6 The investigation process
130. Ofqual conducted an investigation into the problems with the 2012 GCSE English results, publishing an initial report on 31 August 2012, followed by a second, fuller report on 2 November 2012. Following the publication of both reports, questions were raised about the extent to which Ofqual was able to conduct an impartial investigation into what had happened, given its close involvement as regulator in the standards setting process.
131. Sir Mike Tomlinson, who led the independent inquiry into A level grading in 2002, commented that "it is always a problem if the body that investigates the issue might have played a part in creating the issue."[185] In an open letter to the Chair of the Education Committee, Brian Lightman, General Secretary of the ASCL, called for an independent investigation into the events surrounding the GCSE English results, saying that "only an independent review will be able to investigate these issues with the degree of expertise, depth and objectivity which will be required".[186]
132. Exam board representatives expressed mixed views about the extent to which Ofqual was able to conduct an impartial investigation. Ziggy Liaquat of Edexcel told us that "Ofqual is obviously deeply involved in the setting of grade boundaries for English. It is an odd situation that they are investigating an issue that involved them."[187] He pointed out, however, that "if you look at the final outcomes of their investigation against the findings of the High Court, you have to say that they did a good job in identifying some of the issues".[188] Other exam board chief executives were more positive, stating that Ofqual was probably best placed to take an overview of what exam boards had been doing and it had the necessary assessment expertise to analyse the technical issues involved.[189] Mark Dawe of OCR commented that:
they were set up to do this sort of job, and to some extent if they are not given that role, then why bother with the regulator [...]you needed someone with the expertise to understand what we were handing over to then be able to judge what had happened, and I do not think anyone outside the regulator would have been able to do that job appropriately.[190]
133. Both AQA and OCR representatives stated that the investigation process did not feel very comfortable, with AQA's Andrew Hall telling us that "it did not feel that the investigation was carried out by someone who was integral in the process. It felt very independent and we were challenged a lot".[191]
134. When we asked Ofqual in September 2012 whether it was effectively investigating itself, Amanda Spielman, Ofqual's Chair told us that "the issues are mainly around what happens in exam boards and in schools, not around what has happened in Ofqual."[192] On the same day, however, an exchange of letters between Edexcel and Ofqual was leaked to the press concerning Ofqual's intervention in Edexcel's summer 2012 GCSE English award. Ofqual's interim report had not covered its intervention in either Edexcel or WJEC's awards, and the publication of this information raised suspicions about Ofqual's role in grade boundary setting, leading to allegations of its fixing grade boundaries. Ofqual has acknowledged that it could have done more to explain its role in standards setting last summer in its interim report, although it does not believe that this would have prevented the judicial review. Glenys Stacey told us that:
we knew we had done that, and we knew it was entirely proper; we were trying to find out what had gone wrong, not what had gone right, but I can understand now that people may think we could have covered it. I think, with the benefit of hindsight we could have expanded and put a little bit in about our role and how we played it, but we did not really understand that to be at issue.[193]
135. Mark Dawe, Chief Executive of OCR was critical of Ofqual's interim report, telling us that "it did close down quite a few options" and "it did not really share the issues and the dilemmas that Ofqual were having to deal with".[194] Mr Dawe suggested to us that the regulator "had the role of getting everyone around the table and stopping this court case from happening." [195]
136. Responding to Ofqual's November 2012 report, Malcolm Trobe, deputy general secretary of ASCL, stated that "this was an investigation carried out by a regulator into its own conduct and that of the awarding bodies. The chances of an impartial and accurate assessment were never great, which is why ASCL believes more strongly than ever that there must be an independent investigation into what happened."[196]
137. The Secretary of State for Education resisted calls for an independent inquiry, pointing out that Ofqual was an independent regulator, accountable to Parliament. He told us in September 2012 that "it would be quite wrong for me to appoint over that regulator an outside body" and that it was "for Parliament to ask the regulator, and all those who are regulated by her, the appropriate questions".[197]
138. In the absence of an independent inquiry, the alliance of schools, pupils, local councils and professional bodies made an application for judicial review. Ofqual told us that it is not unusual for a regulator to be judicially reviewed. What was unusual in this case was that the challenge was brought not by those it regulates, but by others.[198] Ofqual indicated that their legal costs for the judicial review, which have been awarded, will run to several hundred thousand pounds. Glenys Stacey suggested that costs for other defendants (AQA and Edexcel) may be higher.[199]
139. Given the strength of feeling among schools, teachers and pupils about last year's GCSE English results, we acknowledge that a judicial review was a likely outcome.
140. As exam board representatives noted, Ofqual now has the necessary expertise to investigate problems with the exam system and this forms a key part of its work as regulator. The question remains about how best to investigate decisions and actions taken by Ofqual itself. In this case, Ofqual was investigating some decisions which were taken before it was established in its current form. It was also, however, investigating issues in which it was closely involved as regulator, and in future, it will be increasingly likely that it will find itself investigating decisions it has taken in its present form. Judicial review is, of course, one option, although, as this case demonstrates, this can be a rather long and expensive remedy.
141. Ofqual is accountable to Parliament, predominantly through this Committee. We scrutinise the actions of both the regulator and the regulated, taking the advice of independent experts where appropriate. We also make any necessary recommendations for reform. In the exceptional event that a more wide-ranging and in-depth inquiry is required, the Government and House of Commons must ensure that the Committee is adequately resourced to enable it to investigate the technical processes and procedures in question. The Government should also commit to a presumption that any subsequent recommendations made by the Committee will be implemented.
185 Notes on a similar scandal: the 2002 A level fiasco, Times Educational Supplement, 7 September 2012 Back
186 Letter from Brian Lightman to Graham Stuart, 9 October 2012 Back
