisms for appointing members of Ofqual. The Secretary of State’s interest in appointing Ofqual members and the deputy chair reflects the importance of those roles.

The Secretary of State will want to ensure that the best possible appointments are made to lead an organisation that will play a key part in the education sector. However, the public appointment process will be regulated by the Commissioner for Public Appointments to ensure independence and transparency. We are talking about getting the best people for the job and, once they have been appointed, their reporting line being clearly to Parliament, not to Ministers. Amendment 50 is not feasible, because I do not think that the Crown can appoint lots of members to bodies such as this—apart from anything else, there is a problem of volume. The Secretary of State is the most appropriate person to do the appointing; it is neither realistic nor desirable for the Crown to do it.

On amendment 51, Ofqual’s deputy chair will play a vital role—not least because if the chief regulator is absent for a period, the deputy will assume those duties. Again, the Secretary of State’s interest in appointing the deputy reflects the importance of the post. The amendment, which proposes that the ordinary members of Ofqual should elect their deputy, would not be appropriate.

On amendments 52 and 53, given that it is right for the Secretary of State to appoint Ofqual’s ordinary members and deputy chair, it should also be for the Secretary of State to have the powers in the schedule that relate to dismissal. There cannot be one person appointing and another dismissing. We reject the proposals in amendments 52 and 53 that ordinary members should be able to remove the deputy chair and ordinary members.

Amendment 530 is intended to clarify that the Secretary of State’s power to remove a person under the clause refers to his power to remove them from the office of deputy. The amendment is not necessary as that is already the effect of the clause. The Secretary of State’s power to remove an ordinary member from office is found in subsection (5) of the clause and subsection (4) relates only to the office of deputy.

Amendment 529 would make the appointment of the chief regulator subject to the approval of Parliament by requiring the appointment to be made by means of a statutory instrument that either House could annul. The chief regulator will be appointed by Her Majesty by Order in Council, which reflects the independence and importance of the role.

The chief regulator will be the chair and public face of Ofqual. It is essential that the operation of the qualifications system is effective and that the chief regulator is credible and respected. A fair and transparent appointment process is an important start if that is to be achieved. Two things will help with that. First, the  Office of the Commissioner for Public Appointments recently extended its remit to cover non-ministerial departments, which we intend will include Ofqual. The OCPA monitors and reports on public appointments, which enables people to have confidence in the appointments process.

Secondly, last year, the Government introduced pre-appointment hearings by Select Committees for key public appointments. That enables Select Committees to take evidence from candidates for certain public appointments before they are appointed. The Government have announced that, subject to the passage of the Bill, the chief regulator is one of the key public appointments that will be subject to pre-appointment hearings and therefore to scrutiny by the relevant Select Committee. This will help the Select Committee to gain confidence in what will be a key appointment for them.

Photo of Charles Walker Charles Walker Conservative, Broxbourne 6:00 pm, 24th March 2009

Will a panel of candidates be shown to the Select Committee or will it purely be the candidate that the Secretary of State wishes to appoint who will appear before the Select Committee?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I cannot answer that question off the top of my head, but I will endeavour to find out for the hon. Gentleman.

Any new candidate for the role will in future face scrutiny under these pre-appointment hearing arrangements. Those two factors—the OCPA regulation and the pre-appointment hearings—should give everyone confidence in the independence and transparency of the appointment of the chief regulator. For that reason, the Government reject that amendment.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I have may have missed the point, but will Kathleen Tattersall go before the Select Committee for her appointment to be confirmed, given that she is now chair of interim Ofqual and not of Ofqual as set out in the legislation?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

No, Kathleen Tattersall is in post. The chief regulator to succeed her that will go through that process.

Amendment 385 would add failure to ensure the standards of regulated qualifications is maintained to the grounds for removal. That amendment is not necessary because paragraph 3(7) already states that the

“chief regulator can be removed because of inability or unfitness to carry out the duties of office”.

If Ofqual fails to maintain the standards of regulated qualifications because of any inability or unfitness on behalf of the chief regulator, the chief regulator can be removed.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

The hon. Lady makes an important point. I am interested in what she has to say, bearing in mind Pepper v. Hart. My interpretation of paragraph 3(7)(a) is that not performing the job well would not be sufficient reason for the removal of the chief regulator. To me, it suggests some other form of unfitness to do the job. Will she confirm that if standards are perceived to decline or do decline, that will be grounds for removal under that paragraph?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

One of the main objectives of Ofqual is the maintenance of standards. If it is felt that the chief regulator has not fulfilled the objectives of Ofqual, that would be a consideration in deciding whether they should be removed from office.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I know that Ministers come programmed to reject all Opposition amendments—perhaps understandably—but does the hon. Lady agree that the intention behind the words that the hon. Member for Bognor Regis and Littlehampton is trying to amend is ambiguous? An

“inability or unfitness to carry out the duties of office” almost suggests a medical reason for the potential dismissal, rather than the quality of the job that is being done. Will she reflect on whether the hon. Gentleman is actually being extremely helpful in trying to make this paragraph clearer and firmer?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I take the hon. Gentleman’s point, but I did not read the paragraph as saying that the removal could be only for medical unfitness.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I was not necessarily suggesting that medical unfitness would be the only grounds, but the words “inability” and “unfitness” suggest a basic problem with an individual doing a job, rather than the quality of the job that is being done. That is the ambiguity in the paragraph.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I disagree about the degree of ambiguity because the duties of office are the duty objectives that have been set out. The hon. Member for Bognor Regis and Littlehampton raised the example of the maintenance of standards. Meeting the standards objective is one of the main duties of Ofqual and of the chief regulator. I do not agree with the point the hon. Member for Yeovil is making.

Amendment 416 proposes that:

“The terms of the conditions of service of the Chief Executive, including all refunds of expenses incurred by the Chief Executive in carrying out his duties shall be published annually.”

Paragraph 6(5) of schedule 9 states that the terms and conditions of the chief executive and the

“amount of remuneration, allowances and expenses” will be determined by Ofqual with the approval of the Secretary of State. That will ensure that the payments are set at a fair level that represents good value for money. We do not consider it appropriate to place a requirement in legislation to publish an individual’s terms and conditions of service or expenses repayments.

Similarly, amendment 417 proposes that payments made to the chief regulator and ordinary members

“shall be published annually together with the contracts of employment and pension arrangements of the chief regulator and the ordinary members.”

Photo of Charles Walker Charles Walker Conservative, Broxbourne

I really should have read the Bill more closely than I did. Am I right in thinking that the chief executive will have a rolling contract or will it be a fixed-term contract of three years or whatever, subject to renewal at the end of that period?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

My understanding is that it is a fixed-term contract, but I stand to be corrected.

Amendment 417 proposes that payments to the chief regulator and ordinary members be published annually. Again, the amount of those payments is approved by the Secretary of State. We do not consider it appropriate to place a requirement in legislation to publish those payments. The terms of contract will be up to Ofqual and subject to the Secretary of State’s approval.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

The Minister says that there is no need to put the publication of remuneration in the legislation. Does that mean that she intends that terms and conditions, annual salaries, expenses and pension contributions will be published in the annual report?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I am not sure whether it will go in the annual report, but Ofqual will be subject to audit by the National Audit Office. It will have to produce accounts, and my memory of most organisation’s accounts suggests that that has to be stated in broad terms.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

Is it not standard procedure that even if something is within particular bands, the amounts of the salaries and pension entitlements of senior individuals in organisations such as this would be included in the annual report?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I am not saying that it will not be included. My point is that I envisage other mechanisms being used to ensure the accountability mentioned in the amendment, rather than it being in the Bill.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I am still not clear about whether that information will be included in the annual accounts. One of our prime roles in this place is to maintain and look after tax revenues and ensure that they are spent properly. Neither I nor the hon. Member for Yeovil have been able to get the answer to a simple question: will the annual salary and pension contributions of the chief regulator and the chief executive be included in the annual report of Ofqual?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I cannot answer that question at the moment, but I will get back to the hon. Gentlemen on the matter. I intend Ofqual to be as transparent, visible and accountable as we want it to be. Certainly in respect of the annual accounts, National Audit Office guidelines will be used as to what is published and audited.

Photo of Bill Wiggin Bill Wiggin Opposition Whip (Commons)

My understanding is that if a Minister says in Committee that something should be so, any judge who later looks at the musings of the Committee will try to take the Minister’s decision as part of the judgment. Therefore, if she says that those figures will be published, it is highly likely that that will happen. Why will she not say that?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I said that we intend Ofqual to be as visible, transparent and accountable as all of us wish it to be. I do not intend to go into detail at this stage. We will look further into what is in the annual report and refer back to the matter as we progress further with the legislation.

Amendment 420 is about the removal of ordinary members. It is similar to amendment 385 and seeks to state in the Bill that ordinary members can be removed from office by the Secretary of State on the grounds of

“failure to ensure the standard of regulated qualifications is maintained.”

Under paragraph 4(5) of schedule 9, the Secretary of State may remove an ordinary member from office on the grounds of

“inability or unfitness to carry out the duties of office.”

The same argument as the one I made earlier applies.

Amendments 40, 197 and 198 propose restrictions on the appointment of Ofqual members. It goes without saying that we need Ofqual to have top-notch people with a mix of the necessary skills and experience and the fibre to act independently and take the flack that will no doubt come their way. We must ensure that Ofqual membership attracts the best possible candidates. Ofqual members will need a wide range of experience and expertise to ensure and account to Parliament that Ofqual is a well-run organisation that meets its objectives and responds well to all those, including employers, higher education institutions, schools and colleges, that rely on it to do its job thoroughly and effectively.

I can tell the hon. Member for Leominster that salary and pensions contributions will be included in the annual accounts. I do not know whether that goes forward to the annual report, but annual accounts are a matter of public record.

Appointments will be made by the Secretary of State to ensure that the best possible candidates are chosen. As I said earlier, the public appointment process will be regulated by the OCPA to ensure independence and transparency. If we are to have the best possible candidates, I do not want the Bill to narrow down the field. Amendment 197 proposes that one of the members of Ofqual should be a member of another regulatory body. I do not think that we should go down that route. Does Ofqual need to work closely with fellow regulators in the UK and overseas—with Ofsted and other regulators? Absolutely, of course it does. Does that mean that we need to write something into the membership provisions? No, I do not think that it does.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Do other regulatory bodies in this country have a requirement for their board to contain a member of another regulatory board?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

Not to my knowledge, but I will find out. Amendment 198 proposes that the chair and chief executive must be full-time positions. Again, we do not need legislation on that. Will the posts be demanding, high-profile, key leadership roles in the education sector? Yes, of course they will. Will the posts be full-time? The chief executive position is pretty much bound to be and the post of chief regulator may well be too, but, again, I am not sure that we need it in legislation.

Photo of Charles Walker Charles Walker Conservative, Broxbourne

The Minister says that the post of chief executive is “pretty much bound to be”, which is not quite a cast iron assurance. Will it be a full-time position?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families 6:15 pm, 24th March 2009

I certainly envisage it being a full-time position, but I do not think that it is necessary to put that in the Bill.

Amendment 40 proposes that ordinary Ofqual members

“must not have financial or other occupational interests that might be regarded as constituting a conflict of interest with that of promoting the objectives of Ofqual.”

I am not entirely clear what the amendment is intended to achieve. It would clearly be inappropriate to appoint anyone directly connected to an awarding body that Ofqual would be regulating, but I do not think the amendment is about that. I cannot see who else would have a conflict of interest serious enough to bar them from membership. Ofqual will have procedures to manage conflicts of interest over specific issues. I do not accept that there is any professional who would have an interest that would conflict with maintaining standards or confidence in exams and assessments. What matters most to head teachers, like the rest of us, is that confidence in the system is high because of robust regulation, so their students get the results and credit they deserve for their achievements.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Can the hon. Lady not understand that if someone who runs a school and is judged on the exam results of pupils were also a member of Ofqual, it would theoretically be in their interest to allow standards to decline, so the school’s results would rise by more than the standard of education provided there would normally demonstrate? It is a clear and obvious conflict of interest.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

It sounds a little convoluted to me. The Bill provisions are consistent with provisions for the membership of the Higher Education Funding Council for England and Ofsted. Indeed, there are several vice-chancellors on the board of the HEFCE, which has a role in funding teaching and research in universities and colleges. The HEFCE has successfully managed any conflict of interest, but the important thing is the essential expertise that those individuals bring. We need Ofqual members who bring a range of experience and expertise.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Does the hon. Lady think that it would be right for a serving bank board member to be on the board of the Financial Services Authority?

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

We are talking about regulation.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I accept that it is regulation but, in this instance, I think it important that Ofqual has the flexibility to have a range of expertise. I do not want to impose restrictions and say that it cannot bring people in because they were head teachers.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

But does the FSA not need expertise as well? It has to go out and employ somebody from the City of London, who has to abandon all their interests in a bank or financial institution. Should the hon. Lady not ensure that any board member of Ofqual is not a serving professor of education in a teacher training college or a serving head teacher?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I think that this case is different. The two cases cannot be compared. Ofqual’s conflict of interest rules will cover it. I do not agree with the hon. Gentleman and his FSA and banking analogy.

Amendments 54 and 55 propose that Ofqual rather than the Secretary of State should appoint Ofqual’s first chief executive and determine his or her conditions of service. On the other hand, amendments 418 and 419 propose that the Secretary of State should appoint all future Ofqual chief executives, not just the first. There is provision in the Bill for the Secretary of State to appoint the first chief executive because we have a chicken and egg situation. Ofqual will need a chief executive on day one to lead on the set-up of the organisation and ensure that it hits the ground running. Indeed, we will do our best to ensure that the chief executive is in the post before day one as part of a shadow arrangement, again so that Ofqual can get off to the best possible start. However, Ofqual itself will not exist at that stage; there will be no formally appointed Ofqual members, so they cannot appoint of the first chief executive. What we will need is for the Secretary of State to appoint on the first occasion, looking to Kathleen Tattersall, as the chair of interim Ofqual, to play a leading role in the appointment. Future chief executives should of course be appointed by Ofqual rather than the Secretary of State, and their conditions of service will be decided by Ofqual.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

Did the Government consider any other options for the appointment of that individual the first time round? Did they consider any role that Parliament, through the Select Committee, might play?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

As I said, the important thing is that we need to get the chief executive in as soon as possible, which is why we have taken the route we have—that the Secretary of State appoints the first chief executive.

Amendment 415 proposes that the Secretary of State should have the power to remove the chief executive, but that is neither necessary nor appropriate. Ofqual should have the power to both appoint and remove the chief executive. The conditions of service are set by the Secretary of State for the first chief executive, while Ofqual will be able to do that for future chief executives.

There are two amendments that propose a role for the Select Committee on Children, Schools and Families in the appointment of staff. They refer specifically to that Committee, even though Ofqual’s role is also of interest to the Select Committee on Innovation, Universities, Science and Skills. The Children, Schools and Families Committee is appointed by the House of Commons to examine the administration, expenditure and policy of the Department for Children, Schools and Families, including the work of non-departmental public bodies and Ofsted. Amendment 57 proposes that the appointment and conditions of service of Ofqual chief executives after the first appointment should be subject to the approval of the Select Committee rather than the Secretary of State. Amendment 58 proposes that the number of Ofqual staff, their conditions of service and the amount of remuneration allowances and expenses of staff should be subject to the approval of the Select Committee.

It is not in dispute that Ofqual needs to report to Parliament and that the Select Committees will have a key role in holding Ofqual to account. In relation to the  new appointments to the post of chief regulator, as we have already said, the Select Committee will hold pre-appointment hearings, but constitutionally, I do not think that we can have Select Committees—part of the legislature—making appointments to the staff and boards of parts of the Executive.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I understand the Minister’s concerns on the last point, although I do not agree with them. In relation to clause 58, which she probably has just dealt with, will she comment on the views and concerns expressed by Ofqual itself to the Committee? Kathleen Tattersall said in her note to the Committee that

“In my view requirement for Ministerial approval of such matters as numbers of staff and terms and conditions ... is ... questionable.”

Have the Government rejected those concerns?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

Of course we have listened to Kathleen Tattersall’s concerns, but it is standard practice for non-ministerial Government departments to have the conditions of service of its staff and their numbers and approved by a Minister. Having reflected, we agreed that that should be the case here.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

Given that the Department is already exercising budget control and oversight, what is the reason for not allowing Ofqual to determine its own numbers of staff within that budget constraint?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

It is because of the duty that we, as Ministers, have, to ensure that we meet our budgetary constraints, and our responsibility for overall numbers in the civil service.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

The Minister said that part of the concern is in discharging the budget constraint responsibilities, but that is already in place. I am not suggesting that Ofqual should be allowed to set its own budget, merely that once the budget is fixed, it should be for Ofqual to determine the number of staff in the budget.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

But we come back to the point about the overall civil service numbers. I was interested in the remarks that the hon. Member for Bognor Regis and Littlehampton made and the interesting exchange between him and the hon. Member for Yeovil on that point.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

The Minister has been extremely patient with us, but will she explain why, if the Government have overall budget control, it is important for them to determine the number of staff employed with the budget? Is it not a potential mechanism through which the present or a future Government could seek to interfere in how Ofqual chooses to discharge its oversight responsibilities on standards?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

No, I disagree. It is an important ministerial tool, and it is standard practice in relation to all non-ministerial Government departments. We are not singling Ofqual out for that treatment, and I do not see any reason to treat Ofqual any differently from any non-ministerial Government department.

Amendment 56 refers to line 24 and a “sub-paragraph (5)” of schedule 9. I am confused, because line 24 corresponds with paragraph 7(5) of schedule 9. Since the hon. Gentleman and colleagues have tabled a separate amendment, amendment 59, to remove paragraph 7(6), I hope that I am correct in assuming that the intention of amendment 56 is to remove paragraph 7(5). I am sure that he will correct me if I am wrong.

Paragraph 7(5) allows Ofqual to arrange for the payment of remuneration, allowances and expenses to any person who is a member of an Ofqual committee but is not a member of Ofqual or Ofqual staff. That is a standard activity for organisations such as Ofqual, and Ofqual requires the power to remunerate or pay allowances or expenses to persons who may serve on its committees but are not members of its staff. Under paragraph 7(4), Ofqual’s committees must include one member of Ofqual or Ofqual staff, and they may also include external persons. They may be necessary to provide expertise to the committee and so improve its effectiveness. It is reasonable that Ofqual should have the power to remunerate these persons and pay allowances and expenses when it considers that appropriate.

Amendment 59 would remove the requirement for Ofqual to review at least once in any five-year period the structure of its committees and the scope of each committee’s activities. The requirement will ensure that Ofqual follows good practice in reviewing its committees, and paragraph 7(6) does not compel Ofqual to change the structure, scope or activities of its committees; it simply sets a maximum length of time that can pass without reviewing those aspects. Ofqual remains entirely independent regarding how it establishes its committees and their scope.

In reality, we believe that Ofqual, like any similar organisation, would wish to review the structure and scope of its committees more frequently than is envisaged in paragraph 7(6) and (7). Reviewing its committees is clearly good practice for an organisation of Ofqual’s nature, but we have introduced the measure to ensure that Ofqual fulfils the minimum expectation. We do not consider it burdensome or think that it affects Ofqual’s independence, and, with that, I invite the hon. Gentleman to consider withdrawing the amendment.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I was disappointed by the Minister’s response and, in particular, by her clear lack of understanding in what she said. I was also disappointed by the Government’s lack of understanding about independence, given how the Bill is drafted. Ofqual should be independent not just of exam boards but of anybody who has a vested interest: for example, those preparing children to take the tests, or the education faculties of the universities, which have a vested interest in demonstrating that exam standards have not fallen in circumstances in which they have, if the education system adopts practices advocated by those faculties. If we are to trust the exam system and it is to provide an objective assessment of the effectiveness of the policies that those faculties advocate, we must ensure that they are not represented on the board of Ofqual.

I was also disappointed by the Minister’s response to the issue raised in amendment 385 about dismissing the chief regulator in circumstances in which standards in  the exam system have not been maintained. I do not accept her argument that paragraph 3(7)(a), which deals with

“inability or unfitness to carry out the duties of office”, covers it and can be used to dismiss a chief regulator in circumstances where exam standards have clearly fallen. Under most ordinary interpretations of that phrase, people would, as the hon. Member for Yeovil said, regard it as being akin to a decision on the grounds of medical or other reasons of unfitness to carry out a particular job, not one based on how well that job has been carried out. There is no other method of dismissal. Paragraph 3 (7)(b) deals with

“absence from Ofqual’s meetings for a continuous period of more than 6 months”.

I therefore seek permission to press for the Committee’s opinion on amendment 385, which will add to schedule 9 further grounds for dismissal of the chief regulator in circumstances where the standards of regulated qualifications have not been maintained.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families) 6:30 pm, 24th March 2009

I am grateful to the Minister for responding in detail to the amendments to schedule 9 and for her willingness to allow us to cross-question her on some of those matters. She has shown herself to be as patient as the Minister for Schools and Learners on these occasions, which is very much appreciated.

Like the hon. Member for Bognor Regis and Littlehampton, however, I was disappointed, although not entirely surprised, by the fact that all the amendments were rejected by the Minister. In particular, we are still concerned about schedule 9 and the extent to which the Secretary of State is exercising powers to appoint and sack key members of the regulator. We are concerned about the lack of imagination in the accountability of the body to Ministers, rather than to Parliament. We are also concerned about the extraordinary powers to micro-manage in the Bill, even down to the extent and regularity with which Ofqual must examine the structure of its own committees and the number of staff that it is allowed to employ.

We are sympathetic to the amendment tabled by the hon. Member for Bognor Regis and Littlehampton, which proposes a more explicit duty to maintain standards. Returning to the points that were made about schedule 9(3)(7) on page 191 and the chief regulator’s removal from office. The grounds for such removal are

“absence from Ofqual’s meetings for a continuous period of more than 6 months without Ofqual’s permission.”

There is an ambiguous phrase about “inability or unfitness” to carry out the duties of office. Most people would take those words to relate either to some core issue of competence or, more likely, to some sort of judgment about the individual’s medical or other circumstances. There is not, as might be expected when legislating for a new body, a clear insistence that success in upholding standards, which is supposed to be the purpose of Ofqual, should be a key measure in deciding whether or not the chief regulator should be removed from office. I am happy to support the hon. Gentleman in his amendment if he decides to press it to a Division.

I appreciate that there are small, fundamental differences on the extent to which accountability should be to the Secretary of State, rather than to some other body, and  the way in which individuals are selected for, and dismissed from, these posts. It is clear that there are differences on that point, not only with the Minister, but with the hon. Member for Bognor Regis and Littlehampton. I should like to reflect on what the Minister has said on those points and consider whether we will raise our concerns on those issues at a later stage in our proceedings.

I should like highlight our concerns and disappointment, as expressed in two of our the amendments which reflect the fact that there is an excessive desire by the Government to micro-manage the new body. Amendment 58, which takes the power to approve the number of staff members and their terms and conditions of service and so forth away from the Secretary of State. We could argue about whether the Children, Schools and Families Committee is the correct Committee to have oversight. The Minister indicated that some of the responsibilities might be joint departmental ones. However, I draw the Minister’s attention to the fact that even Kathleen Tattersall is concerned that the extent of the powers is excessive. I repeat that, in her note to the Committee, she said:

“In my view the requirement for Ministerial approval of such matters as numbers of staff and terms and conditions... is more questionable.”

We have had a number of exchanges on the issue, and I am grateful to the Minister for her willingness to respond to so many interventions, but I am not entirely convinced by the Government’s argument.

The Minister began by saying that the budget was somehow a relevant factor in causing the Government to want the powers, but nobody was suggesting that budget control should be undermined in any way. The issue, having set the budget, is whether it is reasonable for Ministers to interfere in issues such as how many staff are employed. I am concerned, because I hope—we will look at this in detail in clause 125—that, in the future, Ofqual will be more independent from the Government than it is at present.

Ofqual may also decide to take on new responsibilities to discharge its functions in relation to standards. I will not anticipate our arguments on clause 125 but, in her evidence to the Committee, the Minister herself said that such new responsibilities would be possible. If future Governments have the power to cap staff numbers, they may well seek greater oversight and use those powers to constrain the extent to which Ofqual develops its functions. Future Governments could, for example, employ more staff to carry out sample testing of particular cohorts to make an assessment of changes in standards over time and the relationship to changes in exam standards. Although that may seem to be a narrow point, it is quite important, so we may return to it later and frame the amendment more carefully.

Finally, I am concerned about micro-management, which is why we tabled amendment 59, which would remove the duty on Ofqual to review its committees every five years. The fact Ministers believe it necessary to prescribe in legislation the regularity with which Ofqual has to review its committees suggests a very low level of confidence in the individuals and chief executive who will oversee such reviews. If the Government are going to be that detailed in micro-managing Ofqual, heaven knows what other duties and regulations they might want to impose through the Bill, even though such measures might seem like common sense to some  individuals. As a small indication of our desire to make Ofqual more independent, it is my intention to press amendment 59 to a Division.

Photo of Joan Humble Joan Humble Labour, Blackpool North and Fleetwood

Will the hon. Gentleman confirm his intention in relation to amendment 50, which is the lead amendment?

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I apologise, Mrs. Humble. I would like to return to the issue covered by amendment 50 later, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 385, in schedule 9, page 191, line 7, at end insert—

‘(c) failure to ensure the standard of regulated qualifications is maintained.’.—(Mr. Gibb.)

Question put, That the amendment be made.

The Committee divided: Ayes 6, Noes 8.

Question accordingly negatived.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

On a point of order, Mrs. Humble. I apologise for interrupting you, but I wanted to clarify whether it would be possible also to move a Division on amendment 59, as I indicated.

Photo of Joan Humble Joan Humble Labour, Blackpool North and Fleetwood

I will ask the hon. Gentleman to move that amendment formally when we reach the appropriate point, after the next two groups of amendments.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I beg to move amendment 497, in schedule 9, page 192, line 11, after first ‘of’ insert ‘other’.

This is a technical drafting amendment which clarifies that paragraph 6(5) of Schedule 9 relates to the conditions of service of members of staff other than the chief executive (whose conditions of service are already dealt with by paragraph 6(1) to (3)).

Photo of Joan Humble Joan Humble Labour, Blackpool North and Fleetwood

With this it will be convenient to discuss Government amendments 498 and 499, 437 to 439, 441, 451, 464, 467, 446, 452, 482, 486 to 489, 500, 495 and 509.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

You read out the amendments very eloquently, Mrs. Humble. I appreciate that there is a lot to take in, but most of the amendments are technical. They derive from our review of the Bill to ensure that it delivers precisely and unambiguously what we wanted and that its measures are fully consistent.

Government amendments 437 and 438 ensure that Ofqual must recognise an awarding body or accredit its qualification when the relevant criteria are met, but must not otherwise do so. As drafted at the moment, the wording could imply that Ofqual has the power to recognise or accredit when the relevant criteria are not met, which was never our intention. Government amendments 439 and 441 make it clear that it is for Ofqual to decide when its criteria for recognition and accreditation and its general conditions come into force. That will allow Ofqual to manage the introduction of new qualifications effectively and give awarding bodies the time that they need to prepare for changes in the requirements.

Government amendment 451 ensures that if Ofqual revises its accreditation criteria, awarding bodies will have to comply with the new criteria. In those circumstances, an accreditation will cease on a date specified by Ofqual unless Ofqual says otherwise. That will mean that the awarding body will have to go back to Ofqual to seek a new accreditation, which will allow Ofqual to manage revisions to criteria in an orderly way. In practice, that is how the arrangements work at the moment. Additionally, Ofqual can make saving or transitional provisions to prevent any harm to those studying for a qualification that ceases to be accredited.

Government amendments 478 to 480 are technical amendments to ensure that Ofqual must publish on its register details of each individual form of a qualification that an awarding body awards, not just the types of qualification that it awards. Government amendments 464 and 467 ensure that Ofqual’s criteria in relation to guided learning hours need not come into force immediately, mirroring the position for its other criteria.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Will the Minister explain why it is necessary for guided learning hours to be included in the Bill, and are therefore necessary to amend the provisions relating to them? What is the purpose of having guided hours in the legislation?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

Off the top of my head, it is because guided learning hours are part of achieving the qualification. However, if there is an additional answer, I will get back to the hon. Gentleman.

Government amendments 497 and 498 eliminate unnecessary duplication in the provisions relating to the conditions of service of Ofqual’s chief executive and other members of staff, thereby eliminating any possible ambiguity about how the conditions are set. Government amendment 499 is one of a number of drafting changes to ensure that the Bill is consistent in how it refers to itself in conjunction with other Acts.

Government amendment 446 refers to clauses 132 and 134, which say that in certain specific and limited circumstances, Ofqual can set a condition on an awarding body allowing Ofqual to enter premises to inspect or copy documents. Clause 134(3) confirms that inspecting documents includes inspecting records kept on computers. The amendment substitutes improved wording so that the meaning of the provision is crystal clear.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools) 6:45 pm, 24th March 2009

On amendment 446, why does the Minister feel it necessary for Ofqual to have the entry and inspection powers to enter awarding bodies’ premises and look at their computer records?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

Because if Ofqual has a condition allowing it to enter premises to inspect or copy documents, it must surely include documents and records kept on a computer.

Photo of Charles Walker Charles Walker Conservative, Broxbourne

What level of notice will Ofqual be required to provide to the agency whose premises it is inspecting or entering?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

That relates to clause 134. We will get to that when we get there.

Government amendment 452 deals purely with a drafting point and will allow us to bring one bit of the Bill into line with another. Amendment 482 is a technical amendment intended to ensure that the relevant provisions for the withdrawal of recognition apply fully to the situation in which the body is recognised to award or authenticate credits in respect of components of qualifications, rather than full qualifications. Similarly, Government amendments 486 to 489 are all technical. Government amendments 486 and 489 clarify that where the Bill makes provision about joint working with other public bodies for the performance by Ofqual of its qualifications functions, the intention is to catch the performance of any of those functions, and not necessarily the performance of all of them. Government amendments 487 and 488 tighten up the drafting so as to be clear that Ofqual is not, strictly speaking, a qualifications regulator, as defined in clause 149(2)(a).

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

The fact that the Minister does not regard Ofqual as a qualifications regulator was clear from the last debate. If it is not a qualifications regulator, what is it?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

We have to return to Ofqual’s objectives under clause 125, which sets out exactly what it is. The amendments are technical. It is not as per the precise definition in clause 125, but when we get to that clause, we can discuss Ofqual’s objectives. Then we can deal with the hon. Gentleman’s point.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I am rather baffled by this exchange about the purpose of Ofqual. It is a rather basic point. Is this a qualifications regulator, a standards regulator or something else?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

This is a technical point about a precise definition. Obviously, Ofqual is a regulator of our qualifications system. As I understand it, the amendment will tighten up a technical matter, and certainly does not mean that we do not think that Ofqual is a regulator of our qualifications system—the clue is in the title really.

Amendment 495 will make the Bill easier to read and reproduces the definition of “public authority” in full, rather than making the reader cross-refer to the definition 10 pages away in clause 148. Amendment 500 addresses a minor issue over the drafting of schedule 11 dealing with the QCDA and mirrors amendment 498 for Ofqual. Amendment 509, like amendment 482, is a technical amendment intended to ensure that the relevant provisions over the withdrawal of recognition apply fully to the  situation where the body is recognised to award, or authenticate, credits in respect of components of qualifications.

Most of the amendments are purely technical and, where there are material changes, those changes are not great. I hope that, on the basis of that explanation, hon. Members will agree that the 23 amendments be made to the Bill.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I had not intended to rise, other than to ask the questions I have already asked during my interventions. However, I am afraid to say that the answers given by the Minister, and the explanations given for the amendments, were wholly lacking on three of the amendments. I am concerned about the tabling of 23 Government amendments together in one huge debate. In particular, I was concerned about the flippant response to the question from my hon. Friend the Member for Broxbourne about the notice period given for inspections for entry into companies’ premises. Those powers are important and to not know the notice period, and then to flippantly say “a reasonable notice”, is not acceptable. To quote from the explanatory note:

“This amendment clarifies that Ofqual may set an ‘entry and inspection condition’ that allows a person authorised by Ofqual to inspect and copy electronic records in the same way as a person would be able to do if authorised under section 58 of the Education Act 2005.”

I asked the Minister what the purpose of that power was; why was it needed? I do not just mean, why were new powers needed to examine electronic records? The purpose of the question was to ask, why are those powers to go into people’s premises to inspect their records necessary for Ofqual, when we are talking about it regulating qualifications?

We then come to Government amendment 464, which talks about guiding learning hours. The Minister was not able to explain why it was necessary to have them in the Bill. I know that we will come to that in clause 139, but this is an amendment to clause 139 and I expected the Minister to have a clear understanding of why we should have guided learning hours in legislation. Is she telling professionals how many hours are needed to teach a particular qualification? Is it the intention of the Government to say that, for example, 50 hours is needed for a particular module of a particular GCSE? That is something that should be left to the professionalism of teachers.

On Government amendment 487, we are told in the explanatory statement that it clarifies that

“Ofqual itself is not a ‘qualifications regulator’”.

That has baffled members of the Committee, including the hon. Member for Yeovil, because I thought that the precise purpose of this part of the Bill was to establish a qualifications regulator. Again, I was not very happy with the Minister’s response. Will she have another attempt at answering those questions? If not, then I do not feel comfortable in allowing those three Government amendments to go through untested.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

As regards to the guided learning hours, that relates to raising the participation age, as agreed in the Education and Skills Act 2008. That creates a duty on young people above compulsory school age, but under-18, to participate in education or training.  When people who are under-18 are in full-time employment, the duty in the Act requires them to undertake sufficient relevant education or training, which is defined as the equivalent of 280 hours a year. To facilitate that, the Act placed a duty on the QCA, as regulator, to assign guided learning hours to qualifications. That is the reason why those powers are being passed on to Ofqual.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Will the Minister confirm that it does not apply to qualifications applicable to those under the age of 16?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

Regarding the powers to enter premises, they are needed to allow Ofqual to investigate whether awarding bodies are maintaining standards and whether fees should be capped. That is the reason why the power to inspect documents is there. We will set out a code of practice on how the powers should be used, which will define what is a reasonable period of notice.

The technical point is that clause 149 sets out the power to provide information to other qualifications regulators. Of course Ofqual is a qualifications regulator, but the definition in the clause is for regulators elsewhere in the UK. Subsection (2)(b) defines the term purely for the purpose of the clause. I hope that that satisfies the hon. Gentleman.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I am still not entirely satisfied by the Minister’s response on amendment 487, although I am happy with her responses on the other two amendments. The explanatory statement for amendment 487 states:

“This amendment and amendment 488 are technically drafting amendments, clarifying that Ofqual itself is not a ‘qualifications regulator’ within the meaning given to that term by clause 149(2)(a).”

It does not state that the other regulators are not qualifications regulators.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

That merely means that Ofqual will not have to provide information to itself. That is the purpose of that technical amendment.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

It would have been helpful if the explanatory statement stated that, which it does not. It states that

“Ofqual itself is not a ‘qualifications regulator’”.

Given that the Minister has confirmed that Ofqual is a qualifications regulator, I will not press the matter to a division.

Amendment 497 agreed to.

Amendment made: 498, in schedule 9, page 192, line 13, leave out paragraph (c).—(Sarah McCarthy-Fry.)

Amendment proposed: 59, in schedule 9, page 192, leave out lines 28 to 33.—(Mr. Laws.)

Question put, That the amendment be made.

The Committee divided: Ayes 6, Noes 8.

Question accordingly negatived.

Amendment made: 499, in schedule 9, page 194, line 12, leave out ‘this or any other’ and insert ‘any’.—(Sarah McCarthy-Fry.)

Schedule 9, as amended, ordered to stand part of the Bill.

Photo of Joan Humble Joan Humble Labour, Blackpool North and Fleetwood

At this stage I shall suspend our proceedings for an hour. Members should return at 7.58 pm.

Sitting suspended.

On resuming—