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Mr. Laws: I had hoped to intervene on the Minister, but her speech was rather shorter than I expected. She did not reassure me; I am unclear under what circumstances Ofqual would decide not to make the saving or transitional provision in relation to accreditation. We need to know under what circumstances Ofqual would decide not to grant the provision, given the concerns clearly expressed by Cambridge Assessment and some of the other awarding bodies.
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Sarah McCarthy-Fry: I want to reassure the hon. Gentleman that the only reason that I can think of that Ofqual would not make such a saving or transitional provision is if it was in the interests of the learners not to do so, because that is its duty.
Mr. Laws: I am still not convinced that the Government have got this right. I think that this ought to be a duty. To make such important changes that could be destabilising to learners on such courses as well as to the accrediting bodies is unfair, and for that reason I want to divide the Committee.
Question put, That the clause, as amended, stand part of the Bill.
The Committee divided: Ayes 10, Noes 2.
Division No. 30]
AYES
Blackman, Liz
Butler, Ms Dawn
Creagh, Mary
Ennis, Jeff
Hodgson, Mrs. Sharon
Knight, rh Jim
McCarthy-Fry, Sarah
Sharma, Mr. Virendra
Simon, Mr. Siôn
Thornberry, Emily
NOES
Brooke, Annette
Laws, Mr. David
Question accordingly agreed to.
Clause 137, as amended, ordered to stand part of the Bill.
The Minister for Schools and Learners (Jim Knight): On a point of order, Mrs. Humble. Is it in order for a member of the Committee to be talking on the telephone while voting?
The Chairman: The Minister has anticipated a point that I was going to make from the Chair. I remind all Members, but especially the hon. Member for Leominster, that they should not use mobile phones in the Committee and certainly not during a Division. [Hon. Members: “He is not here.”] I am sure that the message will get to him.

Clause 138

Power of secretary of state to determine minimum requirements
Mr. Laws: I beg to move amendment 532, in clause 138, page 78, line 12, after ‘may’, insert ‘in exceptional circumstances’.
The Chairman: With this it will be convenient to discuss the following:
Amendment 533, in clause 138, page 78, line 22, leave out from ‘must’ to end of line 23 and insert
‘agree with Ofqual the circumstances in which he can use the power conferred by subsection (1), and publish the terms of this agreement.’.
Government amendments 453 and 454.
Amendment 233, in clause 138, page 78, line 23, at end insert—
‘(4A) Ofqual shall include it its annual report a copy of the publication in subsection (4) and how it responded to the determination.’.
Government amendments 455 and 456
Amendment 141, in clause 138, page 78, line 27, at end add—
‘(5A) Ofqual must set a minimum requirement in respect of an academic qualification relating to the knowledge a person must demonstrate in order to obtain the qualification or qualifications in question.’.
Government amendment 458.
Amendment 5, in clause 138, page 78, line 31, at end insert—
‘(7) The Secretary of State must not make a determination under subsection (1) relating to the grading or assessment of qualifications.’.
Mr. Laws: It is good to have such active participation from Ministers in the debate and to see so many Labour Members present now. Clearly, they are at their best after the lunch break. We now move on to an extremely important clause. If you will allow me, Mrs. Humble, I will start with a quiz for those Committee members who are here. I should like them to tell me—they should feel free to intervene if they wish—the significance of the following volumes. I would particularly expect the Minister for Schools and Learners to know the answer. The volumes are Enid Blyton’s Famous Five adventures, Malcolm Saville’s Lone Pine detective stories, “The Wind in the Willows”, “Swallows and Amazons” by Arthur Ransome and, finally, a book called “Keeping Pet Chickens”.
Mr. Walker: Could it be that those books have been banned from the reading list? Am I warm?
Mr. Laws: Not only have those books not been banned from the reading list, but they are the favourite books of the Secretary of State for Children, Schools and Families; he picked them out in a recent selection. He has apparently been reading one of those titles to children in schools, so I hope that it is not banned.
I refer to those books because, under clause 138, they could find their way into every English examination in the land. They could be a compulsory part of the GCSE English examinations that every child in the country must sit. Under the clause, the Secretary of State is taking extraordinary powers—new powers, as has been confirmed in a letter to my hon. Friend the Member for Mid-Dorset and North Poole—that will allow the Government to dictate to examination boards what precise books they will examine youngsters on and what parts of history must be included in history examinations.
The clause has drawn a lot of attention from the educational media and the wider media. The books that I mentioned at the beginning of my comments were drawn to my attention by a leader article in no less than The Times, which published an editorial on the subject on 20 March. The feature was titled “Set texts”, with the subtitle: “It is not the Government’s job to hand out reading lists”. It was not only The Times that covered the matter. As well as the The Daily Telegraph, there was a leader article in no less a paper than the Daily Express under the headline “Brainwashing won’t work”, which concluded that only the slowest of learners will fail to appreciate that the Secretary of State’s control freakery and belief in centralised planning are the mark of a crackpot and not a statesman. Those are not my words but those of the Daily Express.
The significance of the clause is set out not only in the exchanges that we had in the evidence sessions a couple of weeks ago, but in the explanatory notes. It is worth reminding ourselves what those explanatory notes say about the clause. I assume, Mrs. Humble, that because my general criticisms of the clause are embedded in the amendments, you will not allow a separate stand part debate on the clause. The explanatory notes say:
“This clause allows the Secretary of State to determine the minimum requirements in respect of skills, knowledge, or understanding that someone must be able to demonstrate to gain a particular qualification or type of qualification.”
It goes on, very helpfully, to give an example:
“For example, it could be used to ensure that the content of GCSEs properly reflects the... Key State 4 Programmes of Study, such as specifying which authors’ works needed to be studied for someone to gain a GCSE in English.”
It goes on to say:
“The Government intends that this power would be used only in exceptional circumstances.”
However, none of the guarantees in relation to that, or to intervention on grading or assessment, are embedded in the Bill.
Mr. Stuart: The hon. Gentleman will be aware that more and more legislation is couched in the terms that powers given to various Secretaries of State will be used “only in exceptional circumstances”. Those who find themselves on the receiving end of the use of such powers—whether those who are spied on by local authorities, or Members of Parliament in their offices—know only too well that exceptional powers tend to be used by those who are granted them.
Mr. Laws: The hon. Gentleman is right. When those exceptional circumstances are not even contained in the Bill, we have to ask whether such assurances are really worth anything. Such concerns have clearly not only been expressed in the media and Parliament; they are also concerns that Ofqual has shared at some point in time. A section of the notes that Kathleen Tattersall, the chair of Ofqual, sent to members of the Committee before our evidence session touched on the clause. It said that her officials have had detailed discussions with DCSF—one always knows when one hears the phrase “detailed discussion” that a concern lies at the root of the issue—about the Secretary of State’s power to determine minimum requirements in relation to certain qualifications, as set out in clause 138, and that Ofqual must be sure therefore that the Secretary of State’s powers do not undermine its ability to act independently, either in reality or in the perception of the public and other stakeholders.
Ofqual has been concerned about the issue, and it has discussed it not only with members of the Committee, but with the Secretary of State himself. There was an exchange of letters between Kathleen Tattersall and the Secretary of State on 10 February. When such concerns require a public exchange of correspondence, there clearly are serious concerns. Our concern is that they have not yet been resolved.
We also had some exchanges on the issue in our evidence session on 10 March. The Under-Secretary of State for Children, Schools and Families, the hon. Member for Portsmouth, North was cross-questioned on the matter. She cited Shakespeare as an example of the type of direction that the Secretary of State might give on what should be contained in an English examination. Although she said that in relation to history, I assume that she meant that Shakespeare was important in our history, but that he should be embedded in the English examination.
I wonder whether the Minister would care to let us know in her comments later whether she can think of any other examples in the English and, perhaps as interestingly, in the history examinations where the Government think that particular authors or events in history are so important that they should be an obligation for qualifications that cover those subjects.
We also had some uncertainty from Ministers over the significance of the powers in the clause. My hon. Friend the Member for Mid-Dorset and North Poole asked the Minister whether the powers in the Bill were new. With great frankness, she admitted:
“We do not know and we are going to find out.”——[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 10 March 2009; c. 171, Q405.]
It did not take long before she was true to her word, and she did find out. She wrote a letter to my hon. Friend, dated 14 March 2009, confirming that there is currently no explicit statutory power to determine such matters and that such powers may exist in some way through the back door. The letter cheekily suggests in paragraph 4 that the effect of clause 138 is to limit, in practice, the powers of intervention that Ministers have. How it can do that while giving the Secretary of State an extensive power that he does not possess at the moment is an interesting question, to which we shall no doubt hear a response from the Minister in a minute.
I suppose that I could save until later my response to what I expect the Minister to say, but it may be better to add to my comments at this stage by anticipating some of the arguments that she is likely to deploy. She will undoubtedly talk about getting the balance right between public policy and interfering with examinations and give us many assurances about the circumstances in which the powers will be used. We need to remind her that the Government already have a great deal of power to influence what is taught in schools.
The national curriculum is an inordinately long document with a great deal of specificity, particularly by comparison with the expectations in the past 100 years about the degree to which Governments would try to meddle in what is taught in our schools. There will also be the Qualifications and Curriculum Development Agency, which we will debate under part 8, the funding regime and the Joint Advisory Committee for Qualifications Approval, which we will also talk about later and which advises the Secretary of State and allows him to withhold the funding of particular qualifications.
1.45 pm
Our view, therefore, is that the power would be needed only if the Secretary of State was determined to promote his own pet subjects in the history curriculum or his own pet reading list in the English curriculum, for example. We question whether it is right to give politicians the power to prescribe in such detail what should be taught in our schools and what should be part of the qualifications that every young person may need to have.
There is a risk that we will give excessive powers to “Here today, gone tomorrow” politicians to put all sorts of nonsense on reading lists and decide that bits of history are in fashion and then out of fashion. There is also a risk that Secretaries of State and other Education Ministers will feel obliged to react to the latest newspaper headlines, or, perhaps more likely, to garner newspaper headlines by introducing new obligations through the examinations system, many of which might be counter-productive in terms of allowing schools and colleges to do their job and respond to the needs of their pupils. It also opens up the potential for much lobbying from all sorts of groups familiar to many hon. Members to have their own pet subjects put into the national curriculum or the qualifications that many or all youngsters have to have. The split between subject and design criteria is not nearly as simple as many Ministers and the Secretary of State may think. For example, by promoting particular subject criteria, we directly affect the design criteria and vice versa.
We therefore may want to divide the Committee on whether the clause should be in the Bill at all. We have tabled a number of amendments—532, 533 and 5—which I am going to speak to now. Amendment 532 came from our discussions with Cambridge Assessment, one of the accrediting bodies. It does not change the Government’s intentions but clarifies the restrictions on the role of the Secretary of State by including in the Bill the undertaking about the power being used “only in exceptional circumstances” that is in the explanatory notes.
Amendment 533 does not change what the Government appear to want to have in the Bill. It clarifies the restrictions on the role of the Secretary of State in relation to having to
“agree with Ofqual the circumstances in which he can use the power conferred by subsection (1)”.
Finally, amendment 5 does not seek to clarify what the Government claim are their intentions in the Bill through the explanatory notes. It clarifies the restrictions on the role of the Secretary of State by making it clear that
“The Secretary of State must not make a determination under subsection (1) relating to the grading or assessment of qualifications.”
An awful lot has been put in the Bill that is of low importance and that probably should not be there. I gave an example the other day of the obligations that were being placed on Ofqual to review the structure of its committees every few years—a degree of prescription that seems completely unnecessary. If such obligations and details are in the Bill, the safeguards contained in the explanatory notes must at least be included to make clear the safeguards that the Government recognise. That would deal with some of our concerns, although whether the powers given in clause 138 have any place in the Bill or in a country where we would not expect elected politicians to dictate to such an extent to our schools and pupils is quite another matter.
 
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