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

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(8) Supplementary powers

478.     Paragraph 21 of the Schedule confers on the QCDA wide supplementary powers to do anything that it considers necessary or appropriate for the purposes of, or in connection with, its functions. But the QCDA may not form companies or other bodies or enter into joint ventures without the Secretary of State’s consent. The powers are also subject to restrictions provided for elsewhere in the clauses (for example, the QCDA may not lend money).

Objective and general duties

Clause 169: Objective

479.     This clause sets out the QCDA’s objective: to promote quality and coherence in education and training in England. For the purposes of the QCDA’s functions, education includes learning by, and development of, young children pursuant to the Early Years Foundation Stage, which was established under the Childcare Act 2006.

480.     The QCA has somewhat broader objectives and has roles in Wales and Northern Ireland. The QCDA will have no responsibilities outside England.

Clause 170: General duties

481.     This clause sets out the matters to which the QCDA must have regard in exercising its functions and pursuing its overall objective. There is some equivalent material in section 26 of the Education Act 1997 setting out requirements to which the QCA must have regard. The duties under clause 170 differ in some respects to those under the 1997 Act as described below.

482.     The QCDA must have regard to the reasonable requirements of all learners, as defined in subsection (6) (this includes young children). The 1997 Act specified a duty to have regard to only learners with special learning needs, but there was no equivalent statutory requirement in relation to other learner.

483.     The clause adopts a new definition of “persons with learning difficulties” (as defined in clause 126) to replace the concept of “learners with special learning needs” in the 1997 Act. The only difference of substance is that the new definition provides that a person is not to be taken to have a learning difficulty solely because of a difference in the language in which he or she is to be taught and the language which he or she speaks at home.

484.     The QCDA must have regard to the reasonable requirements of all employers (rather than just to those of various sectors thereof, as is the case with the QCA) and of higher education institutions.

485.     The QCDA must have regard to the desirability of facilitating innovation.

486.     There is an explicit requirement for the QCDA to perform its functions efficiently and effectively.

487.     The QCDA must also have regard to such aspects of Government policy as the Secretary of State may direct.

488.     As is the case with the QCA at present, the QCDA will also have to have regard to information provided by Ofsted and any other bodies specified by the Secretary of State. The QCDA must also have regard to information provided by Ofqual.

489.     The QCDA must also (like the QCA) have regard to the requirements of section 78 of the Education Act 2002. That section provides-

“The curriculum for a maintained school or maintained nursery school satisfies the requirements of this section if it is a balanced and broadly based curriculum which-

(a) promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society, and

(b) prepares pupils at the school for the opportunities, responsibilities and experiences of later life.”

490.     The QCDA must have regard to the reasonable requirements of all employers (rather than just to those of various sectors thereof, as is the case with the QCA) and of higher education institutions.

491.     The QCDA must have regard to the desirability of facilitating innovation.

492.     There is an explicit requirement for the QCDA to perform its functions efficiently and effectively.

493.     The QCDA must also have regard to such aspects of Government policy as the Secretary of State may direct.

494.     As is the case with the QCA at present, the QCDA will also have to have regard to information provided by Ofqual, Ofsted and any other bodies specified by the Secretary of State.

Chapter 2: Functions in relation to qualifications

Clause 171: Qualifications within the QCDA’s remit

495.     This clause defines which qualifications fall within the QCDA’s remit. This remit is broadly similar to that of Ofqual. It covers all qualifications awarded or authenticated in England other than those which are both (a) at foundation degree level or equivalent or first degree level or above, and (b) awarded or authenticated by a higher education institution. As with Ofqual, the QCDA’s remit is no longer restricted to qualifications awarded by an external body (so, for example, a qualification awarded by an employer following completion of its own training would fall within the QCDA’s remit).

496.     The Secretary of State is given the power by order to exclude qualifications from QCDA’s remit. The order-making power is subject to the negative procedure. This provision is designed to allow for any future narrowing of the QCDA’s qualifications role. The intention is that this power could be used in particular to remove the QCDA’s functions in relation to vocational qualifications, if DIUS were to conclude at a later date that it did not wish the QCDA to have advice and review functions with respect to these qualifications. Any such decision would not affect Ofqual's role in regulating these qualifications.

Clause 172: Qualifications: general functions

497.     This clause sets out the QCDA’s duties and powers in relation to qualifications within its remit (see above). These include its duty to keep all aspects of such qualifications under review; its duty to provide advice or carry out research relating to such qualifications at the request of the Secretary of State; and its general power to offer advice to the Secretary of State and to conduct research. It may also publish information relating to qualifications within its remit.

Clause 173: Assistance etc. in relation to qualifications functions of Ofqual

498.     This clause requires the QCDA where requested by Ofqual, to assist in setting qualifications criteria for a qualification or description of qualification covered by a determination under clause 138(1). It also enables the QCDA generally to assist Ofqual in connection with its qualifications functions, including assistance with setting qualifications criteria in other cases. Qualifications criteria are the criteria for recognition of awarding bodies, for accreditation of individual qualifications and for the assignment of a number of guided learning hours to a qualification. The Government intends that this provision will be used to enable the QCDA to develop criteria for qualifications whose high level content is determined as a matter of policy by Ministers, for example, GCSEs or A-levels. The criteria would then be considered for adoption by Ofqual, and provided it was content to adopt them, it would then regulate the qualifications developed against them. This process will allow Ofqual to avoid the conflict of interest inherent in the QCA’s current set of functions, whereby it both develops the criteria and is responsible for providing assurance that the qualifications developed against those criteria are of a high standard. This process is supported by clause 138, which allows the Secretary of State to determine the minimum requirements for specified qualifications or descriptions of qualifications in terms of the skills, knowledge or understanding a person must demonstrate to obtain the qualification in question. Where such a determination has been made, there would be an expectation that QCDA would support the development of qualifications criteria, which is why clause 173 imposes a duty on the QCDA to assist Ofqual where requested to do so. Where the QCDA does assist Ofqual in the development of criteria and consults on those criteria, it may be that Ofqual will not wish itself to consult as well.

Chapter 3: Functions in relation to curriculum, Early Years Foundation Stage and assessment

499.     The functions of the QCA in relation to curriculum and assessment were established under section 23 of the Education Act 1997. The functions included: keeping under review all aspects of the curriculum, school examinations and assessment; advising the Secretary of State on these matters, and on research and development connected with them, and helping him to carry out research and development if requested to do so; and publishing and disseminating information about them. The QCA also has a range of function relating to National Curriculum assessments as a result of orders made under section 87 of the Education Act 2002.

500.     Similar functions have been conferred on the QCA in relation to the EYFS learning and development requirements by the Qualifications and Curriculum Authority (Additional Functions) Order 2008 (S.I. 2008/1744).

501.     Under the provisions of this Chapter, the QCDA will continue much of the QCA’s role in relation to these functions, such as advising and supporting Ministers in the monitoring and development of curriculum and assessments.

Clause 174: Curriculum

502.     This clause sets out the QCDA’s duties and powers with respect to the curriculum in maintained schools in England for pupils who are of compulsory school age, and pupils in maintained nursery schools. The requirements for the curriculum in such schools are set out in section 78 of the Education Act 2002. It must be a balanced and broadly based curriculum which promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society, and which prepares pupils at the school for the opportunities, responsibilities and experiences of later life. The role of the QCDA in relation to the curriculum is similar to its general role in relation to qualifications within its remit and includes a duty to keep all aspects of the curriculum under review, a duty to provide advice or carry out research at the request of the Secretary of State and the power to offer advice to the Secretary of State and to conduct research when it considers it appropriate to do so. The QCDA may also publish information relating to the curriculum.

Clause 175: Early learning goals and educational programmes

503.     This clause sets out the QCDA’s duties and powers with respect to early learning goals and educational programmes, which mirror those in clause 174 relating to the curriculum. These functions include its duty to keep all aspects of these matters under review, its duty to provide advice or carry out research at the request of the Secretary of State and the power to offer advice to the Secretary of State and to conduct research when it considers it appropriate to do so. The QCDA may also publish information relating to the early learning goals and educational programmes.

504.     The early learning goals establish learning and development expectations for most children to reach by the end of the Early Years Foundation Stage. They are established by order made under section 39(1)(a) of the Childcare Act 2006 and are defined in section 41(2) of that Act as “the knowledge, skills and understanding which young children of different abilities and maturities are expected to have before the 1st September next following the day on which they attain the age of five”. Educational programmes are also established by such an order and are defined in section 41(2) of the 2006 Act as “the matters, skills and processes which are required to be taught to young children of different abilities and maturities”.

Clause 176: Assessment arrangements

505.     This clause sets out the QCDA’s duties and powers with respect to assessment arrangements within its remit. These arrangements include National Curriculum assessment arrangements for each key stage and assessment arrangements under the EYFS learning and development requirements (together referred to as “the regulated assessment arrangements”). The arrangements within the QCDA’s remit also include any other testing and assessment arrangements for pupils of compulsory school age at maintained schools and for pupils at maintained nursery schools. The QCDA’s remit is therefore broader that Ofqual’s, which is restricted to regulated assessment arrangements. The QCDA’s duties and powers broadly mirror those relating to curriculum. They include a duty to keep all aspects of assessment arrangements under review, a duty to provide advice and to carry out research at the request of the Secretary of State, and a discretion to offer advice to the Secretary of State and to conduct research when the QCDA considers it appropriate to do so. The QCDA may also publish information relating to assessment. The QCDA’s duty to keep under review assessment arrangements is a distinct role from the regulatory one for which Ofqual will be conducting reviews of regulated assessments under clause 154. The expectation is that the QCDA will use information obtained through reviewing assessment arrangements to assist it in providing the Secretary of State with advice on assessment arrangements.

506.     The amendments made to the Education Act 2002 and the Childcare Act 2006 by paragraphs 35(3) and 40(2) of Schedule 12 allow the QCDA (and any other body designated by the Secretary of State) to be given specific functions in relation to National Curriculum and EYFS assessment arrangements respectively.

Chapter 4: Other functions and supplementary provision

Other functions

Clause 177: Provision of services or other assistance

507.     This clause enables the QCDA to provide services or other assistance in relation to the matters listed in subsection (1). The consent of the Secretary of State is not required for the provision of services or other assistance, unless it is outside the scope of the list in subsection (1), or involves providing financial assistance or charging for services. The clause prohibits the QCDA from lending money. The QCDA may use the powers under this clause to provide services such as support and advice to schools on implementing the curriculum, or to awarding bodies in relation to the development of qualifications. In particular, this clause will enable the QCDA to operate systems and support services such as the Diploma Aggregation Service (a web-based IT system that supports the administration and award of Diplomas). The QCDA’s powers to assist Ofqual in relation to its qualifications functions derive from clause 173 - under this clause it cannot assist Ofqual in relation to such matters.

Clause 178: Provision of information or advice

508.     This clause provides a duty for the QCDA to advise the Secretary of State on any matters relating to education or training in England which the Secretary of State refers to it. This duty supplements the specific duties to give advice on certain matters set out in Chapters 2 and 3 of this Part. Clause 178 also imposes a duty on the QCDA to give information to the Secretary of State on such matters relation to its functions as the Secretary of State may request.

Clause 179: Ancillary activities

509.     This replicates the existing duty for the QCA to comply with a direction of the Secretary of State to carry out ancillary activities relating to its functions (under sections 25(2) and 25(3) of the Education Act 1997).

Clause 180: Co-operation and joint working

510.     This clause allows the QCDA to co-operate or work jointly with other public bodies, where it is appropriate for the efficient and effective performance of any of the QCDA’s functions. This would enable it, for example, to seek the advice of the Welsh qualifications regulator on qualifications that are regulated in Wales but offered in England, or to work with a Sector Skills Council to advise on the qualifications needed in a particular employment sector.

Clause 181: Power to confer supplementary functions on the QCDA

511.     This clause provides a power for the Secretary of State to confer supplementary functions on the QCDA by order, where such new functions are exercisable in connection with the matters listed in the subsection (2). This measure is designed to enable the functions of the QCDA to develop over time to meet changing needs and circumstances. An order under this clause is subject to the negative procedure.

Supplementary provision

Clause 182: Directions etc. by the Secretary of State

512.     The Secretary of State may issue directions to the QCDA as to the performance of any of its functions. This power sits alongside those of the Secretary of State to direct the QCDA in relation to “ancillary activities” - see clause 179, and to set up a committee for a specified purpose - see paragraph 9(2) of Schedule 11. The QCDA must also, in performing its functions, act in accordance with any plans approved by the Secretary of State.

513.     The provisions in this clause reflect the QCDA’s role as an NDPB, accountable to Ministers

Clause 183: Guidance by the Secretary of State

514.     The QCDA must, in performing its functions, have regard to any guidance given by the Secretary of State.

Chapter 5: General

Clause 185: Minor and consequential amendments

515.     This clause introduces Schedule 12, which contains minor and consequential amendments resulting from the establishment of Ofqual and the revised regime for the QCDA. The changes to section 87 of the Education Act 2002 and to section 41 of the Childcare Act 2006 are particularly relevant to the QCDA’s role, in that these Acts (and regulations made under them) along with the Education Act 1997 contain the full range of the QCA’s current statutory functions. In other words, a significant amount of the QCA’s work relates to functions conferred under the 2002 and 2006 Acts, and potentially this will also be the case for the QCDA.

Schedule 12: Ofqual and the QCDA: minor and consequential amendments

516.     The amendments in this Schedule fall into eight categories:

(1) Those that relate to the establishment of Ofqual as a new Non-Ministerial Department and to the change of name and charitable status of the Qualifications and Curriculum Authority (paragraphs 1-10, 20, 25, 30 and 43).

517.     In this category there are amendments to the following Acts: the Public Records Act 1958; the Parliamentary Commissioner Act 1967; The Local Authorities (Goods and Services) Act 1970; the Superannuation Act 1972; the House of Commons Disqualification Act 1975; the Northern Ireland Assembly Disqualification Act 1975; the Race Relations Act 1976; the Charities Act 1993; the Education Act 1997 (see also below); the Education Act 1997 (see also below); the Freedom of Information Act 2000; and the Safeguarding Vulnerable Groups Act 2006.

518.     Ofqual does not need to be named explicitly as falling under some of these Acts, because its status as a Non-Ministerial Department means that no explicit provision is needed for these Acts to apply to it.

519.     Additionally, the QCDA, unlike the QCA, will not be a charity, so there needs to be an amendment to the Charities Act 1993 to remove the reference to the QCA being an exempt charity.

520.     Paragraph 20 updates the reference to the QCA in section 35 of the 1997 Act.

(2) Amendments to the Education Act 1996 (paragraphs 9 to 11)

521.     These amendments make changes to the Education Act 1996 in consequence of the provisions in the Bill about the set-up of the QCDA and the amendments to the Learning and Skills Act 2000 (see below). Paragraph 11 also limits the duty under section 408 of the 1996 Act (which concerns the provision of information about the education provided in maintained schools) to those qualifications that have been approved for public funding.

(3) The repeal of sections 21 to 26A, section 36 and Schedule 4 to the Education Act 1997 (paragraphs 13 and 20-24)

522.     Sections 21 to 26A and Schedule 4 to the Education Act 1997 establish the QCA, make provision for its constitution, governance and proceedings, and confer functions on it. These provisions are repealed in consequence of the provisions of the Bill in relation to Ofqual and the QCDA.

523.     Section 36 provided a power for the Secretary of State to provide by regulations for the QCA and the Welsh Ministers to receive payment from persons who award vocational qualifications accredited by these authorities. The statutory levy on an awarding body for National Vocational Qualifications accredited by the QCA was replaced by direct grants to Sector Skills Councils from autumn 2008, and the relevant regulations have been revoked. The power has therefore become redundant.

(4) Amendments to the provisions in the Education Act 1997 governing the regulation of qualifications in Wales, keeping the regulatory powers of Welsh Ministers broadly in step with those of Ofqual (paragraphs 14-19)

Paragraph 15

524.     Paragraph 15(2) amends section 30 of the Education Act 1997 to provide revised functions for the Welsh Ministers in relation to vocational and academic qualifications. The new subsection (1) for section 30 reflects the Welsh Ministers’ existing functions, except in the following cases: the Welsh Ministers now have a function of determining whether a relevant qualification, or a description of qualification, is to be subject to a requirement that it be accredited. The Welsh Ministers also have an additional function of publishing and disseminating (or assisting in the publication or dissemination of) information relating to recognised bodies. The qualifications falling within the Welsh Ministers’ remit have also changed. As a result of the amendments, the provisions will refer to “relevant qualifications”, replacing the reference to “external qualifications”. A definition for relevant qualifications is provided in paragraph 15(5), as outlined below.

525.     Paragraph 15(3) makes consequential amendments to update references to subsections in section 30 of the 1997 Act. This reflects the insertion of new functions and the re-numbering of the paragraphs in section 30(1).

526.     Paragraph 15(4) replaces section 30(1B) and repeals section 30(1C), (1D) and (2) in anticipation of the Welsh Ministers making an order under the existing section 30(2) transferring all remaining functions under section 30 to their sole exercise. In other words, the QCA’s role in Wales is to cease by virtue of the anticipated order (and so the QCDA will have no functions in relation to Wales).

527.     Paragraph 15(5) provides a description of the qualifications (the “relevant qualifications”) that fall within the Welsh Ministers’ remit. Qualifications that are foundation, first or higher degrees are excluded from that remit. A qualification is to be considered as awarded or authenticated in Wales where there are (or may reasonably be expected to be) people in Wales seeking to obtain that qualification who will be assessed wholly or mainly in Wales. References to “externality” are removed which means that the Welsh Ministers will be able to recognise bodies which both teach and award qualifications, for example, employers or colleges.

528.     Paragraph 15(6) repeals section 30(6) of the 1997 Act which has the effect of disapplying the definition of external qualifications contained in section 24(7), which will be repealed; see comment on paragraph 15(2) above.

Paragraph 16

529.     Paragraph 16(2) and (5) substitutes “persons with learning difficulties” for “persons with special learning needs”, mirroring the change made in relation to the QCDA. The word “reasonable” is also added, so section 32 of the 1997 Act will provide that the Welsh Ministers must have regard to the reasonable requirements of persons with learning difficulties in carrying out their functions. Paragraph 16(2)(a) also qualifies the duty to have regard to the requirements of industry, commerce, finance and the professions by reference to reasonableness.

530.     Paragraph 16(3) amends the power for the Welsh Ministers to place a limit on fees charged by a recognised body for the award or authentication of a qualification. A fee capping condition may be applied to any charge levied in relation to the award or authentication of a qualification or any other service provided in relation to such a qualification. It might include, for example, any fees charged by the recognised body to recognise a school or college wishing to offer the qualification.

531.     Paragraph 16(4) removes the power for the Welsh Ministers to act as agents for the QCA. It is not intended that the QCDA will exercise any functions in relation to Wales and this provision therefore becomes redundant.

 
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