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The Bill contains no duty on Ofqual to carry out its functions in a timely manner. Although I have no reason to believe that it would not do so, I think it is necessary to put Amendment 227 in the Bill among Ofqual's objectives. The noble Baroness, Lady Verma, has a similar amendment-Amendment 243-in this group. There are times when the good offices of Ofqual
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Amendment 277 should be clearly differentiated from Amendment 232A to Clause 125(4), which relates to public confidence. In that subsection, the public need to know that the standards of regulator qualifications remain consistent over time, which is why I have put into the amendment the same phrase, "(including over time)", to be found in previous subsections. The Government might think it superfluous to put it in twice, but, if this is so, perhaps the Minister could reassure us that the public confidence objective is linked to the assessment standards objective.
Amendment 237 relates to Ofqual's general duties in Clause 126(1). We believe that it is so important to relate Ofqual's duties to the interests of learners that we want to put that in here. Qualifications are not just things by which employers or further education providers can assess an individual's suitability for a certain job or course; they are for the learner himself to know what he has achieved, to act as a matter of pride and self-esteem, and to encourage him to believe that, perhaps having achieved this, he can go further. There must be nothing more demoralising than to work hard for a qualification only to find that there is something wrong with it and that it has been downgraded in some way. That is why this should not be left to market forces. The interests of learners really need to be in there.
Amendment 254 in this group is also in the interests of learners. This would ensure that if the accreditation of a qualification is withdrawn, there must be a transitional period to allow learners either to complete the course or to arrange to withdraw from it and do something else without being left without options or put out of pocket by having to pay for another course. The amendment would fulfil your Lordships' very famous tradition of changing "may" to "must"-I know that we all like to debate that one.
Those are the brief explanations of my group of amendments. I beg to move.
Baroness Perry of Southwark: My Lords, Amendment 227 is also in my name, and I shall also speak to Amendment 229, which again is in my name in this group.
I support very strongly what the noble Baroness, Lady Walmsley, has said about the importance of timeliness. A similar amendment was put down in another place and the Parliamentary Under-Secretary from the DCSF said that there was no reason to make timeliness explicit in the Bill because:
"Public bodies are under an implicit duty to exercise their functions reasonably, which includes acting in a timely manner".-[Official Report, Commons, Apprenticeships, Skills, Children and Learning Bill Committee, 26/3/09; col. 622.]
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If it is true that all public bodies are under an implicit duty to act in a timely manner, I can say only that an awful lot of them, in the general experience of the public, are not fulfilling their implicit duty. It is extremely important that people are not left hanging for a very long time over something as crucial as decisions about examinations and examination results, and indeed about any queries about examinations. There is nothing more unpleasant or unfortunate, so I very much hope that the Minister will feel able to add this quite simply to the end of line 9.
Amendment 229 relates to Clause 125, in which Ofqual's objectives are laid down. I have absolutely no quarrel with the excellent list of its objectives, qualification standards, assessment standards, public confidence objective, awareness objective and efficiency objective. I just feel slight anxiety that nowhere in the subsection on Ofqual does it come through clearly enough that one of its objectives must also be to ensure that the interests of employers are reflected. Again, I declare my interest as chair of the City and Guilds Quality and Standards Committee. Ofqual regulates vocational as well as school examinations, and employers are frequently heard to say-indeed only yesterday I heard it from the employers on my committee-that the qualifications with which young people arrive are not always what they need and want. It is essential that we have it in the Bill that Ofqual is concerned with meeting the needs of employers. That applies not only to vocational qualifications, of course, because it is also vital that schools produce the basic functional skills, as we must now call them, that employers are asking for but which in many cases they find that schools have not delivered. I hope, therefore, that the Minister will feel kindly towards these two unexceptionable amendments.
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Baroness O'Neill of Bengarve: I have added my name to this amendment. Although in general I believe that it is otiose to require in legislation that bodies are efficient, effective or timely in their actions, it is not entirely so in this case because, as has been explained by other noble Lords, the downside for individual pupils is great in the case of a failure of timeliness. I hope that the Minister might look favourably on the specification that the requirement should be timely.
Viscount Eccles: Buried in Clause 126(6) are the words:
"In performing its functions Ofqual must also have regard to such aspects of government policy as the Secretary of State may direct".
In normal circumstances that would be regarded as a hybrid. It is a mixture of a piece of conventional guidance and something giving the power to direct. My question is this: how will this subsection work and what is it meant to do? In my amendment I turn it into a conventional guidance provision:
"Ofqual must, in performing its functions, have regard to any guidance on aspects of government policy given by the Secretary of State".
The subsection is very wide and I am sure that under the heading of "government policy" almost anything you wanted could be included.
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I am pursuing the point because it obviously impinges on independence. As drafted, is this really a formal power to direct and therefore could produce directions with which Ofqual must comply? If it is a formal power to direct, would any direction made under it be laid before Parliament? As we have discussed before, one of the difficulties with directions is that they are not subject to parliamentary procedure. Indeed, Parliament may never learn that directions have been laid, or if it does, only many months after the event. In summary, I seek clarification of what this subsection is intended to mean and how it is to work.
Baroness Verma: My Lords, our amendment is simple and neatly complements that of Amendment 227, moved by the noble Baroness, Lady Walmsley, which inserts a "timeliness" objective into Ofqual's remit. We have already heard her clear and helpful explanation of why this objective is necessary and why Cambridge Assessment has thought to recommend it. I should like to raise two points.
The first is that Cambridge Assessment feels that it is not accurate to dismiss this amendment as unnecessary because the Bill already includes the need for efficiency. The Government may argue that the virtues of efficiency and effectiveness presuppose timeliness, but this is not, in fact, the case. As noble Lords will be aware, this was exemplified when the failure to co-ordinate the introduction of Curriculum 2000 meant that courses started before the textbooks had even been printed. I hope that the Minister will have a different answer from that provided at the Committee stage in the Commons. I am sure that, after consideration, the Minister will be prepared to accept that it is sensible to make it explicit that Ofqual must ensure that the delivery of its functions is timely.
I draw attention to the amendment tabled by my noble friend Lady Perry. We have consistently argued throughout the Bill for greater employer engagement in education and skills. At no period is this more important than during a time of recession, where reskilling and further education become important parts of adapting to a changing job market. In this vein, Amendment 237 also seems to have a sensible principle at its heart. We have been looking at the objectives of Ofqual in a rather arcane manner; it is important to consider that a major function of Ofqual is to ensure that standards are maintained in order to benefit the learner, whether this is in terms of broadening their mind or becoming more suited to a particular job or role.
Finally, I add my support to the amendment tabled by my noble friend Lord Eccles. With characteristic care, he has pointed out that it is important that Ofqual should not only have regard to government policy but also to the guidance around such policy. The Government have consistently been using the protection of guidance to reassure the House that amendments will be catered for. Does the Minister agree that it should therefore follow that Ofqual should be required to have regard to it as well as government policy? I look forward to the Minister's response.
Lord Sutherland of Houndwood: My Lords, I am happy to support "must" over "may" for the eloquent reasons given. It is important that we signal clearly that we have an interest in what employers want. If
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Finally, it is immensely important that we clarify the issues raised by the noble Viscount, Lord Eccles, about how the Secretary of State would issue directions. I have long advocated the need for this to be done in the public arena so that it can be subject to the scrutiny of the community.
Baroness Morgan of Drefelin: My Lords, I start on a happy note: we will all want to congratulate the noble Baroness, Lady Perry, on her special day today and wish her many happy returns.
Picking up on a suggestion which I may have allowed following the earlier debate-that I somehow have a grudge against PR companies-I wish to make it absolutely clear that the Government are grateful to many PR companies for the great work that they do.
I appreciate the desire of the noble Baroness, Lady Perry, for me to say that we can accept all these amendments in a single word and make it all right, but I fear that I am not going to necessarily progress the debate a lot further than the Committee in the other place. I am advised, quite comprehensively, that the issue of timing is picked up within the Bill. I shall attempt to take your Lordships through this because I have great sympathy with the sentiments underlying the issues raised in the debate.
The importance of Ofqual acting quickly when it needs to, the imperative of protecting the needs of the learner and of having a long-term commitment to confidence rather than a short one, and so on, are all extremely important points. The Bill already requires Ofqual to operate in these ways but I will have a go at convincing the Committee.
Returning to the concern of the noble Baroness, Lady Walmsley, about whether the public confidence objective is linked to the assessment objective, I am advised that Ofqual has to meet all its objectives and balance these against each other. So they are all linked to each other, as we should expect.
Amendments 227 and 243 in particular refer to timeliness or acting in a timely way. I take this to mean that if Ofqual needs to act urgently then it should do so, but equally it should not rush into things where that would be inappropriate-qualification development, for example, can take a long time to do properly-and no one should be able to pressure it do things too quickly or too slowly. As a Minister I feel slightly as if I am standing here trying to be in two places at once.
The Bill provides for all this already. Ofqual must act efficiently and effectively under Clause 126(7) so that it cannot go too slowly, and under Clause 126(2)(b) it has to have regard to reasonable requirements of learners. Obviously that brings with it the requirement not to go too suddenly, with reference to the points made earlier about printing textbooks and signing up to courses with the expectation of being able to obtain qualifications. Provided that it met these requirements-remember that Parliament can hold it to account for this-no one would have any way of forcing Ofqual to go at a different pace. As we said earlier, it is going to be an independent body.
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It is worth saying, though, that timeliness is not an end in itself; it is certainly not an objective. Timeliness is important for efficiency, effectiveness and for meeting the interests of learners, but the amendments suggest that timeliness is important for its own sake. Maybe I am being otiose, I do not know, but I do not believe that Ofqual can achieve its objectives if it behaves in a way that is not timely. This could risk confusion in the way that we interpret the Bill.
Time appears again in Amendment 232A. Ofqual would not meet its confidence objective if it were not meeting it at all times. If it were to plan only for the short term, it would risk not meeting its confidence objective in the long term. With the Bill as drafted, Ofqual is required to think long-term about building confidence, with confidence being nurtured and allowed to develop over time.
On Amendments 229 and 237, learners need high quality qualifications, as we all agree, to reflect their achievements. I agree that employers are key customers of regulated qualifications, and Ofqual will have to ensure that those qualifications are relevant to the needs of employers. Both these requirements are adequately covered in the Bill already; Clauses 126(2)(b), (c) and (d) give Ofqual general duties to have regard to the reasonable requirements of employers and learners. Additionally, subsection (4)(c) will be used to require Ofqual to have regard to information provided by sector skills councils. None of these interests has absolute priority. Were they ever to conflict, Ofqual would have to make judgments. We are looking for an independent body that will make judgments about how to prioritise them and, as the Committee will be well aware, will be accountable for the judgment that it makes and how that judgment has been reached.
The noble Viscount, Lord Eccles, may have flagged this issue at Second Reading. I hope that I can help him. The purpose of a direction here is to identify the particular areas of government policy that Ofqual should take into account, but that does not mean that Ofqual, having considered that aspect of policy, is obliged to take any specific action relating to it. If Ofqual decided that implementing the policy in a particular way was inappropriate-for example, because it conflicted with its objectives-it could decide not to do so.
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Amendment 254 relates to what Ofqual should do if it revised existing accreditation criteria-in other words, if it changed the requirements of a particular qualification. The existing provision in Clause 137(10) gives Ofqual the power to make a "saving or transitional provision" in such circumstances. If Ofqual decided to change the accreditation criteria for a qualification for which people were already studying, the awarding body could not then offer the old version of that qualification from a given date. However, importantly, Ofqual can insist that the awarding body allow existing learners to take the old qualification-noble Lords were concerned about resits and other scenarios. Ofqual would have to make such a provision if failure to do so conflicted with its general duty to have regard to the reasonable requirements of learners. Amendment 254
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In the light of my comments, I hope that noble Lords will feel reassured that timeliness and the other concerns raised in this group of amendments have been addressed. However, if there is anything further that I can do or any reassurance that I can give, I shall be very happy to do so before Report.
Lord Lucas: My Lords, it was very pleasant indeed to hear from the noble Baroness's lips the echo of what I had been saying on new Section 56G. She gave a very clear exposition of the limits of "have regard to", which is exactly what I had been trying to take her up on. I am therefore confident that she understands exactly what I was on about then and look forward to a very positive reply.
However, I think that the noble Baroness took the amendment of my noble friend Lord Eccles too lightly. The key thing is transparency. There is nothing in the Bill that says that the direction must be given in public. Let us suppose that it is government policy-it could be said to be so at the moment-to raise educational attainments. If Ofqual is told to "have regard to" that, that is pushing Ofqual off course; it is giving Ofqual an incentive to come up with the answer that standards are rising. Ofqual must be insulated from that. Therefore, the very least that we should look for here, which I hope my Front Bench will take seriously on Report if we do not make progress on it, is that any use of this provision be made public. There should be no question of any such direction being given without it being made public.
Baroness Morgan of Drefelin: I can give a commitment from the Dispatch Box that such directions will always be made public.
Viscount Eccles: I am grateful to the Minister for her explanation, as well as to my noble friend and the noble Lord, Lord Sutherland. I am only partly comforted, though, by the Minister's reply, because I think that if the matter were ever to get to court, the court would be absolutely clear about the meaning of "direct" and "direction" as used in Acts of Parliament. The fact that we have put in "must have regard" and have done away with "must comply" would not stand; the court would find otherwise. Could that matter be checked? It is not a sufficient assurance that the way in which the subsection is written is okay. Is there a precedent for writing a subsection in this way? If there is, has it been tested in any way? I am not familiar with the language of the subsection; I am not 100 per cent certain that it has never been used before, but no doubt the Bill team will be able to discover that.
Baroness Morgan of Drefelin: I am happy to do as the noble Viscount suggests.
Baroness Perry of Southwark: I thank the Minister for her kind remarks and her reassurance on the interests of employers. I am totally reassured that the
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Baroness Walmsley: My Lords, I am most grateful to the Minister for her reply and for the comments of all other noble Lords.
I first address Amendment 227, which would insert "the timeliness objective". I thank the noble Baronesses, Lady Perry and Lady O'Neill, for their support on this point. In her reply, the Minister appeared to be concerned that, if we were to put this into the Bill, Ofqual would be forced to do something either at a particular time or at a particular speed-faster or slower. I do not agree with her interpretation of the meaning of timeliness; to me, it predicates not a particular time but an appropriate time. That is, we are not saying "in time" or at any particular time. When something is timely, the timing is appropriate. It may be done quickly or it may be done slowly-but if it is timely, it is right and appropriate. I see that the Minister has a thoughtful expression on her face. Perhaps we can discuss this interpretation of "timeliness" between now and Report, because I would have to dispute her interpretation of its meaning. To me, there is no confusion about it, as it is absolutely clear. That is the meaning of timeliness and her argument falls if she accepts that definition.
On Amendment 232A, perhaps I did not explain what I meant by inserting what I aim to insert into the public confidence objective. I did not mean that Ofqual should carry out that objective at all times; I meant that the objective should be carried out so that the public would have confidence in standards being consistent over time. Perhaps the Minister misunderstood what I am looking for under that amendment and perhaps we should discuss it outside the Chamber and come back to it, if I am not satisfied with her explanation.
I think that I have to accept that learners are in the Bill. The reassurances from the Minister at the Dispatch Box carry weight in that respect.
I thank the noble Lord, Lord Sutherland, for his support for Amendment 254 and the power to make transitional arrangements. However, I take the Minister's point about Ofqual's power to make those arrangements, when she said that it could not fail to make such arrangements if it were to the disadvantage of learners not to do so. On that basis, I am encouraged that we can leave it to the good sense of Ofqual to make transitional arrangements in situations where learners need that to be done. Therefore, I beg leave to withdraw the amendment.
Baroness Sharp of Guildford: My Lords, in moving the amendment I also speak to Amendments 235 and 270. I am speaking on behalf of the noble Lord, Lord Low of Dalston, who very much regrets that he cannot attend the Committee today.
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