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Clause 126

– in a Public Bill Committee at 10:30 am on 26th March 2009.

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General duties

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

I beg to move amendment 554, in clause 126, page 72, line 3, at end insert—

‘(A1) The principal duty of Ofqual in performing its functions is to promote the interests of learners.’.

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

With this it will be convenient to discuss the following: amendment 558, in clause 126, page 72, line 10, leave out paragraph (a) and insert—

‘(a) the need to ensure that there is a reasonable level of choice for learners, in terms of both the number of different types of regulated qualifications and the number of regulated qualifications of each type;’.

Amendment 413, in clause 126, page 72, line 10, leave out paragraph (a).

Amendment 66, in clause 126, page 72, line 11, at end insert

‘and maximizes choice for pupils and learning providers;’.

Amendment 519, in clause 126, page 72, line 16, at end insert—

‘( ) the reasonable additional requirements of persons in whose home a language is spoken which differs from that language in which the person is or will be taught.’.

Amendment 9, in clause 126, page 72, line 26, at end insert—

‘(i) the timing of the exam cycle, and the need to allow awarding bodies sufficient time to develop qualifications.’.

Amendment 220, in clause 126, page 72, line 26, at end insert—

‘(i) information provided by recognised awarding bodies.’.

Amendment 414, in clause 126, page 72, line 27, leave out subsection (3).

Amendment 67, in clause 126, page 72, line 32, leave out from ‘type’ to end of line 34.

Amendment 140, in clause 126, page 72, line 40, at end insert—

‘(d) persons whom, in the opinion of the Secretary of State, represent the interests of employers or institutions within the higher education sector.’.

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

We have had an interesting start to the day and a demonstration of why the Government’s truancy strategy needs to be rolled out to some of their Back Benchers, who need to be personally turned up on Thursday mornings by the teacher.

We come now to clause 126, which is important and deals with some of the general duties of the new Ofqual. I will speak to a number of amendments that I have tabled with my hon. Friends.

Amendment 554 is in part inspired by a determination to ensure that Ofqual gives primary consideration to the needs of learners and to ensuring the availability of qualifications that serve their needs. In discharging its duties, Ofqual should not place a Government-driven concern to restrict the availability of qualifications above allowing qualifications—possibly quite a lot of qualifications—to come forward to serve the needs of individual learners.

Over the years, the market in qualifications has determined that there should be a fairly full range of qualifications, and many have proven to be of great value to learners. However, it is always a temptation for a Government to seek to rationalise the available qualifications, and sometimes to eliminate prudent  qualifications that are valued by learners and institutions. We see that risk in relation to the development of the diploma, and there is a lot of concern among educational institutions about the possibility of students’ access to existing proven vocational qualifications being removed.

The Bill provides the Secretary of State with powers to change the kinds of qualifications available to learners and, specifically, to direct Skills Funding Agency funding to appropriate qualifications. We are concerned that that might open the door to political interference, and that concern is shared by many outside this place, including the awarding bodies. We are also concerned that future Secretaries of State might be tempted to select and promote the qualifications that they think are best, even though they might not put the needs of the learner first.

Amendment 66 is complementary to amendment 554, because it requires that Ofqual should maximise choice for pupils and learning providers. It would ensure, therefore, that Ofqual had regard to allowing a choice of regulated qualifications and that their availability should be driven by the needs of the learner, rather than by Government diktat. The clause says that Ofqual must have regard to

“the need to ensure that the number of regulated qualifications available...is appropriate”.

What the word “appropriate” means is unclear. It is also unclear what the role of choice is going to be in determining which qualifications are available. I hope that we will have clarification from the Minister on that point today.

Amendments 67 and 555 are complementary. They remove Ofqual’s responsibility to ensure that there is not an excessive number of regulated qualifications in any one area. Our concern, following my comments about amendments 554 and 66, is that the Government might seek unnecessarily to restrict the number of qualifications, and to pursue an obsession with the number available rather than putting the needs of learners first.

Amendment 519 seeks to clarify the Government’s thinking on how young people who have English as a second language will be dealt with. What support will be available to them for examinations, compared with children with special educational needs? The Bill is already clear about how youngsters with learning needs will be dealt with. There is a reference in the clause to young people with other needs, including English as a second language, but we are seeking to address a lack of clarification on how youngsters who have English as a second language will be dealt with. We want to ensure that the Bill is consistent on Ofqual’s consideration of the needs of pupils for whom English is an additional language.

The Minister will be aware that guidance on key stage tests is already issued to staff on how pupils who have English as a second language can be supported. Specifically, it states:

“Language staff may support pupils who are learning English as an additional language. The instructions and questions may be translated, and pupils may respond in a language other than English.”

Within those guidelines, it is important that no additional interpretation of, for example, the mathematics that are being assessed in a task is provided during the process of translation. It would therefore be helpful to find out how the Minister anticipates those needs being protected  by Ofqual, and what role she expects Ofqual to play in supporting students who have English as a second language.

Amendment 9 was tabled following discussions between the Liberal Democrats and one of the external boards, Cambridge Assessment. It would allow exam boards time to create new qualifications and ensure that

“the timing of the exam cycle, and the need to allow awarding bodies sufficient time to develop qualifications” would be taken into account by Ofqual in pursuing its duties. In particular, it would add a new factor to subsection(2) to which Ofqual would have to have regard.

The context for this proposal is that many of the examination boards felt that the amount of time given to develop, for example, the new diplomas, was restricted. There is always a difference between the political cycle, in which there is a great pressure to make new announcements and to demonstrate that new qualifications and changes to Government policy are being introduced, and the cycle of schools, colleges and awarding bodies. In the latter, if teaching is to be done sensibly and if qualifications are to be developed sensibly, proper time must be given for that work, and thought must be given to how the timing of the exam cycle will require additional time for development work.

Finally, amendment 220 would add a requirement for Ofqual to have regard to

“information provided by the recognised awarding bodies” to subsection (2). The amendment was inspired by discussions with AQA. Its view and ours is that it is important for Ofqual to have regard to the expertise and practical knowledge of the awarding bodies. In some cases, that knowledge and expertise has been developed over more than a century. Arguably, the credibility and experience in many of the bodies is greater than that within the Department, and certainly within a new body of this type. We hope that the Minister will indicate either that she is willing to accept the amendment, or that it will be clearly understood that Ofqual will have a responsibility to take into account such information provided by awarding bodies.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools) 9:15 am, 26th March 2009

We have just had a Division that was all about competence and the fact that the Government have tabled more than 200 amendments to their own Bill. It was about Labour Back Benchers not bothering to turn up—even now, I can see that only four Labour Back Benchers have turned up to support Government Ministers. It was also about Ministers not being alert to the procedures of the Committee, which we saw in earlier sittings, when they failed to vote the right way on one of their own clauses.

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

If the hon. Gentleman looks behind him, he will see one Conservative Member, which is only 25 per cent. of Conservative Back Benchers.

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

I will not delay the Committee by responding at length to that, except to say that we have two Back Benchers in this Committee, one of whom is here. The other Conservative members of the Committee are Front Benchers. We have also agreed not to have one Back Bencher here for compassionate reasons on the part of a Member on the Government side of the Committee.

Amendment 413 would remove paragraph (a) from subsection (2), which states that

“Ofqual must have regard to...the need to ensure that the number of regulated qualifications available for award or authentication is appropriate”.

Why does that have to be in the Bill? Surely the role of Ofqual is to safeguard standards in the qualifications that it accredits, and not to limit the number of qualifications. Which qualifications prove popular with employers and universities should be up to them and to students. If we want a genuine market in qualifications, we need to let that market flourish and innovate.

The tardiness of the Qualifications and Curriculum Authority in accrediting the international GCSE has enabled the QCA to continue with changes to the GCSE exam, which were not demanded or desirable, but which have been allowed to go ahead as there has been no more rigorous competitor exam to which schools that value rigour can turn. Amendment 414 similarly removes subsection (3) from the clause. That subsection defines the appropriate number of qualifications for the purpose of subsection (2)(a) as providing a reasonable choice, but does not allow the number to become excessive. It should not be the role of Ofqual to have a view about the number of qualifications, and that provision should therefore be removed from the Bill.

Amendment 140 seeks to amend the definition of the people that Ofqual must have regard to if they supply information to Ofqual. At the moment, only information provided by the Qualifications and Curriculum Development Agency and Ofsted is specifically mentioned. There should be a specific reference to representatives of employers or higher education institutions. Employers, universities and colleges are the principal users of qualifications, and their concerns should be paramount in assessing the rigour or standards of the qualifications. Although there is reference to having regard to the reasonable demands or requirements of employers and higher education in clause 126(2)(d) and (e), there is no requirement for Ofqual to have regard to the information that those bodies supply to Ofqual. Given the access that the bodies will have to important information about standards emanating from the success of the holders of those qualifications at university and college or in industry, not to include such a duty is a major omission from the Bill.

Finally, amendment 558 would alter the general duties of Ofqual. At present, clause 126(2)(a) requires Ofqual to have regard to the need to ensure that the number of regulated qualifications is appropriate. Amendment 558 would replace that duty with

“the need to ensure that there is a reasonable level of choice for learners”.

We agree that Ofqual should look into the number of qualifications available in a given area, but it seems better to construct the legislation with a view to preserving a reasonable degree of choice for students. If the duty were phrased in that way, it would offer reassurance to those who fear that Ofqual’s duty in this area could lead to a loss of diversity in the market for qualifications. It would also offer greater protection to innovation than the current wording. In its briefing to the Committee, Edexcel stated that it wanted Ofqual’s creation to lead to a

“qualification system that promotes diversity and choice”.

We agree with that and believe that the amendment, with its specific focus on the student, or learner, would help to ensure that.

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

All the amendments that have been tabled today relate to Ofqual’s general duties, as set out in clause 126. Those duties cover a range of considerations, including the following, which are relevant to these amendments. Ofqual is required to have regard to the reasonable requirements of employers and higher education institutions, the reasonable requirements of relevant learners, and information provided to them by “other relevant persons” as the Secretary of State may direct. In this instance, “relevant persons” means those with knowledge of, or expertise in, the needs of employers, by which we mean sector skills councils, the employer-led bodies which are responsible for assessing and determining the skills requirements of their sector of the economy. Because of their constitution we cannot name them in the Bill. Ofqual is also required to try and ensure that the number of regulated qualifications gives learners a reasonable level of choice without being unnecessary duplication—not too many qualifications in similar subjects or serving similar functions.

Institutional change and simplification of the adult qualifications market was one of the key recommendations of the Leitch report on skills. Now more than ever adults must have easy access to the economically valuable skills and qualifications demanded by employers. Ofqual’s duty to avoid unnecessary duplication of qualifications will help to simplify the qualifications market in support of that imperative.

I shall start with amendment 554, which would alter Ofqual’s general duties to make it have regard principally to the interests of learners. Learners are hugely important to what Ofqual is doing, but so are employers and higher education institutions, which will be key audiences for many of the qualifications that Ofqual regulates. As a regulator, it will be part of Ofqual’s role to balance competing interests. In general, I would not expect big conflicts between those interests. However, if Ofqual faced such a conflict, it would need to be able to consider which to prioritise on the facts of the case—it should not be forced by the legislation to prioritise learners, even if there were good reasons for doing otherwise.

Amendments 413, 414, 558, 66 and 67 are all aimed at removing Ofqual’s duty to tackle unnecessary duplication of qualifications. I am worried that the amendments would allow a free-for-all of all regulated qualifications, but that is not what learners or employers need. Fundamental to the success of a qualification is that its purpose is understood by those who need to use it. An employer faced with applicants for a job who, between them, had qualifications in plumbing, applied plumbing, practical plumbing, creative plumbing and commercial plumbing would be bewildered. The employer would not know what each qualification meant or how they related to each other.

We need qualifications that are easily understood. Equally, we want to encourage a market in qualifications, promoting choice, responsiveness, innovation and value. We want different bodies to be offering that—plumbing qualifications that are clearly understood and meet the needs of those who employ plumbers, for example. Learners need a real choice between quality qualifications,  not a spurious choice between qualifications with a confusing range of labels hiding the fact that they are pretty much the same thing.

Awarding bodies have had some success in voluntarily rationalising the qualifications titles on offer, but the regulator has a responsibility too. The amendments, by removing the requirement on Ofqual to have regard to that balance between choice and proliferation, would damage the effectiveness of the qualifications system for employers and, therefore, hinder our ability to meet the skills challenges we face as a nation.

I was asked what was meant by “appropriate” in subsection 126(3), and that would be something for Ofqual to consider and consult on. Too few qualifications and there would not be enough choice, too many and we have the confusion about which many employers and institutions are complaining. Ofqual will need to come to a judgment on the balance, although I expect them to consult on what that balance is.

Amendment 519 would require Ofqual to have regard to the reasonable additional requirements of persons with English as an additional language. Subsection 126(9) specifically—rightly—says that learners with English as an additional language should not automatically be taken to have a learning disability. The amendment is not necessary, because the Bill specifies in subsection (2)(b) that Ofqual should have the regard to

“the...reasonable requirements of relevant learners”— that means all relevant learners, regardless of what language they speak at home.

If we were to single out a group of learners for mention over and above that, we would have to be confident that that could be justified—that there were good reasons, given Ofqual’s functions and objectives, to require it to have regard to that group. That test is clearly passed in relation to learners with learning disabilities. They form a large group who can present some particular issues for the qualifications and assessments systems, and we need to make sure that Ofqual is focused on meeting their needs.

However, I can see no reason to single out the needs of learners with English as an additional language, any more than, say, the needs of learners from Traveller communities, the needs of young offenders or the needs of learners who are in care. Each group may present its own challenges for Ofqual, and it will have to consider how to meet those challenges as part of its duty to have regard to the needs of all learners. By prioritising one group, we de-prioritise others and I worry that that is a bit dangerous. Unless the case is compelling, and I am not convinced that it is, we should not prioritise that group.

Amendment 9 would require Ofqual to have regard to the timing of the exam cycle and the time that awarding bodies need to develop qualifications. We do not need to write that into legislation. Throughout part 7 there are requirements on Ofqual to consult on the decisions it takes and to consider the needs of learners and potential learners. There can be no question but that it will be a listening regulator. There are many people it will need to listen to and issues it will need to bear in mind as it works out how best to do its job. Having regard to the exam cycle and how long it takes to develop the qualifications it regulates is just one of the issues that it will have to take on board and I do not think there is a reason to single it out. Making sure that  awarding bodies have the time they need to prepare high-quality qualifications and that schools, colleges and the like can adequately prepare to teach for those qualifications will all be part of Ofqual performing its functions effectively—and performing its functions effectively is a duty on it under subsection (7).

Amendment 220 would require Ofqual to have regard to information provided by recognised awarding bodies. Ofqual will, of course, consult awarding bodies regularly, as I said earlier, but if the legislation required Ofqual to have regard to information provided by recognised awarding bodies this would skew the relationship between Ofqual and the bodies it is there to regulate. Of course Ofqual needs to be a fully, visibly independent regulator. As part of that, Ofqual will have to consult awarding bodies but it also needs to be detached enough from the awarding bodies to regulate them objectively, fairly and, where necessary, robustly. In any case—and this is not just true of amendment 220 but of amendment 9—we should restrict Ofqual’s general duties to the reasons for which Ofqual is regulating and what it must bear in mind in going about its functions, rather than the specific things it must do when regulating. It would undermine the independence and effectiveness of the regulator if the legislation is too prescriptive about how it should do its job rather than what it should be aiming to achieve. Amendment 140 would require Ofqual to have regard to information provided by employers and higher education institutions. We do not think that necessary. As I explained earlier, Ofqual is already under an obligation to be tuned into the needs of employers, directly and through sector skills councils, and to the needs of higher education.

To sum up, in the light of the explanations I have given, I hope the hon. Members will consider withdrawing their amendments.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families) 9:30 am, 26th March 2009

I am grateful for the Minister’s response, though disappointed she has not been willing to accept some of the amendments; on others she has given some assurances. I am particularly concerned about the issue of learner choice and, with your permission, Mrs. Humble, I seek to divide the Committee on amendment 66.

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

I would like indicate to you, Mrs. Humble, through an intervention on the hon. Gentleman, that I would like to support the hon. Gentleman’s amendment 66 and also press for amendment 413 to be put to a vote when the time comes.

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

I am grateful to the hon. Gentleman and, as his amendment 413 has a similar and complementary effect to mine, I obviously would support it.

I beg to ask leave to withdraw amendment 554.

Amendment 554, by leave, withdrawn.

Amendment proposed: 413, in clause 126, page 72, line 10, leave out paragraph (a).—(Mr. Gibb.)

The Committee divided: Ayes 8, Noes 10.

Division number 28 Nimrod Review — Statement — Clause 126

Aye: 8 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Amendment proposed: 66, in clause 126, page 72, line 11, at end insert

‘and maximizes choice for pupils and learning providers;’.—(Mr. Laws.)

The Committee divided: Ayes 8, Noes 10.

Division number 29 Nimrod Review — Statement — Clause 126

Aye: 8 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Amendments made: 433, in clause 126, page 72, line 31, leave out ‘types of’.

See Member’s explanatory statement for amendment 429. The purpose of this amendment is the same as that given for that amendment.

Amendment 434, in clause 126, page 72, line 32, leave out ‘regulated qualifications of each type’ and insert ‘different forms of such qualifications’.

See Member’s explanatory statement for amendment 429. The purpose of this amendment is the same as that given for that amendment.

Amendment 435, in clause 126, page 72, line 33, leave out ‘types of’.—(Sarah McCarthy-Fry.)

See Member’s explanatory statement for amendment 429. The purpose of this amendment is the same as that given for that amendment.

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

I beg to move amendment 521, in clause 126, page 72, line 44, leave out subsection (6).

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

With this it will be convenient to discuss the following: amendment 520, in clause 126, page 72, line 46, leave out subsection (7).

Amendment 6, in clause 126, page 72, line 46, at end insert

‘and establish specific and measurable success criteria for each of its objectives.’.

Amendment 200, in clause 126, page 72, line 46, at end insert ‘and in a timely manner.’.

Amendment 522, in clause 153, page 85, line 38, at end add—

‘(3) In reporting its conclusions on reviews conducted under this section, Ofqual shall not be bound to have regard to government policies in relation to assessment arrangements.’.

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

Can I take this opportunity to welcome all those Labour Members who have just go out of bed and arrived here? I am sure that members of the Government Front Bench are enormously grateful to see them. We now come to quite an important part of Clause 126—subsection (6), which contains the following statement:

“In performing its functions Ofqual must...have regard to such aspects of government policy as the Secretary of State may direct.”

We are concerned about this subsection, and amendment 521 deletes it. The Bill gives rather excessive and ill-defined powers to the Secretary of State to interfere in how Ofqual pursues its responsibilities. Therefore, the amendment helps to ensure that Ofqual has proper independence from the Government in relation to assessment arrangements. Ofqual needs to be a genuinely independent authority regulating public exams and maintaining public confidence. Its ability to do those jobs and to validate examinations should not be constrained by the Government being able to refuse to fund any new, approved examinations or to give other directions.

A few days ago, the Government issued some indicative regulations to set out and define how the powers in subsection (6) will be used. The regulations state:

“It may sometimes be appropriate for the Government formally to ask Ofqual to have regard to certain aspects of government policy.”

Although they do go on to state:

“In practice the existence of this clause in legislation may be sufficient to ensure that Ofqual has sufficient regard to government policy, without the need for the Secretary of State to act”.

They then give some examples of how and under what circumstances the Government might seek to use that power. They state that it might be used, for example, to specify that the Government wish to ensure that assessment is not unduly burdensome for schools. I welcome the Government’s acknowledgment that assessment can be unduly burdensome for schools, because it certainly has been for much of the past decade or more, and it seems that the Government have only recently become aware of how burdensome and unnecessary some of the assessment is. We recently saw the Government make an announcement in relation to key stage 3 tests that was designed to reduce the burden of testing on schools.

We question whether it is necessary to have that power and whether the example given is a good one. After all, the Government already have a lot of potential control over how the testing regime is established, through the national curriculum and the Qualifications and Curriculum Development Agency, which we will talk about later. They have the ability to frame most of the assessment through other regulations and legislation. Does the Minister have any other examples of occasions in when Ministers would wish to use the powers given in subsection (6)? Clearly the fear is that the Government have selected something with which everyone would be expected to have sympathy, in relation to ensuring that the burden of assessment is not excessive, but the powers the Government are seeking to secure today, based on concerns that many people share, could be used in more draconian ways to interfere with Ofqual’s job and undermine its independence? I would like to hear a little more from the Minister on why they seek that power,  and I would like her to flesh that out with other examples of occasions when she would wish the Government to have that power to direct Ofqual.

Amendment 520 would remove subsection (7), which states:

“Ofqual must perform its functions efficiently and effectively.”

I do not think that anyone would disagree with that, but my question is really in the light of the Minister’s comments on the last group of amendments, in which she indicated that it was not necessary to put in a whole load of requirements in relation to timeliness and other things that, she explained to the Committee, ought to be perfectly obvious. If she is right, does not that fall precisely into that category, and is not it obvious that any body of this type would be expected to behave in an efficient and effective way? Is not it clear from the debates we have had that Ofqual will have general duties and responsibilities in that regard and that the Bill gives the Secretary of State powers to intervene where Ofqual appears not to be doing its job? Is not this really, therefore, a litigant’s paradise, rather than a statutory duty that ought to be in the Bill?

Amendment 6 was suggested to us by another of the awarding bodies. The obligations on Ofqual to meet its objectives are not clear, robust or specific, and as a consequence the public might not have confidence in Ofqual’s ability to do its job properly. The amendment would require specific and measurable success criteria for each of the objectives set out for Ofqual so that Parliament, including Select Committees, can assess Ofqual’s job properly, hold it to account and ensure that there are at least some useful ways of ensuring what are otherwise rather general objectives are met. That amendment is the final one of our amendments in this group. The others are all linked amendments.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools) 9:45 am, 26th March 2009

I shall speak very briefly, since we have had a debate elsewhere on the content of this amendment, which is the importance of timeliness. This amendment seeks to add to clause 126 a duty that Ofqual should not only perform its functions efficiently and effectively but in a timely manner.

That is really at the behest of the awarding bodies, which are concerned that delays in delivering the qualification can cause problems further down the line in schools and elsewhere, if there is too much haste at the end of the process, caused, as I say, by delays earlier on in the delivery of the qualification.

I want to quote briefly from Cambridge Assessment. It said:

“The timeliness of the delivery of a qualification, its accreditation and critical decisions, is one of the most basic but important factors in the development process. It is crucial for teachers, colleges and schools to be able to prepare properly for new qualifications. Nobody wants to see a reoccurrence of the introduction of Curriculum 2000, which due to compressed timetables, saw courses starting before text books were printed.”

On that point, I await the Minister’s response to these important amendments.

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

Amendment 521 proposes removing the whole of subsection (6) from clause 126, as the hon. Gentleman explained. I ought to point out that the wording of the provision is identical to the wording in the legislation for another independent body,  Ofsted. In both cases, for Ofqual and Ofsted, the reason why the wording is there is that the organisations are responsible for activities that are at the heart of the delivery of education policy.

The parallel with Ofsted is important here, because Ofsted is widely recognised as an independent body able to speak out without fear or favour. In Ofqual’s case, it will be regulating qualifications that are central to Government policy and assessments that are statutory, which will be delivered by another public body, the QCDA.

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

I think that the note that was circulated about indicative regulations showed that Ofsted has never used those powers. Is that correct?

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

The Secretary of State has never used the powers in relation to Ofsted. Yes, that is absolutely true and we envisage that it would only be on very rare occasions that the Secretary of State would use the power in this case. However, we still believe that in both cases the power should be there.

The thinking behind the amendment tabled by the hon. Member for Yeovil seems to be a fear that this provision—subsection (6) of the clause—might undermine Ofqual’s independence, but I do not agree with that assessment. Ofqual will not be required to endorse Government policy; it will not be required to consult the Government on its decisions, and it will not be required to temper its judgments to reflect Government policy. I would like to put that on the record.

The explanatory notes are helpful and the hon. Member for Yeovil referred to one example. He also asked if I had any other examples of a situation where we might wish to use this direction if required. There are other examples. We may wish to ensure that there is a range of qualifications that engage young people who are at risk of disengaging from education and dropping out; that is Government policy. To take an earlier example, concerns were expressed about the needs of people for whom English is an additional language, which the Government wanted Ofqual to have regard for. We may also wish to ensure that skills that employers want are embedded in particular qualifications. Those are examples of how there may be particular requirements.

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

I am sorry that I am not able to recall the exact words that the Minister used when she discussed the first of those examples that she helpfully gave to the Committee, but I think that she was talking about qualifications that might be particularly suitable for disadvantaged young people. Can she indicate how Ofqual, as a regulator, would use those powers, since the encouragement for those types of qualifications to be made available must surely come from somewhere else within the system, rather than coming from the regulator? Why would the regulator have a particular role in this respect?

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

Because the regulator would be looking at those qualifications to assess whether or not they met particular needs. For example, we might say that the regulator should have regard to the needs of people who we refer to as NEETs—people who are not in education, employment or training and who are in  danger of dropping out. The regulator would have to make sure that the criteria allowed for that. That would be part of the regulator’s role. As I say, I do not envisage that the Secretary of State would have to make a direction to do that.

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

I am grateful to the Minister for giving way. She is not suggesting therefore that Ofqual would seek to bring forth particular new qualifications that would meet the needs of that group of youngsters. Is she saying that Ofqual might want to use powers to direct or encourage the awarding bodies to adjust their qualifications to take into account the needs of that group in some way?

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

It is not the role of Ofqual to deliver the qualifications. It is the role of the awarding bodies to do that. It would be up to Ofqual to decide how it would use the power that we have given it to have regard to certain aspects of Government policy. The essential point that comes out of this is the one I made earlier: I do not believe that this provision undermines Ofqual’s independence in any way.

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

I still do not understand what the Minister is saying that Ofqual will do in relation to qualifications to meet the needs of that group of students. What will Ofqual say to the awarding bodies to ensure that the considerations that the Minister described are met as a consequence of the Secretary of State’s intervention? What will happen and what difference will it make to the nature of the qualifications that are coming forward?

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

That would be for Ofqual to decide. It may decide that, in having regard to that direction from the Secretary of State, it does not need to do anything. It just means that it has to have regard to it.

Photo of John Hayes John Hayes Shadow Minister (Education)

While the Minister is having some thinking time could I ask her to comment on the publication yesterday of the Government’s response to the Innovation, Universities, Science and Skills Committee report, “Re-skilling for recovery” where they acknowledge that the landscape can be confusing

“particularly given the number of bodies with different responsibilities”?

Excitingly, they suggest that they are going to set up a special body to oversee this transition to these new bodies. Will that special body look at this part of the Bill as well as some of the issues that the hon. Gentleman has raised?

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

As I have not read the response to the report yet, I cannot answer that question at the moment.

Photo of John Hayes John Hayes Shadow Minister (Education)

The Government say that the matter is being considered by Ministers so I am a bit surprised that the hon. Lady does not know about it. They state:

“we have an overarching Joint Programme Board (comprised of senior officials from DCSF, DIUS, the LSC and local authorities) overseeing the transition work and reporting to Ministers”.

I should have thought that it was fairly straightforward whether that board—I do not think her bureaucracy committee will be too pleased about another board—will look at this part of the Bill.

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

As I said to the hon. Gentleman, I do not have the details to hand. I will be more than happy to write to him on that point.

Amendment 520 would remove subsection (7), which requires Ofqual to perform its functions efficiently and effectively. As the hon. Gentleman said, no one expects it to perform its duties inefficiently and ineffectively. As I said on the previous amendment, Ofsted has the same provision. I would prefer to leave it in there. I think there is a difference. It is efficiently and effectively between the timeliness. That was the point that we debated on the previous amendment, which we did not think was necessary. I think that the phrase “efficiently and effectively” is broad enough and so should remain in the Bill.

Amendment 6 would require Ofqual to establish specific and measurable success criteria for each of its objectives. I can readily agree that Ofqual will need to measure and report on the achievement of its objectives. This is a key feature of its accountability. I know that Ofqual, in its interim form, agrees with this, and is planning to identify measurable success criteria and report on them, including in its annual report. However, I do not think that we need to put it into the legislation. Ofqual will be accountable to Parliament. The Select Committees, on Parliament’s behalf, will no doubt implement procedures for scrutinising Ofqual’s work and assessing what it has achieved. Ofqual is bound to put in place exacting success measures by which its performance can be assessed, and I am sure that the Select Committee will pull it up if it does not. I do not think that that needs to be put on the face of the Bill. If it were, it would open up questions about why other things were not. I agreed with the hon. Member for Yeovil on Tuesday that Ofqual would write to him about its specific objectives. Plenty of organisations operate quite effectively without such requirements.

Amendment 200 would require Ofqual to carry out its functions in a timely manner. We do not need to make that explicit in the Bill either. Public bodies are under an implicit duty to exercise their functions reasonably, which includes acting in a timely manner and avoiding unjustified delay. The fact that we also require Ofqual to perform its functions efficiently and effectively—a requirement that the amendment would remove—can only strengthen the expectations that Ofqual must act in a timely way when making decisions.

However, Ofqual will not be obliged to hurry inappropriately in making decisions. Nobody—neither the Government nor the awarding bodies—should be able to bounce it into decisions with which it is not comfortable. If time is needed to get something right, Ofqual will be able to allow for that under the Bill. On that basis, I invite the hon. Gentleman to withdraw their amendments.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families) 10:00 am, 26th March 2009

I am grateful to the Minister for her detailed response to the amendments. I welcome her comments about amendment 6, which give us some reassurance that Ofqual will establish specific and  measurable success criteria. I am a little disappointed that she did not agree to remove clause 126(7), which I think is redundant. There seems to be an inconsistency between what is and is not considered important enough to be prescribed in the Bill, following our discussion of quite a number of amendments in the past few sittings.

On amendments 521 and 522, I was genuinely confused by some of the examples given by the Minister, particularly the one about how Ofqual might be directed on discharging its responsibilities relating to youngsters with particularly high needs. This is an important aspect of the Bill, because Ofqual’s independence is crucial if the new organisation is to work. Subsection (6) of the clause gives a potentially open-ended commitment to the Secretary of State to interfere in how Ofqual discharges its duties. Although I accept that the Minister said that she intended it to be comparable to the power relating to Ofsted, which has not often been used, who knows what some future Government might seek to do with subsection (6)?

I appreciate that the Minister was trying to be helpful by giving us a number of examples that were not in the explanatory note circulated by the Government the other day. Given that the issue is important and may feature in our future proceedings, is she willing to write to Committee members fleshing out the two or three examples that she gave?

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

I would be more than happy to write to the hon. Gentleman with that information, but I would like to make the point that the Secretary of State will direct Ofqual to consider an issue as far as it is relevant. They cannot force Ofqual to do anything.

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

Yes. However, subsection (6) states:

“In performing its functions Ofqual must also have regard to such aspects of government policy as the Secretary of State may direct.”

That still implies that there is quite a power, potentially, for the Secretary of State to interfere or meddle with, or to lean on, Ofqual. We all know, particularly from how the Qualifications and Curriculum Authority is perceived to have operated during the past decade or so, that even bodies with a notional independence can be regarded as being quite close to the Government and influenced by them in circumstances in which there are proximity and powers.

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

Will the hon. Gentleman accept that Ofqual is a totally different body from the QCA? Ofqual will be an independent regulator and totally separate.

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

I accept that that is the intention, but my point centres on whether the powers that the Government are giving themselves will actually ensure that independence. My concern about the last few clauses that we have debated is that Ofqual will not be independent enough. I am, however, pleased with the Minister’s reassurance that she is willing to write to members of the Committee to explain the way in which the Secretary of State might intervene to direct or encourage Ofqual in relation to the needs of deprived youngsters. I genuinely do not understand how Ofqual would then be expected to interact with the awarding bodies, who would themselves be interested in hearing a little bit more about the types  of examples that the Minister has given. Nevertheless, in view of the Minister’s reassurance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 126, as amended, ordered to stand part of the Bill.