My Lords, Amendments 216 and 218 are derived from concerns raised by the Association of Colleges in relation to Part 6, which gives separate legal status to the 93 sixth-form colleges and places them under the control of the DCSF. Those concerns arise from the fact that the clause will require sixth-form colleges to have a closer relationship with their local authorities than is proposed for other colleges.

Perhaps your Lordships will forgive me if I deal with Amendment 218 before Amendment 216. Amendment 218 would mean that the responsible local education authority could use its proposed power to appoint a member to a governing body of a sixth-form college after,

“consultation with the said governing body”.

We believe that that would allow sixth-form colleges to retain the independence and autonomy that have been integral to their success. We are concerned that, without that provision, sixth-form colleges may be encouraged to become overly centred on the needs of the local authority and the so-called home centre. We suggest that that would be damaging, because part of the success of sixth-form colleges is due to their ability to recruit across local authority boundaries and become centres of excellence. Although the Bill does not prevent that, we are concerned that too many ties to the local authority may result in the sixth-form college becoming home-centric and reduce its freedom and desire to recruit from further afield.

Amendment 216 is in the same vein of flexibility. New Section 33D(3) in Schedule 8 means that an application to convert a sixth-form college corporation into a further education corporation cannot be made by the governing body of the relevant body for a period of five years after the body has been declared a sixth-form college corporation. Does the Minister agree that that is somewhat restrictive? Does she not agree with the assessment of the Association of Colleges that a period of two years might be more suitable? We suggest that that would allow much more flexibility, which is especially important given that much of the reason behind the success of those institutions is their ability to innovate, adapt and utilise the flexibility that their independence gives them. We think that it is important to nurture those traits, which help to develop centres of excellence, not constrain them. I beg to move.

My Lords, we have some reservations about Amendment 216. We recognise that a sixth-form corporation, as specified in new Section 33E, may have much the same provision as an FE college, so in many cases the conversion may be straightforward. However, two years is a very short time in the life of an academic establishment to test the market and to prepare for and implement organisational and institutional changes. Five years seems a reasonable timescale. As for the governors, one would hope that there would be consultation in every case between the governing board and the LEA. The LEA is proposing to appoint only one person to the board, so we agree that consultation would be desirable, but the Bill could stand as it is drafted.

My Lords, I start my brief remarks by saying that we would like to consider Amendment 218 and to accept Amendment 216, so that those who need to prepare can do so. I am grateful for the interest of the noble Lord, Lord De Mauley, in the issue and am pleased to see that there is agreement around the House, taking into account our discussions earlier in Committee, about the strong and distinctive contribution that our sixth-form colleges make in this country. This is a great opportunity for us to put on record the tremendous work that they do.

The scrutiny that the amendments have prompted has been extremely valuable in challenging some of our initial assumptions. As we have heard, Amendment 218 would amend new Section 56F, which will give local authorities the power to appoint one or two additional governors to the governing body of a sixth-form college. That is a power that the Learning and Skills Council currently holds. It has used the powers to appoint 51 governors to 33 further education colleges—but always, importantly, as the noble Baroness, Lady Garden, commented, with the agreement of the institution. I recognise the importance of consultation, especially in such an important matter, so I am happy to reflect further on whether a local authority should be required to consult the governing body of a sixth-form college before making an appointment and will return to that on Report.

As I said, I am also happy to accept Amendment 216, which will reduce the number of years before redesignation can occur from five to two. In response to the noble Baroness, Lady Garden, the point is that redesignation can occur after two years; it does not mean that it must. I note her comments about the need for experience to bed in before a college makes a decision, but it is an interesting proposition to have a two-year rather than a five-year limit. Still, we maintain that the designation process should not destabilise the college sector.

This short debate has been helpful and important. We know that the sixth-form colleges are broadly supportive of the new arrangements. They believe that giving local authorities, which are primarily responsible for the strategic direction of schools, a major responsibility for the strategic direction of colleges will promote coherence. That view has been voiced by the Sixth Form Colleges’ Forum. With that, I am optimistic that noble Lords will accept my approach.

My Lords, I thank the noble Baroness, Lady Garden, for her contribution. Noble Lords will be unsurprised to hear that I am even more grateful to the Minister for her gracious words in accepting Amendment 216 and for saying that she will think further about Amendment 218. We look forward to what she comes up with on Report.

My Lords, paragraph 8 of Schedule 8 is five pages long so, if it were removed, it might reduce the Bill a bit. It sets out new powers for local authorities and the Young People’s Learning Agency to enable them to intervene in the business of a sixth-form college when it is judged to be failing. This probing amendment would remove all the intervention powers for the YPLA and local authorities.

The Association of Colleges, which represents sixth-form colleges, points out that they are among the most successful institutions within the education sector; the Minister underlined that in her answer in the debate on the previous amendment. Sixth-form colleges produce excellent exam results, often for the most deprived young people and in the most disadvantaged areas. This is demonstrated by the fact that, between October 2006 and January 2009, 81 per cent of the 80 sixth-form colleges inspected by Ofsted received an outstanding or good grade.

Sixth-form colleges therefore have a proven record of high performance, so it is, one hopes, extremely unlikely that any sixth-form college will fall victim to the circumstances listed in subsection (2) of proposed new Section 56E of the Further and Higher Education Act 1992. New Section 56E(2)(d) states that a local authority may intervene if,

“the sixth form college is performing significantly less well than it might in all the circumstances reasonably be expected to perform, or is failing or likely to fail to give an accepted standard of education or training”.

This wording reflects the wording that will apply to the Skills Funding Agency’s intervention powers in relation to further education colleges. It would therefore be useful if the Minister could clarify whether the SFA and local authorities are using identical criteria when they determine whether to intervene. How will these criteria relate to those that may be used when local authorities assess the performance of school sixth forms? All three types of institutions will be educating the same age group, so it seems fair that they should be judged on the same basis before the relatively serious step of intervening in the affairs of an autonomous institution is taken.

As I understand it, when intervening, local authorities will be able to remove all or any of the members of the governing body, appoint new members and give directions to the governing body. New Section 56H also allows the Young People’s Learning Agency the opportunity to intervene in the business of sixth-form colleges and take the same steps. It would be useful if the Minister could clarify when she envisages it would be appropriate for a local authority to intervene and when the YPLA should intervene. If she could produce some illustrations of the sorts of situations that might produce that, it would be helpful. I beg to move.

I should inform the Committee that, if this amendment is agreed to, I cannot call Amendment 218 by reason of pre-emption.

My Lords, it will come as no surprise to the Minister that we share the concerns of the noble Baroness, Lady Howe, about the intervention powers of LEAs and the YPLA in sixth-form colleges. Of course we agree that action must be taken should a sixth-form college’s governing body be responsible for unreasonable action or mismanagement of its affairs. Nevertheless, like the noble Baroness, Lady Howe, our concern is that sixth-form colleges should be allowed to be flexible and independent.

The Association of Colleges has stated that it thinks it imperative for sixth-form colleges to,

“retain their independence and autonomy as these factors have played a major role in their success”.

Does the Minister not accept that the powers of intervention by the LEA and the YPLA may operate to reduce the flexibility and independence of sixth-form colleges? As I said on the previous group of amendments, it is important to ensure that the possible influence of the LEA and/or the YPLA must not mean that sixth-form colleges become overly centred on their immediate locality. Part of the reason for the success of these colleges is that they can attract students from far and wide across the boundaries of the LEA. Given that resources are finite, we share the colleges’ concern that the powers awarded to the LEA by the Bill may lead to sixth-form colleges becoming more limited in their scope and therefore reduce the level of specialisation that has helped to make them such a success.

Paragraph 8 of Schedule 8 appears effectively to give LEAs the authority to manage the performance of sixth-form colleges and, therefore, interfere when they consider necessary. Further powers of intervention are awarded to the YPLA and, additionally, LEAs and the YPLA are given the right to appoint members to the governing body of a sixth-form college. It would appear that the intention is to confine independent sixth-form colleges quite strictly within the remit of the local authority. I appreciate that there are limitations—for example, the LEA must give notice to the Secretary of State and the YPLA before exercising its powers of intervention—but I hope that the Minister appreciates the concern of the Association of Colleges that the specifics of these powers have yet to be laid out in any detail. I hope very much that she will be able to inform your Lordships exactly how these powers will work and offer reassurance that this will not infringe the independence of sixth-form colleges, which we should be helping to support, rather than limit.

My Lords, having heard what has been said, I support my noble friend on the Front Bench. Education is not my main subject in the House, but having listened to the debate I believe that independence for colleges—Oxford or Cambridge or any of them, although I admit that I happened to be at Cambridge—is crucial. That is the point that my noble friend is making. I do not know anything about education, but it seems terrible that the independence of the universities should be put at risk.

My Lords, my main quarrel is with the wording of new Section 56E(2), which is the test that must be passed before a local authority can intervene. The level has been set quite extraordinarily low. For instance, paragraph (b) states,

“that the sixth form college’s governing body have failed to discharge any duty imposed on them by or for the purposes of any Act”.

In other words, perhaps it has thrown out a newspaper with the general rubbish rather than recycling it. The LEA can have a tiny excuse for taking total control of a college. There is no appeal and no effective reference to any other body because, although the Secretary of State can set out guidance, all the LEA has to do is to have regard to it. We know exactly what that means: look at it and then ignore it. That happens in many other cases of government guidance. A sixth-form college can take no effective action other than to go to law, but, given the immediacy of this, its finances are presumably frozen the moment the LEA steps over the doorstep and it will have no ability to apply for judicial review. It is an extraordinarily low test when it ought to be a high test. Under paragraph (d), for example, it has to be performing significantly less well, which surely should be set in terms of some Ofsted judgment rather than just at the whim of a local education authority officer.

My Lords, I want to make it very clear that the intention here is very much to be in step with the aspirations of sixth-form colleges. As noble Lords will be aware, sixth-form colleges have always had a distinct character and ethos, and I am sure they would argue better than me that concentrating on their core functions of providing 16-to-19 education and training has given them the focus that has allowed them to do tremendously well, as the noble Baroness, Lady Howe, said so eloquently.

I support the noble Baroness’s assertion that it is important that institutions that look after children and young people of the same age are judged on a similar basis. This is what we are trying to achieve; I have already referred to the framework for excellence that is being developed in consultation with BIS, the DCSF and professional partners. The Government respect the independent status of sixth-form colleges, and designation as a sixth-form college will not change that status. As they are now they will remain: as incorporated colleges run by their college corporations, not by the local authority.

These powers of intervention, on which the probing amendment tabled by the noble Baroness, Lady Howe, focuses and would remove, are currently held by the Learning and Skills Council. The LSC has used the powers that are being incorporated in this Bill extremely infrequently, but they remain necessary as a tool of last resort because the implications of those extremely rare cases of educational failure or institutional mismanagement can be dire for the life chances of learners.

We intend to transfer the responsibilities that the Learning and Skills Council now holds for sixth-form colleges to local authorities and the YPLA, with the same safeguards that are in place now. Local authorities will be able to consider intervention only if certain thresholds that are set out in the Bill and to which noble Lords have referred are met. Local authorities will be required to follow a national intervention policy which the YPLA will consult on and publish. The YPLA will also submit that policy to the Secretary of State. If he approves it, it will be laid before both Houses of Parliament.

The noble Baroness, Lady Howe, asked specifically about the criteria that the Skills Funding Agency would use in an intervention. I put on the record that in deciding whether to intervene, criterion D in new Section 56E of Schedule 8 allows the local authority to judge how the sixth-form college is performing. This must take account of the circumstances of the college. The same duties are placed on the Skills Funding Agency in respect of FE colleges that it performance-manages. Therefore, we will apply a consistent approach across all sectors, which I know the noble Baroness is keen to achieve.

The noble Baroness also asked about the role of the YPLA. The YPLA’s powers of intervention, which mirror a local authority’s powers, are, as I have said, a fallback only. The YPLA could intervene in a sixth-form college only when two conditions have been met: first, if it was already intervening in the relevant local authority because the authority was failing in its core duty; and, secondly, if a sixth-form college in that authority was behaving in a way that caused the YPLA to conclude that one of the high-level conditions set out in Schedule 8 has been met. This would be an extremely rare set of circumstances.

The noble Lord, Lord Lucas, was concerned that sixth-form colleges could do nothing in response to this process. There is a detailed process of discussion between the local authorities and sixth-form colleges in subsections (4) to (6) of new Section 56E, which he has already probably found his way to, but, again, in the interests of clarity, I will write to noble Lords in my best handwriting, or even using a typewriter, about how that could work.

I will be absolutely clear: we are advised time and time again that the sixth-form colleges are keen to move forward with this. With the reassurance that I may have been able to offer the Committee, perhaps the noble Baroness will feel able to withdraw her amendment.

I have a couple of points to make about what the Minister has just said. She talked about a detailed process of discussion in subsections (4) and (6). Yes, I would like to hear further from her on that because subsections (4) and (6) appear to be pretty swift and pre-emptory and do not involve discussion but simply, “Right, we’re coming in. Bang”. There seems to be no provision for discussions or timescales in the Bill in front of me.

I would be very happy to say at the Dispatch Box that I would not expect there to be anything other than full and generous discussion with sixth-form colleges, even where a sixth-form college may be struggling. It is important, however you operate in local government, that you deal respectfully with institutions. I am sure that the noble Lord would want that on the record.

My Lords, I entirely agree that that is how it should be; I just do not see it in the Bill. The other thing that I cannot find in the Bill is what the Minister referred to as the national intervention strategy, which she said would be drawn up by the YPLA and with which LEAs would have to comply. Again, I see that nowhere in the Bill. It would be a sensible way of conducting things to have a set of rules that have to be followed and that add a rational gloss to the hair-trigger conditions that are set out in the Bill. I am sure that I have missed pages, but I cannot find it anywhere and I would be grateful if she could point it out to me.

My Lords, it is in new Section 56G, and I have a copy of it here. It is the Learning and Skills Council statutory intervention policy, which states:

“Presented to the Houses of Parliament pursuant to section 56B of the Further and Higher Education Act 1992 (as amended by the Further Education and Training Act 2007)”.

That is a policy statement. I feel it necessary to offer the noble Lord clarification in writing as to where this is updated in the Bill.

My Lords, I am confused because the noble Baroness said that local authorities would have to follow this, but it is just guidance. It is set out in secondary legislation, for instance, that cameras should not be used to enforce parking violations. Local authorities are supposed to have regard to that, but Westminster has 200 such cameras. It is set out in both guidance and regulations that controlled parking zones should be signed in particular ways, but only round 20 per cent of the controlled parking zones in Westminster have even half of the signage correct. Local authorities are used to the process of having to have regard to things. I am sure that they behave themselves, but a lot of the time they totally ignore what is set out in guidance. What I am after is something saying that they shall behave in a certain way rather than that they should have regard to such behaviour. Perhaps the change I am looking for is to amend the end of new Section 56G with wording to the effect that local authorities must “act in accordance with” rather than “have regard to”.

New Section 56G states:

“Intervention policy: sixth form colleges

(1) The YPLA must—

(a) prepare a statement of the policy to be followed by local education authorities with respect to the exercise of their powers under section 56E”,

which is about intervention. It must also,

“(b) keep the statement under review, and

(c) if it considers it appropriate in consequence of a review, prepare a revised statement”.

The new section goes on to give a detailed description of the intervention and how it must be fulfilled.

Yes, my Lords, but in the end we see the words “have regard to” at the end of the section. In other words, local education authorities can completely ignore it and do whatever they want, as long as they have read the guidance first. A minor indiscretion can trigger this power from an LEA’s point of view. An infringement of any Act of Parliament can do it. What sixth-form college does not infringe an Act every year? We all do so. There is so much legislation that you cannot but fall foul of a minor provision in some Act every year. Most of these things one glosses over, puts right or never notices, but any change can trigger the right of LEAs to intervene. Because Section 56G only requires the LEA to “have regard to”, there is nothing to stop them.

The only remit of the Learning and Skills Council was to look after the funding and quality of sixth-form colleges. It had no other interests that might bring it into conflict with the policies being pursued by those colleges.

What I have perhaps not made clear is that we are taking the experience of intervention gathered by the Learning and Skills Council and enacting it here under the new YPLA and SFA set-up.

Yes, I entirely understand the Minister. These powers were appropriate when they were given to a body that could be presumed in all cases to be entirely impartial in the way it acted because of the narrow focus of what it did. Now they are being given to a body with a whole multitude of other interests which it might want to pursue and bring to bear on sixth-form colleges. That is why a straight translation of these provisions will not do. I hope very much that I will have the support of my own and the Liberal Front Benches on this, because we will certainly come back to it on Report.

There has to be a measure of sense imposed on this. Like the Learning and Skills Council, the YPLA is a body that does not have a lot of other interests. If the document prepared by the YPLA was binding on local authorities, I should be completely satisfied, but sixth-form colleges will be left at the mercy of LEAs. The noble Baroness knows that this will not be translated into action, but in many cases into threats of action. Authorities have governors on boards and very quickly they will come to know which sixth-form colleges have made themselves vulnerable under the extraordinarily hair-trigger arrangements set out in the Bill. They will then have the power to say, “You will do exactly what we say or we will come marching in and there is nothing you can do to stop us”. That is not the right basis for a relationship.

There ought to be more distance between the two because local education authorities have so many other fish to fry and reasons to want to intervene in the minutiae of what a sixth-form college is doing—perhaps, as they see it, to make the college work more efficiently with schools or blend with other policies—simply to satisfy the particular political predilections of the local authority at the time. That did not apply to the Learning and Skills Council but does so to all LEAs, and sixth-forms colleges must have protection.

Perhaps I can put this into perspective. First, sixth-form colleges are happy with these proposals, and it might be helpful to make the Committee aware that the Local Government Association has agreed a protocol with the Sixth Form Colleges Forum which includes, among other things, how performance management and intervention powers will operate. We need to bear in mind that a lot of very hardworking and successful sixth-form colleges would like to go ahead and have for the first time in history a special legal status of their own. It would be a great disappointment to them if we were to pour cold water on that little bit of progress.

My Lords, I am doing what my noble friend has suggested, and I am not pouring cold water on anything. I want to illustrate the importance of legislation saying exactly what is meant and exactly the outcome that is wanted. There is an analogous case here. The former Mayor of London was subject to a statutory requirement to consult on extending the area of the congestion zone. He did so and the response was 85 per cent against, but he did it.

My Lords, that is exactly the point. I am not seeking to destroy this provision but, having listened to what the noble Baroness and other noble Lords have said, we should remove from new Section 56G(7) the words “have regard to” and put in something to the effect that LEAs must follow the rules set out in the document so carefully provided by the YPLA. In other words, whatever rules evolve out of the process of discussion under Section 56G and are then agreed by Parliament, should be followed. To rely on a concordat between an unofficial gathering of local authorities and sixth-form colleges to govern these relationships is extraordinary. As I say, I hope very much that I will have the support of both Front Benches when we return to this issue on Report.

My Lords, this probing amendment has produced quite a lot of thought and activity, and I thank all noble Lords who joined in the debate. Who knows, out of it may come some even more concrete proposals than those which the Minister was kind enough to spell out. I am pleased that regard will be given to the autonomy of these institutions. Of course there must be an ultimate fallback position if an institution is failing so that something can be done about it, but given that many of them are doing well, we hope that that will not happen in many cases.

We will all read every single word of what has been said in this debate to see whether further actions should be taken on Report. This was a probing amendment—it was meant to be so because that is what the Association of Colleges wanted it to be—and we shall have to consult and see what its views will be by the time we get to Report. I thank the Minister for the careful consideration that she has given to the amendment.

My Lords, I shall speak also to Amendments 220, 221, 222, 223 and 224A. We now come to consider Ofqual, the new Office of the Chief Regulator of Qualifications and Examinations, which, under this legislation, is now to stand alone purely as a regulator, with the duty to develop the curriculum to move to the QCDA, about which we will speak later.

There is no doubt that there is a need for a strong, expert and independent regulator, who can speak up for learners on the standards and range of qualifications available to them. It is vital also to employers, further and higher education providers and, indeed, the whole economy that we have such a regulator. In Kathleen Tattersall as the new chair we clearly have an expert with experience and determination. We wish her well and thank her for the copy of her letter to MPs during the Committee stage in another place in April this year; it was most helpful.

It is clear that to be successful the chief regulator will need all the help she can get and as little interference as possible. That is the basis of the various groups of amendments that we have tabled which we are about to debate. One of the key duties of the new Ofqual, in Clause 125(4), is to,

“promote public confidence in regulated qualifications and regulated assessment arrangements”.

One glance at the newspapers during August, when the public exam results are published, will make clear the need for someone to do this. Sadly for all those young people and teachers who have worked so hard to achieve their results, every year we have doubts expressed about whether the standards of the various grades achieved are comparable to similar grades last year and the year before, or even the decade before. We also find questions about the assessment arrangements and how rigorous they are. Questions arise about the balance of exams and coursework, multiple choice questions, and the depth of probing of the knowledge found in the exam paper. It is very important that this comes to an end. Candidates for exams have a right to know what they have achieved when they reach certain grades and their potential employers need to know that too.

That is why we believe the independence of Ofqual is so vital. If the Government are allowed to interfere with its work there will always be questions and doubts about whether results have been manipulated to make the politicians who happen to be currently in charge look good. This applies to all parties, not only the current Administration. I say to the Government that what we are trying to achieve by tabling these amendments is for their own good. I am sorry if I sound like their maiden aunt when I say that. The medicine may not taste nice but I can assure them that it will do them good. More importantly, in this global employment world, it will be good for learners and their opportunities in the global marketplace.

Let us look at what the Government are offering to us and see whether it measures up to a strong, expert and independent Ofqual with the power to use good advice wherever it is to be found. First, we need to look at Schedule 9, where the arrangements for the appointment of all the Ofqual personnel are to be found. There we see that the Secretary of State can appoint all the board members and the chief executive; he will also appoint the deputy chair. The chair is a Crown appointment but I doubt if Her Majesty would appoint anyone unless she had been advised who by the Secretary of State. He will also decide the terms and conditions of service initially and approve them subsequently. This is a recipe for political meddling and the placing of people who will do as the Secretary of State wishes. This is not a recipe for a strong, independent organisation.

Of course, initially there is no alternative but to have the first chair appointed by the Crown on the advice of the Government. However, there is no reason why all the members should not also be Crown appointments and subject to the same public appointment scrutiny. That is our Amendment 219.

My Lords, noble Lords will be aware that we have long called for a regulatory body. We welcome the Government’s agreement on this matter and are delighted that they have taken our views on board, bringing forward the Bill to put Ofqual on a statutory footing.

Concerns about the standards of education in our country have occupied reams of newspaper coverage and hours of parental concern, and have caused disquiet in the public sphere. We have therefore called for a body to be in charge of regulating those standards to ensure that, as standards rise, the public can be assured about the quality and rigour of our exam system. We welcome the Government’s agreement on that point and look forward to enshrining Ofqual in legislation.

We believe, however, that there are improvements to be made to the structure of Ofqual in the Bill. That is why we have tabled Amendment 220A, which would ensure that an ordinary member of the Ofqual board should not have any financial or occupational interests that would give rise to a conflict in Ofqual’s objectives. We on these Benches think that it is important to ensure that Ofqual is fully independent of educational bureaucrats.

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.

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 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.

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.

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.

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

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.

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.

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.

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. 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.

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.

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.

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?

Secondly, the amendments draw attention to the difference in our approach to this body. As I understand it, the Government compare the actions of Ofqual to making sure that the height of a specific hurdle remains consistent between comparable qualifications and assessments. We, however, want to take action to improve standards. To be more specific, we would prefer there to be an explicit duty in terms of standards, which would mean not only that the height of the hurdle would be regulated but that there would be a robust examination system that would reject anything that would allow standards to fall. The hurdle should not be lowered.

We want an examination system that is comparable to the best across the globe. That would mean that our learners were assessed by exams that would offer them the opportunity for a real rise in standards, not just a nice statistic that shows an increase in the number of passes in a devalued exam. This rigorous examination system would help more of our pupils who work so hard to leap over a hurdle that would put them on a par with the world’s best.

We have therefore also tabled Amendment 236, which says that within eight months of being set up Ofqual must publish a report on whether standards of qualifications have been maintained over the past 15 years. This study must include A-levels and GCSEs. We feel that this is a necessary commitment. The Government have constantly told us that standards have risen, yet some of the world’s best academics point out that an increase in the number of passes does not mean that standards have risen if the result is just that the exams themselves are easier and the pass mark is lower.

Does the Minister agree that, if part of Ofqual’s remit is to reassure people that standards are being regulated, a report of this nature would be useful? We believe that it is necessary because, as the Minister will be only too aware, we are concerned that standards have in fact been falling. We are worried that we are failing learners who need the right opportunities, the best teaching and exams that will allow them to demonstrate their learning to their fullest potential.

In my honourable friend Michael Gove’s Haberdashers’ Aske’s lecture, he drew attention to Duncan Lawson from Coventry, who showed that students entering university in 2001 with a B at maths A-level displayed a level of knowledge that 10 years before would have been shown by a student with an N grade or a fail. Professor John Marks, who has been leading a study of GCSE and O-level papers, found that,

“it is now possible to achieve a Grade C in GCSE mathematics having almost no conceptual knowledge of mathematics”.

He also discovered that,

“in 1990 the percentage mark on the Higher Tier for a Grade C was just over 50%. However, in 2000 and 2006 the required percentage mark for a C grade had fallen to about 20%: this mark could be ascertained by answering correctly the first four questions on Paper 5 and Paper 6”.

These are appalling statistics. Does the Minister not see that it is important to create an examination system that not only regulates the standards of exams but helps to ensure that children are not failed by an examination system that no longer guarantees them academic excellence?

For 16 year-olds, the expected minimum standard is five good passes at GCSE, including maths and English. This year, fewer than half of schoolchildren managed to clear that hurdle. We must ensure that standards are maintained at a consistent height between comparable assessments. This is an important concern. We also need to ensure that our assessments are not devalued. We want an examination system that does not allow a progressive decline in standards but upholds them; we need to regulate our exams so that they are comparable to the best in the world.

We draw attention to the fact that in 2008 Ofqual, as one of its first intervening actions, forced AQA to lower the pass mark for its GCSE science paper to 20 per cent. AQA had refused to lower the mark because it considered that it would not be comparable with standards over time and would devalue the exam. Ofqual, however, demanded that AQA reduce the pass mark and thus the standard of this exam was lowered.

The noble Baroness, Lady Walmsley, has tabled an amendment stating that Ofqual should be able to direct a specific body at a specific time regarding a specific qualification to set a particular standard. Noble Lords will all be aware that we would agree with the principle behind her provision, as long as Ofqual did not direct the body to lower standards. I very much look forward to the Minister’s response and I hope that she can offer some reassurances.

On our Amendment 316, the Minister and the Committee will be aware that we have been calling for an independent regulator to monitor exam standards and ensure that they are maintained. When David Cameron was shadow Education Secretary, he stated:

“Reform of the Qualifications and Curriculum Authority is the one such positive step. It is not acceptable that the QCA, the guardian of our exams, is not independent of the Government”.

We believe that the structure and design of Ofqual should be such that the body has powers to ensure that it can uphold strong and appropriate grade boundaries and thus help to guarantee that our exams and our pass marks are comparable to the best across the globe. At the moment, unfortunately, our qualifications system is struggling in a competitive international market. Standards are failing and we must take action to fix this situation. I am sure that the Minister is just as concerned about this as we are.

This year, 40 per cent of children who left primary school failed to reach the accepted minimum standard for their age in reading, writing and mathematics. In the PISA studies on advanced economies and their educational performance, we dropped from fourth to 14th for science, seventh to 17th for literacy and eighth to 24th for mathematics. This is most dispiriting.

One of the significant concerns that Michael Gove identified in his speech was:

“What looks like a great performance in our state-run exams turns out to be below par when compared internationally”.

He raised his concerns about grade inflation, where our students are suffering because, he said:

“The qualifications we offer are no longer so robust”.

Our worry here is that, while our students and teachers are putting in enormous amounts of hard graft and effort to pass exams, they are being failed by an exam system that cannot give them the freedom to compete in an international market.

We have therefore asked Sir Richard Sykes, the former rector of Imperial College, to review the system of assessment and qualifications in this country. The main aim behind this is to ensure that our exams are internationally competitive again. It is of the utmost importance to secure these standards to make sure that our children are afforded the same opportunities as those from other countries and are stretched to their full potential.

These amendments would add a further dimension to Ofqual. They would bring in an international benchmark to which exam standards should be fixed in order to ensure that they remain competitive. Amendment 226 would insert an international duty into Ofqual’s objectives. Amendment 232 expands on this to define the international objective as that included in the comparative study that would be brought in by Amendment 316. I hope that the Minister will consider these amendments in a favourable light, addressing both the principle of international benchmarking and the logistics of the amendments.

My Lords, I will speak to Amendment 260, which stands in my name and that of my noble friend Lady Walmsley. The noble Baroness, Lady Verma, has already referred to it.

The amendment was put forward by AQA and contains the specific additional power needed for Ofqual to be able to intervene in the rare cases where it is necessary because an awarding body is setting, or intending to set, inconsistent standards. Rapid intervention may be necessary in such cases if Ofqual is to deliver its qualifications standards and public confidence objectives. In the case of the GCSE science examination which the noble Baroness cited, Ofqual intervened to lower the pass mark for the other boards. AQA, while it disputed that it had got the standards incorrect, recognised that each awarding body had used different data and analysis to support its process. It also recognised the broader picture and the importance of key issues relating to standards and how to interpret them; and that technical uncertainty was one reason why every year we have arguments about standards—a tradition that clearly is not in the best interests of young people, because it casts doubt on their achievements. Although in this case it may have seemed a curious process that Ofqual was using, AQA and the other awarding bodies recognise that Ofqual should have this power and be able to use it effectively.

We support the part of Ofqual’s work that involves monitoring standards, funding research and sampling tests—as laid out in the amendments of the noble Lord, Lord Lucas—as well as conducting research that makes it possible to compare standards and performance in England with other OECD countries. However, we have concerns about the very short timescale that the noble Baroness has given—eight months to produce a survey of UK GCSE and A-level qualifications. There is a deal of work there.

Amendment 316 is interesting. I recall being involved some years ago in an EU-funded project called LangCred, which aimed to set benchmarks for language and skill proficiency across the EU. It identified nine skill sectors, including building, commerce, motor vehicle repair, hotel management, catering and tourism. We had a highly organised Dutch project manager and 12 countries began the work, with four years’ worth of EU funding and the authority of the EU behind it. However, at the end only a limited database had been compiled—it was far from comprehensive and merely covered a few qualifications from some participating countries. It was set up in the UK as the first European economic interest group, and had the distinction of being the first EEIG to be wound up four years later.

There were interesting lessons to be learned from that project. One was that to try to establish internationally recognised benchmarks for qualifications sounds simple and highly desirable, but it consumes enormous time and resources and the end product is not necessarily recognised universally, even with EU backing. The suggestion that Ofqual in its early days might produce anything with that legitimacy is probably not feasible. However, that is not to say that it should not be in a position to commission and fund research and sampling, in order to produce statistics that will shore up our confidence in our qualifications system. Indeed, many studies of comparative qualifications—in particular, in academic and vocational areas—are useful and valued, but in this case we question whether that is the best use of Ofqual’s resources and whether it will ultimately get the recognition that it deserves. However, broadly we are very much in favour of the way in which these amendments are going.

My Lords, I happily support Amendment 225. In fact, I think that Ofqual simply could not do its job fully without engaging in forms of research, which would probably include sample testing. I assume that it would be in train to do this but let us be reassured that it has the power, the capacity and, where appropriate, the budget to do so.

I wholly agree with the spirit of Amendments 230 and 231. Whether they are necessary, I am not completely certain, but it would evidently do no harm to have this emphasised at some point in the Bill.

However, my reckoning on Amendment 236 is that we have just given the future Ofqual the good news, and it has been warmly welcomed on all sides of the Committee. The bad news is that we are handing it a ticking time bomb that will go off in eight months’ time. This is important work which must be done, but saddling a new agency with many tasks to carry out in its first eight months will not help it and will not help it to focus where it should be focusing in its first year of delivery.

However, I tie that, and the suggestion implicit within it, to Amendment 316, because it may well sit much more happily with a similar proposal to look for international benchmarks. I accept the remarks just made about the difficulty of doing this. It is difficult to produce international benchmarks that will have total confidence even in all parts of the OECD but it is important that we do so. We should test ourselves and our education system against the best in the world and, within that, we should look to see what consistency of standards there has been over the years.

Perhaps I might add, not completely facetiously, that if one wanted a quick and dirty test in the absence of Ofqual carrying out this survey in its first eight months, I could invite all noble Peers and Peeresses to identify which A-levels they sat and we could all get together to sit the current paper and see how we get on. There may or may not be evidence of a rise or fall in standards—who knows? Seriously, there is an important point here but surely not one that should be dealt with in the first eight months.

It may be worth mentioning in passing that the volume of knowledge in most subjects is constantly increasing. I remember 25 or 30 years ago Lord James of Rusholme, when vice-chancellor of York University, saying that he had been back to Oxford and had looked at the first degree examination papers. Not only could many of the questions not have been answered in his day but about 20 per cent of them could not have been asked because the knowledge then was insufficient. There is a real problem here down the pipe, as it were, from the universities to the schools in the back-up of knowledge that must be acquired before students are admitted to university. The question is whether the volume of knowledge is allowed to increase with a resulting reduction in quality or whether we would not do better to reduce the volume of knowledge required and increase the time spent at university or the number of stages of degrees. It is a big question but one that will eventually have to be addressed.

My Lords, I am not sure whether it is wise for me to say this but when I did my science degree at university, we looked at various biochemical pathways, and I was really shocked to discover young people looking at these at GCSE fairly recently. The transfer of knowledge from what I studied at university to those at GCSE level in, admittedly, not a short period of time is quite breathtaking and probably worthy of a debate all of its own.

This has been an extremely helpful and important debate. When I get into the detail of the amendments, I will develop the point that this is not necessarily a debate about whether the standards of the qualifications themselves have been maintained. The contribution of the noble Baroness, Lady Verma, was in itself one of the greatest testimonies for why we need Ofqual. She put so clearly an analysis that I totally reject. However, the process of rejecting it leads to a debate which I believe undermines the achievements of young people, teachers and the education system around the country. It is unhelpful to trade statistics and to go into the issue in such a way. I reject her analysis, but I want to focus on Ofqual and the extremely important questions around the amendments.

I like the analogy of hurdles, but we sometimes confuse performance standards with the number of young people who get over the hurdles. The Government are committed to increasing the number of young people who get over the GCSE hurdles or the key stage 3 hurdles. In line with our Leitch strategy we want to ensure that we better equip ourselves for the future. When we talk about the height of the hurdle and the number of young people or adults who get over it, it is important to be clear that they are different things. In the Bill we have set Ofqual an objective to maintain the level of that hurdle, so it is a helpful analogy.

The noble Baroness, Lady Verma, talked in detail about Amendments 230 and 231. These amendments would confuse the clear definition of standards in Clause 125 as they suggest that maintaining standards is something other than what is in the clause, though they do not say what. I know that she tabled these amendments to make some clear points, but they would risk Ofqual getting tied up in legal knots. I heard her concerns about Ofqual becoming some kind of PR agency and must reassure her that nothing is further from the point. We believe absolutely that confidence and understanding flow from Ofqual fulfilling its objectives around standards. It is not about a PR exercise but about doing a great job and maintaining those standards with rigour. It is not a flimsy commitment to PR.

On Amendment 316, Ofqual will need to have the freedom to decide how best to deliver its objectives to maintain standards, which is what we were debating just now. It must also have the freedom to be accountable for that. I have a number of concerns about the amendment, as it assumes that a single benchmark could be created to enable the maintenance of standards in GCSEs and A-levels. But maintaining standards, as the debate suggests, cannot be done that way. Different exams are taken in different subjects, offered by different awarding bodies in different years. They must be comparable. It is a complex job, which is why we need an expert regulator. Moreover, since a review a few years ago found the English exam system to be among the most tightly managed in the world, we could end up tying standards to a qualification system inferior to ours, which would be a mistake.

My Lords, on my amendment, I am grateful, completely satisfied and thank the Minister and her team very much for the effort that they took during the holidays to get us to this position. I am delighted that those on my Front Bench are so thoroughly in favour of the independence of Ofqual. Voting for the independence of bodies such as Ofqual is a hard thing to do in government, but it should be relatively easy to do in opposition.

I hope that my noble friend will pursue something along the lines of Amendments 230 and 231. It is important to have that clearly set out as an Ofqual objective for the public appreciation of what Ofqual is and where it stands, if nothing else. The importance of that was illustrated by the story my noble friend told of the instruction Ofqual gave to an exam board to reduce the pass mark in an examination. Knowing a little of that story, I suspect it took the right decision, but there should have been someone on the board who would have told it what the public reaction would be and how it ought to be managed. Something the Secretary of State might bear in mind when he is choosing the board is that the members should not all be inward-facing; there should be some outward-facing members too.

The Minister was wrong when she criticised my noble friend for criticising the 20 per cent pass mark. If I employed a plumber and he said, “Yes, I’m a qualified plumber. I got 20 per cent in my exams”, I would not be happy. If 20 per cent is the pass mark in an exam, it is the wrong examination for the question that is being asked. If we want to know whether our young people have a competence in, say, mathematics, we ought to set an exam that requires at least a 50 per cent pass mark. That is where the exam ought to settle. If you are down to a 20 per cent pass mark, you do not know what bit of the 100 per cent the pupil in question has learnt. You are so far off the purpose of the qualification that a pass mark down there does not belong. Just in theoretical terms, my noble friend’s criticism of pass marks having got down to that level has a great deal to it. However, I am delighted that the Minister supports independence, and I shall hold her to it when we come to Clause 138. I beg leave to withdraw the amendment.

I shall speak also to Amendments 232A, 237 and 254. Before I do so, I shall comment on what has just been said. The noble Lord, Lord Lucas, made a good point when he suggested that there should be somebody on the Ofqual board who understands public opinion and knows how to deal with it. There is nothing wrong with PR companies—I used to work for one—and they are experts in understanding how the public will respond to the message an organisation puts out.

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 will be required to move into action quite quickly to adjudicate on qualifications when things go wrong. It is important that we should be able to rely on the chief regulator to report on relevant matters when we need to know, as often young people’s whole careers depend on the results of examinations. When things go wrong, it can be disastrous for them. They could lose a whole year at college or university, or lose out on a job if something goes wrong with the recognition of their qualification. That is why Amendment 227 is needed.

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.

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.]

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.

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.

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.

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.

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.

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 there is an overall lack in the Bill, especially in relation to Ofqual, it is that insufficient overt mention is made of learners, learning and education. One way of dealing with this would be Amendment 237.

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.

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.

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.

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.

I can give a commitment from the Dispatch Box that such directions will always be made public.

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.

I am happy to do as the noble Viscount suggests.

I thank the Minister for her kind remarks and her reassurance on the interests of employers. I am totally reassured that the subject is covered adequately in the Bill, although I would have liked it to be so where the objective is first stated. However, I accept that it is there.

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.

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.

These amendments would introduce a sixth objective into Clause 125(1), that of promoting equality standards. Clause 125(1) currently contains five different objectives: qualification standards, assessment standards, public confidence, awareness and efficiency. However, the principle of equality is not there. Examinations and qualifications are often designed with little thought given to accessibility and inclusivity for disabled students. This results in three main outcomes.

First, there is the use of retrofitted “reasonable adjustments”, as they are called, which result in some form of compromise or, often, disadvantage for the candidate. Secondly, there is the creation of a list of disallowed reasonable adjustments. For example, if a blind student sits an English exam, they are required to be physically able to read the text. A reader or voice software is not acceptable. If the text is in Braille, it is obviously acceptable. Alternatively, a disabled candidate would be exempted from a section of the exam if they could not complete it due to the rigidity of the reasonable adjustments lists. Where exemptions are given, this is indicated on an examination certificate, which is called “certificate indication” and implies that, for example, a blind person cannot read despite having adaptive technology that allows them to do so in real life. This would clearly put a disabled person at a disadvantage with employers.

The Government’s central argument is that Ofqual will be covered by the equality duty and will have to produce an equality scheme in accordance with work going on in the Equality Bill. They also argue that adding this objective will not substantially add to the Bill or give any extra meaning to the regulator. The objectives of Ofqual include a public confidence objective, which we have been talking about at length during the latest batch of amendments. Maintaining public confidence has been the root cause of, and main justification for, discriminatory approaches to examination and assessment. We are concerned that Ofqual will have to give primary consideration to this objective, as outlined in the primary legislation that creates the organisation, and then give secondary consideration to its duties under the Equality Bill.

The Government’s argument that an equality objective is unnecessary is based on the fact that the Equality Bill would require exam boards to make reasonable adjustments. The RNIB believes that this argument lacks strength, especially given that the Special Educational Needs and Disability Act 2001 has been in place for some time now and examination boards still fail to adjust. It could be easily argued that the regulator has as much responsibility to ensure that qualifications and assessments are of a decent standard and that the public are aware of, and have confidence in, exams, and delivers all of this while providing good value for money without having specific objectives. Otherwise, why have a regulator?

The Government’s insistence at not having an equality objective while maintaining a specific “public confidence objective” is worrying, especially in light of the way in which public confidence—in the form of maintaining standards and not dumbing down—has been used to justify not reasonably adjusting exams and assessments for disabled learners. I beg to move.

My Lords, I would just like to interpose two points. First, I want it to be quite clear that the equality that is sought is equality of opportunity and not equality of outcome. That must be obvious. Secondly, I would not subscribe to anything remotely like this until I knew what was finally going to be in the Equality Bill, which is importing entirely new implications, many of which are quite hostile to the way of life that I think we need.

My Lords, I am afraid that this is an amendment where I am inspired to become involved by my noble colleague’s speech. Once again, most of the objectives would seem traditionally to have been covered by best practice. Could the Minister give us an assurance that the reasonable adjustments of the DDA would be possible without this insertion into the Bill? The idea of saying “You cannot read”, and interpreting reading as looking at a piece of paper, to somebody who is blind and takes communication from a series of symbols—ie bumps—is absolutely absurd, to be perfectly honest. They are reading another way of expressing English—not from a visual impression, but from a three-dimensional one. I suggest that looking at the concerns here would be very interesting. I hope that we get a good answer to this because it suggests that the Bill is missing the best practice of years of previous legislation.

I put my name to the amendment, but my noble friend Lady Sharp regularly supports the amendments on disability that the noble Lord, Lord Low, puts forward. I fully support her words. I add one thing: having worked for an awarding body—City and Guilds—for 20 years, I know that the awarding bodies always made efforts to take advice from disability groups, whether they were people who had expertise in deafness, blindness or whatever the other disability was. Of course, the overriding principle of the qualification was to maintain a standard that was set primarily for able-bodied people, so the addition of equality to these criteria for Ofqual would be welcome.

My Lords, I would certainly like to support the amendment. Whether you object to the Equality Bill or not, there will be plenty of time to look at it and change it in this House. If it becomes law, in whatever form, it is clearly sensible that it is observed, regardless. As the noble Baroness said in her introduction, there are all these other objectives. Public confidence is, above all, the right one to pick, but they are all relevant here. There is absolutely no reason, if all the other objectives are in the Bill, for equality not to be. I strongly support the amendment.

My Lords, we recognise the need to make sure that regulated qualifications are accessible to people with very different needs and requirements. However, we acknowledge that there are difficulties with extending the scope and remit of qualifications to ensure that all are included despite their varied needs, capabilities and desires. The potential problems surrounding this serve further to underline the importance of this amendment.

My Lords, this has been a very helpful debate. It may have been short, but in no way does that indicate the level of importance that the Committee attaches to these issues. I cannot stress enough how sympathetic I am to the thinking behind these provisions. Equality and inclusiveness will be important to the work of the QCDA and Ofqual, as for all other public bodies.

On Amendments 249, 250 and 254—I hope I have mentioned the correct amendments as my list is slightly muddled—as your Lordships well know, the Equality Bill is now being considered in another place. As the noble Baroness, Lady Sharp, who spoke very eloquently on behalf of the noble Lord, Lord Low, will be aware, we will consider that Bill in the next Session, as I believe that it is a carry-over Bill. That Bill updates the legal framework for equality which has developed piecemeal over the past 40 years. I strongly welcome that Bill, which I think this House will enjoy looking at forensically.

This amendment gives me the opportunity to say that one of the major new aspects of the Equality Bill—I do not wish to pre-empt its arrival—is the introduction of a single public sector equality duty, as we have heard. This will build on the current race, disability and gender equality duties. These general duties will require all public authorities, including the QCDA and Ofqual—once they are established—to have regard to eliminating discrimination, harassment and victimisation, advancing equality of opportunity—the noble Lord, Lord Elton, pointed to that—and fostering good relations between people in disadvantaged groups. We are consulting on the exact nature of the specific public duties. I believe that these amendments are unnecessary, as both bodies will have specific duties under the Equality Bill. Moreover, the amendments, if accepted, could be potentially damaging. If Parliament considered it necessary to make explicit the equality objectives of these two bodies, it could be taken to imply that the proposed Equality Bill provisions were somehow inadequate for those bodies which did not have such specific objectives. That is a rather dry explanation but it is important to make that point. However, that is not the case, and I do not believe that noble Lords would want to imply that.

I believe that the noble Baroness, Lady Sharp, questioned the appropriateness of the public confidence objective when there is no equality objective. Public confidence is central to an effective qualifications system. If people doubt the value of qualifications, they will have limited value and students with disabilities, as much as other students, will suffer as a result. Of course, public confidence must be well founded. Two things are important here and Ofqual must do both of them. It must ensure that standards are maintained, including, where appropriate, ensuring that adjustments are made for people with disabilities, and it must demonstrate to people that standards have been maintained. One without the other would be inadequate.

The noble Baroness, Lady Sharp, asked if there was a conflict between the public confidence objective and a duty in the Equality Bill. I am advised—I thought that this was the case—that, to put it in colloquial terms, a duty will trump an objective. That is a strong line. The noble Lord, Lord Addington, asked whether the objectives of the DDA could be met without this amendment. The DDA already applies to qualifications, as the noble Lord would expect. I would be happy to discuss this matter further with noble Lords before Report. I or a ministerial colleague would welcome the opportunity to discuss with the noble Lord, Lord Low, the issues that the noble Baroness has raised. I know that the QCA and the interim Ofqual have worked closely on these issues with disability groups, including the RNIB. I am sure that we can offer more reassurance. I value the opportunity to discuss these important issues in Committee.

I am extremely grateful to the Minister for her reply and to all other noble Lords who participated in this short debate. To answer the noble Lord, Lord Elton, it is equality of opportunity, not equality of outcome, that one sees as sensible.

On the Equality Bill, there are already two statutes, in the Special Educational Needs and Disability Act and in the Disability Discrimination Act, which invoke the organisation setting examinations to be disability friendly and to take account of equality of opportunity. As my noble friend Lady Garden indicated, best practice does exactly that. The problem is that what is best practice for some organisations is not adhered to by others, and it is very important that all organisations adhere to those standards.

As the Minister recognised, there is some worry on the part of disability organisations that by making public confidence an objective in the Bill, the objective of equality will be seen to fade beside it. The Minister’s offer of carrying forward discussions is a very good one, and, if I may, I will accept it on behalf of the organisation and on behalf of the noble Lord, Lord Low. I beg leave to withdraw the amendment.

In moving Amendment 233, I shall speak also to Amendments 234, 251 and 251A, which are grouped.

Amendment 233 ensures that the work of Ofqual in regulating our qualifications system represents value for money. Ofqual will not be able to deliver its aim unless it is given the remit of regulating the qualification system as a whole, rather than just the narrow remit of regulating individual providers or individual qualifications. The amendment will mean that it must look at the way in which qualifications are procured by schools and colleges and that it oversees the whole market. That must be in the best interests of learners, because schools and colleges must provide exams that are in their interests.

Amendment 234 adds words at the end of the same subsection to require that Ofqual ensures that payments to awarding bodies are kept within inflation. Certain sectors often claim that their costs are such that above-inflation price increases are sometimes necessary, but I do not think that that will apply here. Schools and colleges should be protected from vast price rises by such an amendment. The AoC has told us that colleges, which currently pay £170 million a year in exam fees, would appreciate clarification on the criteria that will be used to make these judgments. Keeping fees within inflation would follow the approach taken, for example, in the water industry and other privatised utilities. Ofwat sets a limit on price rises for the forthcoming five years. Over what period will Ofqual be expected to do the same, if at all?

Amendment 251 relates to Clause 133, which is about the power of Ofqual to cap fees payable to providers without any limit in the Bill. The amendment requires that Ofqual conducts a proper review of the market before capping fees, to the point where it is satisfied that doing so will remedy or prevent any adverse effects on competition. If Ofqual were to act too often as an economic regulator by the use of this capping power, it might serve to stifle innovation and might drive smaller, specialist providers out of the market. Fee capping should be used as a penalty only where there is proven evidence of market failure.

Amendment 251 inserts an appeal process into the situation whereby Ofqual caps fees. We on these Benches want Ofqual to have real powers, but by not providing the appropriate review and appeal structure for the implementation of those powers capping fees would seem at odds with the desire to establish a regulator with proper accountability. Reference to the Competition Commission, provided for in our Amendment 251A, would provide such a fair and independent appeals process. I beg to move.

My Lords, I shall speak to Amendments 248, 249 and 250, which deal with fee capping. I am extremely grateful to the Minister for the time that she and her officials spent talking through this issue with me during the Recess. At the end of our discussions, we pretty well agreed to disagree on the issue. If, as I expect, my amendments are firmly turned down, as a fallback I would be very supportive of the Liberal Democrat amendments, because they at least provide some protection over the powers of fee capping.

Throwing myself against the prison wires, perhaps I could just say why I believe that there is not only no need for Ofqual to have powers of fee capping but that it would be wrong for it to have such powers. It is unnecessary because examination bodies are highly competitive commercial organisations; they watch each other like hawks and are very careful to price their qualifications in relation to cost and what they know the market can bear. It is unnecessary also because it would not represent a protection of public money—which I would defend to the death—because the examination bodies are being paid from a capped pool. The money which the schools and colleges have to pay the examination bodies to provide examinations already comes from their capped allocation of income year on year.

The examination experts within each school—the officers have various titles—are extremely knowledgeable. They, too, watch the market very carefully. They are very good at fighting for their students to have the best and most prestigious examinations at the most reasonable prices that the school can afford. In other words, we are describing an absolutely perfect market: the buyers and the sellers are extremely expert and price conscious. Much as I join the Committee in my wholehearted support for the setting up of Ofqual, there is more expertise between the buyers and sellers of examinations than there is in the regulators. It is slightly offensive to suppose that 30-odd semi-civil servants in Coventry would know better than the 2,000 or so examination officers in schools and the several thousand expert employees in the various examination boards and their academic advisers.

I feel strongly about this, but I suspect that I shall be disappointed.

My Lords, I take great pleasure in rising to support the amendments of my noble friend Lady Perry and the noble Baroness, Lady Walmsley. Groups such as Edexcel have expressed concerns that while Ofqual’s duties should relate to the regulation of the standard of examinations, it should not be Ofqual’s role to regulate the market of qualifications. This could have a detrimental impact on the sector. Can the Minister account for why it was decided that Ofqual should also take charge of the pricing of qualifications? Does he not feel that this task would be better dealt with by the market?

The worry is that Ofqual’s powers to cap fees have the potential to distort the market by artificially restricting the breadth of qualifications available. Edexcel has expressed concern that by using this economic power, Ofqual has the potential to stifle innovation and to drive smaller and specialist providers out of the market. This would give more control to larger providers and encourage them to concentrate on more popular subjects. Does the Minister agree that if the market is allowed to operate freely, it will create a level playing field for all qualification providers? What is the logic behind allowing Ofqual to place a cap on some providers? It would appear natural that if qualification providers price themselves out of the market, their qualifications will not be taken up by schools and learners.

It is important for learners to have a free choice of qualifications. We acknowledge the difficulties that could arise from qualification bodies that charge too much. Will the Minister inform us of the scale of the problem? Is it sufficient to be a catalyst for a fee-capping power that could alter the state of the market in a way that would damage qualification provision and providers?

My Lords, we need qualifications that are delivered efficiently, so the fees relating to those qualifications should represent value for money. That is particularly the case because many fees are paid from the public purse. At a time when all public sector organisations face the challenge of using their resources more efficiently, qualifications and the awarding bodies that offer them cannot be immune from those pressures.

The qualifications system that we have in this country, with independent awarding bodies, promotes choice, innovation and responsiveness. Ideally, it also promotes efficiency and value for money, but we cannot be certain that it will do so in all cases. There may be market failures—for example, with small, specialised qualifications. The market may not be large enough to support competition. The Bill gives Ofqual an explicit efficiency objective and, to give teeth to that objective, it gives Ofqual the power to cap fees. This is a power that many other economic regulators have in markets where there is a potential for a significant market failure.

A fee-capping power is not the only way to deliver efficiency or tackle market failures. Ofqual will need to use other levers to ensure that the market operates as efficiently as possible. However, a capping power is a critical signal of the seriousness of the efficiency objective.

Under the Education Act 1997, the Qualifications and Curriculum Authority has the power to cap fees. However, it is only in the past two to three years that interim Ofqual has started to build up evidence about the efficiency of the system. To enable it to come to a view on whether fees provide value for money, work was started to build evidence to address increasing concern among schools, colleges and employers about fee levels. Ofqual must build on this work as it considers how to achieve its efficiency objective. Before taking a decision to cap fees—if that is what it decides to do—it would need to develop the intelligence to make fine judgments about how to balance the need for market stability and investment with keeping costs reasonable.

The amendment puts a maximum increase in fees into the Bill and would prevent Ofqual from coming to evidence-based judgments of that kind. It could place at risk the delivery of good-quality qualifications by making it hard for awarding bodies to fund the necessary investment. That is why we cannot accept it. It might be said that an increase simply linked to inflation would be acceptable, but it might not be if we felt that reducing costs in an acceptable way was part of increasing efficiency.

The Bill puts in place new safeguards around the use of the fee-capping power. If the regulator now were to impose a cap, the sole avenue of appeal to the awarding body would be to seek a judicial review. In future, there will be three extra hoops for Ofqual to leap through before it can cap fees. First, it will be required under Clause 147 to consult on and publish its fee-capping policy as part of its qualifications regulatory framework. Therefore, it is not a question of Ofqual trying to guess the market in a random way.

Secondly, if on a particular occasion Ofqual does decide to impose a cap, it has to tell the awarding body of its plans. It also has to allow a period for any representations, so we are not talking about Ofqual, after having looked at evidence, saying to a body in a random or arbitrary manner, “Okay, we’ve decided you’re going to reduce your fees”. There will be a process of dialogue; Ofqual will want to hear that body’s side of the story. It must also have regard to any such representations.

Thirdly, if Ofqual decides that a fee cap is still appropriate, the awarding body may demand a review of that decision by a suitable independent person and Ofqual cannot do anything until that review has finished.

Therefore, we argue that there are more than sufficient safeguards to ensure that this is a reasonable way to proceed. Of course, as now, an awarding body could always apply for a judicial review of a decision made by Ofqual. If it considered that the regulator had acted unlawfully in exercising this or any other of its powers, substantial protections would strike a fair balance between the rights of the awarding bodies and those of the customer and taxpayer.

However, Amendments 251 and 251A assume that even those safeguards are not sufficient. They would require a market investigation by Ofqual before a fee cap was imposed and would then allow awarding bodies to appeal to the Competition Commission if they were still unsatisfied with Ofqual’s decision. That really is taking a couple of sledgehammers to crack a nut. We have gone through the process of ensuring that Ofqual’s approach is not arbitrary. If you wanted to introduce a delay in the procedure, that would be the way to go—to require a full market investigation and then an appeal to the Competition Commission. Of course, Ofqual may choose to conduct an analysis similar to a market investigation. It has the power to do so, but requiring such an investigation and requiring that investigation to come to specific conclusions would make for an unduly protracted process. If done properly, a full market investigation could take more than the six months specified in the amendment, and we do not think that that is reasonable in assessing whether the fees charged by an awarding body are reasonable in the circumstances. In practice, these amendments might make it very difficult to use the fee-capping power and therefore much harder for Ofqual to achieve its efficiency objective. The taxpayer would not thank us.

Finally, Amendment 233 would change Ofqual’s efficiency objective so that it related not just to the activities of recognised awarding bodies but to the regulated qualifications system more generally. Ofqual has the power to deliver its efficiency objective as currently drafted because it relates to regulated qualifications, but it has no powers over any parts of the wider qualifications system which do not relate to regulated qualifications. Therefore, the amendment would give Ofqual responsibility without power, which is not a prerogative that we would wish to award. It would not be able to do anything to secure the efficiency of the wider system.

I want to respond to some of the comments and questions that have been put. The noble Baroness, Lady Walmsley, talked about qualifications procured and the whole market. My information on the whole market is that something like four main awarding bodies account for approximately 90 per cent of the market. We will come back to the noble Baroness on the criteria for fee increases, but we have gone through the process of how Ofqual would go about imposing such increases.

Reluctantly, much as I would love to give the noble Baroness, Lady Perry, the birthday present of accepting her amendment, I cannot do so. She coined the phrase a “perfect market”, which I thought was a new example of an oxymoron. In today’s circumstances, I think that there is just a tad of cynicism about whether free and unfettered markets are always perfect or whether they need just a little regulation. Getting regulation right is absolutely necessary but I must admit that I was surprised at such strong advocacy for free and unfettered markets in today’s circumstances. I thought that we had learnt one or two lessons about the dangers of going too far down that road.

There is a suggestion that I am being unduly cynical, but I do not mean to be. I am being serious. The qualifications market is worth hundreds of millions of pounds a year, much of which comes from the taxpayer. We do not know whether the taxpayer gets value for money for that, but we are entitled to know. Many awarding bodies have argued against these provisions and indeed are the instigators of some of the amendments. Of course, they would say that, wouldn’t they? I would do the same in their position. But that is not what the Committee should be looking at. We should be considering whether we have a perfect market—if such a thing exists, and I venture to suggest that it does not—and is it right that we should regulate accordingly and fairly? It has been adjudged that on occasion the market has acted against the interests of customers and consumers.

The noble Lord and my noble friend have almost equal, and certainly opposite, passion about this. I wonder whether there may be some compromise and whether it would be possible for the provisions to which the noble Lord objects to be implemented by an affirmative order when it is decided that the market failure that he predicts has taken place. An affirmative order would give both Houses a chance to consider whether the market had failed, and for those affected by the decision to make their views known to Parliament.

That is an immensely sensible suggestion. I very much hope that our Front Bench will take this group of amendments seriously in going forward to Report. There are some deep-seated problems. First, it is clear from what the Minister said that small, specialised qualifications will be squeezed out by this process. They are necessarily more expensive, particularly if a young body is trying to develop a qualification in competition with one of the big established bodies. It has to provide something that is notably better but it will inevitably be more expensive, at least to begin with. If a fee cap is in place, that body will be unable to develop it. I suspect that fee capping will also suppress innovation in existing awarding bodies, which will find that their profitability is limited not in relation to the whole expenditure of their enterprise but merely to the costs of providing that particular examination.

That is not the way in which the public sector deals with, say, the cost of medicines, where it is recognised that companies require substantial funds to innovate and advance their business. We have not applied that sort of mechanistic cap in that case, although it is similar to the public sector buying substantial amounts of privately produced commodities. I do not think that it is any more workable here than it would be with medicines.

The Minister said that there could be a review to a third party. I see nothing in the Bill about what the basis of that review would be. If he has information on that, I should be interested to hear it, because it seems crucial. He objected to one of the Liberal Democrat amendments on the basis that conducting a full investigation would take too long and be too expensive. He is saying that Ofqual will reach its judgments on the basis of an inadequate investigation, a short and improperly researched investigation. In other words, it will be an arbitrary decision and it will just impose the caps and see what happens to the examination system.

Most of all, I object because of the inherent conflict that Ofqual would face if it had those powers. Ofqual is setting the rules. Ofqual is essentially saying what an examination has to be like to maintain sufficient quality, so it is involved in influencing the whole system of examinations—how they are carried out how they are marked—all of which will have immense cost implications for the awarding bodies. Then, on the other hand, it is supposed to apply a cap to the costs. How on earth is it to resolve the conflict? Should it reduce its requirements on the examination bodies to reduce the costs, even if that would conflict with its other objectives? Or is it to pursue the route that John Prescott took when he was the Minister in charge of British Rail, putting so many obligations on it that the poor thing went bankrupt?

It is ridiculous to make Ofqual face conflicts to which there is no sensible resolution. Ofqual needs to be clean. It needs a clean set of objectives. It needs absolute clarity and purity in what it is setting out to do. Giving it the capping powers is a pollution.

I feel that must respond to what I have come to recognise sometimes—only sometimes—as what I would describe as Lucasian hyperbole. We have no desire—I am sure that the noble Lord recognises this—in any way to undermine or penalise small, specialist bodies. They have a vital and essential part to play in awards. Nothing that I have said and nothing in the provisions can in any way lead you to deduce that conclusion.

The idea was posed that we are giving Ofqual, as a regulator, powers that other regulators do not have. That is absolutely untrue. We are not polluting anything; we are doing what we should be doing as a Committee, as a House—ensuring that customers and consumers of the product get a fair deal. They are not necessarily always able to judge whether the market is absolutely perfect, or whether there is some kind of cartel operating. There may or may not be. We do not presume to judge the situation. I find it surprising that, given that many of the amendments come from or are, shall we say, supported by the awarding bodies, there is not just a touch of concern about what I could describe as a vested interest.

We have a duty to look at both sides of the equation. As I said, we want to encourage the development of high-quality awards, but we also want them to be provided at a reasonable cost. I should have thought that my noble friends on all the opposition Benches would have supported that premise. Although I am an admirer of his imaginative responses, it is unnecessary to say, as the noble Lord, Lord Elton, suggested, that somehow for this regulator to operate at all, we need an affirmative resolution. We do not say that of Ofgem or other regulators. It is not a viable, necessary or practical way forward. If we are serious about ensuring that we give value for money for schools, colleges and learners, and I believe this Committee is, we have an obligation to ensure that they get a fair deal, that we drive up the quality of the awards and that they are delivered in an efficient manner.

Given my previous comments and the assurances about the role of Ofqual and the safeguards, I hope the noble Baroness will withdraw the amendment.

There is no parallel with Ofwat or Ofgem because they deal with individual households, which do not have the expertise or knowledge to do any bargaining themselves. The position of Ofqual is different. It deals with powerful institutions. Secondary schools have budgets of several million pounds and are very high powered. Their examinations officers are expert and know exactly what they are doing. I agree there are lots of imperfect markets, and we have seen a lot of them in the past few years, but this is a perfect market in the sense that there are very sophisticated consumers and highly competitive providers. The OFT would prevent any cartel developing among the examination bodies. However, I recognise that the argument is falling on very deaf ears, so I am happy to leave it at that.

The Minister said that this will not affect small, innovative producers. If someone were to start, say, an English GCSE from scratch as their first qualification, would that have to be priced at the same price as the main awarding bodies, or would the Minister expect Ofqual to allow that GCSE to have a higher price? In other words, are these caps to be individual to each awarding body and qualification or general for a qualification? Which regulator is the Minister drawing on in his comparisons? What set of powers and rules is he comparing Ofqual with? He mentioned Ofwat. That relates to a commodity where there is no competition. You have to get your water from the tap you have, and of course that requires careful price regulation, but where there is serious competition as, say, with buying broadband or something like that, I am not aware that the price is capped in any useful way. Which regulator forms the pattern that we are supposed to be following here?

For the record, I mentioned Ofgem, not Ofwat. I merely gave an example. We are talking about the principle of regulation in this market. There is no way that noble Lords can deduce that there is any attempt to stifle innovation. If somebody comes along with a new and innovative product, Ofqual will of course want to take that into account. I do not know why we are making such a negative presumption about the role of Ofqual. We believe it will have a constructive and positive approach when working with awarding bodies and will encourage innovation and efficiency. I shall leave it at that.

This has been a fascinating debate. The Minister asked a few minutes ago, in a somewhat pained voice, whether we really want examinations to be offered at a reasonable price. Yes, we do. In Amendment 233, we ask for value for money and in Amendment 234, we ask for rises within inflation, yet the Minister will not accept them. He suggests that both opposition parties have perhaps been listening a little too closely to the awarding bodies. The Minister is aware that both opposition parties have been lobbied by all the awarding bodies, and of course we have listened to them; that is our job. When a piece of legislation comes before us, we have a duty to listen to the people who are affected by it, but the Minister underestimates the brains and independence of mind of both opposition parties if he suggests that we are just the mouthpieces of such organisations. If he wants to dispute that, he only has to look at the amendments in this group that have been tabled by both opposition parties on fee-capping and he will find that those amendments lie perfectly within the political philosophies of those parties. He will find that the Conservative Party wants to get rid of fee-capping altogether, but we on these Benches do not agree with that. We on these Benches have agreed that it may be necessary to use fee-capping very selectively; however, we ask not for a sledgehammer, as the Minister has suggested, but a very reasonable review of the marketplace and of the need for such fee-capping before it is put into place. There should also be a proper appeals process to an appropriate person.

My Lords, in moving Amendment 238 I shall also speak to Amendment 241.

I had some very helpful correspondence from the Minister over the holidays on this. My concern is to find out the objective of these subsections. My understanding is that of the Government’s objective is to reduce confusion in the marketplace, so that, where there are a number of very similar qualifications bearing different names, they should be jammed together and the awarding bodies made to be called simply “Edexcel’s English” or “AQA’s English”, rather than having different names that create confusion in the marketplace. That is something which Ofqual should be able to do something about. I do not have much difficulty with that.

Creating clarity is a reasonable objective for Ofqual, but I do not see how this does not apply to A-levels and Pre-U examinations. They are similar in outline and the transition between them so far as schools are concerned is not difficult. However, the Pre-U evolved because A-levels could not contain what the Pre-U wanted to do, and because of the restrictions implied by calling something an A-level, it was necessary to differentiate in order to innovate. It seems that we are giving Ofqual a power that again will tend to reduce innovation and competition in an area where those qualities should be sought out. A little extra comfort from the Minister would be much appreciated. I beg to move.

My Lords, while we agree that the number of regulated qualifications available is important, as is required in Clause 126(2)(a), we would argue that the reason it is important is that it should offer sufficient choice for the learner rather than that it should be limited in any way, which the Government’s qualifying use of the word “appropriate” at the end of the subsection appears to contemplate. Our concerns are heightened by the wording of subsection (3)(b), highlighted by my noble friend Lady Perry in her Amendment 242, but unfortunately she is not in her place to speak to it. We need to probe what the Government mean by the use of the words “appropriate” and “excessive” in these respective subsections.

I thank my noble friend Lord Lucas for his careful and probing questions on the issue, and I hope the Minister will be able to give us some answers. Can he tell us, for example, how many qualifications he thinks would be considered appropriate or indeed excessive? Can he also explain what this will mean in terms of Ofqual’s functions? Does it mean that at a certain point Ofqual will be able to stop recognising and accrediting qualifications because it feels that there are too many? Surely, as in a market situation, if there is no demand for a qualification, it will simply fall away.

City and Guilds has pointed out that it would be,

“inappropriate for Ofqual to be distorting the marketplace through regulating the number of qualifications available”,

because, and again I quote,

“it is of the utmost importance that each learner has the correct learning option available to them”.

We have spent a great deal of time in our debates on this Bill ensuring that the needs of all learners are met, that suitability of qualification is taken into account and that personal need is catered for. Can the Minister account for a clause that could allow Ofqual to reduce the options available?

Ofqual is supposed to be a regulator of qualifications. Employers, learners and universities are the consumers of these qualifications. Surely, therefore, it would make more sense for their concerns about the number of regulated qualifications available to be represented and taken into account. We feel that they, rather than Ofqual, have a greater interest and more appropriate expertise in this area. In this instance, a demand-led approach seems more suitable. I look forward to the Minister’s response.

My Lords, we support these amendments. The clause in its original form would unnecessarily and artificially restrict the number of qualifications available, minimising innovation and distorting the market to the detriment of the learner, as noble Lords on the Conservative Benches have pointed out. It is also interesting to note that, while currently there are only approximately 6,600 accredited vocational options, some 50,000 different options are available in higher education, a figure that does not include part-time degrees. One way to avoid confusion in the multiplicity of qualifications might be for the Government to resist the temptation to create new ones. I think of the diploma, for instance, or the introduction of AS-levels. While we welcome the establishment of an independent regulator, we have strong concerns about its independence from the Secretary of State and its ability to interfere in the qualifications marketplace in this way. We support the amendments.

May I express a general worry? The noble Lord, Lord Ramsbotham, who is not in his place, reinforced the point that, if you are the chief executive of a non-departmental public body, you are very conscious of how much independence you have. Your independence can be circumscribed, of course, by a long and complicated Act of Parliament that sets out all sorts of criteria to cover what you should think about and what you should do or not do in certain circumstances; it can also be circumscribed by the ability of the Secretary of State to change the rules in the middle of the game. Given my experiences in non-departmental public bodies, I think that there is too much in this list of instructions. Our recent debates seem to indicate that, if the Minister could find some way of reducing the amount of imperatives contained in these clauses between now and Report, that would be enormously helpful.

My Lords, the Leitch report on skills in 2006 recommended that we simplify the complex and confusing world of vocational qualifications. Reflecting regular calls from employers for simplification, the Confederation of British Industry, for example, has commented:

“The skills system is seen by many as an ‘alphabet soup’—difficult to navigate, even for highly sophisticated employers”.

I can reassure the noble Lord, Lord Lucas, that these provisions do not seek to reduce choice or innovation; they seek to organise that alphabet soup to make qualifications easier to understand.

We need to distinguish between two technical terms in the Bill. First, “qualification” is the title of a qualification—for instance, “Level 3 Engineering”. Under Clause 126(3)(a), Ofqual must seek to ensure that there is a reasonable level of choice between different qualifications. We want there to be enough qualifications to reflect the range of skills and knowledge that employers and others need. Secondly, the form of a qualification is a particular awarding body’s version of that qualification. Under the same provision, Ofqual should seek to ensure that there is a choice between different forms of each qualification—there should be plenty of awarding bodies competing to offer engineering, for example. So there is no attempt to restrict choice or diversity.

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 makes it impossible for people to make a sensible choice. Let me give a generic example of our concerns. If we had separate qualifications called, say, “Practical Engineering”, “Engineering for Work”, “Engineering for the Workplace” and “Practical Engineering for Today’s Workplace”, which all seek to achieve much the same thing, then real and informed choice, employer understanding and learner understanding could become impossible. So Ofqual might—I stress “might”—want to make it a condition of recognition that an awarding body offers an engineering qualification and calls it, well, “Engineering”, and makes sure that it meets the expectations of engineering employers.

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.

I am not sure that we fully understood the point that the noble Viscount, Lord Eccles, made on the question of Ofqual’s powers, but we will endeavour to respond.

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.

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.

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.

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.

In my experience, it would usually be a number of providers.

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?

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.

That is very helpful. I will craft my amendments on Report accordingly. I beg leave to withdraw the amendment.

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 Alliance, on behalf of some of the awarding bodies, to probe what opportunity they will have to be involved in the work of the regulator and make the valuable contribution that they are willing and able to make. They have substantial expertise and practical knowledge and they welcome the collaborative approach already demonstrated by Ofqual. However, our first group of amendments refers to the fact that they would like to see in the Bill a requirement that that they be consulted where appropriate so that they can continue to make that contribution.

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 246 relates to Clause 130, about how Ofqual sets the criteria for recognition. Subsection (5) states that Ofqual must consult,

“such persons as it considers appropriate”.

It seems unlikely that it would not consider awarding bodies as appropriate, but, just to be sure, we are proposing this amendment.

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.

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.

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 have a bearing on the credibility of the regulated qualifications. For example, in the European market, where workers have the right to move around, if they come to the UK with a qualification we would expect that qualification to have the same integrity and quality as the qualification offered in the UK.

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.

I thank the Minister for his reply. I am now clearer about the arrangements for statements and reviews, and much more satisfied than I was.

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.

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?

I am being advised that to go there could be a career-limiting move. I think that that is right, and so will have to pass on that particular invitation.

I beg leave to withdraw the amendment.

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.

My Lords, we have tabled Amendment 264 in this group. This amendment continues our general concern that Ofqual should remain independent and be seen to be independent. In Clause 154, on the review of regulated assessment arrangements, Ofqual is tasked with keeping under review aspects of NC and EYFS assessment arrangements. We would add that reporting its conclusions must be conducted in such a way that it shall not be bound to have regard to government policies in the assessment arrangements. We feel that if that clause was added it would reinforce the independence of Ofqual.

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 on that, rather than focus on maintaining standards in the assessments, as the Committee has made clear is important, and which is what its role should be.

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.

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.

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.

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.

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 and wide power. It is entirely appropriate that, if it were to be exercised, it should be subject to proper parliamentary scrutiny. I do not know why the Government should wish to take shelter behind a determination when specifying minimum qualifications. This matter needs to be dealt with in an open and transparent way.

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. In so far as the Government’s case depends on that distinction, it is not viable. At the simplest level—and these are the best examples that you can give—you could take out one Shakespeare tragedy and replace it with another, or replace one Dickens novel with another from the same sub-genre of novels. However, between “Hamlet” and “Othello” there is a vastly differing critical literature. It is very difficult to play around with the requirements for a course and not to touch the standards. That part of the Government’s argument is weak, although I accept that in certain circumstances the Secretary of State, who is responsible to Parliament, may require residual powers.

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.

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.

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.

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.

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 the Education Act 1997—Ministers had powers to influence the then QCA in several ways and could, if they chose,

“get involved in detailed regulatory decisions about grading, assessment or standards”.

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 today’s young science students, as the knowledge base of science has changed so much since my day, so Mr Lebus makes a very good point. The Minister commented earlier about sitting science A-levels, so I am sure she would agree.

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.

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.

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 Ofqual and the examination bodies? What examination body will pursue a qualification that it knows will not be funded at the end of the day? That would be a total waste of money. The powers that the Government need are all there.

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.

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.

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.

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.

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 would not wish to see Clause 138 used as a device to do that. With those reassurances and a commitment to further discussion and work between now and Report, which will be a busy time, I hope the noble Baroness will consider withdrawing her amendment.

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 clause are circumscribed in ways that eliminate risks. If we cannot, I suspect that our colleagues will say that the clause should not stand part, so there is a challenge for all of us in the next two weeks. I beg leave to withdraw the amendment.