[back to previous text]

Mr. Gibb: This provision applies conditions to Ofqual for the entry into and inspection of premises of, what I presume, are the awarding bodies. That seems to be a very heavy power. We are not talking about tax revenue or potential financial fraud; we are merely dealing with the quality of exams. Will the Minister explain to the Committee, before we nod the clause through, the reasons behind requiring this power? I know that it will refer to powers that already exist in the Education Act 2005. None the less, if we are going to extend that power—even if this provision applies conditions to the use of it—it is important that the Committee is aware that that power exists for Ofqual and is being given to the new Ofqual. As such, we need to know why the Government feel that the power is necessary.
Sarah McCarthy-Fry: The Bill does not give Ofqual the right to entry in the sense of the right to kick down doors; that would be disproportionate and unwarranted. However, there may be circumstances where it will be necessary. The test will be that of necessity, not whether it is the most convenient way for Ofqual to gather information. For Ofqual to enter an awarding body’s premises to check on standards or to gather information about the potential capping of fees—if, for example, it needs to look through an awarding body’s financial files to consider whether to cap fees—we would normally expect Ofqual to agree the arrangements for such a visit with the awarding body. However, in the case of a challenge, the provisions leave no doubt at all that it is Parliament’s intention, in setting up Ofqual, that it should be able to enter premises for specified purposes. We have discussed the safeguards on the use of the power—for example, the need for reasonable notice of a visit and the need to include, in its qualifications regulatory framework, how it will perform its functions under an entry and inspection condition.
Mr. Charles Walker (Broxbourne) (Con): I share my hon. Friend’s concerns that the powers are excessive. Will it be possible for Ofqual to request that the information is provided via the post, or is faxed or e-mailed? Why does it need to go into premises to look through files? It suggests that the qualifying bodies are trying to cover something up.
Sarah McCarthy-Fry: I made the point that the test is one of necessity, not whether it is the most convenient thing to do. Of course we would expect Ofqual to begin by requesting information by post. There may be lots of documents to look at and it may not be appropriate to deliver all the documents to Ofqual. It may therefore be appropriate for Ofqual to have such a power, and we therefore wish it to have the power as a backstop.
1.15 pm
Mr. Gibb: I share the concern of my hon. Friend the Member for Broxbourne. I still do not understand why the power to enter premises is necessary, given that the Bill gives Ofqual a fee-capping power, meaning that if Ofqual is unhappy about the quality of information on costs provided by the awarding bodies, it has the ultimate weapon of capping the fees charged to schools and colleges for the qualifications. So I do not see the need for Ofqual to enter premises and go through the accounts detailing the costs of providing the qualifications. If Ofqual is unhappy with the quality of information provided, it has that backstop power, which is far more reasonable than the draconian power proposed. We should be very careful about awarding powers of entry to governmental bodies, as that goes against one of the fundamental freedoms that the House was established to protect. I am still not convinced that the power is necessary, given the task with which Ofqual is charged.
Sarah McCarthy-Fry: I merely point out that the interim Ofqual already has that power—we are not adding anything. We all hope that the power never need be used, but it is important that it is in Ofqual’s toolkit. We have improved safeguards and are putting safeguards around the existing use of powers. We spoke earlier about how the qualifications regulatory framework, which will be consulted on, will regulate how Ofqual functions under this entry and inspection condition, to ensure that those safeguards are there.
Mr. Walker: I hope that it never comes to a total breakdown in communication between Ofqual and the bodies that it regulates. However, what would happen if the company or awarding body said, “No, we are not going to give you permission to enter our premises because we think that that is excessive. We have provided the information we feel you need, so we are going to say no to your request on this occasion”?
Sarah McCarthy-Fry: Presumably that would be tested in the courts, against the framework in the Bill regarding how the power can be used. Ofqual’s overarching power to direct is enforceable in the courts.
Mr. Graham Stuart (Beverley and Holderness) (Con): Will the Minister give an example of when that could happen? I cannot see how it could. We are not talking about a privatised monopoly. With some of the utility companies, great powers are needed to prevent them from taking advantage of their monopoly position, but we have a competitive market among qualifications bodies and we hope that a greater diversity of qualifications will become available. This seems more like something that the Stasi would require, not a regulator of standards which has all sorts of other powers of registration, fee setting and so on.
Sarah McCarthy-Fry: I can only refer the hon. Gentleman back to my previous remarks. We want Ofqual to be a regulator with the powers that it needs. The interim Ofqual has those powers. We are restricting the powers by introducing more safeguards, but we need them as a backstop.
Question put and agreed to.
Clause 134, as amended, accordingly ordered to stand part of the Bill.

Clause 135

Qualifications subject to the accreditation requirement
Amendment made: 297, in clause 135, page 77, line 20, leave out ‘from time to time’.—(Sarah McCarthy-Fry.)
See Member’s explanatory statement for amendment 290.
Clause 135, as amended, ordered to stand part of the Bill.

Clause 136

Amendments made: 447, in clause 136, page 77, line 30, leave out from beginning to first ‘the’ in line 34 and insert—
Amendment 448, in clause 136, page 77, line 35, at end insert—
‘( ) Ofqual may not accredit a form of a qualification if the requirements set out in paragraphs (a) and (b) of subsection (1) are not met in respect of that form of the qualification.
( ) An accreditation under this section has effect from such date as Ofqual may specify.’.
This amendment clarifies that Ofqual must accredit a form of a qualification if it meets the relevant requirements, but not otherwise; and that it is for Ofqual to specify the date on which an accreditation comes into force (which may be later than the decision to accredit).
Amendment 449, in clause 136, page 77, line 36, leave out ‘the accreditation of a qualification’ and insert ‘accreditation under this section’.—(Sarah McCarthy-Fry.)
See Member’s explanatory statement for amendment 447. This amendment is consequent on that amendment.
Clause 136, as amended, ordered to stand part of the Bill.

Clause 137

Criteria for accreditation
Amendments made: 450, in clause 137, page 78, line 2, leave out from ‘for’ to end of line 3 and insert ‘accreditation under section 136.’.
See Member’s explanatory statement for amendment 447. This amendment is consequent on that amendment.
Amendment 298, in clause 137, page 78, line 6, leave out ‘from time to time’.
See Member’s explanatory statement for amendment 290.
Amendment 451, in clause 137, page 78, line 9, at end add—
‘(6) If Ofqual revises the criteria under this section which are applicable to a form of a qualification which is accredited under section 136, the accreditation ceases to have effect on the date specified by Ofqual.
(7) Ofqual may vary the date specified under subsection (6) at any time before the date.
(8) Ofqual may determine that subsection (6) does not apply in relation to a specified revision.
(9) Ofqual must publish a determination made under subsection (8).
(10) Ofqual may make saving or transitional provision in connection with the accreditation of a form of a qualification ceasing to have effect under subsection (6).’.—(Sarah McCarthy-Fry.)
This amendment provides that if Ofqual revises accreditation criteria applicable to a form of a qualification which has been accredited, that accreditation ceases on a date specified by Ofqual, unless Ofqual determines otherwise. Ofqual may make saving or transitional provision about a form of qualification ceasing to be accredited;
Mr. Gibb: I beg to move amendment 383, in clause 137, page 78, line 9, at end add—
‘(6) In establishing accreditation criteria for qualifications, Ofqual must have regard to the desirability of raising standards whenever possible.’.
Clause 137 requires Ofqual to set out the criteria it will use for accrediting qualifications. It is very clearly set out and understandable. The confusion lies with the explanatory note which states:
“The criteria for accreditation are a threshold requirement - a recognised body must meet these criteria before it may award or authenticate a qualification”—
That is clear enough so far. But then it says:
“Once that threshold requirement is met, satisfying the criteria is not as such an ongoing requirement of the recognised body. However, Ofqual will be able to mirror all relevant criteria in general or specific conditions in order to ensure continued compliance by the recognised body with the criteria.”
I have no idea what that means. Perhaps the Minister could explain.
Amendment 383 inserts an additional requirement for Ofqual when setting the criteria. That is a requirement to raise standards. This reflects concerns already referred to when Ofqual required AQA to lower its grade boundary to be consistent with the awarding bodies. The amendment would prevent such an approach and require Ofqual to require the other awarding bodies to raise their grade boundaries to the position of the board with the highest level.
The intention behind the amendment is to introduce a virtuous circle of ever-rising exam standards instead of the current vicious circle of declining standards. As Dr. Mike Cresswell, the director-general of AQA, said in an interview with The Times in October 2008:
“The awarding bodies compete for entries. They don’t compete on standards.”
It is that element of market failure that I believe Ofqual must compensate for. To overcome the exam boards’ incentive to lower standards in order to raise the quantity of entries, and thus their income, Ofqual needs an explicit duty in the Bill to raise standards.
Sarah McCarthy-Fry: I shall first try to explain to the hon. Gentleman the details in the explanatory notes. At the beginning, the criteria are set for a qualification. They could be criteria a, b and c. The application would come from an awarding body and Ofqual would look at those criteria. In the ongoing life of a qualification, the power exists to set conditions and those conditions can refer back to the criteria in the original accreditation. I suppose an analogy is that criteria involve getting on the bus; the conditions involve staying on it. That is the difference between the criteria and the conditions.
Amendment 383 would require Ofqual to have regard to the desirability of raising standards. But we must be careful to distinguish between two meanings of the word “standards” here. If we mean standards of assessment, or the difficulty of a qualification, then Ofqual’s duty is to make sure that the standard is consistent over time, and not to raise it, because that would disadvantage previous years’ learners. But if we means standards of performance, or the achievements of students, that is not a matter for Ofqual. It is a policy ambition of Government to raise standards of performance, and part of Ofqual’s role is to ensure that, where qualifications and assessments are used to measure that, this is being done consistently. On that basis, I invite the hon. Gentleman to withdraw his amendment.
Mr. Gibb: I am grateful for that very clear explanation. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause, as amended, stand part of the Bill.
Mr. Laws: Although I do not want to detain the Committee, we have some concerns about clause 137, as amended by Government amendment 451, which we agreed on Tuesday. One of the awarding bodies, Cambridge Assessment, has drawn to our attention a concern about that. According to the amendment’s explanatory statement:
“This amendment provides that if Ofqual revises accreditation criteria applicable to a form of a qualification which has been accredited, that accreditation ceases on a date specified by Ofqual, unless Ofqual determines otherwise. Ofqual may make saving or transitional provision about a form of qualification ceasing to be accredited.”
The amendment that we originally put forward, which was too late to be taken into account and set against Government amendment 451, would have built into the Bill a safety mechanism in relation to the danger that we will effectively have a new retrospective element for accredited qualifications. Clearly, the Government have recognised that risk and the fact that this is controversial, which is why they have made the saving or transitional provision in subsection (10), as set out in amendment 451.
However, that amendment—and therefore the Bill as it stands—puts no obligation on Ofqual to have that delay. It states that Ofqual “may” use the delay mechanism, for which no specific time period has been fixed. That could be damaging to the awarding authorities, with regard to having some kind of stability, and to candidates on the courses in question who could suddenly be left high and dry if the qualifications for which they are studying are no longer regarded as having proper academic status.
Cambridge Assessment told us in a briefing note:
“In addition, even having this clause will probably encourage awarding bodies to add in a risk premium to the price of qualifications that they suspect Ofqual, or indeed the Minister, given his power to tell Ofqual to take note of policy, wants to axe, thus adding to the costs to the public purse.”
In the existing circumstances, Ofqual could either not renew accreditation after the term of years, or issue the new accreditation criteria and the new specifications in the Bill, so that the previous versions would wither on the vine. That seems to be a more sensible way of dealing with circumstances in which an existing accredited qualification is no longer suitable.
On what occasion does the Minister envisage an emergency retrospective date being necessary to stop a qualification, and does she have any objection in principle to changing the wording in subsection (10) so as to place a duty on Ofqual to allow for that transitional period, rather than making that discretionary?
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2009
Prepared 27 March 2009