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So that we are not misunderstood, I would like to make it clear that this does not preclude the participation of those involved in academia and industry. On the contrary, we would actively encourage the involvement of these people. They would be able to provide the help and expertise to form a truly rigorous and effective exam system. However, those involved should be entirely independent of those in the educational establishment who have a vested interest in portraying standards as being maintained or even rising. The public's perception of exam results has been tarnished by successive years of Ministers assuring the public that standards are rising, despite more and more evidence to the contrary. We need a regulator that will provide honest and impartial assessments of standards. I look forward to the Minister's response.

Lord Sutherland of Houndwood: My Lords, I am pleased to welcome this section of the Bill. I agree with those who have spoken so far that an independent regulator is essential for public confidence, as well as for the quality of education that pupils in schools have available to them.

All seven of the current group of amendments are, like the curate's egg, good in parts. I will now-briefly, I hope-give my version of which parts are good and which, perhaps, are less good. It is not a black and white matter in most cases; rather, it is that there are shades of balance and opinion. I shall quickly run through them.

In Amendment 219, to summarise quickly, it is somewhat over the top to have all members appointed by the Crown. This might complicate things, and it might take away from the important position of the chair of this body. That is my reaction there.

In Amendment 220, however, there is a good balancing effort. The suggestion that members may elect their own deputy has much to commend it. If one takes that view, it follows that one would support Amendment 221, which relates to the continued tenure in office of the deputy.

Amendment 222 specifies that we leave out the Secretary of State in line 23 on page 203 of the Bill. It is inevitable that the first chief executive will have to be appointed by one form or another through the Secretary of State's office, and it would not add much to strike that out from this part of the Bill. Ofqual may not be fully in existence until a chief executive is formally appointed. It is reassuring that, further down, the appointment and conditions of service of a later chief executive are subject to the approval of the Secretary of State, which is rather a different matter from making the appointment. So I am less happy about Amendment 222 as well as Amendment 223, which deals with the same point.

My reaction to Amendment 224A is that this is a much broader question than simply the appointment to this particular post. It is an issue that comes up in a number of contexts in this House: parliamentary scrutiny of public appointments. There is a discussion to be had about that as a principle, but if we were moving in that direction, I do not think I would start here. I would prefer to see this appointment through and Ofqual in process, rather than what might turn out to be fairly

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long-drawn-out scrutiny by committees of various kinds. If you have that in position, it is a different matter and you can perhaps deal with it fairly promptly.

I fully support the emphasis behind Amendment 220A, which has to do with transparency and disinterestedness. However, if one were to apply it as it is written out, leading as it would-as I think has been agreed-to the exclusion of all who have professional knowledge of examination, teaching and assessment, I wonder whether that would be a good thing.

A number of committees of your Lordships' House might find applying such a criterion rather difficult in so far as it would exclude from them some very important members who have an interest-members who currently can declare that interest and who can step aside if it is financial. It might also exclude those who have occupational and professional expertise that would in due proportion be very helpful to a body such as Ofqual. However, that being said, I support the direction of the Bill and hope that we can make good speed with it.

Lord Ramsbotham: I listened with great interest to my noble friend Lord Sutherland, with his expertise in this subject. I am particularly pleased to support the intention behind the amendments because of the one word which the noble Baroness, Lady Walmsley, kept on mentioning: "independence". I say that with some feeling, having been an independent inspector-not a regulator. You must be independent of the Secretary of State to the extent that you are not subject to direction as to what you are doing. I am interested that "Crown" is used in the amendment. I was a Crown official, not anything else, which meant that I was independent. That is important because the regulator should feel absolutely free to speak up and make comments-and criticisms if necessary-in public without any fear, favour or problem of being a civil servant and therefore accountable to a Minister. You will not have a proper regulatory system, for which I think there is approval on all sides of this Committee, until and unless the independence of the regulator is totally guaranteed. It is unfortunate if all the members of the regulatory body are selected by the Secretary of State. The regulator should be able to select people to form part of the regulatory body based on their own experience and their own knowledge of the kind of people they need on their staff to carry out the role and responsibility. I therefore very much welcome the intention of the amendment, although I can see that there may be some hurdles to overcome on the way to getting to what I think is the best solution.

Baroness Verma: My Lords, perhaps I may respond to the noble Lord, Lord Sutherland, who was concerned that my amendment would exclude experts from academia and industry. I said from the outset that we would actively encourage the involvement of such people. They would be able to provide their help and expertise in forming a truly rigorous and effective system. The amendment would not exclude them; it would make them part of the process.

Baroness Morgan of Drefelin: My Lords, I am delighted that we are now moving on to debating the establishment of Ofqual. I would always be delighted

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to take lessons from a maiden aunt; I would love to have one. I was interested in the remarks of the noble Baronesses, Lady Walmsley and Lady Verma. I am grateful also to the noble Lords, Lord Sutherland and Lord Ramsbotham, for their words of wisdom. We are very privileged in this Committee to have such a wealth of experience and knowledge to draw on in our deliberations.

I am glad, although not surprised, that there has been such a widespread welcome in the Committee for the establishment of Ofqual in this opening debate on Part 7. That welcome has been given outside the House, too.

Qualifications are at the heart of the education and skills system. They recognise and reward achievements for young people as they complete their full-time education. They are central also for adults looking to strengthen their vocational skills. As the noble Baroness, Lady Walmsley, reminded us, a qualification's currency is its credibility. Ofqual will need to be independent to give credibility to the qualifications it regulates, which is what the legislation is all about. The Bill provides for Ofqual to be a robustly independent regulator, which, as the noble Lord, Lord Ramsbotham, made so clear, is essential.

3.30 pm

The most important aspects of Ofqual's independence relate to its powers and accountability, and how it uses those powers in practice. We will no doubt debate those later, but we will start by looking at appointments. I begin by tackling head-on the question implicitly-perhaps explicitly-voiced by a number of these amendments on whether Ofqual's independence is affected by the responsibility of the Secretary of State for appointing ordinary members of Ofqual. The answer is no, for three reasons. First, the experience of Ofsted shows us that having a board appointed by the Secretary of State is entirely consistent with a reputation for fierce independence. Anyone reading the media today and hearing the news about serious case reviews, which I am sure we will discuss later, will recognise how fiercely independent Ofsted is. That is why Ofsted was our starting point when developing the governance arrangements for Ofqual.

Secondly, we intend that these will be public appointments regulated by the Commissioner for Public Appointments. That is not the same as appointments being selected by the Secretary of State. The overriding principle will be selection on merit. From the first public advertisement to the announcement of the names of those appointed, the whole appointment process will be open and transparent. Thirdly, once appointed, Ofqual members must ensure that Ofqual is run in accordance with its objectives. They are not in any way answerable to the Secretary of State. Any Secretary of State who thought that he or she could "fix" Ofqual through some canny appointments would be sorely disappointed.

The appointments to Ofqual will be highly significant. We will be looking for a rich mix of tough, independent-minded people with the skills to give Ofqual the leadership that it needs to develop into an independent, credible and authoritative regulator. The fact that they

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are Secretary of State appointments reflects and reinforces the importance of these roles. It is important to say that Ofqual will have to have procedures in place for declaring and managing any conflicts of interest, as a matter of good governance and because it would be at risk of legal challenge if decisions were not impartial. So while the amendment proposed by the noble Baroness, Lady Verma, on conflicts of interest raises important questions, I hope that I can reassure her, by giving a little more detail, that it is unnecessary.

It is important that members of Ofqual should not be subject to conflicts of interest. In particular, it would clearly be inappropriate to appoint to Ofqual anyone with a direct and current connection with an awarding body which Ofqual might regulate. However, there will be arrangements in place to prevent conflicts of interest, with a register of interests, protocols about what to declare and all the usual procedures associated with good corporate governance as well as those associated with being a government department. However, there are many things that, to quote from Amendment 220A, might be "regarded" by some,

Ofqual's objectives. Some people might regard a head teacher as having a conflict of interest, but let me say emphatically that I do not believe that that would be the case. What matters most to head teachers, like the rest of us, is that confidence in the system is high, through robust regulations. I absolutely agree with the noble Baroness, Lady Verma, that we need to be clear about conflicts of interest, but I believe that proper systems, processes and declarations will be in place to ensure that they are properly managed.

Baroness O'Neill of Bengarve:Before the Minster moves on, will the public appointments process she describes be one in which two names are put to the Secretary of State, or one name? A great deal of hidden power to shape the composition of public bodies exists when the requirement is to present more than one name for a given position.

Baroness Morgan of Drefelin: I am happy to clarify that for the noble Baroness. I cannot do so right this minute, but I will ensure that I do, either later this afternoon or in writing.

I am being given inspiration from behind that the process involves one name coming forward. That may provide the noble Baroness with more reassurance, but I am happy to clarify the exact process to the Committee in writing if that is of any assistance.

The amendment on conflict of interest would be unnecessary.

The noble Lord, Lord Sutherland, talked about many helpful and interesting things, particularly the appointment of the deputy chair. Members of the Committee have been concerned about this, and I would be prepared to consider Ofqual having the power to choose its deputy chair from among its appointed members. As I have said before, when preparing the Bill we took the view on balance that the Secretary of State should appoint the deputy chair. However, there is a strength of feeling around the Committee that we need to emphasise independence further. Given the strength of feeling expressed on this, we would consider looking at it further.

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The noble Baroness, Lady Walmsley, talked about Crown appointments, Amendment 219 and whether all board members should be appointed by the Crown and not the Government. Again, the experience of Ofsted is reassuring here. Ofsted has a Secretary of State-appointed board and is widely seen as robustly independent, as I have said. On what is perhaps more of a point of detail, it would, as far as we have been able to establish, be unprecedented for the Crown to appoint all the ordinary members of a board on a body like this, particularly when we can point to Ofsted as an example from which we can draw experience.

The responsibility for appointing the first chief executive is given to the Secretary of State simply to allow Ofqual-and this is important-to be up and running quickly. If not, we would have to wait for the members of Ofqual to be appointed before the process of appointing the first chief executive could even begin. I can provide reassurance on how the first appointment will happen in practice. Working with the chair of interim Ofqual, Kathleen Tattersall, we intend to make an interim appointment of the first chief executive. Once established, Ofqual will then take full control of recruiting its first permanent chief executive.

We have in the Bill a coherent set of arrangements to ensure that Ofqual has the leadership and management it will need to meet its important objectives independently and effectively, and to enable it to be up and running as soon as possible. We take seriously the need to ensure that we have an independent, strong regulator to fulfil these important objectives. I hope that, with these reassurances, and the commitment to consider further, the noble Baroness will feel able to withdraw her amendments.

Baroness Walmsley: I am grateful to the Minister for her words and to other noble Lords who have taken part in this debate. Given what I have been trying to do, I would have been terribly disappointed if I had not been accused of going over the top. Indeed, I am most grateful to the Minister for saying that she would at least consider the issue of the deputy chair. The deputy chair will, of course, stand in the position of the chair on occasions. If that person has been given the support of the board, that will be all to the good. I am grateful to the noble Lord, Lord Sutherland, for expressing his support for that idea. I understand the noble Lord's point about the whole board being made up of Crown appointments. As the Minister said, I am quite aware that there is no precedent. Given what the noble Lord, Lord Ramsbotham, said about the independence that a Crown-appointed person feels, that is why we wanted to give that element of a feeling of independence, and the confidence that it brings, to the whole board. However, I accept that there is no precedent for that, and that Ofsted has proved to be independent, so we will certainly consider what has been said about that.

I am interested in the idea-suggested, I think, by the noble Lord, Lord Ramsbotham-that the chief regulator should be able to add appropriate people to the board. Between now and Report we will look at that idea and see if we want to bring forward further amendments to allow that to happen if it were appropriate.

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I am grateful to the noble Baroness, Lady O'Neill, for asking her question. The office of public appointments is still young; its processes are still embedding. That is why we have not felt total confidence that the process will produce a wholly independent board that cannot be influenced by the Secretary of State. I am encouraged, however, by what the Minister said about the first chief executive being an interim appointment. If that is to be the case, I think I will bring forward an amendment on Report to put the word "interim" in the Bill, which would make me happier. It certainly gives me some reassurance to know that it will be an interim appointment, and that Ofqual itself will appoint the first permanent chief executive, in so far as these appointments are ever permanent.

I am most grateful to all Members of the House for their thoughts, because it has certainly moved on my thinking as to how we will take this issue forward. We probably will in some way. I look forward very much to hearing what the Minister comes up with in relation to the deputy chair. I encourage her to do her best to accept that idea. In the mean time, I beg leave to withdraw the amendment.

Amendment 219 withdrawn.

Amendments 220 to 224A not moved.

3.45 pm

Amendment 225

Moved by Lord Lucas

225: Schedule 9, page 205, line 35, at end insert-

"( ) Ofqual may require the Higher Education Statistics Agency to arrange for collection of, and to provide for Ofqual, such data as it may specify.

( ) Ofqual may promote and fund research and sample testing."

Lord Lucas: My Lords, the purpose behind this amendment is to make sure that Ofqual, which is an organisation that I thoroughly support, has the powers necessary to make a proper evaluation of the quality of examinations. There is a great difficulty in judging the quality of an examination from within the examination system itself. For instance, if you have two GCSEs in French from different boards and you can see from the pupil data that the pupils in one are doing much better, relative to their other educational attainments, than the pupils in the other, you cannot, of itself, tell whether one of those examinations is easier or whether one of them is better, in that the way it is set out and the educational material with it encourages its pupils to excel. The only way in which you can get at that information is to look outside the examination system.

With GCSEs that is easy; you watch what pupils go on to do at A-level. For example, how many of them take French and how they do in it, particularly those who are taking French with different boards or in different ways? That enables you to form a picture of whether the excess performance, as it were, in one examination is laudable or is something about which Ofqual has to do something in order to tighten up the standards in that exam.

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Amendment 225 would ensure that Ofqual had access to data from the Higher Education Statistics Agency. Without such information, you cannot really get a handle on A-level performance. You need to look at what pupils have gone on to do afterwards, which courses they have chosen to take and how they have done in them, to see whether the A grades being awarded in a particular examination reflect learning and the quality of the student or whether they are created by an examination being in some way made easier than it should be.

I have dealt with the HESA in a private capacity as the proprietor of the Good Schools Guide and I have found it exceptionally difficult to deal with, unco-operative and unhelpful. I suppose that that experience motivated me to put down this amendment. I have not been disappointed in the letter that the Government got for me from the HESA. It is clearly not an organisation that is accustomed to reach out the hand of comradeship to other parts of government. It very much says, "If you give us a cheque, we'll think about it".

My advice to Ofqual is that one of the first things that it should do is to write to the Higher Education Statistics Agency requesting that it start collecting proper statistics on which schools students come from. It should connect those statistics back into the student database so that it is possible to track at least a good proportion of students from the point where they gain their qualifications from an English school to the point where they get into university and achieve results in their degree. At the moment, that data collection is extremely lackadaisical, is not undertaken with any sense of dedication or urgency and contains a great deal of inaccuracy. It needs to be of better quality if Ofqual is to be able to do its job. I very much hope that Ofqual will take up the letter from the HESA and pursue it to try to ensure that those data are fit for purpose.

The second part of the amendment would ensure that Ofqual had the ability to do the research that it needs to look outside mere examination statistics. One thing that has gone against our belief in the maintenance of examination quality is the methods that have been used by the QCA to, in its view, maintain standards. That has been largely a matter of comparing one year's examination results with those of the immediately preceding year. That short-term comparison within a system is always subject to error and those errors tend, in the natural human way of things, to be cumulative. You would expect a system based on that reference to drift over time. I am not surprised that many people think that GCSEs in particular have drifted in that way.

You need to conduct proper research into the underlying capabilities of students, through sample testing and other investigations, to enable you to look beyond the examination system and to look back in history with some accuracy. When you have a pattern of the requirements of a particular qualification changing over time, you need to have an unvarying reference point that you can go back to in understanding the capabilities of the students taking it. I am concerned that Ofqual should have the power to undertake those investigations. I beg to move.

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Baroness Verma: My Lords, in following my noble friend Lord Lucas, I apologise at the outset for the length of notes that this large group of amendments brings. To allow thorough scrutiny of Ofqual, I will reinforce many of the points raised by my noble friend.

Amendments 230 and 231 are designed to make explicit in the Bill Ofqual's duty to maintain standards in the regulated qualifications. The Minister may argue that this duty is already implicit in the Bill and that there is therefore no need for the amendments. We suggest that they are necessary because they raise two key concerns. First, we are worried that there is a risk that Ofqual could be seen primarily as a PR agency designed to reassure people that standards are consistent or rising, without actually performing an active function to ensure that that is the case. Our worry stems from comments that come from Ofqual. Kathleen Tattersall, the chief executive of Ofqual, said:

"Ofqual has been set up ... to ensure that there is better understanding of the issue and to assure public confidence".

We would accept that if assuring public confidence were a consequence of proper regulation and maintenance of standards rather than a primary objective in itself. Can the Minister reassure us that this will be the case?

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