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This part of the Bill stemmed from a White Paper that pointed out the lack of public confidence, which stemmed from a perception that standards are not being maintained, partly because Ministers were meddling. In another place it became clear that there is overwhelming cross-party support for unequivocal Ofqual autonomy and accountability. These points were made time and again and several votes were taken. In a survey 90 per cent of MPs agreed that a regulator should have a duty to report key decisions to Parliament, that Parliament should play a key role in ensuring that regulators operate independently from government, and that parliamentary scrutiny is critical to ensuring that regulators are accountable and transparent. If the Government accept some of our amendments, all that can be achieved; but if they insist on Clause 138 remaining in the Bill, they will undermine all the good they are otherwise doing.
Baroness O'Neill of Bengarve: The point of Amendment 240A is to achieve exactly what the noble Baroness, Lady Walmsley, suggested. Ministers should indeed have responsibility for what is taught. Through the QCDA, they have it. That is the route of ministerial influence. They should not be put in a conflict of interest where they both determine the curriculum and then run around and alter the assessments. To keep the examination system clean from that sort of influence, it seems necessary to have, at most, a very restricted power to alter requirements that Ofqual can assure the public will not alter the standards. Ministers can still affect the standards.
Lord Lucas: My Lords, I start from the same position as the noble Baroness, Lady Walmsley: the paramount requirement is that Ofqual should be independent and be seen to be independent, so the best thing would be to delete the clause, especially as I am entirely unconvinced by the example given by the Government in their Explanatory Memorandum. As the noble Baroness said, if the Bill is properly designed, how can qualifications not reflect the national curriculum? How can the sort of problem illustrated in paragraph 414 of the Explanatory Notes ever occur?
We may need the amendments tabled by the noble Lord, Lord Bew. In that case, let us have them, but there is the question of the design of the rest of the Bill. The Minister has a lot of influence. As has been pointed out several times, he has influence over what the curriculum is to be. If my amendments were accepted, he would have total control over what the curriculum was to be. We will argue that when we come to it. He has a great deal of control over what examinations are offered in state schools, because he can veto the funding of any examination. He can just say, "This does not meet the standards, we will not allow this. Go away, Edexcel, your English is not good enough". He has an ultimate veto on whether any examination goes through. Given that level of power, how can any Minister worth their salt not be able to get what they want through quiet conversation with
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I recognise that in achieving anything in the Bill I am up against the obstacle that my Front Bench does not agree with me. My noble friend did not make clear what sort of use of the power in Clause 138 he would intend, should he get into government. That would help us a lot in deciding where Clause 138 should go. I do not think that he is backing the illustration used by the Government; he must have some sensible thought in his head. I very much hope that he will share it with us.
Given that we are to go down the route of not deleting Clause 138, I return to the amendment tabled by my noble friend Lord Eccles. If Clause 138 is to be in the Bill, it is essential that its use be totally transparent and public, and the provision must be made through an affirmative resolution rather than a determination published merely at the whim of the Secretary of State. He may give us a promise, but the next one may choose to do otherwise. That is entirely unsatisfactory for public confidence. If we are to founder on the rock of my noble friend's determination not to join us in opposing Clause 138, I very much hope that we can convince him and those on the Liberal Democrat Benches to support my noble friend Lord Eccles.
Lord De Mauley: My Lords, when my noble friend Lady Verma spoke so compellingly on the group including Amendment 230, she referred to a couple of very specific examples where our amendment might have prevented problems. The intervention of Ofqual in 2008 to force the AQA to lower the pass mark for its GCSE science paper to 20 per cent is one example. That suggests to us that it is helpful for the Secretary of State to have this backstop power.
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Lord Lucas: Yes, but I cannot construe a determination within the wording of Clause 138 that would have an effect in the circumstances that my noble friend outlines.
Baroness Morgan of Drefelin: My Lords, the noble Viscount, Lord Eccles, had it right when he described the noble Baroness, Lady O'Neill, as setting out masterfully the challenges and issues around Clause 138, showing the importance of this debate. I have listened carefully and with great interest to all contributions, and I shall think very carefully about all the points raised.
The noble Viscount, Lord Eccles, spoke about determinations and regulation. We do not agree that it is necessary to require that a Clause 138 determination is made by regulations, as his amendment insists. There are enough safeguards already to prevent an inappropriate determination, notably the importance of transparency, which has been built into the clause. If Parliament wanted a Secretary of State to account for a Clause 138 determination, it could always, as it does, haul him or her in front of the Select Committee. That is the benefit of transparency.
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Noble Lords made many more points about this important clause in this debate. I am particularly keen to help skin as many cats as appropriate, if I can, but I firmly believe that not only is Clause 138 consistent with Ofqual's independence but it actively supports it. Where QCDA and Ofqual have failed to agree on qualifications criteria-that is an important point and maybe we have not emphasised it enough-it allows the Secretary of State to require some aspects of the qualification to be delivered. By that, I mean something like minimum knowledge, skills or understanding. However, the Secretary of State should not be able to change aspects of qualifications that are central to the maintenance of standards. That is why Clause 138 prevents Ministers saying anything about assessment, grading or standards. Without Clause 138, those aspects of qualifications would not be ring-fenced for Ofqual. However, I acknowledge that we have not yet been able to convince your Lordships that Clause 138 sits coherently with Ofqual's independence. I have heard the remark, "We are not about marking our own homework", so many times, and we will come on to much more of that when we talk about QCDA.
I want to reassure the Committee that we will reflect very carefully on today's debate. There are two areas we will need to look at in particular. The first is standards. A Secretary of State could influence standards through Clause 138 by, for example, requiring the Mr Men to be part of an A-level, but the transparency that Clause 138 provides will militate against him seeking to do that. However, in the light of the debate, we will consider whether transparency is sufficient protection or whether we need something more in the Bill. The second is how we expect Clause 138 to be used, which is only when something has gone wrong with the process of developing criteria between QCDA and Ofqual. We shall reflect on whether we could do something to make that clearer in the Bill. It is not our intention that the Secretary of State should use this power whenever he or she chooses. It should be very much curtailed.
I thank noble Lords for the time that they very generously gave me through the Recess to talk further about the detail of the amendments. In particular, I was very interested in the analysis which the noble Baroness, Lady O'Neill of Bengarve, presented with her linked amendments and the perspective that the noble Lord, Lord Bew, presented to us. I was also very interested to hear the remarks of the noble Lord, Lord De Mauley, and the exchange between him and the noble Lord, Lord Lucas.
The noble Lord, Lord Elton, asked again about timeliness. I am a little unsure whether I have the right advice to be able to respond to him properly, but I have a note to tell me that it will be up to Ofqual to decide when to implement it-I presume that "it" means a determination. Hence, Ofqual cannot be directed to implement this at a pace at which it feels uncomfortable. I will have to read Hansard and look slightly more carefully at this.
We have to get the balance right. I am very concerned to hear the phrase describing the Secretary of State as "reaching into" the independence of Ofqual. That is not something that I would wish to promote. I certainly
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Baroness O'Neill of Bengarve: My Lords, I thank the Minister for listening so very well. She has listened to a number of concerns that come from slightly different directions but that all bear on Clause 138. I hope very much that we can find ways in which the powers conferred on the Secretary of State by the
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Amendments 241 to 243 not moved.
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