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Let me be clear that the clause does not constrain Ofqual's independence in any way. Ofqual will be free to regulate as it sees fit. The information it collects to make its judgments, whether those judgments are favourable or not, how it makes known its views, and all other regulatory matters, are entirely for Ofqual to decide. It will be for Ofqual alone, through its regulatory framework, to set out how it expects standards to be maintained, and to monitor and report on those standards, given its assessments and standards objectives.
The noble Lord, Lord Lucas, asked a question about Ofqual. As I said, Ofqual sets a framework for standards and the QCDA delivers. I apologise for repeating myself. In the light of that explanation, I hope the noble Lord will feel able not to press his amendments.
I want to say a few words about the government amendments tabled in my name. I am afraid that they are a bit technical. Schedule 12, the minor and consequential amendments schedule, contains minor changes to the legislation covering the national curriculum and early years assessments to help the system work effectively. One of those changes is to the way in which the so-called supplementary provisions are produced. That is a lengthy document which sets out all the detail of how assessments have to be delivered to ensure that the tests are run fairly and effectively, covering everything down to the national curriculum test papers, how they should be scored, when they can be opened and the test results. The provisions in Schedule 12 allow the Secretary of State to delegate the production of these supplementary provisions if he judges that that is the best way of delivering assessments effectively.
We have discovered a technical problem with the provisions. Inadvertently, the wording of the amendments restricted the scope of what these supplementary provisions can cover-I refer to the amendments originally being made to the Bill and not the ones we have tabled now-the result of which was that all the minutiae of the detailed arrangements would have to be put in statutory orders, which, as my note tells me, "is just daft". We need to put this right by moving a few words in the new provisions from the end of the sentence nearer to the beginning. I apologise for having to table these technical amendments and for speaking to them less eloquently than I should.
I hope that my comments have been helpful and that the noble Lord feels able to withdraw the amendment.
Lord Lucas: My Lords, I am very grateful for that amendment. The only point that the noble Baroness did not answer-whether we will go for competition in the provision of key stage examinations et cetera-we shall come to again later when I shall try to demolish the QCDA with the same abandon as this Government tried to abolish the office of Lord Chancellor. That power of the QCDA could suddenly reappear, which may not be entirely desirable. I beg leave to withdraw the amendment.
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6.30 pm
240A: Clause 126, page 77, line 15, at end insert-
"( ) the need to ensure that there are sufficient regulated qualifications to assess the National Curriculum and other QCDA curricula."
Baroness O'Neill of Bengarve: My Lords, I speak to Amendment 240A, tabled in my name and those of other noble Lords, together with Amendment 255A, which is an amendment to Clause 138. The two amendments are linked, but I shall say more about the second. They may appear to be rather limited, but they bear on fundamental questions of the independence of the regulation of assessments for regulated qualifications and thereby on the public reputation of those qualifications.
We all know that beyond these discussions today there is a raging public debate on the question of standards. It is very unclear how the provisions that we are now considering relate to that debate about standards. I want to say a little bit about that.
Amendment 240A specifies that in performing its functions Ofqual should have regard to the need to ensure that there are sufficient regulated qualifications to assess the national curriculum and other QCDA curricula. It goes beyond the duty to ensure that the number of regulated qualifications is appropriate, which we have already discussed to some degree. This is not a matter of the number; it is a matter of the regulated qualifications having the right sort of connection to the national curriculum and QCDA qualifications. I suspect that if I withdraw this amendment and bring it back on Report, I will try to cover the case of non-QCDA qualifications.
The point of the amendment is to establish a duty for Ofqual, the regulator responsible for the standards of assessment of regulated qualifications, to ensure that enough appropriate examinations are provided. The amendment explicitly links Ofqual duties to QCDA curricula. I fancy, though I cannot be sure, that it is the lack of an adequate way of making that connection in the Bill that has led to the introduction of Clause 138, which empowers the Secretary of State to reach in to the supposedly independent regulator.
On Amendment 255A, Clause 138(1) provides:
"The Secretary of State may make a determination specifying minimum requirements in respect of a specified qualification, or description of qualification".
Like many other noble Lords, I believe that as drafted this power runs dangerously wide and risks undermining the very independence that is sought for Ofqual and thereby also its public reputation as guardian of standards for regulated qualifications. It has been suggested that a power to set minimum requirements will not be risky because it is not a power to set minimum standards. I believe that, as a verbal matter, that is correct: requirements are distinct from standards. However, I do not believe that even specifying requirements should be a matter for the Secretary of State to determine, even if is it done transparently.
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The issue of standards is very serious, but it cannot be addressed by giving the Secretary of State reach-in powers. In setting requirements, unfortunately, it is all too easy to alter standards. Of course, we can all give examples of cases where requirements are altered without substantially altering standards. Substituting one set text for another set text in an examination where the texts are clearly of roughly equivalent difficulty might be an example of altering a requirement without altering a standard. However, there are many other ways of altering requirements that do alter standards-for example, requiring that some additional subject matter or skill be examined or not examined. Some changes in requirements raise standards in some respects but lower them in other respects. Clause 138 creates far too wide a power for the Secretary of State to reach in to alter requirements in a way that will leave the Secretary of State altering standards.
Amendment 255A would circumscribe that power by requiring that it can be exercised only provided that Ofqual reports that it does not affect standards. In effect, it gives the power to determine whether standards are altered to Ofqual. The amendment is closely related to, but rather stronger than, Amendment 255B tabled by the Opposition, which provides that the power be exercised only if Ofqual reports that this does not lower standards. Amendment 255B still risks Ofqual's independence and reputation because it allows the Secretary of State to make determinations that in his or her judgment will raise standards. That power should not be vested in the Secretary of State, in view of the difficulty in judging what raises and what lowers which standards.
I recognise that Amendments 255A and 255B are much weaker than the Liberal Democrats' intention to oppose Clause 138 standing part of the Bill, thereby eliminating any power for the Secretary of State to make determinations specifying minimum requirements and limiting his or her power to reach in to alter or raise standards.
There is more than one way of skinning this cat, but it needs skinning. The power in Clause 138 is far too widely drafted. It undermines Ofqual's independence-and the independence of Ofqual is the primary purpose of this part of the Bill, as is the separation of Ofqual from QCDA. By undermining Ofqual's independence, the clause also risks its reputation. I beg to move.
Viscount Eccles: After that masterly description of the issues raised by Clause 138, I hesitate to go into any detail. I found myself nodding at all the arguments made by the noble Baroness, Lady O'Neill. My proposal is somewhat different from striking out the clause or some of the other amendments; it is to start by questioning why the Government have selected a determination as their way to proceed. My amendment proposes to remove the use of an unusual power-the power of determination-and to replace it with a conventional power to lay regulations. It would be even more suitable if the procedure on the regulations were to be affirmative rather than negative.
I tabled my Amendment 255 because determinations are of questionable constitutional impact and are subject to no parliamentary procedure. As has been said entirely correctly, Clause 138 contains an important
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Lord Bew: My Lords, I support Amendment 240A and shall speak on Amendment 255A in my name. Like my noble friend Lady O'Neill, I should like to link those amendments, because there is a consistency in the arguments that we advance. I can understand and anticipate a view by the Government that the words that we wish to add under Amendment 240A defining the functions of Ofqual are unnecessary and that these functions are denoted in other clauses. I even noticed that Ofqual's formal publication states:
"The Bill defines Ofqual's future powers to allow us to challenge awarding, and other, organisations at a strategic level. It will empower us to keep under review all aspects of National Curriculum and Early Years Foundation Stage assessment arrangements and to secure the efficient provision of regulated qualifications".
I understand in principle how the Government might feel that we are proposing something that is already covered in the Bill. However, let us fast forward to the dreaded Clause 138, the "Dictator Clause", and to the defence offered by the Government in the Explanatory Notes:
"This clause allows the Secretary of State to determine the minimum requirements in respect of skills, knowledge, or understanding that someone must be able to demonstrate to gain a particular qualification or a qualification of a particular description (a term explained in paragraph 392 above). For example, it could be used to ensure that the content of GCSEs properly reflects the NC Key Stage 4 Programmes of Study, which they are intended to assess".
On the one hand, the Government may argue that this is already covered, that the functions of Ofqual are clearly defined and that what we are proposing is unnecessary. On the other hand, and with another voice, they seem to be suggesting that there is a question mark over how the functions of Ofqual might operate, which in turn justifies the position taken in Clause 138 on the role of the Secretary of State.
I respect and understand the position of noble Lords who say that there is no need for that role for the Secretary of State; I see fully the force of their argument. However, it is not an argument that I wish to advance. My argument accepts in principle the Government's contention that there may be circumstances in which the residual capacity is required. If that is so, it is vital that it be circumscribed correctly to avoid what we all wish to avoid-the impression that Ofqual is not an independent body. That is at the heart of the matter and of this discussion.
I will make two further comments. I support the words of the noble Baroness, Lady O'Neill. When I look around, I see other academics in the Chamber. As academics, we have difficulty with the contention that you can make a distinction between the requirements and the standards of a course and the suggestion that the Secretary of State can reach in to affect requirements but not standards. In the real world of the classroom and the lecture theatre, these things are intermingled so intimately that it is not a real or viable distinction.
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As the noble Baroness, Lady O'Neill, said, we have chosen our language carefully. In the formula that we use about affecting standards and not lowering them, we wish to avoid any connection with the wider debate on standards. Important things have been said on both sides of the Committee this afternoon and I am certain that the House will address this vital public question on other occasions. I do not wish to be understood as saying that I have no concern about the issue of standards. However, that is not the question under the microscope at this moment and we would muddy the waters if we allowed the standards debate to infect the terms of the discussion about the clause. That is why we have chosen the language that we have.
In conclusion, I say to the Government that we are anxious to find a compromise in which the central intention that Ofqual should be seen by the public to be an independent body-an intention accepted on all sides of the Committee-is preserved.
6.45 pm
Lord Elton: My Lords, on behalf of my noble friend Lady Perry, whose absence we all understand, I wish to speak very briefly to her Amendment 257 and to say, as is evident, that it is designed simply to ensure that, when a determination is made, the providing body shall have reasonable time in which to prepare itself to comply with it. It is a practical matter with which I hope the Government will sympathise.
Lord De Mauley: My Lords, throughout these debates we have made our intentions with regard to Ofqual perfectly clear. We welcome its creation as an independent body to regulate our examination standards. I shall not repeat the debate that we had earlier regarding the sad state of falling exam standards and, consequently, the public's lack of faith in Ministers, who claim, in defiance of the evidence, that standards are consistently rising.
The independence of Ofqual is essential. However, we on these Benches believe that it is necessary for the Secretary of State to be able to issue minimum requirements for standards, provided he cannot lower them. I listened carefully to what the noble Baroness, Lady O'Neill, the noble Lord, Lord Bew, and other noble Lords said, and I have great respect for their arguments. This is a very complicated area. Our argument is that the Secretary of State is accountable to the public and must surely be able to respond to their concerns regarding declining standards.
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The powers in Clause 138 as drafted allow the Secretary of State only to issue "minimum" requirements and so set a baseline. That will not prevent Ofqual exercising its regulatory powers but will allow the Secretary of State to deliver on his promises and to respond, if he judges it necessary, to the concerns of the public. As the figure accountable to Parliament and to the public for the standards of education in the country, it seems to us desirable that he has the authority to do this.
Of course, we acknowledge that transparency is of the utmost importance in the use of this power. Furthermore, the Secretary of State should only be allowed to set these minimum standards of Ofqual's criteria; he should not meddle in Ofqual's regulatory functions-for example, as was mentioned by the Minister in the previous grouping, in the area of grade boundaries.
Therefore, we have tabled Amendment 255B, which would mean that the Secretary of State could intervene to set minimum standards only if Ofqual reported that for him to do so would not lower standards. In other words, Ofqual would effectively have a veto over the Secretary of State's demands if it considered that his minimum criteria would cause standards to fall. This is clearly a simple adaptation of Amendment 255A, which would allow Ofqual the flexibility not to accept the Secretary of State's designated minimum standards if it felt that that would affect standards at all.
With respect to the noble Lords who have tabled Amendment 255A, we propose our drafting because it would not stop the Secretary of State raising minimum standards, which indeed the Government's current drafting of Clause 138(1) already allows, but our amendment would allow Ofqual to exercise its freedom not to obey the Secretary of State's demands in the event that it felt that these would lower standards. Therefore, it would reduce the scope of the Secretary of State's power in relation to Clause 138 as drafted.
I very much hope that this alternative can at least be taken into account in the consideration of this clause and I look forward to hearing the Minister's views.
Baroness Walmsley: My Lords, I very much agree with the arguments made by the noble Baroness, Lady O'Neill, and I support her amendment, although I could not really choose between that and the drafting of the Conservatives' amendment. However, frankly I do not think that it goes far enough. As the noble Baroness made very clear, her Amendment 255A refers only to standards but, as she pointed out, substituting one set text for another may not alter standards, so they would not be affected by her amendment. However, the idea that a Secretary of State could specify Shakespeare and Dickens rather than Austen and Auden fills me with horror. Therefore, I suggest to your Lordships that Clause 138 should not stand part of the Bill, and I do so for three reasons. First, if Ofqual is set up properly it should be unnecessary; secondly, it could be educationally damaging; and thirdly, its presence undermines one of the key objectives of Ofqual, which is to restore public confidence in qualifications.
I shall quote, if I may, from a letter from the Minister in another place, Sarah McCarthy-Fry, to the chief executive of Cambridge Assessment. She explained that, under current legislation-Section 26(1)(a) of
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She went on to say that this was a bad idea and would change under this Bill, which, as she pointed out, has no equivalent of Section 26(1)(a). She believes that ministerial influence over Ofqual is very carefully circumscribed. However, her justification for Clause 138 was that the Government have a legitimate interest in qualifications because qualifications taken at 16 assess the national curriculum.
I contend that the Government use that influence through their powers over the QCDA, which researches and develops the national curriculum. It is then up to Ofqual independently to ensure that the awarding bodies assess and grade children's achievements properly and fairly. Further down the letter the Minister contended that,
- "a Clause 138 determination would normally only be issued where, for some reason, Ofqual refused to adopt draft criteria containing knowledge, skills or understanding that the Secretary of State believed were important".
That is so far-fetched a reason that should such a Secretary of State exist he or she should be drummed out of office, let alone be listened to.
In his reply Mr Simon Lebus went to great lengths to explain to the Minister how the examination system works. His rebuttal of her contention is thorough and I will not detain your Lordships with all of it. Suffice it to say that he laid out, using the model of what happened over the development of the new diplomas, the reasons why, in order to exert his influence, the Minister would have had to produce several determinations over a long period during which new information about the diplomas became available. That is because, over a period of about 12 months, the Government kept changing their mind about what diplomas would be all about. So the idea that these would be used only in exceptional circumstances falls by the wayside.
Secondly, Mr Lebus contended that the indicative determination describes the design criteria for the diploma, not the subject criteria. The Explanatory Notes, however, are clear that Clause 138,
- "restricts the Secretary of State to specifying minimum requirements relating, in effect, to the content of a qualification".
The impact of determinations relating to "knowledge, skills and understanding" are not so different from design criteria for assessment, as he implied. An example is, if a minimum requirement is that all must know mental arithmetic, the Secretary of State creating a paper in which calculators cannot be used. The clause does not allow him to reference other qualifications as examples of minimum content. To quote Mr Lebus again:
"Apart from anything else the content of those qualifications changes over time and, indeed, may be changing as a result of Ofqual/QCDA action even as the Secretary of State determines something else".
In other words, we have a changing landscape. As a former science teacher I can assure your Lordships that I would no longer feel confident about teaching
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