Clause
141Register Amendments
made: 478, in clause 141, page 80, line 12,
leave out ‘respect in’ and insert ‘qualifications
in respect of’. See Member’s
explanatory statement for amendment 479. This is a drafting amendment
consequent on that
amendment. Amendment
479, in clause 141, page 80, leave out
line 13 and
insert— ‘(b) the forms of
those qualifications which are awarded or authenticated
by it,’. This amendment
ensures that where an awarding body is recognised in respect of a
qualification Ofqual is under a duty to include on the register details
of each particular form of the qualification which the body awards or
authenticates. Amendment
480, in
clause 141, page 80, line 15, leave
out ‘such qualification’ and insert ‘of those
qualifications’. See Member’s
explanatory statement for amendment 479. This is a drafting amendment
consequent on that
amendment. Amendment
481, in
clause 141, page 80, line 17, leave
out ‘the qualification’ insert
‘each form of the qualification awarded or
authenticated by it’.—(Sarah
McCarthy-Fry.) See Member’s explanatory
statement for amendment 459. This amendment is consequent on that
amendment and amendment
462. Clause
141, as amended, to stand part of the
Bill.
Clause
142Review
of activities of recognised
bodies Question
proposed, That the clause stand part of the
Bill.
Mr.
Gibb: The clause seems to give Ofqual the duty to keep
under review any connected activities of an examination awarding body.
It defines connected activities in subsection (2)(a) and (b). The
concern is that the word “connected” seems very loose.
Will the Minister provide reassurance that her intention in using the
word “connected” is not loose but that the activity is to
be directly and materially connected to the examination side of the
awarding
bodies?
Sarah
McCarthy-Fry: Are we discussing amendment
531?
Sarah
McCarthy-Fry: The intention under connected purposes is to
allow Ofqual to keep under review any activities which may impact on
the credibility of the qualifications offered or the effective or fair
operation of the qualification
system. Question
put and agreed
to. Clause
142 accordingly ordered to stand part of the
Bill. Clause
143 ordered to stand part of the
Bill.
Clause
144Power
to give
directions
Mr.
Laws: I beg to move amendment 8, in
clause 144, page 81, line 10, leave
out from ‘may’ to end of line 11 and
insert— ‘(a) direct a
recognised body to take or refrain from taking specified steps with a
view to securing compliance with the condition,
and (b) direct a recognised
body to set the standards in a specified qualification, on a specified
occasion, at a specified
level.’.
The
Chairman: With this it will be convenient to discuss
amendment 559, in
clause 144, page 81, line 11, at
end insert— ‘(2A) A
direction under this section may include a direction to the recognised
body to pay a financial penalty where Ofqual considers it
appropriate.’.
Mr.
Laws: I would like to start by talking to
amendment 8 which is in my name and that of my colleagues. I
hope that the Minister will offer assurances which make it unnecessary
to press the amendment to a vote. There was a degree of discussion on
this topic in the evidence session we had a couple of weeks ago and
there was disagreement between those present as to whether the powers
that amendment 8 seeks to give to Ofqual are already contained in the
Bill. The Minister will probably be aware of the origin of this
amendment. It was suggested by the AQA—Mike Cresswell talked
about this issue at the evidence session. In some ways it came out of
concerns raised by the experiences of last summer when there was a
disagreement between three of the awarding bodies over the grade
boundaries for the GCSE science examination. Two of the awarding bodies
wished to set the grade boundary at a lower level than the AQA and the
AQA felt bounced into agreeing at the last minute to set a lower
boundary than it thought right, as a consequence of feeling pressured
by Ofqual to accept the will of the majority. Clearly none of us wants
such disputes and in a well operating, well functioning system issues
of this type would be resolved at a much earlier stage. The AQA
feels—and I think it perfectly proper for Ofqual to have this
power—that where there are disputes of that kind Ofqual should
have unambiguous powers to direct a recognised body to set standards in
a specified qualification on a particular occasion at a specified
level. Kathleen Tattersall said on the record in our evidence session
that she believes that Ofqual already has that power. I believe Greg
Watson or one of the other awarding body chief executives present on
that occasion also said that he believed that the power
was
embedded in the Bill but that is not the view of the AQA. It believes
that the particular power to give directions under the clause is
ambiguous.
3
pm It
seems ironic for an awarding body to suggest it, but the commitment of
the AQA and others to proper standards and scrutiny means that they
want Ofqual to have this power. If the Minister can assure me that the
powers are most certainly to be granted under the clause, I will be
satisfied. But it is the uncertainty with the clause that caused me to
table the amendment.
I would also
like to comment on amendment 559, if the hon. Member for Wakefield
allows me to do so. I hope that she will not feel that I am pre-empting
any of what she will say, but because I am speaking on both amendments,
it is only suitable that I make my comments now. In her amendment, the
hon. Lady has raised an extremely important issue about whether Ofqual
should have a power to fine. That issue was touched on in the evidence
session a few weeks ago, when Ofqual asked about that. It indicated
clearly—as it did in its note to the Committee—that it
would like to have that power. There were a number of exchanges
involving, I think, the hon. Member for Barnsley, East and Mexborough,
the Under-Secretary of State for Children, Schools and Families, the
hon. Member for Portsmouth, North and the Minister for Schools and
Learners. The issue was whether the power to fine was
necessary. We
have not so far supported such a power, which is partly because, as
liberals, we have a natural reticence to giving all sorts of
unnecessary powers to the Government and its agencies—we
generally think that lighter-touch regulations are desirable. However,
we have considered the issues carefully. As you may be aware,
Mrs. Humble, there was a letter written to a couple of
members of the Committee yesterday—I am not sure whether it was
addressed to all members of the Committee—by Kathleen Tattersall
of Ofqual, setting out some of its views on the matter in greater
detail, which I welcome. That is an indication of Ofqual’s
interest in the issues and its independence. I am also grateful to
Fiona Pethick of Ofqual for giving me further information about its
views.
Some of the
reasons to be reticent about granting the power to fine were set out
clearly by Greg Watson of Oxford, Cambridge and RSA Examinations in the
evidence sessions a couple a weeks ago, who was responding to the hon.
Member for Barnsley, East and Mexborough. He said that in an ideal
system, fining should not be
necessary: “a
regulator that finds itself counting crashed planes and fining people
for crashing them is an unsuccessful regulator. The important thing is
that effort, power, authority and resource within Ofqual must be
devoted to getting qualifications that are fit for use into the system
in the first place.” ——[Official
Report, Apprenticeships, Skills, Children and Learning Public Bill
Committee, 3 March 2009; c. 75,
Q198.] I very
much agree with that, and I am sure that Ofqual would as well. Any
fining powers should not be used frequently, and if they were, it would
be an indication that the regulator and the bodies concerned were not
doing their job. As far as I am aware, other public bodies that have
such fining powers do not use them on a frequent basis—although
it will be useful to know whether the Minister has any information and
evidence about the frequency that such powers are used.
Greg Watson
also pointed out that since OCR is a charity, a not-for-profit
organisation, he has concerns not only about being fined, but about the
implications of that on the reputation of his particular organisation.
He said that because of those issues with
reputation, “the
threat of being shamed is much stronger than the threat of being fined
for an organisation like mine.”
——[Official Report, Apprenticeships,
Skills, Children and Learning Public Bill Committee, 3 March 2009;
c. 76,
Q198.] The
Minister for Schools and Learners rightly pointed out that we have many
other awarding bodies, including McDonald’s and Flybe, which the
Minister cited. It may be the case that not all of those awarding
bodies—I am not criticising those two organisations, before
their chief executives write to me, or possibly, the Minister; I mean
unspecified organisations—have quite the reputation that OCR
has, and they will not face such a penalty from naming and shaming.
Ofqual has therefore come back and said that it continues to believe
that powers of the type contained in amendment 559 should be in the
armoury of the regulator, and Kathleen Tattersall stated in her letter
of 25 March that that would help to act as a deterrent and as an
immediate sanctioning step before the ultimate step of withdrawing
recognition from an awarding body. The Ofqual committee therefore
confirmed that it supports a final power as a valuable addition to its
powers, and it has pointed out that many other regulators possess such
powers, including Ofwat, Ofgem, Ofcom and the Office of the Rail
Regulator.
As I
understand it, Ofqual’s case is that there needs to be something
between naming and shaming, which might not be a considerable sanction
for some organisations, and the ultimate sanction of removing the
recognition of an organisation and stopping it from awarding recognised
qualifications, which could of course be devastating to those
organisations and do great damage to learners. I find those
representations quite convincing, and it seems to me unlikely that a
body such as Ofqual, if it had the right staff and leadership, would be
likely to use those powers irresponsibly.
Although Greg
Watson made some excellent points in his evidence to the Committee, I
am neither sure that all of them address Ofqual’s concerns, nor
convinced that all bodies would suffer the damage to their reputations,
which is so important to OCR, which has obviously been around for many
years.
I hope that
Ministers will consider giving Ofqual some powers on that matter, but
several questions must be asked before they are given. Indeed, Ofqual
sent me a note yesterday evening commenting on some of the issues I
have touched on, such as whether those powers should be available,
whether amendment 559 is right for delivering that and what the scale
of fines should be. I am sorry to take time on that, but it is
obviously an important issue and I would like to touch on some of those
points.
I hope that
you will not mind, Mrs. Humble, if I read some of
Ofqual’s observations on those points. I asked Ofqual whether it
believes that amendment 559 is the right response, and although it
supports having a fining power, it believes that the current amendment
is insufficient, as the hon. Member for Wakefield, who tabled the
amendment, may know. Fiona Pethick stated in that note that
she “would
anticipate any fining power given to Ofqual should be couched in legal
safeguards that provide a framework in which we could use the power. We
would anticipate that framework would
be similar to that given to other regulators that have fining
powers...We would also expect to be required to set out, and
consult on, a sanctions policy. In setting out such a policy we would
make it clear that we would act in line with the Macrory principles of
restorative justice set out in the Better Regulation
Executive.” I
hope that that means more to the Minister than it does to me. Ofqual
clearly believes that the amendment is a good one, but that there need
to be additional safeguards, specifications and consultation on that,
and I agree.
I also asked
Ofqual what the scale of any fine should be if such a power were given,
and it answered that it
“would
anticipate that the legislation would limit the scale of any fine to
say 10 per cent of the turnover of the relevant part of the awarding
organisation’s revenue in the preceding year. So where an
awarding body had business that was not related to qualifications this
would not be taken into
account”. It
stated that
“examples of
other income could include income from publishing or from overseas
examining. Experience from other regulators suggests that any actual
fines would be very much smaller than 10 per
cent.”
For us to agree to the
additional fining power, we would need not only those earlier
guarantees about legal safeguards and consultation about how the
sanctions policy was going to work, but to know the scale of fines
envisaged. Given that there is already the serious power to withdraw
the ability to accredit, we would not want to set the fining power at a
level that was likely to disable any of the bodies and make it
impossible for them to continue to
operate. The
email from Ofqual dated 25 March also addresses whether fines would
simply result in higher fees for future qualifications, and states that
Ofqual would put safeguards in place using its fee-capping powers if
necessary to prevent fines from being passed on. The email clarifies
where Ofqual would see the moneys from fines
going: “We
would first expect any awarding body to recompense any learner or
centre for monies they may have lost as a result of whatever
misdemeanour the fine applies to. We would then expect any financial
penalty to go to the consolidated fund, this is in line with other
regulators and reflects the fact that when it is not feasible,
appropriate or economic to recompense all the individuals who lose out
as a result of the failure the taxpayers as a whole are the best
substitute for the
public.” There
are also comments in that email, which was sent to me and, I believe,
the hon. Member for Bognor Regis and Littlehampton, about the
circumstances in which Ofqual would wish to use the powers. I think
that I have touched on those. The final point the email addresses is
why the financial penalties would be necessary, over and above the
existing powers to name and shame and remove an awarding body’s
recognition. So,
I am sympathetic to Ofqual having such a power. We want Ofqual to be an
independent regulator, as we have already made clear, but also one that
has the teeth to act when it needs to, and powers and sanctions that
are proportionate to the offences or problems that have arisen. We
therefore hope—I do not wish to anticipate the speech of the
hon. Member for Wakefield—that the Government will respond
positively, but consider coming back with amendments that allow for
some of the powers but with the proper safeguards, and a proper
indication of how the powers will be used and what the scale of fines
will be.
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