Mary
Creagh: I thank the hon. Member for Yeovil for setting out
so eloquently the reasons behind my amendment. He has given many of the
arguments that I was to
use. The
amendment is not perfect, but I believe that perfection is the enemy of
the good. As the hon. Gentleman said, it is a good amendment. Most
other regulators have the power to fine, and regulation should create
an environment in which innovation can flourish and people can take
risks, while still safeguarding the public interest. The ultimate
deterrent, to keep the public interest at the forefront of
regulators’ minds, is the ability to impose a fine. I am not
sure whether I can imagine the circumstances in which such a fine would
be imposed. There would have to be catastrophic failure on behalf of
the examining organisations, with consistently poor service and
behaviour—egregious examples, which cannot be imagined because
they have not happened. In some ways, that shows that we already have a
reasonably good system of regulation, but the deterrent is
important. The
issue of whether Ofqual should have the power to fine is not new. It
was raised by the Government in the 2007 consultation paper,
“Confidence in Standards”, and 62 per cent. of
respondents felt that Ofqual should have such a power. Unsurprisingly,
none of the awarding organisations felt it necessary. It was important
that we listened to the chair of Ofqual, as we did on 3 March, when she
gave evidence to the Committee asking for the power to be included in
the
Bill.
3.15
pm
Mr.
Gibb: Does the hon. Lady envisage the power to fine being
applicable to the QCA as well? If it failed to deliver proper
assessments of SATS, as it did last summer, could Ofqual fine it, under
this amendment? Is that how she envisages the amendment
working?
Mary
Creagh: In an ideal world, yes, but in the real world it
would be bizarre for the public purse, which pays for the QCA, to be
fined by a regulator and for that money to re-enter the public purse.
That circularity would militate against it, although I acknowledge that
the case that the hon. Gentleman raised caused enormous distress and
stress to many learners. I am glad that my right hon. and hon. Friends
took appropriate action.
The amendment
would put in place a failure-free system. Interestingly, we were
talking about other potential awarding organisations, such as Flybe,
which, like all airline companies, is a failure-free organisation.
Every day, they cannot take the risk of something going slightly wrong
with a plane that could have catastrophic consequences for the pilot,
crew and passengers, as well as, obviously, their business.
Failure-free organisations are now entering the learning environment
and, perhaps, passing on some of their quality and assurance systems to
the development of qualifications for learners in their
companies. The
mere existence of the power to fine will influence the behaviour of
those that Ofqual regulates, which can only be to the benefit of
learners. As the hon. Member for Yeovil said, it would be an
intermediate step—a sanction falling short of the more serious
one of removing recognition of the awarding body. The ultimate step
would be to prevent it from awarding recognised qualifications, which,
of course, could be damaging to learners past and present. We never
want somebody to
receive a qualification from an awarding body that then is no longer
allowed to give them out. By implication, that would devalue past
awards. The
ability to fine is a sign of a robust regulator. It would force
organisations to think twice before taking measures that could impact
on the learner. Most measures tend to relate to doing things cheaper,
faster and—supposedly—better. However, we know that
cheaper and faster is not always better, either for the learner or the
exams and tests being marked. We hope that Ofqual will co-operate with
organisations, but as the hon. Gentleman said—I am sorry that he
is not here to hear my response to his eloquent outlining of his
amendment—there would be risks. We would need to be confident
that a fine would not result in fee increases. Most exam fees are paid
for out of the public purse by public bodies, such as schools, colleges
and so on, and we do not want fee increases to be passed on to the
learner, so I understand the Government’s
reluctance. Ofqual
would need to set out its own sanctions policy and ensure that any
fines levied are proportionate. It would also need to reflect the
changes to the qualifications made by this Bill, because, as we have
heard, a wider range of organisations could be recognised in the future
to award qualifications. For example, I would not want a fine to
jeopardise the existence of a charity. I must declare a past interest
as a board member of Rathbone Training for seven years. I hope that the
time would come when it could, as a large national charity providing
life skills training, develop its own qualifications. However, if
something went wrong and a fine was imposed, we could not jeopardise
the charity’s existence. In any fine-imposition regime we would
therefore need to separate off the amount of money generated by the
qualifications and protecting the rest of the organisation which, in
Rathbone’s case, is delivering skills and learning.
I have spoken
about the 14-to-19 work that my local West Yorkshire fire service is
doing with young people in local schools such as Wakefield City high
school and across the region. To go back to equivalence, which is the
bugbear of the hon. Member for Bognor Regis and Littlehampton, that is
the equivalent of GCSEs or level 1 qualifications. We cannot have a
fire service being fined for a failure in its qualification awards. We
cannot jeopardise the future of the fire cover service in Wakefield
because there may have been catastrophic errors on behalf of the
awarding body. I am also keen to ensure that this new power does not
stifle innovation or lead to conservative—with a small
“c”—organisations or encourage bodies to be
risk-averse. On that note, I would like the Minister to respond and I
stress that it is a probing
amendment.
Sarah
McCarthy-Fry: I shall first address amendment
8, which seems a long time ago, as we have moved on. I hope be able to
reassure the hon. Gentleman. His amendment is intended to allow Ofqual
to direct an awarding body in relation to the setting of standards if
that body is failing, or likely to fail, to comply with a condition and
that failure would be prejudicial. However, clause 144(2) already gives
Ofqual the power to direct a recognised body in the way that the
amendment intends because it states:
“Ofqual
may direct the recognised body to take or refrain from taking specified
steps with a view to securing compliance with the
condition.”
That includes the power
to direct a recognised body to set the standards in a specified
qualification on a specified occasion at a specified level in order to
secure compliance with a condition. The amendment seeks to address
concerns that we have considered. We agree with them and have dealt
with them in the Bill.
Some concern
has been expressed, in particular by Dr. Mike Cresswell, director
general of the AQA, whose comments were mentioned by the hon. Member
for Yeovil, that the powers of Ofqual will not allow it to maintain
standards. I shall put on record once again the Government’s
absolute intention that Ofqual will have the powers it needs and our
confidence that the Bill will give it those powers. For example, Ofqual
could set a condition requiring those awarding bodies offering GCSEs
and A-levels to work together to ensure consistency of standards, to
notify Ofqual by a specified date where there are problems with
agreeing the standard and to accept Ofqual’s judgment about that
standard in that event.
There can be
no doubt that Ofqual has the powers to set such a condition, not least
because its first objective is the qualification standards objective.
It has the power to direct if those conditions are not met. Parliament
will hold Ofqual to account in relation to its effectiveness in
securing that recognised bodies comply with conditions of recognition
and directions given to it under this section. As the Bill stands,
Ofqual will have robust powers to direct recognised bodies where
necessary, including on standards. I hope that I have satisfied the
hon. Gentleman on that account.
With regard
to amendment 559, I am well aware of the request made to us by Ofqual.
It has made it clear on numerous occasions that it wants the power to
fine—we had this in evidence from earlier sittings and in
conversations with, and correspondence from, the chair of Ofqual. I
understand why it needs to have this. I have listened carefully to both
the hon. Member for Yeovil and my hon. Friend the Member for Wakefield
and I undertake to the Committee to reflect on that. I ask my hon.
Friend to withdraw the amendment on that basis because, as she
acknowledged herself, it is not perfect and there is more work to do,
not least the talks that we will have to have with the awarding bodies
and with Ofqual, with whom we will discuss how it thinks it might, and
how we think that it should, use that power.
The hon.
Member for Yeovil asked about the fining powers of other regulators. I
do not have examples to hand but I think all of them have used their
fining powers at some point. We will certainly take that into account
when we consider it
further.
Mr.
Laws: I am grateful to the Minister for her undertaking to
reflect on the matter and to include a discussion on the awarding
bodies. It is right that if such a measure is to be introduced, they
should have a chance to respond. The Minister is clearly minded to look
at this seriously, but obviously she still has some reservations.
However, will she put on the record today the concerns and reservations
that the Government have about granting the power? They are still
considering it and did not put it in the original
Bill.
Sarah
McCarthy-Fry: It was the fact that the awarding bodies did
not feel that the power was necessary, and
the effect that it might have on exam fee increases and issues such as
that. That is why we wish to reflect on it further. It would be better
if we could get a consensus from the awarding bodies and Ofqual that
the power would be used only if absolutely necessary. That is the issue
that we will reflect on. On that basis, I ask the hon. Members to
withdraw their
amendment.
Mr.
Laws: I am grateful to the Minister. She gave a very clear
exposition of the position on amendment 8 and a clear reassurance that
the Bill already has those powers. She also gave a helpful response to
amendment 559. I hope that the Government will now go and talk to the
awarding bodies and bring back some sensible proposals. We should all
accept that it is very difficult to expect enthusiasm from any body or
organisation that is being invited to discuss whether it should be
fined. If any rational organisation were asked whether it wished to be
fined or have a body given powers to fine it, it would be likely to say
no. It is important that the awarding bodies are consulted, but
ultimately the Government must decide and pay due heed to
Ofqual’s concerns that it needs to be an effective
regulator.
Mary
Creagh: I am grateful to the Minister for her response. It
is no surprise to me that the awarding bodies were not in favour of the
measure, but I think that there is a case to be made for the new power.
We have discussed separating the qualification awarding activity, which
gives protection to charitable and commercial organisations. But I am
reassured and I look forward to debating this further on
Report.
Mr.
Laws: I beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Clause 144
ordered to stand part of the Bill.
Clause
145Power
to withdraw
recognition Amendments
made: 482, in
clause 145, page 81, line 38, at
end insert ‘awarded or authenticated by the
body’. This amendment is intended to ensure
that clause 145(2) (which relates to withdrawal of recognition) applies
fully to the situation where the body is recognised to award or
authenticate credits in respect of components of
qualifications. Amendment
483, in
clause 145, page 82, line 17, leave
out ‘a person’ and insert
‘— (i) an
individual’. This amendment and
amendment 484 clarify that review arrangements made under clause 145
may provide for decisions on a review to be made either by an
individual who is not a member of Ofqual or its staff or by a body none
of whose members is such a
person. Amendment
484, in
clause 145, page 82, line 18, at
end insert ‘, or (ii) a body none
of whose members is a member of Ofqual or Ofqual’s
staff.’.—(Sarah
McCarthy-Fry.) See Member’s
explanatory statement for amendment
483. Clause
145, as amended, ordered to stand part of the
Bill.
Clause
146Qualifications
regulatory
framework Amendments
made: 485, in clause 146, page 82, line 24,
leave out ‘regulated qualifications’ and insert
‘qualifications in respect of which they are
recognised’. This technical drafting
amendment is one of the changes described in the Member’s
explanatory statement for amendment 431. The amendment clarifies that
the qualifications to which Ofqual’s guidance refers are those
that a recognised body awards or
authenticates. Amendment
300, in
clause 146, page 82, line 38, leave
out ‘from time to time’.—(Sarah
McCarthy-Fry.) See Member’s explanatory
statement for amendment
290. Question
proposed, That the clause, as amended, stand part of the
Bill.
The
Chairman: With this it will be convenient to take the
following: Government new clause 24— Duty not to impose or
maintain unnecessary burdens.
New clause
22—Achievement and attainment
tables—— ‘Ofqual
shall set and publish the criteria and indicators, including those for
the allocation of credit ratings, which shall be used for the
allocation of qualifications contained within achievement and
attainment tables published by the Secretary of
State.’.
Sarah
McCarthy-Fry: New clause 24 will impose a duty on Ofqual
not to impose or maintain unnecessary regulatory burdens. The clause is
similar in effect to section 72 of the Regulatory Enforcement and
Sanctions Act 2008, which imposes almost identical duties on a range of
regulators such as the Office of Rail Regulation and the Postal
Services
Commission. That
sits alongside the other provisions in the Bill that require Ofqual to
perform its functions efficiently and effectively and to review its
committee structures at least every five years. Ofqual will also need
to observe the Government’s five key principles of good
regulation: that any regulatory activity should be transparent,
accountable, proportionate, consistent and targeted only at cases when
action is
needed. 3.30
pm Turning
to the different subject matter of new clause 22, I am
sympathetic to the thinking behind it. It will be entirely appropriate
for Ofqual to have a role in looking at how qualifications are scored
for the purposes of the Government’s achievement and attainment
tables. That will help to develop confidence in the objectivity of the
scoring judgments. It will be related to its duties under clauses 139
and 140 in relation to the assignment of guided learning hours to
qualifications for the purposes of determining whether qualifications
are sufficient to meet the duty to participate in education and
training under the Education and Skills Act 2008. However, we should
not put the provisions in legislation and there is no need to do so
because achievement and attainment tables are not statutory, and it
would be inappropriate to make them so. I am sure that the Committee
will be aware that we are reviewing them in the light of our proposals
to develop a school report card. Our consultation on that proposal
finished recently and we are reviewing the responses. In the light of
those responses, we will discuss with interim Ofqual what the role of
Ofqual and, if appropriate, that of QCDA, should be in the
new arrangements that we are making for providing information about
school performance. We do not need to put such provisions in the Bill
because, as it stands, it will allow Ofqual to undertake the activity
if requested to do so by the Secretary of State. On that basis, I hope
that the hon. Gentleman will withdraw
it. | 
