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
135Qualifications
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
136Accreditation Amendments
made: 447, in clause 136, page 77, line 30,
leave out from beginning to first ‘the’ in line 34 and
insert—
‘(1) Where a qualification is subject to the
accreditation requirement Ofqual must accredit a particular form of the
qualification if— (a)
that form of the qualification has been submitted for accreditation by
a recognised body which is recognised in respect of the qualification,
and (b) that form
of’. This amendment ensures the
function of accrediting qualifications applies to each form of a
qualification which requires accreditation rather than the
qualification as a whole. The effect is that an awarding body must
obtain accreditation for each form of such a qualification which it
proposes to award or
authenticate. 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
137Criteria
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?
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