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However, Clause 126(3)(b) seeks to avoid the alphabet soup. We do not want a bewildering range of similar titles that are essentially the same qualification, which
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Clause 126(3)(b) emphatically does not seek to reduce the choice of forms of each qualification. Once Ofqual has established that, for example, "Level 3 Engineering" is the title to go for and sought to get rid of all those meaningless and confusing variations, we want as many awarding bodies as possible to offer that qualification. In that way we will have real competition. That will promote responsiveness and innovation, not fabricated distinctions through title differentiation, which only leave employers and learners confused. So the suggestion in this debate today and in another place that this provision will stifle competition is the opposite of the truth.
The alphabet soup leads to a market failure. We need Ofqual to have the powers to tackle that market failure and to ensure that-I am sure that the Committee will agree-qualifications meet the needs of employers and learners. The vision of a simple, clear set of qualifications that are responsive to, understood by and meet the needs of employers and learners is a compelling and necessary one for UK plc. These provisions are an important part of the architecture for securing that. These amendments would make it harder to achieve that vision.
I will pick up a couple of points before I conclude. In reply to the noble Lord, Lord De Mauley, what is meant by "appropriate" or "excessive" will be a judgment for Ofqual to make. The judgment is about qualifications. We want the market to thrive, not just in relation to the titles of those qualifications; it is about rationalising titles, not stifling competition.
In the light of the explanation, I hope that the noble Lord will feel able to withdraw the amendment. We all share similar goals regarding innovation and composition, but at the same time we want to ensure that people can make a choice without being confused unnecessarily.
Lord Elton: How will the filtering out of the alphabet soup work? The Minister spoke as if a new regulator was coming to the market; in fact, there will be a raft of regulators there already. Is he talking about reducing the span of qualifications offered by a provider or about concertinaing them across providers? There is an important distinction.
Lord Young of Norwood Green: Where the product is essentially the same, we are trying to avoid any duplication of titles that would make it difficult for learners and employers to determine whether that product was significantly different from another product. I have tried to give some examples; I used engineering as a generic example.
Lord Elton: Let me just explain what I mean. It was not clear from the Minister's example whether all these qualifications were offered by one provider or by six or eight providers. It is question of whether you choose between them, harmonise or reduce the number that one of them produces.
Lord Lucas: My Lords, I am grateful for that answer. With regard to changing the nomenclature, I think that the Minister is saying that, if there are 15 things that are essentially level 3 engineering, Ofqual will say, "Call them level 3 engineering; we will not have any fewer of them, but they will all be called the same thing rather than 15 different names". That seems to be immensely sensible, but I cannot see that it is what the clause says. I will have a go at rewriting that.
My remaining concern is how we deal with innovation. I can see that additional subjects do not create a problem under the scenario set out by the Minister, but what about creating new qualifications? GCSE, for example, now has IGCSE to sit alongside it. Suppose Bedales came along with the qualifications that it has successfully developed, which are like GCSE but have a much higher practical content. Is Ofqual going to have the ability to say, "No, we've got enough qualifications for candidates taking GCSE. We're not going to allow you to have another one. It's different. We don't want more qualifications at this stage of education"? Are we giving it that power? Or, because the new qualification is different, does Ofqual have to allow it?
Lord Young of Norwood Green: As I have said, the intention is not to stifle innovation. If a genuinely new product was being offered, why would Ofqual not want to encourage it? I assure the noble Lord that the objectives are to encourage innovation and efficiency.
"( ) information provided by recognised awarding bodies;"
Baroness Walmsley: My Lords, I shall speak also to Amendments 245, 246, 247, 252, 253, 258 and 259. We have been asked to lay these two groups of probing amendments by the Assessment and Qualifications
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Amendment 239 would require Ofqual to have regard to information provided by awarding bodies. Amendment 247 is a similar amendment, requiring Ofqual to consult awarding bodies before setting or revising general conditions of recognition. Amendment 253 would require Ofqual to consult awarding bodies before setting or revising the criteria for accreditation. Amendment 258 would require similar consultation when setting or revising criteria for a number of hours of guided learning.
It is also essential that the awarding bodies are treated fairly. Another set of amendments in this group tries to ensure that. Amendment 245 would require that, if Ofqual refused an application for recognition, it must provide the awarding body with a statement setting out the reasons for its decision-in other words, a kind of feedback. Apart from the desirability of this in the interests of transparency, which is very important, it seems only fair, since the financial consequences of such a refusal to an awarding body may be great. It would give it the opportunity to have its views heard and to rectify the problem and come back later.
Amendment 252 asks for a review of a decision to refuse accreditation if the applicant requests it. It may be that additional information that could be provided by the awarding body to Ofqual would change the picture completely. The ability to ask for a review would make sense.
Amendment 259 is the last of our amendments in this group. It would replace Clause 143 with a different clause, relating to the review of the activities of recognised awarding bodies. The change that we have proposed would ensure that such activities were only those that directly and materially impacted on the fair operation of the qualification system or the credibility of the awarding body. It seems to me that these are the only activities that Ofqual has any business to look into. Clause 143 refers to "connected activities". What does this mean? Does it include only activities carried out in the UK, or would Ofqual want to look at activities carried out in other parts of the world, because many of the bodies operate not just in this country but elsewhere? I hope that the Minister can give me some answers to those questions. I beg to move.
Baroness Verma: My Lords, we agree with the noble Baroness, Lady Walmsley, that it is important for Ofqual to consult the recognised awarding bodies that it regulates on changes to relevant criteria. However, has the noble Baroness or the Minister given much thought to the fact that the most important people to consult should be the users of qualifications? Employers, universities and colleges, for example, are the principal consumers of these qualifications and so their views should be taken into account.
Amendment 254 would place on Ofqual a duty to make a saving or transitional provision if a qualification ceased to have effect. It seems remarkably sensible that this should be a duty and not just a power. Can the Minister perhaps give us an example of when it would not be appropriate for Ofqual to provide this transitional provision if a qualification ceased to have effect? Can he also inform the Committee what would happen if a qualification ceased to have effect and students were left midway through an assessment process that no longer existed? I look forward to the Minister's response.
Lord Young of Norwood Green: My Lords, this is another group of amendments that get right down to the detail of how Ofqual does its business. In most cases, we feel that these amendments are unnecessary, not because Ofqual should not be doing most of the things that it is set out to do, as I hasten to assure the noble Baroness, Lady Walmsley, but because it does not need to be told in the Bill to do those things. As with any Bill, we cannot cover every eventuality; we have to rely on the organisations concerned to act reasonably, backed up if necessary by public law principles and the courts. If, for example, Ofqual failed to consult any awarding bodies on changes to recognition criteria that impacted on them, it could be at risk of successful challenge.
We are fortunate in this country to have awarding bodies whose expertise in assessment and qualifications dates back, in some cases, well over a century, as the noble Baroness, Lady Garden, knows, and which are recognised internationally. Of course, Ofqual will need to recognise and call upon this expertise. Against this background, requiring Ofqual to have regard to information provided by recognised awarding bodies, as Amendment 239 does, may sound unexceptional. But it would make for quite the wrong relationship for a regulator to have with those it regulates. Ofqual needs to be a transparent, listening regulator, ready to learn and ready to work co-operatively with awarding bodies, but it needs to be detached enough from awarding bodies to regulate them robustly where necessary.
The Clause 143 power to keep under review activities by awarding bodies that are "connected matters" is an essential part of its toolkit. Here I respond to one of the questions asked by the noble Baroness, Lady Walmsley. It will allow Ofqual to monitor any other activities which may, for example, impact on the credibility of the qualifications offered or the effective or fair operation of the system. It allows Ofqual to look at things such as any awarding activities overseas or in the unregulated market in the UK in relation to qualifications that are similar to those that Ofqual is regulating. For example, if a body is offering overseas qualifications that are similar to those that Ofqual is regulating, that may
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There may be conflicts of interest. If an awarding body were insisting, say-and this is a connected activity-that those studying for its qualifications must use particular text books, then Ofqual should be able to do something about it. It is not an unduly broad power; a connected activity needs to be relevant to the awarding body's recognition or a regulated qualification. Ofqual can use this power only to meet its objectives and in ways consistent with its general duties. We know that some awarding bodies have expressed concerns about these powers, and have suggested that they are very broad, which we do not believe they are. In any case, sometimes regulators have to be able to do things which those they regulate do not like: Ofqual's primary focus should be the needs of the learner, not the awarding bodies. Were we to make this amendment, we may yet regret the impact on the learner of constraining Ofqual's ability to be a robust and effective regulator.
Amendment 259 would narrow Ofqual's scope, so there is a judgment to be made as to how strong a regulator we really want Ofqual to be. If there were an activity Ofqual was concerned about, that activity would have to pass the "directly and materially" test before Ofqual could even start investigating. An unscrupulous awarding body could use that to keep Ofqual away from any activities which it would rather the regulator did not know about. That could risk damage to the qualifications system, which I am sure we would all want to avoid.
On the review, any decision to refuse an application for recognition or accreditation should be subject to a formal review. If Ofqual refuses an application for recognition it must provide the awarding body with a statement setting out the reasons for its decision, but there is no requirement for a formal review process. In contrast, in the case of Ofqual withdrawing recognition, it must establish arrangements for a review, as set out in Clause 145. In practice, I imagine that Ofqual may well want to put in place review arrangements to prevent any dispute going straight to the courts. We should not be legislating unless we need to, and here we do not need to.
On the question of cessation of qualifications, which concerned the noble Baroness, Lady Verma, I will have to write to her. I understand her concern. One would like to think that it would not happen, but we will deal with what would happen in the event that it did.
On similar qualifications that come from Europe, for example, there is already a system for comparing such qualifications. I cannot remember what it is called, but lots of arguments go on as to whether various qualifications are comparable; so that is already done. I therefore do not think that Ofqual would need to look into that sort of thing.
Finally, it is a little sad that the Minister feels that if Ofqual has to consult awarding bodies, it will become their puppet. I have met Kathleen Tattersall and she is nobody's puppet, and I do not think that she is going to be, either. I really do not think that that will happen. Clearly, however, the Minister feels that it would put the wrong sort of gloss on the relationship between Ofqual and awarding bodies, so I will have to think more carefully about what he has said before deciding whether to press those matters.
Lord Lucas: Before the noble Baroness withdraws her amendment, can I just pick up on that question of comparable qualifications? Presumably the Minister means whether some awarding bodies, such as for IGCSEs, are devaluing the reputation of GCSEs and therefore need to be looked at. If that is the case, will he give me an assurance that Ofqual will be encouraged to accept the idea that it should accredit IGCSEs and international A-levels in order that it should have a hand on the quality of the brand internationally?
Lord Lucas: My Lords, the amendment essentially covers key stage examinations. I have had a helpful reply, as usual, from the Minister during the holiday, for which I am grateful, but I wanted to ask a couple of questions to follow up on it.
My understanding of the position now is that although the Secretary of State will set out the objectives of key stage examinations, everything to do with their quality-whether the examinations are up to scratch, whether they are maintaining standards, everything like that-will be under the care of Ofqual. Secondly, given that we have moved to that sort of regime, will the Government now encourage competition for the provision of these examinations, as we do with every other examination in schools? I beg to move.
Baroness Garden of Frognal: My Lords, we have tabled Amendment 264 in this group. This amendment continues our general concern that Ofqual should
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Baroness Morgan of Drefelin: My Lords, I will do my best here. I will speak also to some government amendments which are rather technical, so the last part of my speech might not be very inspiring. I start by setting out the responsibilities for regulated assessment, such as the national curriculum tests and the early years foundation stage profile. The purposes of these assessments, as noble Lords are aware, are set out in legislation in the Education Act 2002 and the Childcare Act 2006-namely to ascertain what pupils and children have achieved in relation to the attainment targets for the relevant stage or the early learning goals.
The Bill gives the Secretary of State the power to specify additional purposes. Under the legislation it is for the Secretary of State to decide how those purposes are to be delivered; for example, what subjects should be assessed, when and how? That is a policy decision, delivered through statutory orders. The Secretary of State will in future be required to consult Ofqual before making an order, which I am sure the Committee will think is right. It is crucial, however, that the delivery of assessments is not done directly by Ministers or the department. We cannot have, I am sure the Committee will agree, Ministers being responsible for decisions about such matters as marking or where grade boundaries should be. Normally we would expect Ministers to ask which QCDA will be their delivery agent for assessment, so that the QCDA does the delivery. As an aside, I should report that after the problems with the national curriculum tests, which I thought we might be discussing now, more than 999 out of every 1,000 test results were delivered on time this year, which has to be good news. I take the opportunity to congratulate QCA on such a successful performance.
Ofqual's role is to regulate assessments in the context of this policy and delivery framework. In particular, it will set the regulatory framework to which those designing and delivering assessment arrangements must have regard. It will check and report on whether the assessments that are designed are fit for the purposes set out by the Secretary of State and monitor, as the noble Lord, Lord Lucas, says, the maintenance of standards. If Ofqual does not like what it sees as it monitors, it can-and I am sure it will-say so to Parliament. Like a referee, Ofqual needs to know the rules of the game that it is enforcing and, like a referee, Ofqual must be free to enforce those rules. However, just as it is not a referee's job to rewrite the rules, it is not Ofqual's job to comment on the purposes of the assessments. Those are policy issues for which Ministers are accountable. Interim Ofqual has made very clear its view that Ofqual should not have a policy role. We do not want a situation in which Ofqual could come up with an alternative policy-even though it has no mandate, no power and no accountability for doing so-and comment
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