Section 33E: Principal powers of a sixth form college corporation, Section 33F: Supplementary powers of a sixth form college corporation, Section 33G: Further provision about supplementary powers

311.     These sections set out the principal and supplementary powers of sixth form college corporations, reflecting powers of FE corporations in sections 18 and 19 of the FHEA 1992.

Section 33H: Duty in relation to promotion of well-being of local area

312.     This new section will place a duty on sixth form college corporations, when providing education and training for young people and adults, to take account of the way in which they contribute to the economic and social well-being of people who live and work in the area. This mirrors clause 242 which places a similar duty on FE corporations.

Section 33I: Constitution of sixth form college corporation and conduct of sixth form college, Section 33J: Special provision for certain institutions, Section 33K: Instrument and articles of new sixth form college corporations, Section 33L: Changes to instruments and articles

313.     These new sections contain provisions relating to the instruments and articles of government of sixth form colleges. Under section 33I, all sixth form colleges must have instruments and articles of government. Section 33J makes provision requiring sixth form colleges of a particular character — mainly faith-based institutions and those established by foundations — to reflect those characteristics in their trust deeds and the membership of their governing bodies. The initial instruments and articles of government of a new sixth form college established under section 33C will be drawn up by the YPLA (section 33K). Section 33L sets out procedures by which the YPLA may modify instruments and articles of government in consultation with sixth form college corporations.

Section 33M: Charitable status of a sixth form college corporation

314.     This new section establishes that sixth form college corporations are exempt charities within the meaning of the Charities Act 1993.

Section 33N: Dissolution of sixth form college corporations

315.     Section 33N gives power to the Secretary of State to dissolve a sixth form college corporation and transfer the property, rights and liabilities of the corporation to another person or corporation, which may include the responsible LEA. Orders may make provision for the transfer of staff (subsection (8)). Before making an order to dissolve a sixth form college corporation and transfer assets and liabilities, the Secretary of State must consult the corporation and the responsible LEA.

316.     Paragraphs 4 to 7 of Schedule 8 make amendments to the FHEA 1992 to distinguish sixth form colleges and sixth form college corporations from FE colleges and FE college corporations. Paragraph 8 of the Schedule amends the provisions of the FHEA 1992 relating to intervention in colleges to add new sections 56E to 56J.

317.     Section 56D (inserted by paragraph 11 of Schedule 6) requires a LEA or the YPLA to notify the Chief Executive of Skills Funding about concerns that they have about FE colleges other than sixth form colleges. The Chief Executive must have regard to those views when considering whether to intervene.

Sections 56E and 56F: Intervention by LEAs: sixth form colleges

318.     Section 56E replicates for local education authorities the powers previously held by the LSC for intervention in sixth form colleges. This section sets out the matters that would trigger consideration of intervention in a college (subsection (2)) and the arrangements by which the LEA must notify the Secretary of State and the YPLA, and the college, of their intention to intervene and the reasons for doing so. The powers of the LEA are explained in subsection (6). The LEA may give directions to the governing body to make arrangements for collaboration (subsection (7)) and to dismiss a member of staff, if the governing body have power under their institution’s instruments and articles of government (subsection (10)). The governing body must comply with any directions made under this section. In addition section 56F allows a local education authority to appoint no more than two additional members of a governing body of a sixth form college.

Section 56G: Intervention policy: sixth form colleges

319.     This section requires the YPLA to prepare a statement of the intervention policy, to which LEAs are required to have regard (subsection (7)) when using their powers under section 56E. The YPLA must consult on the statement and send a copy to the Secretary of State, which he is required to lay before each House of Parliament. The YPLA must then publish that policy, as approved by the Secretary of State.

Sections 56H & 56I: Intervention by YPLA

320.     Section 56H allows the YPLA to intervene in the running of a sixth form college in the circumstances set out in subsection (1). These are that the YPLA proposes to commission the provision of education or training at the college and is satisfied that the grounds in section 56E for intervention by a LEA are satisfied (and that it would be appropriate for a LEA to exercise its powers under that section). The YPLA’s intervention powers correspond to those of a LEA (section 56H(5)). Section 56I gives the YPLA power to appoint additional governors, mirroring LEAs’ powers under section 56F.

Section 56J: Notification by Chief Executive of Skills Funding of possible grounds for intervention

321.     This new section requires the Chief Executive of Skills Funding to notify the responsible local education authority and YPLA if he has concerns about post-19 provision at sixth form colleges. The local education authority, or the YPLA where it is involved under its powers in section 56H, must have regard to the Chief Executive’s views when considering whether to intervene. This is the mirror provision of section 56D.

322.     Paragraphs 9 to 15 make further consequential amendments including to definitions of terms used in the new sections.

PART 7: OFFICE OF QUALIFICATIONS AND EXAMINATIONS REGULATION

323.     This Part provides for the establishment of a new Non-Ministerial Department, Ofqual. In relation to England, the new body will regulate academic and vocational qualifications (excluding foundation, first and other degrees awarded by higher education institutions) and NC and EYFS assessment arrangements. Ofqual will also regulate vocational qualifications (again excluding qualifications awarded by higher education institutions) in Northern Ireland.

324.     Ofqual will take over the regulatory functions of the QCA, although with differences in the ways the functions are exercised, and with a different set of powers, principles and objectives governing their exercise. Part 8 of the Bill re-names the QCA the Qualifications and Curriculum Development Agency, with that body retaining its non-regulatory functions.

325.     Regulation of qualifications is, and will remain, voluntary: there is no prohibition on any person offering a qualification without having been recognised by Ofqual. There are two key reasons why bodies will choose to seek recognition by Ofqual and so to have the qualifications they award regulated: first, because being regulated shows that the body has been checked as being fit to award trustworthy qualifications; and second, because, as a matter of policy, the Government will normally only approve qualifications for funding by maintained schools or in colleges if they are regulated.

326.     In April 2008, as a first step towards the establishment of Ofqual as a statutory regulator, the Secretary of State for Children, Schools and Families directed the QCA to set up a committee for the purpose of “exercising on behalf of QCA functions and powers in relation to the regulation of qualifications and National Curriculum assessments”. In this way “Interim Ofqual” was established, operating within the parameters of the current legislation. The provisions of the Bill complete the transition to having a separate regulator for qualifications and assessment arrangements by establishing Ofqual.

Chapter 1: Establishment, objectives and general duties

Clause 124: The Office of Qualifications and Examinations Regulation

327.     This clause establishes the Office of Qualifications and Examinations Regulation as a body corporate, specifies that the body will be referred to as “Ofqual” in this Bill, and gives effect to Schedule 9, which contains further detailed provisions about matters such as Ofqual’s constitution and proceedings.

Schedule 9 - The Office of Qualifications and Examinations

328.     This Schedule makes provision about the constitution and governance of Ofqual.

Status

329.     Ofqual is to perform its functions on behalf of the Crown (paragraph 1). This provision makes Ofqual a Non-Ministerial Government Department.

Membership

330.     The Chair of Ofqual is appointed by the Crown. The “ordinary members” are appointed by the Secretary of State, who may appoint one of the ordinary members as the deputy chair. One of the ordinary members must be the Northern Ireland member, appointed following consultation with the Department for Employment and Learning in Northern Ireland, reflecting Ofqual’s responsibilities there.

331.     The Chair will be known as the Chief Regulator of Qualifications and Examinations. The Government does not intend this title to imply that the chair has any statutory functions in his or her own right - all the functions in Part 7 are functions of Ofqual itself - but in practice the Chief Regulator is likely to be the public face of Ofqual.

332.     Paragraphs 2 to 5 set out the arrangements for appointing the Chief Regulator and ordinary members, the terms of appointments, and the responsibility of the Secretary of State for determining their remuneration, allowances and expenses.

Chief executive and other staff

333.     The chief executive of Ofqual is an ex-officio member of Ofqual. The first chief executive will be appointed by the Secretary of State (because Ofqual will not exist at that stage, it may not appoint); thereafter the appointment will be for Ofqual. Ofqual may appoint staff; the numbers of staff and their conditions and remuneration are to be agreed with the Secretary of State.

Committees

334.     Paragraphs 7 to 11 set out the arrangements for Ofqual establishing and delegating to committees and sub-committees, and give Ofqual the power to establish a committee jointly with another body. (The latter power would, for example, allow Ofqual to set up a joint committee with other qualifications regulators in the United Kingdom.) Joint committees are allowed to regulate their own procedure. Paragraph 10 also allows Ofqual to delegate functions to a member of Ofqual or of its staff.

Supplementary powers

335.     Ofqual may do anything that it considers necessary or appropriate for the purposes of, or in connection with, its functions, but may not lend money.

Objectives and general duties

Clause 125: Objectives

336.     This clause sets out five objectives for Ofqual in discharging its functions:

• the qualifications standards objective,

• the assessments standard objective,

• the public confidence objective,

• the awareness objective, and

• the efficiency objective.

337.     The statutory objectives in the current legislation, which apply to both QCA’s regulatory and non-regulatory functions, are much broader.

338.     Various of Ofqual’s objectives relate to “regulated qualifications”, which is a term defined in clause 127.

339.     Various of Ofqual’s objectives relate to “regulated assessment arrangements”, as defined in clause 128.

340.     The qualifications standards objective - set out in clause 125(2) - is for Ofqual to secure that regulated qualifications: (a) give a reliable indication of knowledge, skills and understanding; and (b) indicate a consistent level of attainment (including over time) between comparable regulated qualifications.

341.     Similarly, the assessment standards objective - set out in subsection (3) - is for Ofqual to promote the development and implementation of regulated assessment arrangements which: (a) give a reliable indication of achievement, and (b) indicate a consistent level of attainment (including over time) between comparable assessments. The ultimate responsibility for regulated assessment arrangements, which are statutory assessments, lies with the Secretary of State, so Ofqual’s role is to monitor and report on those arrangements, and in doing so to promote the maintenance of standards.

342.     Ofqual must perform its functions with the aim of ensuring that comparable qualifications and assessments - whether they are contemporaneous or delivered at different times - indicate a consistent level of attainment. If the requirements of a qualification have changed over time, perhaps because the requirements of the industry they relate to have evolved (this will be a particular issue in the IT industry, for example), it may be that a modern qualification is not comparable with its predecessor and therefore that Ofqual does not have to secure a consistent level of attainment. But if two qualifications are comparable, Ofqual must act to ensure that they do indicate a consistent level of attainment.

343.     The standards of qualifications and assessments - the benchmarks against which learners are measured - are not the same thing as the standards of education more broadly. “Standards” in this first sense are like the height of a hurdle, and Ofqual’s objective is to keep that height consistent between comparable qualifications and assessments. Whilst it is generally a policy objective of the Government to improve the quality of teaching and learning such that the number of people able to jump the hurdle increases (which is how the term “standards” is more commonly used), that is not a concern of Ofqual’s under its standards objectives.

344.     The public confidence objective is set out in subsection (4) and requires Ofqual to promote public confidence in regulated qualifications and regulated assessment arrangements. This is to ensure not only that qualifications are reliable but that they are trusted.

345.     The awareness objective is set out in subsection (5) and, unlike the standards and public confidence objectives, it applies only in relation to regulated qualifications. The Secretary of State has statutory responsibility for regulated assessment arrangements, so it is for him to determine how to ensure that there is sufficient awareness of them.

346.     This objective is concerned with promoting awareness of the range of regulated qualifications on offer, the benefits of regulated qualifications to learners, employers and institutions within the higher education sector and the benefits to awarding bodies (including, for example, employers awarding their own qualifications) of regulation.

347.     The efficiency objective is set out in subsection (6) and requires Ofqual to ensure that regulated qualifications are delivered efficiently and that fees payable for the award or authentication of a regulated qualification represent value for money. This objective reflects the fact that Ofqual will have a role as an economic regulator, with a remit that includes a power to cap examination fees. Ofqual does not have a specific efficiency objective in relation to regulated assessments, because these are statutory assessments delivered on behalf of the Secretary of State, rather than - as with qualifications - by independent organisations operating in a regulated market.

Clause 126: General duties

348.     Subsection (1) requires Ofqual in carrying out its functions so far as is practicable to act in a way that is compatible with its objectives under clause 125 and which it considers most appropriate for the purposes of meeting its objectives.

349.     Subsection (2) sets out the matters to which Ofqual must have regard in performing its functions.

350.     Subsection (2)(a) requires Ofqual to have regard to the need to ensure that the number of regulated qualifications is appropriate. Subsection (3) provides that an “appropriate” number of qualifications is based on ensuring a reasonable level of choice for learners in terms of both the number of different types of regulated qualifications on offer, and the number of regulated qualifications of each type; but that the number of different types of qualifications in similar subject areas or serving similar functions should not be excessive.

351.     For example, Ofqual would have regard to the need to avoid having an excessive number of separate qualifications with different titles all related to, say, retail management, if they all covered much the same subject area and served broadly the same purpose.

352.     Subsections (2)(b) and (c) require Ofqual to have regard to the reasonable requirements of:

• those who are seeking to obtain or who might reasonably be expected to seek to obtain regulated qualifications, and

• pupils and children in relation to regulated assessment arrangements,

• including in each case those with learning difficulties.

353.     The terms used in these subsections are defined in subsections (8) to (10) and clause 163(1).

354.     Under subsections (2)(d) and (e), Ofqual must have regard to the reasonable requirements of employers and institutions within the higher education sector (as defined in clause 163(1)).

355.     Under subsection (2)(f), Ofqual must have regard to information provided to it by the QCDA and Ofsted, and any bodies specified by the Secretary of State which have knowledge of or expertise in the requirements of industry, commerce, and finance or other employers. This provision will allow the current arrangements to continue, by which the regulator must take into account the views of Sector Skills Councils in relation to qualifications in their sectors. Under a similar provision in the current legislation (Education Act 1997), Sector Skills Councils in England have been designated by the Secretary of State as bodies to which the regulator must have regard in regulating vocational qualifications. This is in support of the Government’s policy for improving the relevance to employers of vocational qualifications as part of its skills strategy.

356.     Under subsection (2)(g), Ofqual must have regard to the desirability of facilitating innovation in connection with the provision of regulated qualifications.

357.     Subsection (2)(h) requires Ofqual to have regard to the specified purposes of regulated assessment arrangements, as defined in clause 128(7). The definition operates by reference to definitions in section 76(1) of the Education Act 2002 and section 41(2)(c) of the Childcare Act 2006. These make provision about the purposes respectively of National Curriculum assessment arrangements (NC assessment arrangements) and of assessment arrangements in connection with the learning and development requirements of the Early Years Foundation Stage (EYFS assessment arrangements). Those provisions are amended by paragraphs 25 and 32 of Schedule 12 to allow the Secretary of State to specify additional purposes of assessment arrangements to which Ofqual would then need to have regard.

358.     Subsection (6) requires Ofqual to have regard to such aspects of Government policy as the Secretary of State directs. This provision is modelled on a similar provision in the legislation setting up Ofsted. The Government would expect this provision to be used, for example, to specify that the Government wished to ensure that assessment was not unduly burdensome for schools.

Regulated qualifications and regulated assessment arrangements

Clause 127: Meaning of “regulated qualifications” etc.

359.     This clause describes the types of qualifications that Ofqual has the power to regulate.

360.     For a qualification to be a “regulated qualification”, three criteria must be met:

• it must not be a qualification at foundation degree level or any comparable level or first degree level or a comparable or higher level that is awarded or authenticated by a higher education institution (as defined in clause 163(1));

• it must either (a) be awarded or authenticated in England, or (b) be a vocational qualification awarded or authenticated in Northern Ireland;

• it is awarded or authenticated by a body which is recognised by Ofqual under clause 129 in relation to that qualification.

361.     The meaning of awarding or authenticating a qualification “in England” and “in Northern Ireland” is explained in subsection (4): there must be, or may reasonably be expected to be, persons seeking to obtain the qualification who are or who will be assessed wholly or mainly in England or Northern Ireland.

362.     Ofqual’s role in regulating relevant vocational qualifications in Northern Ireland may be removed by order of the Secretary of State. Before making such an order he would have first to consult the Department for Employment and Learning in Northern Ireland and the order would be subject to the affirmative procedure. This is to allow for the possibility that the Northern Ireland authorities may in future wish to change the arrangements for the regulation of qualifications in Northern Ireland.

363.     In the Education Act 1997, the QCA’s regulatory responsibilities relate to external qualifications, defined as:

“any academic or vocational qualification authenticated or awarded by an outside person..” (section 24(6)(a)).

364.      The restriction to external qualifications has been removed in the Bill, which means that Ofqual may recognise bodies which both teach and award qualifications - for example, employers or colleges which have the capability to do so. This change has implications for other legislation, for example for section 96 of the Learning and Skills Act 2000, which is amended by paragraph 20 of Schedule 12.

Clause 128: Meaning of “regulated assessment arrangements”etc.

365.     This clause describes the types of assessment that Ofqual has the duty to keep under review. “Regulated assessment arrangements” means the arrangements made for assessing pupils in England in respect of each key stage of the NC; and the arrangements for assessing children in England. (This equates currently to NC tests at Key Stages 1 and 2, teacher assessment as part of Key Stages 1-3 and the EYFS Profile.) In each case there is a new provision in the Bill for the Secretary of State to specify by order specified additional purposes for assessment. These defined specified purposes provide Ofqual with a policy framework within which it is to monitor and report upon regulated assessment arrangements, and it is required to “have regard to” these purposes.

366.     The NC assessment arrangements are made under the Education Act 2002, setting out the arrangements for assessing pupils at each key stage of the NC. The EYFS assessment arrangements are made under the Childcare Act 2006.

Chapter 2: Functions in relation to qualifications

367.     Under the Education Act 1997, which established the QCA as the regulator of qualifications, the QCA regulates at qualification level - in other words, it accredits individual qualifications. The Education and Skills Act 2008 amended the 1997 Act to give the QCA the additional function of recognising awarding bodies. Under the 1997 Act as so amended, only qualifications offered by recognised bodies are eligible to be accredited. The Government intends to commence these provisions by early spring 2009. Under the provisions in this Bill, the general requirement to accredit individual qualifications will be removed, so that the focus of Ofqual’s regulation will be at organisational level. Provided that a body has been recognised in respect of a specific qualification or description of qualification, it will not necessarily have to obtain accreditation for the qualification. But Ofqual will still be able to require individual qualifications to be accredited, either where it judges that this is required in relation to a particular qualification, or where it is concerned about the performance of a specific awarding body.

368.     The following table sets out the possible combinations of recognition and accreditation.