Apprenticeships, Skills, Children And Learning Bill - continued          House of Lords

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Clause 117: Other directions relating to the functions of the office

316.     This clause allows the Secretary of State to give directions to the Chief Executive about what overarching objectives he or she should be seeking to achieve in performing the functions of the office, and by when. This clause also allows the Secretary of State to intervene if he or she considers that the Chief Executive has failed to discharge a statutory duty or has acted or is proposing to act unreasonably in the exercise of his or her functions.

317.     Directions under the clause may not relate to the funding of specific individuals or individual bodies. This is to ensure that the Chief Executive has responsibility for funding decisions, without influence from the Secretary of State.

PART 5: PARTS 2 TO 4: SUPPLEMENTARY

Clause 119: Sharing of information for education and training purposes

318.     This clause allows information sharing between bodies and persons replacing the Learning and Skills Council to enable or facilitate the exercise of their functions. It does not, however, extend local education authorities' existing statutory powers to share information with each other.

319.     The clause does not allow information to be passed on if doing so would be an offence, nor where there are other statutory restrictions which prohibit its disclosure.

The Learning and Skills Council for England

Clause 120: Dissolution of the Learning and Skills Council for England, Clause 121: Dissolution of the Learning and Skills Council: transfer schemes

320.     These clauses provide for the dissolution of the LSC and give effect to Schedules 6 and7. Schedule 6 makes minor and consequential amendments: Schedule 7 provides for the transfer of staff and property from the LSC to various bodies.

Schedule 6: Dissolution of the Learning and Skills Council for England: Minor and consequential amendments

321.     Schedule 6 contains minor and consequential amendments relating to the dissolution of the LSC.

322.     These include an amendment to the Education Act 2002 which permits the Secretary of State and Welsh Ministers to make regulations allowing the YPLA to recover costs from a local education authority where it secures education for a person under clause 64 of the Bill, or allowing a local education authority to recover costs from the YPLA where it secures education under clause 64 in place of another local education authority.

Schedule 7: Learning and Skills Council for England: transfer schemes

323.     This Schedule gives power to the Secretary of State to make one or more schemes to enable the transfer of staff and property from the LSC to various bodies.

324.     In relation to staff, the Secretary of State may make a staff transfer scheme providing for designated employees of the LSC to become employees of “a permitted transferee” or to become members of the civil service. A staff transfer scheme must provide for the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) to apply to the transfer of employees of the LSC, with modifications where necessary. Modifications will be required in the case of transfers into the civil service on terms which do not constitute a contract of employment (because TUPE assumes that the persons to which the regulations apply will have a contract of employment once transferred). Those LSC staff who transfer to DIUS and become members of staff of the Chief Executive of Skills Funding will become civil servants. In relation to property, a property transfer scheme may provide for the transfer from the LSC of designated property, rights or liabilities to the Secretary of State, the Chief Executive of Skills Funding, or to a permitted transferee.

325.     “Permitted transferee” is defined in paragraph 8 as an English LEA, the YPLA or any other person specified by the Secretary of State by order.

PART 6: THE SIXTH FORM COLLEGE SECTOR

Clause 122: Sixth form college sector

326.     This Part introduces Schedule 8, which contains provisions for a new sixth form college sector.

Clause 123: Removal of power to establish sixth form schools

327.      This clause prevents LEAs from establishing additional sixth form schools, but does not affect existing sixth form schools, which will continue to operate in exactly the same way as other schools maintained by the LEA.

Schedule 8: Sixth form college sector

328.     Paragraph 3 of Schedule 8 inserts new provisions for sixth form college corporations in England into the Further and Higher Education Act 1992 (“the FHEA 1992”).

Section 33A: Initial designation of existing bodies corporate as sixth form college corporations

329.     This new section gives the Secretary of State a power to designate, by order, specified existing further education (“FE”) corporations as “sixth form college corporations”. This initial designation power will take the form of a list of institutions. Designation will take effect from a date that is specified in the order. The designation order may provide for the continuity of governance between the former FE corporation and the new sixth form college corporation and may specify the initial name of the new corporation.

330.     The sixth form college corporations designated under this section will include both FE corporations established under section 16 of the FHEA 1992 and “designated institutions”. Some colleges that were sixth form colleges before 1992 entered the further education sector by being designated under section 28 of the FHEA 1992, and were later incorporated as FE corporations under section 143 of the Learning and Skills Act 2000.

331.     This power is exercisable only once and not after a date specified by order.

Section 33B: Subsequent designation of existing bodies corporate as sixth form college corporations

332.     This new section gives the Secretary of State further power to designate, by order, FE corporations as sixth form college corporations once the power in section 33A is no longer exercisable. A designation order may be considered only after the governing body of a FE college has applied to the Secretary of State and if, on the date of application, at least 80% of the total enrolment number at the institution is aged 16 or over but under 19. The “total enrolment number” is defined as the full-time equivalence number (as calculated under Schedule 3 to the FHEA 1992). The designation order may provide for the continuity of governance between the former FE corporation and the new sixth form college corporation and may specify the initial name of the new corporation.

Section 33C: Establishment of new bodies corporate as sixth form college corporations

333.     This section gives the Secretary of State the power to establish, by order, a sixth form college corporation. The local education authority must first publish proposals in line with the requirements set out in subsection (3). On establishment, at least 80% of the total enrolment number at the institution must be aged 16 to 18. The order will specify the date of establishment and may provide for the name of the new corporation.

Section 33D: Conversion of sixth form college corporations into further education corporations

334.     Under this new section, the Secretary of State may, by order, convert a sixth form college corporation into a FE corporation. This is the opposite of the process under section 33B for the designation of a sixth form college. The governing body of the sixth form college must apply to the Secretary of State and he must be satisfied that it is no longer appropriate for the college to remain a sixth form college. So that change does not destabilise colleges, subsection (3) prevents a sixth form college from seeking to convert for five years from the date that it is designated or established as a sixth form college. The order may, as with designation or establishment orders, ensure the continuity of governance from sixth form college status to FE college status.

Section 33E: Principal powers of a sixth form college corporation, Section 33F: Supplementary powers of a sixth form college corporation, Section 33G: Further provision about supplementary powers

335.     These sections set out the principal and supplementary powers of sixth form college corporations, reflecting powers of FE corporations in sections 18 and 19 of the FHEA 1992.

Section 33H: Duty in relation to promotion of well-being of local area

336.     This new section will place a duty on sixth form college corporations, when providing education and training for young people and adults, to take account of the way in which they contribute to the economic and social well-being of people who live and work in the area. This mirrors clause 248 which places a similar duty on FE corporations.

Section 33I: Constitution of sixth form college corporation and conduct of sixth form college, Section 33J: Special provision for certain institutions, Section 33K: Instrument and articles of new sixth form college corporations, Section 33L: Changes to instruments and articles

337.     These new sections contain provisions relating to the instruments and articles of government of sixth form colleges. Under section 33I, all sixth form colleges must have instruments and articles of government. Section 33J makes provision requiring sixth form colleges of a particular character — mainly faith-based institutions and those established by foundations — to reflect those characteristics in their trust deeds and the membership of their governing bodies. The initial instruments and articles of government of a new sixth form college established under section 33C will be drawn up by the YPLA (section 33K). Section 33L sets out procedures by which the YPLA may modify instruments and articles of government in consultation with sixth form college corporations.

Section 33M: Charitable status of a sixth form college corporation

338.     This new section provides that sixth form college corporations are to be charities within the meaning of the Charities Act 1993.

Section 33N: Dissolution of sixth form college corporations

339.     Section 33N gives power to the Secretary of State to dissolve a sixth form college corporation and transfer the property, rights and liabilities of the corporation to another person or corporation, which may include the responsible LEA. Orders may make provision for the transfer of staff (subsection (8)). Before making an order to dissolve a sixth form college corporation and transfer assets and liabilities, the Secretary of State must consult the corporation and the responsible LEA.

340.     Paragraphs 4 to 7 of Schedule 8 make amendments to the FHEA 1992 to distinguish sixth form colleges and sixth form college corporations from FE colleges and FE college corporations. Paragraph 8 of the Schedule amends the provisions of the FHEA 1992 relating to intervention in colleges to add new sections 56E to 56J.

341.     Section 56D (inserted by paragraph 11 of Schedule 6) requires a LEA or the YPLA to notify the Chief Executive of Skills Funding about concerns that they have about FE colleges other than sixth form colleges. The Chief Executive must have regard to those views when considering whether to intervene.

Sections 56E and 56F: Intervention by LEAs: sixth form colleges

342.     Section 56E replicates for local education authorities the powers previously held by the LSC for intervention in sixth form colleges. This section sets out the matters that would trigger consideration of intervention in a college (subsection (2)) and the arrangements by which the LEA must notify the Secretary of State and the YPLA, and the college, of their intention to intervene and the reasons for doing so. The powers of the LEA are explained in subsection (6). The LEA may give directions to the governing body to make arrangements for collaboration (subsection (7)) and to dismiss a member of staff, if the governing body have power under their institution’s instruments and articles of government (subsection (10)). The governing body must comply with any directions made under this section. In addition section 56F allows a local education authority to appoint no more than two additional members of a governing body of a sixth form college.

Section 56G: Intervention policy: sixth form colleges

343.     This section requires the YPLA to prepare a statement of the intervention policy, to which LEAs are required to have regard (subsection (7)) when using their powers under section 56E. The YPLA must consult on the statement and send a copy to the Secretary of State, which he is required to lay before each House of Parliament. The YPLA must then publish that policy, as approved by the Secretary of State.

Sections 56H & 56I: Intervention by YPLA

344.     Section 56H allows the YPLA to intervene in the running of a sixth form college in the circumstances set out in subsection (1). These are that the YPLA proposes to commission the provision of education or training at the college and is satisfied that the grounds in section 56E for intervention by a LEA are satisfied (and that it would be appropriate for a LEA to exercise its powers under that section). The YPLA’s intervention powers correspond to those of a LEA (section 56H(5)). Section 56I gives the YPLA power to appoint additional governors, mirroring LEAs’ powers under section 56F.

Section 56J: Notification by Chief Executive of Skills Funding of possible grounds for intervention

345.     This new section requires the Chief Executive of Skills Funding to notify the responsible local education authority and YPLA if he has concerns about post-19 provision at sixth form colleges. The local education authority, or the YPLA where it is involved under its powers in section 56H, must have regard to the Chief Executive’s views when considering whether to intervene. This is the mirror provision of section 56D.

346.     Paragraphs 9 to 15 make further consequential amendments including to definitions of terms used in the new sections.

PART 7: OFFICE OF QUALIFICATIONS AND EXAMINATIONS REGULATION

347.     This Part provides for the establishment of a new Non-Ministerial Department, Ofqual. In relation to England, the new body will regulate academic and vocational qualifications (excluding foundation, first or higher degrees and National Curriculum (NC) and Early Years Foundation Stage (EYFS) assessment arrangements. Ofqual will also regulate vocational qualifications in Northern Ireland.

348.     Ofqual will take over the regulatory functions of the Qualifications and Curriculum Authority (QCA), although with differences in the ways the functions are exercised, and with a different set of powers, principles and objectives governing their exercise. Part 8 of the Bill re-names the QCA the Qualifications and Curriculum Development Agency (QCDA), with that body retaining its non-regulatory functions.

349.     Regulation of qualifications is, and will remain, voluntary: there is no prohibition on any person offering a qualification without having been recognised by Ofqual. There are two key reasons why bodies will choose to seek recognition by Ofqual and so to have the qualifications they award regulated: first, because being regulated shows that the body has been checked as being fit to award trustworthy qualifications; and second, because, as a matter of policy, the Government will normally only approve qualifications for funding by maintained schools or in colleges if they are regulated.

350.     In April 2008, as a first step towards the establishment of Ofqual as a statutory regulator, the Secretary of State for Children, Schools and Families directed the QCA to set up a committee for the purpose of “exercising on behalf of QCA functions and powers in relation to the regulation of qualifications and National Curriculum assessments”. In this way “Interim Ofqual” was established, operating within the parameters of the current legislation. The provisions of the Bill complete the transition to having a separate regulator for qualifications and assessment arrangements by establishing Ofqual.

Chapter 1: Establishment, objectives and general duties

Clause 124: The Office of Qualifications and Examinations Regulation

351.     This clause establishes the Office of Qualifications and Examinations Regulation as a body corporate, specifies that the body will be referred to as “Ofqual” in this Bill, and gives effect to Schedule 9, which contains further detailed provisions about matters such as Ofqual’s constitution and proceedings.

Schedule 9: The Office of Qualifications and Examinations Regulation

352.     This Schedule makes provision about the constitution and governance of Ofqual.

Status

353.     Ofqual is to perform its functions on behalf of the Crown (paragraph 1). This provision makes Ofqual a Non-Ministerial Department.

Membership

354.     The Chair of Ofqual is appointed by the Crown. The “ordinary members” are appointed by the Secretary of State, who may appoint one of the ordinary members as the deputy chair. One of the ordinary members must be the Northern Ireland member, appointed following consultation with the Department for Employment and Learning in Northern Ireland, reflecting Ofqual’s responsibilities there.

355.     The Chair will be known as the Chief Regulator of Qualifications and Examinations. The Government does not intend this title to imply that the Chair has any statutory functions in his or her own right - all the functions in Part 7 are functions of Ofqual itself - but in practice the Chief Regulator is likely to be the public face of Ofqual.

356.     Paragraphs 2 to 5 set out the arrangements for appointing the Chief Regulator and ordinary members, the terms of appointments, and the responsibility of the Secretary of State for determining their remuneration, allowances and expenses.

Chief executive and other staff

357.     The chief executive of Ofqual is an ex-officio member of Ofqual. The first chief executive will be appointed by the Secretary of State (because Ofqual will not exist at that stage, it may not appoint); thereafter the appointment will be for Ofqual. Ofqual may appoint staff; the numbers of staff and their conditions of service are to be agreed with the Secretary of State.

Committees

358.     Paragraphs 7 to 11 set out the arrangements for Ofqual establishing and delegating to committees and sub-committees, and give Ofqual the power to establish a committee jointly with another body. (The latter power would, for example, allow Ofqual to set up a joint committee with other qualifications regulators in the United Kingdom.) Joint committees are allowed to regulate their own procedure. Paragraph 10 also allows Ofqual to delegate functions to a member of Ofqual or of its staff.

Supplementary powers

359.     Ofqual may do anything that it considers necessary or appropriate for the purposes of, or in connection with, its functions, but may not lend money.

Objectives and general duties

Clause 125: Objectives

360.     This clause sets out five objectives for Ofqual in discharging its functions:

  • the qualifications standards objective,

  • the assessments standard objective,

  • the public confidence objective,

  • the awareness objective, and

  • the efficiency objective.

361.     The statutory objectives in the current legislation, which apply to both QCA’s regulatory and non-regulatory functions, are much broader.

362.     Ofqual’s objectives relate to “regulated qualifications”, which is a term defined in clause 127 or to “regulated assessment arrangements”, as defined in clause 128.

363.     The qualifications standards objective - set out in clause 125(2) - is for Ofqual to secure that regulated qualifications: (a) give a reliable indication of knowledge, skills and understanding; and (b) indicate a consistent level of attainment (including over time) between comparable regulated qualifications.

364.     Similarly, the assessment standards objective - set out in subsection (3) - is for Ofqual to promote the development and implementation of regulated assessment arrangements which: (a) give a reliable indication of achievement, and (b) indicate a consistent level of attainment (including over time) between comparable assessments. The ultimate responsibility for regulated assessment arrangements, which are statutory assessments, lies with the Secretary of State, so Ofqual’s role is to monitor and report on those arrangements, and in doing so to promote the maintenance of standards.

365.     Ofqual must perform its functions with the aim of ensuring that comparable qualifications- whether they are contemporaneous or delivered at different times - indicate a consistent level of attainment. If the requirements of a qualification have changed over time, perhaps because the requirements of the industry to which they relate have evolved (this will be a particular issue in the IT industry, for example), it may be that a modern qualification is not comparable with its predecessor and therefore that Ofqual does not have to secure that the two qualifications indicate a consistent level of attainment. But if two qualifications are comparable, Ofqual must act to ensure that they do indicate a consistent level of attainment.

366.     A similar set of requirements applies to the promotion of regulated assessments standards.

367.     The standards of qualifications and assessments - the benchmarks against which learners are measured - are not the same thing as the standards of education more broadly. “Standards” in this first sense are like the height of a hurdle, and Ofqual’s objective is to keep that height consistent between comparable qualifications and assessments. Whilst it is generally a policy objective of the Government to improve the quality of teaching and learning such that the number of people able to jump the hurdle increases (which is how the term “standards” is more commonly used), that is not a concern of Ofqual’s under its standards objectives.

368.     The public confidence objective is set out in subsection (4) and requires Ofqual to promote public confidence in regulated qualifications and regulated assessment arrangements. This is to ensure not only that qualifications are reliable but that they are trusted.

369.     The awareness objective is set out in subsection (5) and, unlike the standards and public confidence objectives, it applies only in relation to regulated qualifications. The Secretary of State has statutory responsibility for regulated assessment arrangements, so it is for him to determine how to ensure that there is sufficient awareness of them.

370.     This objective is concerned with promoting awareness of the range of regulated qualifications on offer, the benefits of regulated qualifications to learners, employers and institutions within the higher education sector and the benefits to awarding bodies (including, for example, employers awarding their own qualifications) of regulation.

371.     The efficiency objective is set out in subsection (6) and requires Ofqual to ensure that regulated qualifications are provided efficiently and that fees payable for the award or authentication of a regulated qualification represent value for money. This objective reflects the fact that Ofqual will have a role as an economic regulator, including a power to cap examination fees. Ofqual does not have a specific efficiency objective in relation to regulated assessments, because these are statutory assessments delivered on behalf of the Secretary of State, rather than - as with qualifications - by independent organisations operating in a regulated market.

Clause 126: General duties

372.     Subsection (1) requires Ofqual in carrying out its functions so far as is reasonably practicable to act in a way that is compatible with its objectives under clause 125 and which it considers most appropriate for the purposes of meeting those objectives.

373.     Subsection (2) sets out the matters to which Ofqual must have regard in performing its functions.

374.     Subsection (2)(a) requires Ofqual to have regard to the need to ensure that the number of regulated qualifications is appropriate. Subsection (3) provides that an “appropriate” number of qualifications is based on ensuring a reasonable level of choice for learners in terms of both the number of different regulated qualifications on offer, and the number of different forms of each regulated qualification; but that the number of different qualifications in similar subject areas or serving similar functions should not be excessive. For example, it would be appropriate for there to be a choice of versions (or forms) of a qualification called “retail management”, which may be offered by a range of different awarding bodies. However, while some choice of qualifications that are similar to “retail management”, but with slightly different titles and purposes, may be appropriate, this provision is intended to ensure that there is not an excessive number of such qualifications, which risks causing confusion.

375.     Subsections (2)(b) and (c) require Ofqual to have regard to the reasonable requirements of:

  • those who are seeking to obtain or who might reasonably be expected to seek to obtain regulated qualifications, and

  • in relation to regulated assessment arrangements, pupils and children,

  • including in each case those with learning difficulties.

376.     The terms used in these subsections are defined in subsections (8) to (10).

377.     Under subsections (2)(d) and (e), Ofqual must have regard to the reasonable requirements of employers and institutions within the higher education sector (as defined in clause 165(1)).

378.     Under subsection (2)(f), Ofqual must have regard to information provided to it by the QCDA and Ofsted, and any bodies specified by the Secretary of State which have knowledge of or expertise in the requirements of industry, commerce, finance, the professions or other employers regarding education and training. This provision will allow the current arrangements to continue, by which the regulator must take into account the views of Sector Skills Councils in relation to qualifications in their sectors. Under a similar provision in the current legislation (section 26 of the Education Act 1997), Sector Skills Councils in England have been designated by the Secretary of State as bodies to which the regulator must have regard in regulating vocational qualifications. This is in support of the Government’s policy for improving the relevance to employers of vocational qualifications as part of its skills strategy.

379.     Under subsection (2)(g), Ofqual must have regard to the desirability of facilitating innovation in connection with the provision of regulated qualifications.

380.     Subsection (2)(h) requires Ofqual to have regard to the specified purposes of regulated assessment arrangements, as defined in clause 128(6). The definition operates by reference to definitions in section 76(1) of the Education Act 2002 and section 41(2)(c) of the Childcare Act 2006. These make provision about the purposes respectively of National Curriculum assessment arrangements (NC assessment arrangements) and of assessment arrangements in connection with the learning and development requirements of the Early Years Foundation Stage (EYFS assessment arrangements). Those provisions are amended by paragraphs 32 and 39 of Schedule 12 respectively to allow the Secretary of State to specify additional purposes of assessment arrangements to which Ofqual would then need to have regard.

381.     Subsection (6) requires Ofqual to have regard to such aspects of Government policy as the Secretary of State directs. This provision is modelled on a similar provision in the legislation setting up Ofsted. The Government expects this provision to be used, for example, to specify that the Government wished to ensure that assessment were not unduly burdensome for schools. Any such direction is not intended to impinge on Ofqual’s independence - it would not require Ofqual to act in a particular way, simply to take into account the policy in question in deciding how it would be appropriate for it to act.

 
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