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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.
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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.
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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