Mr.
Laws: They may be wide-ranging, but unless the Minister is
suggesting that her letter of 14 March 2009 was wrong, she has already
confirmed that there is currently no explicit statutory power to
determine such matters.
Sarah
McCarthy-Fry: We are dancing——excessively
so——on the head of a pin. There is no explicit statutory
power that mentions qualifications. The wide-ranging power that I cite
states:
“any directions
given by the Secretary of State; and...any plans approved by
him”. We
are becoming bogged down, so I shall move on.
Clause 138
allows the Secretary of State to set minimum requirements for
qualifications relating to knowledge, skills and understanding. In it,
we seek to balance two interests. On one hand is the legitimate
interest of Ministers in the content of qualifications; on the other is
the need for the regulator to be able to ensure that standards are
maintained in order to provide public assurance. The interim Ofqual has
gone on record to say that it is happy with the letter. On 10 February
2009, Kathleen Tattersall said:
“I
fully support the principle that Government should set the broad policy
objectives...I am pleased that the Bill clarifies this balance of
responsibilities, making it clear that the Secretary of State can
specify publicly minimum requirements in respect of a limited range of
aspects of a public qualification; and that Ofqual would need to meet
those requirements when setting criteria for recognition or
accreditation, in a way that will not encroach upon territory which is
clearly the responsibility of the independent
regulator.” Ministers
will not be able to decide how qualifications are graded or assessed,
or how standards are set. It is a real reduction in power, which is
being given up to the independent regulator. Ministers may have views,
but the final decision will be Ofqual’s alone. Of course, the
content of qualifications can affect standards and assessment, so under
clause 138, the Secretary of State will only be able to set minimum
requirements for a qualification. He will not be able to reduce the
requirements of a qualification, which might make it impossible for
Ofqual to maintain standards, and Ofqual will continue to control the
criteria that specify the requirements of a qualification. It will not
be for Ministers to tell Ofqual how to deliver the minimum
requirements.
Mr.
Laws: When the Minister was questioned on this issue in
the evidence session a couple of weeks ago, she cited Shakespeare as an
example of a requirement that she might embed in English examinations,
so people would be obliged to read and be examined on Shakespeare. Can
she explain why she decided that Shakespeare should be given priority
over other great authors, such as Chaucer, Dickens or Jane
Austen?
Sarah
McCarthy-Fry: I was merely citing an example. I will come
back to that point, with the examples that the hon. Member for Yeovil
asked for, if he will be patient.
As with the
curriculum, Ministers will need to use the powers wisely. We
have publicly committed to safeguards—we will agree a memorandum
of understanding with Ofqual over the use of the clause. Qualifications
development is complex and takes time to get right, and we will not be
making determinations every five minutes. It is more likely that the
power will be used to require GCSEs to relate to the key stage 4
national curriculum, which they assess, than to require the use of
specific text
books. Without
clause 138, Ministers would lose any decision-making power over
qualifications. Let me illustrate that point. Some years ago, a working
group led by Sir Mike Tomlinson published a report on 14-to-19
qualifications. That high-profile report generated a lot of debate,
with commentators and politicians on all sides taking a view. Four
years ago, my ministerial predecessors published our response in a
White Paper that set the direction of travel that we are still
following today, in particular, with respect to 14-to-19 diplomas for
which young people are now studying.
If the Bill
had been in force without clause 138, none of that debate would have
been possible. I do not know whether the hon. Member for Yeovil has had
a chance to read the indicative regulations. An indicative
determination would be the minimum requirements of the 14-to-19
diploma.
Mr.
Laws: Given the powers that the Joint Advisory Committee
for Qualifications Approval and the QCDA have already and the way
qualifications are funded, why is this power necessary in relation to
the item that the Minister picked out?
Sarah
McCarthy-Fry: I will move to another point. The hon.
Gentleman has said that he wants to introduce a general diploma.
Without the power in clause 138, he could not do that. If the power was
not there, the regulator might refuse to implement it and there would
be nothing that the hon. Gentleman could do about it, in the highly
unlikely event that he was in a position to introduce a general
diploma.
Mr.
Laws: I am not quite sure why that conclusion follows from
her observations. There already are accrediting bodies, a national
curriculum and the QCDA, which will develop the curriculum, and the
Government power not to fund qualifications that do not meet the
requirements of the Secretary of State, so what does this measure add
to that array of powers?
Sarah
McCarthy-Fry: It gives Ofqual powers to set the criteria,
which are owned by Ofqual, so it needs to have the powers. Without
clause 138, only a regulator can decide what is in a qualification.
Ofqual may agree voluntarily to set criteria to meet a
Minister’s requirements. In practice, I hope that clause 138
determinations are unlikely to be necessary very often, because
Ministers and Ofqual should aim to have a good working relationship,
whereby Ofqual will agree to regulate for qualifications that deliver
policy proposals, provided that those proposals are made to maintain
standards.
2.15
pm Clause
138 is important for three reasons. First, as I have said, it is
important because ministerial interest in qualifications is legitimate,
and the clause is explicit about what matters Ministers have a say in
and clear about what matters are not for them to decide. Secondly, it
provides for the unlikely event that Ofqual starts behaving
unreasonably and refuses to deliver the qualifications that Ministers
want, without giving any good reasons. Thirdly, it ensures
transparency. If Ministers want to influence what is in a
qualification, there is no need for behind-the-scenes negotiation. They
can make a determination, they have to publish it and they are
accountable for it.
I want to
move on to the five amendments to this clause that are not Government
amendments. First, amendment 532 would mean that the Secretary of State
could make a determination specifying minimum requirements only in
respect of the qualification “in exceptional
circumstances”. Often, it will not be clear whether a particular
set of circumstances is “exceptional”. That is a
fundamental difficulty with the amendment. Lawyers could spend a lot of
time arguing about whether a particular set of circumstances is
“exceptional”. That lack of clarity and the uncertainty
that it would give rise to means, in our view, that the wording of the
amendment does not work.
I think that
amendment 532 seeks to address two concerns and I have some sympathy
with both. The first concern might be that Ministers should not make
frequent changes to qualifications and therefore that determinations
should be made only occasionally. I agree with that view. Qualification
reform is complex, takes time to get right and the stakes are high,
particularly, of course, for the learners who would be affected.
Ministers should not issue new determinations unless it is appropriate
and necessary to do so. However, I do not think that we can write that
into the legislation. There is no clear or easy way of describing that,
and amendment 532 does not achieve that description. Instead, we should
rely on the memorandum of understanding that we have put in place, and
on Ministers taking seriously their responsibility to learners, along
with the transparency that is created by having an independent
regulator to prevent problems.
Mr.
Laws: I appreciate the fact that the Minister said that
she is quite sympathetic to the concerns that underlie amendment 532.
However, is it really that difficult or impossible to put the wording
in the amendment in the Bill? After all, we were discussing
earlier—I think that it was only this morning, although it seems
like some time ago now—clause 126(7), in which the Government
specify:
“Ofqual
must perform its functions efficiently and
effectively.” At
that time, I questioned the fact that those words are very
general.
Given that
the Government are willing to have wording that is so general in a Bill
of this type, surely there is no reason at all why they cannot make it
clear in the Bill that this power in clause 138 is one for
“exceptional circumstances”? Alternatively, the Minister,
with all the support that she has to hand, might be able to introduce a
different form of words that could express her intentions in the
Bill.
Sarah
McCarthy-Fry: I think that I made it clear to the hon.
Gentleman that I do not think that the Bill is the right place for that
and that we should rely on the
memorandum of understanding. However, another concern lies behind
amendment 532. I think that it says that Ministers should make a
determination only occasionally because normally it would be
unnecessary. We would hope that ministerial policy decisions relating
to qualifications, as put forward through draft criteria developed by
QCDA, should be easy for Ofqual to accept. We do not want
Ministers’ relationship with Ofqual to be characterised by the
need to issue formal determinations. However, I do not see how that
could be required in law. I think that we should use the memorandum of
understanding.
Amendment 533
would require the Secretary of State
to “agree
with Ofqual the circumstances in
which” he
could make a determination specifying minimum requirements in respect
of a
qualification “and
publish the terms of the
agreement.’.” As
the Secretary of State said in his letter to Kathleen Tattersall last
month, it is certainly our intention to make and publish such an
agreement with Ofqual. We could, therefore, put it in the legislation.
However, the problem with doing that is that there cannot be a legal
duty on the Secretary of State to agree something with Ofqual, because
ultimately, by refusing to come to an agreement, Ofqual could veto the
use of the power, which would undermine the intention of the provision.
Again, I must ask the Committee to trust the public commitments that
the Secretary of State has made to develop an
agreement. The
amendment would also delete the requirement to publish a determination.
I am not clear why that has been proposed. The requirement to publish
is key to ensuring that the system is fully transparent and therefore
that confidence can be maintained.
Amendment 233
would require Ofqual to include in its annual report a copy of any
published determination that the Secretary of State makes and how
Ofqual responded to such a determination. We do not need that provision
in the Bill. A determination will be in the public domain, and I
suspect that Ofqual would want to refer to it in its annual report. The
Secretary of State is required to publish any determination and there
will need to be public consultation on the criteria and conditions that
are set to give effect to that determination. The Select Committees
will doubtless want to discuss any section 138 determinations with
Ofqual as part of the oversight of its work.
On amendment
141, Ofqual will have discretion to decide when a qualification
requires individual scrutiny. In such a case, it would require that the
qualification was accredited. Ofqual would then publish criteria, which
might be drafted by the QCDA, for the accreditation of qualifications
that are subject to the requirement. When appropriate, the criteria
would have to include, for example, the academic content that must be
covered in the qualifications for them to be accredited. What would be
required by the amendment will happen anyway, so I do not see that it
would add
anything. Amendment
5 would make it explicit that the Secretary of State does not have the
power to make a determination to specify requirements in relation to
the setting of grades or the assessment of the qualifications. I
strongly agree with the sentiment of the amendment. Grading and
assessment are very clearly the domain of the
regulator. A Minister who sought to make a minimum requirement relating
to such areas would risk undermining the independence of the regulator
and, therefore, the credibility of the qualification system. That is
why the Bill will prevent the minimum requirement on grading or
assessment. Clause 138(3) clearly defines a minimum requirement
as “a
requirement that relates to the knowledge, skills or understanding
which a person must demonstrate in order to obtain the qualification or
a qualification of the description in
question.” Therefore,
a requirement is about what someone must demonstrate, not how it is
demonstrated or how the achievement is recorded. The definition does
not, therefore, allow requirements relating to the setting of grades or
assessment.
The amendment
would not affect the nature of the minimum requirements that the
Secretary of State can determine. The Government have made clear what
the respective roles of Ofqual and Ministers should be on
qualifications, and interim Ofqual has indicated that it is content
with that position. If a decision relates to grading or standards, it
is rightly a matter for the regulator. That is exactly what is written
in the Bill. I invite the hon. Gentleman to withdraw the
amendment.
Mr.
Laws: I am sorry if I missed the substantive point of
those last comments, but the Minister clearly indicated that she is
very sympathetic to the sentiments that are behind, or embedded in,
amendment 5. Why can she not simply accept it, or make a similar
amendment of her own?
Sarah
McCarthy-Fry: Such an amendment is unnecessary because the
Bill will already prevent Ministers from doing what the amendment says
they must not do.
Government
amendments 453 to 456 and 458 fall into two groups. First, amendments
453, 454, 456 and 458 relate to ensuring that the Secretary of State
can vary a determination as long as he publishes and gives notice of it
to Ofqual. We do not intend to use the measure very often. As I said,
changing the broad content of qualifications such as GCSEs is not
something to be undertaken frequently, but nor must we be in a position
in which qualifications fail to evolve over time. The amendments allow
the Government to change the high-level requirements over time as the
curriculum evolves.
Secondly,
amendment 455 adds Ofqual’s functions under clause
131—the power to set general conditions—to the list of
functions that Ofqual must exercise for the purposes of implementing a
determination made under clause 138. That reflects the fact that the
Bill has two concepts of the requirements of awarding bodies: criteria
and conditions. Criteria are only directly relevant at the time an
awarding body applies to be recognised or to have a qualification
accredited. As I explained to the hon. Member for Bognor Regis and
Littlehampton, once the criteria have been met and recognition or
accreditation has been granted, Ofqual will regulate the activities of
awarding bodies through its general and specific conditions. It may
therefore need to use the conditions as well as the criteria to
implement the determination. For example, if a determination required
GCSE English to reflect the national curriculum key stage 4 programme
of study, the accreditation criteria for GCSE English would require
that awarding bodies
submit GCSE English specifications reflecting the programme of study.
The clause 131 conditions would require that they continue to offer the
qualifications on that basis. With that
explanation, I hope that the Committee will agree to add the Government
amendments to the Bill.
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