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In other words, perhaps it has thrown out a newspaper with the general rubbish rather than recycling it. The LEA can have a tiny excuse for taking total control of a college. There is no appeal and no effective reference to any other body because, although the Secretary of State can set out guidance, all the LEA has to do is to have regard to it. We know exactly what that means: look at it and then ignore it. That happens in many other cases of government guidance. A sixth-form college can take no effective action other than to go to law, but, given the immediacy of this, its finances are presumably frozen the moment the LEA steps over the doorstep and it will have no ability to apply for judicial review. It is an extraordinarily low test when it ought to be a high test. Under paragraph (d), for example, it has to be performing significantly less well, which

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surely should be set in terms of some Ofsted judgment rather than just at the whim of a local education authority officer.

Baroness Morgan of Drefelin: My Lords, I want to make it very clear that the intention here is very much to be in step with the aspirations of sixth-form colleges. As noble Lords will be aware, sixth-form colleges have always had a distinct character and ethos, and I am sure they would argue better than me that concentrating on their core functions of providing 16-to-19 education and training has given them the focus that has allowed them to do tremendously well, as the noble Baroness, Lady Howe, said so eloquently.

I support the noble Baroness's assertion that it is important that institutions that look after children and young people of the same age are judged on a similar basis. This is what we are trying to achieve; I have already referred to the framework for excellence that is being developed in consultation with BIS, the DCSF and professional partners. The Government respect the independent status of sixth-form colleges, and designation as a sixth-form college will not change that status. As they are now they will remain: as incorporated colleges run by their college corporations, not by the local authority.

These powers of intervention, on which the probing amendment tabled by the noble Baroness, Lady Howe, focuses and would remove, are currently held by the Learning and Skills Council. The LSC has used the powers that are being incorporated in this Bill extremely infrequently, but they remain necessary as a tool of last resort because the implications of those extremely rare cases of educational failure or institutional mismanagement can be dire for the life chances of learners.

We intend to transfer the responsibilities that the Learning and Skills Council now holds for sixth-form colleges to local authorities and the YPLA, with the same safeguards that are in place now. Local authorities will be able to consider intervention only if certain thresholds that are set out in the Bill and to which noble Lords have referred are met. Local authorities will be required to follow a national intervention policy which the YPLA will consult on and publish. The YPLA will also submit that policy to the Secretary of State. If he approves it, it will be laid before both Houses of Parliament.

The noble Baroness, Lady Howe, asked specifically about the criteria that the Skills Funding Agency would use in an intervention. I put on the record that in deciding whether to intervene, criterion D in new Section 56E of Schedule 8 allows the local authority to judge how the sixth-form college is performing. This must take account of the circumstances of the college. The same duties are placed on the Skills Funding Agency in respect of FE colleges that it performance-manages. Therefore, we will apply a consistent approach across all sectors, which I know the noble Baroness is keen to achieve.

The noble Baroness also asked about the role of the YPLA. The YPLA's powers of intervention, which mirror a local authority's powers, are, as I have said, a fallback only. The YPLA could intervene in a sixth-form college only when two conditions have been met: first,

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if it was already intervening in the relevant local authority because the authority was failing in its core duty; and, secondly, if a sixth-form college in that authority was behaving in a way that caused the YPLA to conclude that one of the high-level conditions set out in Schedule 8 has been met. This would be an extremely rare set of circumstances.

The noble Lord, Lord Lucas, was concerned that sixth-form colleges could do nothing in response to this process. There is a detailed process of discussion between the local authorities and sixth-form colleges in subsections (4) to (6) of new Section 56E, which he has already probably found his way to, but, again, in the interests of clarity, I will write to noble Lords in my best handwriting, or even using a typewriter, about how that could work.

I will be absolutely clear: we are advised time and time again that the sixth-form colleges are keen to move forward with this. With the reassurance that I may have been able to offer the Committee, perhaps the noble Baroness will feel able to withdraw her amendment.

Lord Lucas: I have a couple of points to make about what the Minister has just said. She talked about a detailed process of discussion in subsections (4) and (6). Yes, I would like to hear further from her on that because subsections (4) and (6) appear to be pretty swift and pre-emptory and do not involve discussion but simply, "Right, we're coming in. Bang". There seems to be no provision for discussions or timescales in the Bill in front of me.

Baroness Morgan of Drefelin: I would be very happy to say at the Dispatch Box that I would not expect there to be anything other than full and generous discussion with sixth-form colleges, even where a sixth-form college may be struggling. It is important, however you operate in local government, that you deal respectfully with institutions. I am sure that the noble Lord would want that on the record.

Lord Lucas: My Lords, I entirely agree that that is how it should be; I just do not see it in the Bill. The other thing that I cannot find in the Bill is what the Minister referred to as the national intervention strategy, which she said would be drawn up by the YPLA and with which LEAs would have to comply. Again, I see that nowhere in the Bill. It would be a sensible way of conducting things to have a set of rules that have to be followed and that add a rational gloss to the hair-trigger conditions that are set out in the Bill. I am sure that I have missed pages, but I cannot find it anywhere and I would be grateful if she could point it out to me.

Baroness Morgan of Drefelin: My Lords, it is in new Section 56G, and I have a copy of it here. It is the Learning and Skills Council statutory intervention policy, which states:

"Presented to the Houses of Parliament pursuant to section 56B of the Further and Higher Education Act 1992 (as amended by the Further Education and Training Act 2007)".

That is a policy statement. I feel it necessary to offer the noble Lord clarification in writing as to where this is updated in the Bill.

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3 pm

Lord Lucas: My Lords, I am confused because the noble Baroness said that local authorities would have to follow this, but it is just guidance. It is set out in secondary legislation, for instance, that cameras should not be used to enforce parking violations. Local authorities are supposed to have regard to that, but Westminster has 200 such cameras. It is set out in both guidance and regulations that controlled parking zones should be signed in particular ways, but only round 20 per cent of the controlled parking zones in Westminster have even half of the signage correct. Local authorities are used to the process of having to have regard to things. I am sure that they behave themselves, but a lot of the time they totally ignore what is set out in guidance. What I am after is something saying that they shall behave in a certain way rather than that they should have regard to such behaviour. Perhaps the change I am looking for is to amend the end of new Section 56G with wording to the effect that local authorities must "act in accordance with" rather than "have regard to".

Baroness Morgan of Drefelin: New Section 56G states:

"Intervention policy: sixth form colleges

(1) The YPLA must-

(a) prepare a statement of the policy to be followed by local education authorities with respect to the exercise of their powers under section 56E",

which is about intervention. It must also,

"(b) keep the statement under review, and

(c) if it considers it appropriate in consequence of a review, prepare a revised statement".

The new section goes on to give a detailed description of the intervention and how it must be fulfilled.

Lord Lucas: Yes, my Lords, but in the end we see the words "have regard to" at the end of the section. In other words, local education authorities can completely ignore it and do whatever they want, as long as they have read the guidance first. A minor indiscretion can trigger this power from an LEA's point of view. An infringement of any Act of Parliament can do it. What sixth-form college does not infringe an Act every year? We all do so. There is so much legislation that you cannot but fall foul of a minor provision in some Act every year. Most of these things one glosses over, puts right or never notices, but any change can trigger the right of LEAs to intervene. Because Section 56G only requires the LEA to "have regard to", there is nothing to stop them.

The only remit of the Learning and Skills Council was to look after the funding and quality of sixth-form colleges. It had no other interests that might bring it into conflict with the policies being pursued by those colleges.

Baroness Morgan of Drefelin: What I have perhaps not made clear is that we are taking the experience of intervention gathered by the Learning and Skills Council and enacting it here under the new YPLA and SFA set-up.

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Lord Lucas: Yes, I entirely understand the Minister. These powers were appropriate when they were given to a body that could be presumed in all cases to be entirely impartial in the way it acted because of the narrow focus of what it did. Now they are being given to a body with a whole multitude of other interests which it might want to pursue and bring to bear on sixth-form colleges. That is why a straight translation of these provisions will not do. I hope very much that I will have the support of my own and the Liberal Front Benches on this, because we will certainly come back to it on Report.

There has to be a measure of sense imposed on this. Like the Learning and Skills Council, the YPLA is a body that does not have a lot of other interests. If the document prepared by the YPLA was binding on local authorities, I should be completely satisfied, but sixth-form colleges will be left at the mercy of LEAs. The noble Baroness knows that this will not be translated into action, but in many cases into threats of action. Authorities have governors on boards and very quickly they will come to know which sixth-form colleges have made themselves vulnerable under the extraordinarily hair-trigger arrangements set out in the Bill. They will then have the power to say, "You will do exactly what we say or we will come marching in and there is nothing you can do to stop us". That is not the right basis for a relationship.

There ought to be more distance between the two because local education authorities have so many other fish to fry and reasons to want to intervene in the minutiae of what a sixth-form college is doing-perhaps, as they see it, to make the college work more efficiently with schools or blend with other policies-simply to satisfy the particular political predilections of the local authority at the time. That did not apply to the Learning and Skills Council but does so to all LEAs, and sixth-forms colleges must have protection.

Baroness Morgan of Drefelin: Perhaps I can put this into perspective. First, sixth-form colleges are happy with these proposals, and it might be helpful to make the Committee aware that the Local Government Association has agreed a protocol with the Sixth Form Colleges Forum which includes, among other things, how performance management and intervention powers will operate. We need to bear in mind that a lot of very hardworking and successful sixth-form colleges would like to go ahead and have for the first time in history a special legal status of their own. It would be a great disappointment to them if we were to pour cold water on that little bit of progress.

Lord Elton: My Lords, I am doing what my noble friend has suggested, and I am not pouring cold water on anything. I want to illustrate the importance of legislation saying exactly what is meant and exactly the outcome that is wanted. There is an analogous case here. The former Mayor of London was subject to a statutory requirement to consult on extending the area of the congestion zone. He did so and the response was 85 per cent against, but he did it.

Lord Lucas: My Lords, that is exactly the point. I am not seeking to destroy this provision but, having listened to what the noble Baroness and other noble

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Lords have said, we should remove from new Section 56G(7) the words "have regard to" and put in something to the effect that LEAs must follow the rules set out in the document so carefully provided by the YPLA. In other words, whatever rules evolve out of the process of discussion under Section 56G and are then agreed by Parliament, should be followed. To rely on a concordat between an unofficial gathering of local authorities and sixth-form colleges to govern these relationships is extraordinary. As I say, I hope very much that I will have the support of both Front Benches when we return to this issue on Report.

Baroness Howe of Idlicote: My Lords, this probing amendment has produced quite a lot of thought and activity, and I thank all noble Lords who joined in the debate. Who knows, out of it may come some even more concrete proposals than those which the Minister was kind enough to spell out. I am pleased that regard will be given to the autonomy of these institutions. Of course there must be an ultimate fallback position if an institution is failing so that something can be done about it, but given that many of them are doing well, we hope that that will not happen in many cases.

We will all read every single word of what has been said in this debate to see whether further actions should be taken on Report. This was a probing amendment-it was meant to be so because that is what the Association of Colleges wanted it to be-and we shall have to consult and see what its views will be by the time we get to Report. I thank the Minister for the careful consideration that she has given to the amendment.

Amendment 217 withdrawn.

Amendment 218 not moved.

Schedule 8 agreed.

Clauses 123 and 124 agreed.

Schedule 9 : The Office of Qualifications and Examinations Regulation

Amendment 219

Moved by Baroness Walmsley

219: Schedule 9, page 202, line 3, leave out "Secretary of State" and insert "Crown"

Baroness Walmsley: My Lords, I shall speak also to Amendments 220, 221, 222, 223 and 224A. We now come to consider Ofqual, the new Office of the Chief Regulator of Qualifications and Examinations, which, under this legislation, is now to stand alone purely as a regulator, with the duty to develop the curriculum to move to the QCDA, about which we will speak later.

There is no doubt that there is a need for a strong, expert and independent regulator, who can speak up for learners on the standards and range of qualifications available to them. It is vital also to employers, further and higher education providers and, indeed, the whole economy that we have such a regulator. In Kathleen

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Tattersall as the new chair we clearly have an expert with experience and determination. We wish her well and thank her for the copy of her letter to MPs during the Committee stage in another place in April this year; it was most helpful.

It is clear that to be successful the chief regulator will need all the help she can get and as little interference as possible. That is the basis of the various groups of amendments that we have tabled which we are about to debate. One of the key duties of the new Ofqual, in Clause 125(4), is to,

One glance at the newspapers during August, when the public exam results are published, will make clear the need for someone to do this. Sadly for all those young people and teachers who have worked so hard to achieve their results, every year we have doubts expressed about whether the standards of the various grades achieved are comparable to similar grades last year and the year before, or even the decade before. We also find questions about the assessment arrangements and how rigorous they are. Questions arise about the balance of exams and coursework, multiple choice questions, and the depth of probing of the knowledge found in the exam paper. It is very important that this comes to an end. Candidates for exams have a right to know what they have achieved when they reach certain grades and their potential employers need to know that too.

That is why we believe the independence of Ofqual is so vital. If the Government are allowed to interfere with its work there will always be questions and doubts about whether results have been manipulated to make the politicians who happen to be currently in charge look good. This applies to all parties, not only the current Administration. I say to the Government that what we are trying to achieve by tabling these amendments is for their own good. I am sorry if I sound like their maiden aunt when I say that. The medicine may not taste nice but I can assure them that it will do them good. More importantly, in this global employment world, it will be good for learners and their opportunities in the global marketplace.

Let us look at what the Government are offering to us and see whether it measures up to a strong, expert and independent Ofqual with the power to use good advice wherever it is to be found. First, we need to look at Schedule 9, where the arrangements for the appointment of all the Ofqual personnel are to be found. There we see that the Secretary of State can appoint all the board members and the chief executive; he will also appoint the deputy chair. The chair is a Crown appointment but I doubt if Her Majesty would appoint anyone unless she had been advised who by the Secretary of State. He will also decide the terms and conditions of service initially and approve them subsequently. This is a recipe for political meddling and the placing of people who will do as the Secretary of State wishes. This is not a recipe for a strong, independent organisation.

Of course, initially there is no alternative but to have the first chair appointed by the Crown on the advice of the Government. However, there is no reason

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why all the members should not also be Crown appointments and subject to the same public appointment scrutiny. That is our Amendment 219.

3.15 pm

Amendment 220 suggests that the ordinary members themselves should elect a person to act as deputy to the chair rather than the Secretary of State doing so. This is quite frequently done on boards. Amendment 221 allows them also to remove that person if they feel it necessary.

Amendments 222 and 223 allow the Ofqual board, under its chair, to appoint its own chief executive and determine his or her conditions of service. In most large organisations it is usual for the sitting chair, acting with the board, to decide who should be the chief executive rather than having someone foisted upon them. In that way we can be sure that they will have total confidence in that person, which they must do in order to work smoothly together. Of course they would have to work within the budget given to them in relation to the remuneration of that person, but they would have discretion in the matter.

Amendment 224A is there in case your Lordships' House does not approve the other amendments in the group. It would require the Secretary of State, in carrying out his functions in relation to the appointment and conditions of staff, to seek the opinion of Parliament. We envisage this would be in the person of the DCFS Select Committee or a combination of appropriate select committees among the movable departmental feast to which we have recently been treated. Your Lordships will notice that we have withdrawn Amendment 224.

By approving this group of amendments, your Lordships would give Ofqual considerably more independence from Ministers right from the start and give it the opportunity to work to deserve the confidence of the public, which I know is what the Government want as well as the Opposition Benches. I beg to move.

Baroness Verma: My Lords, noble Lords will be aware that we have long called for a regulatory body. We welcome the Government's agreement on this matter and are delighted that they have taken our views on board, bringing forward the Bill to put Ofqual on a statutory footing.

Concerns about the standards of education in our country have occupied reams of newspaper coverage and hours of parental concern, and have caused disquiet in the public sphere. We have therefore called for a body to be in charge of regulating those standards to ensure that, as standards rise, the public can be assured about the quality and rigour of our exam system. We welcome the Government's agreement on that point and look forward to enshrining Ofqual in legislation.

We believe, however, that there are improvements to be made to the structure of Ofqual in the Bill. That is why we have tabled Amendment 220A, which would ensure that an ordinary member of the Ofqual board should not have any financial or occupational interests that would give rise to a conflict in Ofqual's objectives. We on these Benches think that it is important to ensure that Ofqual is fully independent of educational bureaucrats.

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