Memorandum submitted by Ofqual (AS 08)

 

Introduction and summary

 

1. In September 2007, the Secretary of State for Children, Schools and Families, the Rt Hon Ed Balls, announced his intention to establish an independent regulator for qualifications, examinations and tests in England. The Office of the Qualifications and Examinations Regulator ("Ofqual") was therefore established as an interim body operating as part of the Qualifications and Curriculum Authority in April 2008, in anticipation of the legislation that would establish it as a statutory independent body.

 

2. I was appointed in April 2008 as the first Chair of Ofqual. During the period when Ofqual remains in interim form within the Qualifications and Curriculum Authority (QCA) I am also a member of the QCA Board. The role of Ofqual's Chair is described in the Bill as that of "Chief Regulator" and I see my responsibilities as including a leadership role in setting out clearly what is required to maintain standards and confidence in qualifications.

 

3. The publication of the Apprenticeships, Skills, Children and Learning Bill is an important milestone in establishing Ofqual as an independent regulator. It will allow us to take forward with unequivocal authority the work we started when Ofqual was set up on an interim basis . Ofqual is grateful for having been consulted on the form of the Bill, and for this opportunity to comment. On 10 February 2009 I wrote to the Secretary of State for Children, Schools and Families to welcome the publication of the Bill, to draw attention to the imperative for Ofqual to be independent of Government and to ensure we have the powers and sanctions needed to do our job.

 

4. The Bill will define Ofqual's duties, functions and powers so that it is able to challenge organisations responsible for regulated qualifications and assessment arrangements at a strategic level. Ofqual is determined to be an efficient and effective regulator, which does not place unnecessary burdens on the organisations which it regulates. It is committed to applying the principles of better regulation; transparency, accountability, proportionality, consistency and targeting.

 

Standards and confidence

 

5. At the heart of the Bill are Ofqual's objectives of, and responsibilities for, maintaining standards and sustaining public confidence in regulated qualifications. I believe that these are essential roles in a period of extensive change in qualifications for young people and adults. Learners deserve independent assurance that the qualifications they are taking will be valued by users and society and that they will open doors for them in education and employment.

 

 

 

 

 

Ofqual's independence

 

6. It is important that Ofqual is seen to be truly independent. Ofqual's immediate objective, therefore, is to make sure that the Bill will create and empower a truly independent regulator. Without such independence we will not be able to deliver the outcomes envisaged when the Government consulted last year on the proposal to create an independent regulator or the objectives set for us in the Bill.

 

7. Establishing Ofqual as a non-ministerial government department, which reports to Parliament directly, sends out a very clear signal that the new body is independent. I believe that this will help us to promote public confidence in the role that we undertake on their behalf and, crucially, in the quality and integrity of the qualifications and assessment arrangements that Ofqual regulates.

 

8. My officials have had detailed discussions with DCSF about the Secretary of State's power to determine minimum requirements in relation to certain qualifications, which is set out in clause 138. I fully support the principle that Ministers should set broad policy objectives - notably in areas concerning the National Curriculum in England - and provide the framework for the system which Ofqual will regulate. However, there are matters, such as awarding and grading, which are clearly the responsibility of the regulator, and which must be exercised with visible independence from Ministers. We must be sure therefore that the powers of the Secretary of State do not undermine Ofqual's ability to act independently, either in reality or in the perception of the public and other stakeholders.

 

9. When the Bill was published, I exchanged letters on this matter with the Secretary of State for Children, Schools and Families. He told me that the process leading to stipulation of minimum requirements under Clause 138 would "need to work in a way that does not compromise Ofqual's independence", and that he would seek to agree with me, and then "publish jointly for consultation (including with the [DCSF] Select Committee) a Memorandum of Understanding setting out that process clearly, including the publication of Ministers' reasons for acting." He agreed with me that "the Bill does not give Ministers a role in regulatory issues such as grading or standards, which are rightly preserved for Ofqual." I welcome these assurances.

 

10. The Bill sets out a role for the Secretary of State in the set up and appointment processes for Ofqual, for example in relation to the appointment of the ordinary members of Ofqual and the numbers and terms and conditions of members of staff. I understand that the proposed Ministerial involvement in appointments is in line with arrangements for many other regulators, although I would expect the Chair of Ofqual to be fully consulted. In my view the requirement for Ministerial approval of such matters as numbers of staff and terms and conditions (Schedule 9, paragraph 6(5)) is more questionable.

 

 

 

 

Empowering Ofqual

 

11. The Bill rightly gives pride of place to Ofqual's function of recognising organisations which are fit to award regulated qualifications. Ofqual will be able to set conditions for recognition and those conditions will be the source of the powers given to Ofqual to take the necessary steps to ensure that the conditions are met. The Bill also empowers Ofqual to accredit specific qualifications, where that degree of scrutiny is justified. I think that this approach strikes the right balance between strategic regulation and the scope for the regulator to be involved in more detail to protect standards and confidence.

 

12. I welcome the powers that Ofqual will be given in relation to National Curriculum and Early Years Foundation Stage assessment arrangements. These powers will enable us to gather information, report problems and make recommendations about the development and implementation of National Curriculum Assessments, as recommended by the Sutherland Inquiry.

 

13. The objective to secure efficiency and value for money in regulated qualifications (Clause 125(6)) will underpin Ofqual's work as an economic regulator. In connection with this objective, the ability to keep under review qualifications which we will not regulate, but which may impact on the regulated system, is significant and will strengthen our work in this area. I also note Ofqual will be able to undertake research in relation to regulated qualifications and assessment arrangements, which can only help to support our understanding of these areas and our ability to regulate them effectively.

 

14. The Bill will also give Ofqual responsibility for establishing an independent process for those who are dissatisfied with the outcomes of enquiries and reviews. This will allow Ofqual to build on the excellent work of the Examinations Appeals Board and give the public confidence that there is an independent, transparent and impartial process for dealing with appeals.

 

15. The Bill recognises Ofqual's role in Northern Ireland appropriately and facilitates the valuable work Ofqual does in conjunction with fellow regulators in both Northern Ireland and Wales. Ofqual is committed to continuing to work with its fellow regulators to preserve a consistent approach to regulation across the three countries. Enforcement powers

 

16. The proposed strengthening of Ofqual's enforcement powers is most welcome. Ofqual will always seek to work collaboratively with awarding bodies but it is important that the regulator has an appropriate range of powers that can be called upon if compliance is lacking. The powers and sanctions which the Bill provides for include setting conditions on recognition, directing awarding bodies, capping fees and, ultimately, withdrawing recognition. These are vital tools for the regulator to be able to use, if necessary.

 

17. We have had constructive discussions with Government about the powers that should be available to Ofqual, and these are reflected in the Bill's provisions. However, the Bill does not give Ofqual a power to fine awarding bodies. In his letter to me at the time of the Bill's publication, the Secretary of State for Children, Schools and Families observed that "a fining power could have a strong deterrent effect without ever being used", and he undertook to keep the matter under review. I welcome that undertaking.

 

18. The majority of respondents (63%) to the Government's consultation Confidence in Standards: Regulating and developing qualifications and assessment (December 2007) supported Ofqual having the power to intervene and/or impose a sanction, including the power to enforce financial or other penalties. We have considered this issue at length and my colleagues on the current Ofqual Committee are fully supportive of my position that having such a power in Ofqual's arsenal would be helpful and provide another means of addressing non-compliance. We believe that this is an additional power that would strengthen the suite of Ofqual's regulatory powers and which would, in line with the Macrory Principles of regulatory justice, be the most appropriate and proportionate instrument for Ofqual to use in some circumstances.

 

Power to gather information about regulated qualifications

 

19. It is vital to ensure that Ofqual is able to gather the information about regulated qualifications which it needs to be able to act as an effective regulator. Information about awarding body performance will be necessary for Ofqual to identify areas where compliance is not met and will provide the evidence base upon which regulatory and enforcement decisions and actions are made. While the Bill does not give Ofqual an explicit power to require information from recognised awarding bodies we consider that we will be able to set a condition for recognition which enables us to collect all the information we need.

 

Conclusion

 

20. Athough I have raised issues relating to Ofqual's independence and powers, I believe that, subject to Parliament's scrutiny, the Bill would provide Ofqual with sufficient tools and powers to ensure that qualifications and assessments meet the very highest standards and that confidence in them is maintained and strengthened.

 

March 2009