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Apprenticeships, Skills, Children and Learning Bill

Volume 714: debated on Wednesday 4 November 2009

Report (2nd Day)

Clause 109 : Research, information and advice

Amendment 130

Moved by

130: Clause 109, page 70, line 2, leave out “are” and insert “is”

My Lords, Amendment 130 is a drafting correction to ensure consistency between Parts 3 and 4. In moving it, I will speak also to Amendments 131, 132 and 133. The latter amendments raise concerns about the timing and proposals around the new role for regional development agencies. I recognise these concerns and will explain the background.

At the point that we created the Department for Business, Innovation and Skills, which sponsors both regional development agencies and the LSC, there was opportunity to reflect on the landscape in which the Skills Funding Agency will sit. In particular, we wanted to address significant concerns from business and other sectors about the overlap in roles between RDAs and the Learning and Skills Council. This analysis identified a compelling case for simplifying the landscape by embedding skills within the single integrated regional strategies agreed by the joint local authority and RDA partnership boards. Not only would this remove any potential duplication, it would also place skills firmly within economic development strategies. I understand the possible issues that this proposal may have raised in the context of this Bill and I believe that it may be helpful for me to provide reassurance to the House on a number of points about which I know noble Lords are concerned.

First, why did we not announce this in the House? The main reason is that we wanted, before coming to a decision, to discuss the proposal with local authorities, regional development agencies, business sector organisations and other interested parties. That was the purpose of the letter from my noble friend Lord Mandelson to Jim Braithwaite in July. We are currently considering the responses we have received, most of which recognise the strong case for this change.

Secondly, why does this change not require any amendment to the Bill currently before the House? The Bill is intended to establish the chief executive for the Skills Funding Agency as a statutory post-holder with specific funding responsibilities. It does not try to set out in detail every single function of the chief executive. So in the case of strategy setting, these functions are not described in this Bill, and because my department sponsors the regional development agencies, we can require them to take on this new role in respect of skills through administrative means. However, the Local Democracy, Economic Development and Construction Bill is putting in place the legislative framework for the single integrated regional strategies, which will now include skills. The Department for Business, Innovation and Skills will sign off these strategies and will ask the Skills Funding Agency to contract accordingly, ensuring that the agreed sectoral, regional and sub-regional priorities are met.

I recognise that this is important context to the work of the Skills Funding Agency and, therefore, I welcome the opportunity for a full debate about it now. I know some have argued for a more sectoral approach. I would like to reassure the House that we are committed to ensuring that sectoral priorities are met under these arrangements. Our proposals will ensure that regional, local and sectoral needs are catered for. As I said earlier, we have written to a range of organisations about the proposals, including sectoral organisations such as the Alliance of Sector Skills Councils. Through the formal signing-off arrangements with the Secretary of State, we will make sure that the regional strategies include the sectoral priorities relevant to each region. We will be holding an event with the sector skills councils and other relevant organisations to make sure there is an effective system in place which meets the needs of the sector skills councils and others.

On Monday, the noble Baroness, Lady Sharp, raised the issue of the importance of a bottom-up approach to strategy setting, with the involvement of all key partners. I would like to assure her that partnership is essential to the new system and I recognise the importance of involving local authorities. Partnership working is already happening in practice on the ground. The RDA and the local authority leader board in the West Midlands have recently written to Ministers emphasising how they are already working closely together to develop the single integrated strategy for their region and the importance they place on this as they build skills into those strategies. I am sure this good practice will be reflected across the rest of the country.

I understand that the intention behind Amendment 132 is to probe how these arrangements will work with city regions, such as London. Let me first give reassurance that these changes will not affect the powers which currently exist for Greater London. The mayor will have the same relationship with the Skills Funding Agency as he does with the Learning and Skills Council. Similarly, Manchester is currently undergoing an assessment of its employment and skills board proposal, and we expect it to be awarded equivalent powers to London in relation to the Skills Funding Agency in due course. Leeds has not yet established its employment and skills board, but we have committed to help it do that and to consider it for the award of the same powers, probably in spring 2010.

Leeds and Manchester are, of course, more complex than London because they sit within broader regions. In these cases it will be vital for the city and regional strategies to be fully aligned, so that the Skills Funding Agency has a clear and unambiguous statement of the skills needs on which to base its funding and contracting decisions. Manchester and Leeds city regions are putting protocols and agreements in place with their RDAs to make sure that their strategies align, and neither sees any difficulty in making this work. The Government will look at these arrangements and offer guidance to other areas which might in the fullness of time have similar issues.

I hope this provides reassurance to the noble Baronesses and that they will not press their amendments.

I shall speak to my three amendments in this group, Amendments 131, 132 and 133. As the noble Lord indicated, they relate to the role of regional development agencies in the development of skills strategy and were stimulated by the letter of 31 July from the noble Lord, Lord Mandelson, to Jim Braithwaite of SEEDA, which I quoted extensively in Committee.

The noble Lord, Lord Young, has to some extent pre-empted some of the questions that I had intended to ask. We are particularly concerned about two issues. One is, as he rightly indicated, that when the Bill was conceived, the role of regional development agencies was not written into it. The briefings that we received about the role of the Young People’s Learning Agency and the Skills Funding Agency stated that each was to play a part in developing a skills strategy. The YPLA in particular was to work with local authorities and sub-regional authorities and look at the skills gaps at a local level. A lot of work has gone into creating these sub-regional authorities and the shadow administrations that have been set up. Having talked to local authority members who have been working on this, they are, on the whole, happy with the sub-regional authorities. Suddenly, out of the blue, comes the notion that all of this will not only be part of a regional skills strategy but that the lead will be taken by the RDA, that the skills strategy will be formulated at a regional level, and be binding—certainly on the Skills Funding Agency. Whether it will be binding on the YPLA is left obscure.

As the noble Lord indicated, that eviscerates the notion of a bottom-up development of skills strategies. That depends a little on the size of a region. I was talking to my noble friend Lady Maddock, who comes from Northumbria. She said that her sub-region was, in truth, the same as the region, which was very small and the plan would work well. However, as the Minister knows, I come from the south-east which is a huge region of 11 million people. There are huge differences between Thanet and Milton Keynes. To suggest that you can formulate a regional skills strategy for the whole of that area is an absolutely absurd, top-down notion.

I do not know how many Members have had a chance to look at the publication by the United Kingdom Commission for Employment and Skills, Towards Ambition 2020: Skills, Jobs, Growth—expert advice to the Government from one of the many organisations that litter this area of responsibility of the Department for Business, Innovation and Skills. It was about a simplification agenda. It is quite interesting. I shall read a paragraph concerned with all the areas that we have been looking at, in which the commission recommends:

“Reviewing and clarifying the future roles (if any) of, and relationships between, Regional Development Agencies, Regional Skills Partnerships, Multi-Area Agreements, Employment and Skills Boards, Neighbourhood Renewal Programmes arrangements and Local Authorities, in relation to skills provision and funding—simplifying the range of organisations involved in shaping skills provision, removing duplication in the system, eliminating unnecessary structures, and unifying funding and contractual requirements”.

One of the recommendations is for a review and a clarification of their roles. It is very carefully phrased. It refers to “future roles (if any)” of all these organisations, including the regional development agencies, so we remain extremely sceptical about their role.

We also think, as do other Members of the House, that these issues have been brought into the game late. They are not mentioned in the Bill, and the House feels that it has been slightly ignored with this new proposal just being brought in and swept through. The Minister said that we do not need legislation for this and that they can do it by diktat, in a sense. Fine, it can be done by diktat, but my Amendments 131 and 132 are designed to try to stop that. There is something to be said for limiting that.

My other amendment relates rather more specifically to a question that I raised in Committee about the overlap between this Bill and the Local Democracy, Economic Development and Construction Bill, which envisages the development of integrated regional strategies with statutory economic prosperity boards—not one economic prosperity board has been mentioned by UKCES—allowing local authorities to come together to form multiple area agreements. In addition, the Budget 2009 announced that Greater Manchester and Leeds would become core cities. The questions that I was going to pose to the Minister, but which he has answered, are: will Greater London and the Mayor of London retain the powers of direction over adult skills and will the Local Democracy, Economic Development and Construction legislation be used to enable Greater Manchester and Leeds to create economic prosperity boards linked to their multiple area agreement, following London in creating statutory employment and skills boards, and giving them powers to direct the Skills Funding Agency?

This does pose questions. Can the Government reconcile regional skill strategies agreed between the Northwest Regional Development Agency of West Yorkshire and Humber and the relevant leaders boards if they are to be binding on the SFA, and any powers of direction over SFA funding which might be granted to Greater London and Leeds? The RDAs’ skills strategy decisions will be binding on the SFA, yet what will be the relationship between the SFA and core cities? To some extent the Minister has answered that with a straightforward yes, and that they will be just as in London. My question comes back to the central issue of the role of the RDAs. How far is it a top-down, labour-planning role? I wonder whether it is appropriate that the RDAs have that role or whether the original conception, as in the Bill, of a much more bottom-up process is more appropriate and should be retained.

Like other noble Lords, I listened intently to what the Minister had to say and I was not wholly taken by all that he put forward. I also listened carefully to the noble Baroness, Lady Sharp, who, as always, put her finger on some of the key issues. I have to say to the House, as I have said before, that I am deeply concerned about this Bill because of what it is storing up for the future.

I mentioned the other day the words, “Auftragstaktik”, “Fingerspitzengefuehl” and “simplification” and I fear that we are once again in those three areas. We are seeing two separate agendas being played out in parallel. One is being played out in this House, based on the Bill: the Ministers and we are engaged in a debate on what is or might be on the face of that Bill. Outside this House, another and totally separate agenda is being conducted within ministries, initiated, I believe, in the new Department for Business, Innovation and Skills, from where a document has been sent to us all saying that there is no need for a legal framework for the dissolution of the Learning and Skills Council and transfer of functions and staff because it is provided for under the Apprenticeships, Skills, Children and Learning Bill currently going through the Lords and expected to receive Royal Assent in the autumn of 2009. In other words, it does not matter a damn what we are doing in this House on this Bill because the Bill is going to pass and we are going ahead with it anyway; indeed, we have already started to make a lot of the provisions that are in the Bill for discussion.

The noble Baroness, Lady Sharp, put her finger on the fact that, when we started discussing this Bill in Committee in June, the Department for Innovation, Universities and Skills was adopting a bottom-up approach. That ministry no longer exists and the new Department for Business, Innovation and Skills has inserted a top-down approach. Indeed, all the RDAs appear to have been gathered together into one department in the BIS where they sit together with the funding agencies under one empire, which is run by the Secretary of State.

We are told that RDAs are responsible for the skills strategy and are required to produce regional plans. We are also told that regional plans are subsidiary to national plans. By regional plans, we are talking about the nine produced by the regional development agencies, each of which has a different strategy, because their areas are different, complicated by the multi-agency area agreements, with sub-regional strategies for places such as Manchester, Leeds and now London. These regional plans, including those of the sector skills councils, are meant to be approved by the Secretary of State to ensure—these are the words that I was given—that,

“there are no competing objectives”.

Now, I am sorry, but that is an absurd objective because each of the regions has different capabilities, different perspectives and different strategies. Because of these regional differences, it is impossible to issue one coherent instruction without being involved in a compromise that may well damage all those strategies and sub-strategies that have been worked out to be appropriate for the regions.

To complicate this, I understand that there is another area of committees, which are not mentioned in the Bill. There is another organisation, which I did not know about until earlier this week, called the Regional Economic Council. The Regional Economic Council is chaired jointly by the noble Lord, Lord Mandelson, and the Chancellor and consists of the regional Ministers, the RDAs and the regional economic forums plus the chambers of commerce. They are responsible for reviewing what is happening around the country and how successful the Government have been at combating recession. At a recent meeting of the council, the chambers of commerce were extremely concerned that the RDAs were representing a very different picture of what was happening, and particularly the employers’ point of view, from what the chambers of commerce, which are in touch with the employers, felt to be accurate. In other words, there is a definite feeling that people are going to that forum and representing to Ministers what they think Ministers want to hear rather than what is actually happening. That is very dangerous.

In the context of the Bill, there is also a new notion that, again, I had never heard of, called the NINJA, which stands for the new industry, new jobs agenda. We are talking about looking at the future of Britain and at the jobs that will be needed to take Britain out of the recession. In other words, we are looking at technologies 10 to 15 years ahead. If we were looking seriously at NINJA, surely to goodness we would be planning to make certain that not only are those technologies there and ready to go but the people to operate those technologies are trained and ready to go. If we think it through, that means that we ought to start influencing our 10 and 11 year-olds now to show an interest in all these activities. Those will not be the same in every region, so what is the point of having all this centralised, top-down direction when we know that each part of the country is different?

All I can detect in what is going on is confusion. I am seriously worried. While I do not in any way disparage all the work that a lot of people are doing, I detect that it is not clearly directed, starting from the basic premise that the one raw material that every country has in common is its people and woe betide it if it does not identify, nurture and develop the talents of all its people; if it does not, it has only itself to blame if it fails. I fear that this enormously complex situation, with two separate agendas being run at the same time, is likely to make the situation worse, which will damage the future of our country.

My Lords, I shall focus on the amendments tabled by the noble Baroness, Lady Sharp. They preclude the chief executive of the SFA allowing a regional development agency to be the body that is awarded powers to,

“put in place and keep under review a strategy for how education and training for those persons that the Chief Executive is responsible for, will be delivered”.

Noble Lords will be aware that we favour a sectoral, rather than regional, approach where the aim is to create a demand-led method of adult skills funding. We favour the role of the sector skills councils, not the regional development agencies, so we are deeply dissatisfied with the approach that has been taken in this legislation.

It is difficult to believe—the noble Baroness, Lady Sharp, referred to this—that over the summer such a dramatic change in policy could take place without due consideration for the process of scrutiny that was occurring in your Lordships’ House. I share the frustration of the noble Lord, Lord Ramsbotham, on this. It appears that the Government think that no amendments are required to the legislation, but does the Minister acknowledge that such a change in approach impacts materially and substantially on the operation and implementation of the proposals in the Bill? There should be proper time for assessment and analysis of this new approach.

In Committee, the Minister attempted to reassure the noble Baroness, Lady Sharp, by saying:

“Local authorities will also play a key role in the development and agreement of skills strategies at a regional level”.

He also tried to mollify my colleagues on these Benches, stating:

“In developing its skills strategy the RDA will be required to take account of the national priorities identified by the UK Commission for Employment and Skills and sector skills councils”.

He went on to say that the Government,

“are not ignoring the vital role of sector skills councils—as well as the skill requirements of local areas and any sub-regional multi-area agreement partnerships or employment and skills boards”.—[Official Report, 15/10/09; cols. 330-31.]

Nevertheless, that is hardly reassuring when taken in context with the fact that, we are told:

“Under this scenario, RDAs would be assigned the lead role in identifying, as part of their wider responsibilities for regional economic development, demand-side needs for skills in their regions. Those needs will be expressed in a regional skills strategy, led by the RDA, which will constitute an investment plan which would become binding on the SFA”.

We are very concerned that this is an entirely different approach and an entirely new policy direction—one with which we are very unhappy.

The job of the chief executive of the SFA, with all the different interest groups, has all the hallmarks of being almost impossibly complicated and frustrating. We favour a sectoral approach and are concerned that the Government’s new position will undermine that, even with the stated reassurances that the RDAs must take account of the views of UKCES, to which the noble Baroness, Lady Sharp, referred.

My Lords, I, too, wanted to address the questions of the untoward innovations that have been inserted in this part of the Bill, but I will restrict my remarks to Amendment 130, which substitutes the word “is” for “are” at the top of page 70 without removing the word “which” before it or changing the word “designed” after it. I query whether in properly constructed English information can be “designed” in the sense in which “information” is used in this sentence. I also query whether “which” is the right word to have in front of it, even if you retain the word “designed”. The purpose of “which” is to refer us back to the earlier “systems” rather than to the immediately preceding “information”. In the essence of good grammar, it surely would have been better to make a more comprehensive amendment than to just substitute one word, which leaves us in a state of grammatical horror.

I wish to add a grace note in favour of what my noble friend has just said. The object of the amendment is to shift the operative word from “systems” to “information”. I do not know whether that is advisable or not, but this is not the way to do it. I also echo what the noble Lord, Lord Ramsbotham, said. He described a process that we have all witnessed in the past three or four years in Europe as a whole, where the Foreign Office element of the United States of Europe is being built in anticipation of the signature and ratification of the treaty. That has come to pass and no doubt this Bill will come to pass, but the House deserved the courtesy of an analysis of what is afoot outside the House before it was assumed that we would rubber-stamp this piece of legislation.

My Lords, I thank noble Lords for this interesting set of contributions. I can see that my initial assurances have not fully satisfied everyone, so I shall make a further attempt to deal with these genuine concerns. I can only congratulate the noble Baroness, Lady Sharp, on her assiduous reading of publications including the recent one from the UKCES.

The concern seems to be about the establishment of a giant, overarching RDA control, which would undermine the ability of local authorities to shape the requirements and—according to those on the side of the noble Lord, Lord De Mauley—somehow undermine and ignore the requirements of the sector skills councils. We do not believe that to be the case. Let me try to put it into context.

The skills strategies developed by the RDAs will be an integrated part of single integrated regional strategies agreed by joint local authority and RDA partnership boards, consistent with the sub-national review approach to devolution agreed across Government. The RDAs—and I think this is a really important point—will work closely with sub-regional and local partners. That is a point that I know greatly concerns the noble Baroness, Lady Sharp. This includes local authorities, which will co-chair 16 to 19 regional planning groups, form an integral part of the sub-regional multi-agency area partnerships, and the employment and skills boards. I stress that they will be required to sign off final strategies through their leaders’ board. Therefore, there is absolutely no point in RDAs seeking somehow to impose their analysis on sector skills councils or the local authorities. It has to be a partnership, and I agree that it has to be a bottom-up process. They have to be aware of the requirements of local authorities, and the requirements of employers represented on, for example, sector skills councils or other bodies such as chambers of commerce. This role is completely consistent with empowering sub-regions and local authorities.

I am not quite sure how to deal with the elaborately constructed conspiracy theory of the noble Lord, Lord Ramsbotham. There are two theories of history, as I am sure he knows. The conspiracy theory is one, but I tend to favour the other theory of history. I am not sure whether the language is parliamentary, but I am sure he is familiar with it. It is not a totally separate agenda. There is no question of having created a bottom-up approach that was suddenly destroyed on the creation of BIS; I speak as a former Minister in DIUS. I am sorry to disappoint him in what I see as almost a conspiracy-theory approach.

As for the new industry, new jobs agenda, of course we are committed to identifying people’s talents, as the noble Lord, Lord Ramsbotham, required us to be. Why does he think we commissioned the Leitch review? It was precisely for that reason. We recognised the paramount need to identify the skills required right across UK plc. We had to identify the programmes and policies that we needed to introduce—hence the huge investment in training and apprenticeship programmes. I agree wholeheartedly with him that if we are going to develop the new industries in a low-carbon, green economy, we will need the talents of people, will need to start those training programmes and will need to capture the imagination of young people at the age he talked about. In some areas I agree with him, but not, if he does not mind me saying so, on what I felt was verging on the conspiracy-theory approach.

I understand and share the concern of the noble Lord, Lord De Mauley. I do not, and the department does not, want to see large regional bodies coming up with strategies which have not involved employers at grass-roots level. Certainly, I tried to make clear in my opening contribution the importance of involving the sector skills councils—something I can remember from the early stages of this debate. We were led by the Sharp amendment to see the error of our ways in that area, so I genuinely recognise those concerns.

We were told that the House feels it has been ignored. That was certainly not our intention in the decision to make RDAs responsible for regional skills strategy. We have not yet taken the decision and we want to take account of the views expressed, including those from today’s debate, so this is by no means a fait accompli. It is important to get this right. When decisions are made, we will ensure that the House is informed and has an opportunity to comment.

One of the major concerns was whether local authorities would have real input and influence. The answer is yes, they will have. The employment and skills boards will be required to sign off final strategies through their leaders’ board. The noble Lord, Lord De Mauley, asked whether the sector skills councils will be involved. Yes, they will be. As regards the idea that somehow RDAs will override the employment and skills boards, we have always been clear that employment and skills board strategies will need to be consistent with an overall regional strategy. However, it does not mean that they will have to forgo their role in shaping the overall strategy.

I think I have answered the concerns raised by the noble Baroness, Lady Sharp. I have come to respect the forensic ability of the noble Lord, Lord Lucas, but he has now moved on to syntactical analysis. Far be it from me to argue with him or the parliamentary draftsmen. However, I share his view that we want to remove any solecisms and to get the syntax right. Therefore we will send that proposal back to ensure that it makes sense.

I conclude on the important point. Will this be a bottom-up approach? Will we ensure that local authorities have a real voice and that it is heard? Will we ensure that the sector skills councils are involved? The answer is yes, we will and the views expressed today will be taken into account. We have not yet reached a conclusion in this area. I hope that with those genuine assurances the noble Baronesses will feel able to reconsider their amendment. We have an opportunity for further dialogue, if necessary, to reinforce those assurances, because I understand the crucial importance of this area. I commend Amendment 130 to the House.

Amendment 130 withdrawn.

Clause 111 : Strategies for functions of Chief Executive

Amendment 131

Moved by

131: Clause 111, page 70, line 19, after “body” insert “but excluding a regional body such as a Regional Development Agency”

My Lords, I am grateful to noble Lords who have spoken in support of Amendment 131. Many of my doubts remain after the very powerful speech of the noble Lord, Lord Ramsbotham. He indicated that we have been taken for granted, and it is not right that we should have been. I am also left with many doubts about whether the old fashioned, top-down labour market planning with our single integrated strategies, our NINJA boards and all the rest of it, is the right way to do it. I would therefore like to test the opinion of the House.

Amendments 132 and 133 not moved.

Clause 114 : Persons aged 19 or over with learning difficulties

Amendments 134 and 135

Moved by

134: Clause 114, page 72, line 37, at end insert “and,

(b) persons who are subject to adult detention.”

135: Clause 114, page 73, line 2, leave out “or (b)” and insert “, (aa) or (b)”

Amendments 134 and 135 agreed.

Clause 120 : Interpretation of Part

Amendment 136

Moved by

136: Clause 120, page 74, line 38, after “86(1)(a)” insert “or (aa)”

Amendment 136 agreed.

Clause 121 : Sharing of information for education and training purposes

Amendment 137 not moved.

Amendment 138

Moved by

138: After Clause 121, insert the following new Clause—

“Single capital buildings strategy

(1) The Chief Executive of Skills Funding and the Young People’s Learning Agency must formulate a single capital buildings strategy for England to include all providers of education and training for those aged over 16, except institutions in the higher education sector.

(2) When preparing or revising the strategy, the Chief Execuive of Skills Funding and the Young People’s Learning Agency must consult with—

(a) local education authorities in England;(b) providers of education and training for those aged over 16, except institutions in the higher education sector.(3) A copy of the strategy or revised strategy must be sent to the Secretary of State.

(4) If the Secretray of State approves the strategy the Secretary of State must lay a copy before each House of Parliament.”

My Lords, this amendment seeks to bring into the work of the YPLA and the SFA a proper arrangement for capital funding. In Committee I brought forward an amendment that would put a permanent committee within the YPLA to deal with capital funding. This amendment is a much improved one that would bring together the capital funding of the Skills Funding Agency and the Young People’s Learning Agency into the necessity of creating a single capital building strategy.

I do not wish to repeat the arguments that I made in Committee and weary the House with that. Nevertheless it is as well to remind ourselves that capital funding is vital for the growth of this sector and in order to bring to fruition many of the aspirations expressed from time to time in the jungle that the Bill represents. Unless we have a single strategy between the two agencies, it will make life almost impossible for the many institutions that have to deal with both.

The first paragraph of my amendment is an attempt to bring both agencies together in the formulation of a single strategy for England, leaving out the universities. Paragraph 2 would require the chief executive of both agencies to consult local education authorities and the providers of education, which would immediately bring it back down to a local level so that local authorities would have an opportunity to take an overall view of the building needs of the institutions within their authority and the institutions would be able to input their own strategies.

To ensure that everything was kept on an even course, paragraph 3 would require that the strategy, as revised by the consultation with the institutions and the local authorities, should be approved by the Secretary of State and a copy laid before each House of Parliament. The Secretary of State, of course, would be free to engage in dialogue again should she or he so wish in order to ensure that the national strategy could be approved by the two government departments.

I am not arguing for precisely where the clause should be located. It would probably be better slightly earlier on, not after Clause 121, but that is a minor point. However, I commend to the House that we have in the Bill something that deals with a strategy for capital building. It is vital to development, as I have said, it has gone badly wrong in the past and, after the discussion we had in Committee where the concept of having some kind of provision to deal with capital funding received approval from all sides of the House, I am frankly disappointed that the Government have not brought something forward themselves. I beg to move.

I give wholehearted support to the amendment of the noble Baroness, Lady Perry. She is quite right that the question of who controls the capital budget has been left floating. The amendment has the great advantage that it sets up the joint committee, brings the two agencies together and provides a structure through which capital funding can be allocated. The mess that the Learning and Skills Council got into, even when there was one body, illustrates how difficult it is to keep control of the capital budget. If two or three agencies are involved with the capital budget, the ease with which it could fall between all those three stools is obvious.

My Lords, I support the amendment, which seems to be a very practical way of dealing with an acknowledged problem. I well remember our discussions on it in Committee. I hope that the Minister will see the relevance of it. As the noble Baroness said, it may not be in the right place, but the important thing is that it sets up the agency, so I warmly support it.

My Lords, I support the amendment, which seems practical and workmanlike. I do not doubt that the draftsmen will find many faults as to where it is placed and how it links in, but I hope that the Minister will accept the principle that there must be one tap through which the money comes and one hand on it which turns it in an agreed direction at an agreed time. Otherwise, we will get into the kind of horrendous and expensive muddle that we have seen in the past. This is a simple, non-political, practical plea for seeing that our money is properly spent.

My Lords, when my noble friend Lady Perry raised this issue in Committee, it received strong support from around the Chamber. It is clear that something must be done to ensure that the two agencies work competently and effectively together.

Two major issues are raised here which deserve consideration. The first, as raised with us by the Association of Colleges, is that the Learning and Skills Council has been criticised for its poor handling of the college capital programming and funding for sixth-formers. The Government hope with this Bill to replace the LSC with a series of interacting bodies which they hope will do a better job. In this context, therefore, it is important to consider what could be done to avoid future problems with the college capital funding programmes.

The amendment tabled by my noble friend may well be an appropriate way of addressing the problem. It was suggested in Committee that a committee be formed to oversee capital funding as a single and coherent body. The Minister pointed out that the LSC had been charged with this responsibility and had not managed to oversee it successfully. A single committee structure alone, therefore, was not enough to solve the problem. He said:

“We need to ensure that the YPLA, once it begins operating, has learnt from the problems with FE capital and has devised appropriate arrangements that minimise the risk to their capital resources”.

Does he not agree that the amendment tabled by my noble friend might help to solve this problem? It merely asks that the chief executive of the SFA and the YPLA join together to form a single capital buildings strategy. This is more than just the creation of a committee; it asks for the agencies to have learnt from the problems and to work together to create appropriate arrangements which would allow capital funding to operate effectively.

The second concern is to do with the division of responsibility between the YPLA on one hand, which is responsible for the 16 to 19 capital funding, and the SFA on the other, which is responsible for the FE capital fund. The Minister stated that the YPLA will,

“need to have arrangements for working with the Skills Funding Agency where it has an interest in how the FE capital fund supports colleges’ 16 to 19 provision. We all agree about that”.—[Official Report, 12/10/09; col. 97.]

In other words, he, too, is concerned to ensure that the divide between these two agencies does not stop them operating effectively together. In light of this, we look forward to his response.

My Lords, I thank the noble Baroness, Lady Perry, for bringing this important matter to our attention. I welcome that and hope that she sees what I say as a constructive assessment of the amendment, because there is no gap between us on the problem. It is a question of how we address it. I hope that I shall go a long way towards reassuring her on capital funding and the importance of a coherent approach.

With regard to Amendment 138, I agree that it is critical that the capital investment plans are coherent across areas so that investment decisions for FE capital and 16 to 19 capital are able to support development of the infrastructure necessary to deliver increased participation, the full curriculum and qualification entitlement and the skills required by employers in our changing economy.

However, the setting of overarching strategy is actually the responsibility of the two departments in consultation with the two agencies which in turn will instruct the two respective agencies to implement that strategy. In practice this will be done by the remit letter to the Young People’s Learning Agency and the framework agreement between the Skills Funding Agency and the Department for Business, Innovation and Skills. We will require the Young People’s Learning Agency and the Skills Funding Agency to work together and with local authorities to ensure that capital funding decisions take account of commissioning plans and regional skills strategies and that providers of post-16 education and training are consulted on the development of those plans.

I appreciate the noble Lord’s desire for statutory provision to be made for a single capital strategy and for this to be produced by the two respective bodies, not least by way of addressing previously debated concerns about the future administration of capital programmes and the recognised need for a joint approach between the two new bodies, as identified by the noble Baroness, Lady Perry. However, I do not consider it necessary to enshrine that in the Bill, particularly as the proposed amendment would impinge on the responsibilities of the respective departments for setting strategies. In asking the noble Baroness to consider withdrawing the amendment I will make this further commitment. I am happy to commit that the Government will produce an overarching, single capital strategy for post-16 education and training in England, excluding the higher education sector, and that we will consult both the Young People’s Learning Agency and the Skills Funding Agency when doing so.

There are some technical problems with the amendment but I do not want to focus on them. My concern is the same as the noble Baroness’s concern: we need a coherent strategy and we need to give an explicit assurance that consultation with both the Young People’s Learning Agency and the Skills Funding Agency will be required in deriving this single capital strategy for post-16 education and training in England, excluding the higher education sector.

My Lords, I thank the Minister for that reply, which goes a very long way to reassure me that the departments are thinking on similar lines and that there is a real intention to get a single strategy in this way. The amendment, for all its drafting faults, would not have overridden the responsibilities of the two Secretaries of State to be in charge of the strategy. It gives them the right of final approval of the strategies and indeed, on the model that the Minister has just outlined, the two Secretaries of State would have to turn to the two agencies in order to formulate their overarching strategy. I am grateful to the Minister for having come so far along the way and for his assurance of what will be the way things work. In the light of that I beg leave to withdraw the amendment.

Amendment 138 withdrawn.

Schedule 6: Dissolution of the Learning and Skills Council for England: minor and consequential amendments

Amendment 139

Moved by

139: Schedule 6, page 181, line 37, leave out “to be treated, on and after that date,” and insert “, on and after that date, to be treated for the purposes of subsection (2) of this section”

My Lords, Amendment 139, 141, 143 and 144 will require local authorities and the YPLA to consult the governing body of a sixth-form college before exercising powers to appoint governors to it. This reflects concerns raised by noble Lords, and in particular the noble Lords opposite, in Committee. I hope the House will agree that it is a sensible safeguard to the exercise of this power.

On Amendment 142, tabled by the noble Lord, Lord Lucas, we do not agree that local authorities will engage in costly and difficult interventions in sixth-form colleges in the way that he suggested in Committee. We do not believe that it would be in their interests to do so or that they would want to do so. Local authorities and sixth-form colleges have been working very closely in anticipation of the change before us. Both the Association of Colleges and the Sixth Form Colleges' Forum have agreed protocols with the local authority sector on how they plan to work together. These protocols include performance management. I hope that that offers the noble Lord some reassurance in dealing with his concerns.

Schedule 8 also contains the safeguard of requiring local authorities to have regard to the YPLA’s guidance on sixth-form intervention. This is a strong duty; local authorities cannot simply ignore the YPLA’s guidance but must have strong reasons for acting against it, or they will expose themselves to potential judicial review. At the same time, “have regard to” gives the local authority an ability to tailor its response to specific circumstances of a particular sixth-form college. By contrast, the duty to “act in accordance with” in the noble Lord’s amendment would force authorities and colleges to go through a rigid, inflexible procedure that may not be appropriate in all circumstances. I hope that the noble Lord agrees and that this gives him the reassurance that he seeks on the intentions behind the provision. I hope also that the amendments that the Government have introduced give noble Lords the reassurance that they were looking for.

My Lords, I am grateful for the amendments that the Minister proposes, but to my mind they do not go nearly far enough. The Minister talked about “have regard to”. In the briefing provided by her department on Clause 128(6), which looks at “have regard to” from the other point of view—the pressure put on Ofqual by the Secretary of State—her officials quote:

“The phrase ‘to have regard to’ means take into account. It does not connote slavish obedience or deference on every occasion. It is perfectly possible to have regard to a provision but not to follow that provision in a particular situation”.

That is exactly the trouble that I have with this clause.

We are looking for the right balance of power between a local authority and a sixth-form college or further education college. It is in many ways an unequal balance, in that the local education authority has a great deal of influence over funding and the sixth-form college may, as many have in their years of independence, have grown not so much out of as way beyond the local authority in which they happen to be situated. They may provide services that do not accord with what the local authority thinks should be done locally or may provide them in a way that the local authority does not agree with. There are lots of reasons why a local authority might want to bring a sixth-form college to heel and to make it conform more closely to the local authority’s view of how education should be provided in its area. I want the sixth-form college to be able to resist that.

What the Government have done in drafting this section of the Bill is to bring over verbatim, or close to verbatim, the arrangements that existed between sixth-form colleges and the LSC. In those circumstances, there was not a great deal to worry about. The LSC did not have an agenda of bending sixth-form colleges to its will, and there was no basis on which it should have done. It was a national body with a national agenda and no reason to get involved in the detailed decisions of an individual sixth-form college, so the triggers that were put in place to allow intervention by a local authority are extraordinarily light. It is anything that the sixth-form college does to transgress any law or regulation.

The department tried to give me comfort on this, by saying that it thought most sixth-form colleges were, at all times, perfectly law-abiding. If even Ministers cannot keep to regulations, how should we expect sixth-form colleges to do it all the time? The complexity does not just apply to educational legislation—which I am sure that they keep a close eye on—but to health and safety, discrimination and other any aspect of national legislation. As soon as the college transgresses in any way, the trigger is tripped and the local authority has the right to intervene. It has not just the right to stand there and say, “Ah, you’ve got to get yourself in order”, but to take over the college, and the barriers that have been put in place for that are very slim. Yes, there is a convention between local authorities and sixth-form colleges at their organising bodies’ level, but that has no binding effect on local authorities or colleges in any individual case. Yes, there are provisions in administrative law, where I do not pretend to be an expert but, from reading the extensive and helpful advice provided by the noble Baroness’s department, those appear to be pretty weak in practice.

This will result in individual cases—not, obviously, in every case, or in most cases—where the local authority will be able to take effective control of a sixth-form college because it has the power to take actual control whenever it wants. That is a very undesirable state of affairs and will lead, over time, to some very undesirable outcomes in the independence of sixth-form colleges and their ability to do the best by their students. I am not comforted by what the noble Baroness has said, and if I receive appropriate comfort from my Front Bench then I shall certainly want to test the opinion of the House.

My Lords, on these Benches we welcome the Government’s amendments in this group, because they ensure greater consultation between local authorities, the YPLA and the governing bodies of sixth-form and further education colleges. Many of the amendments that we have been making in the course of this Bill have been toward simplification and clarity in administration. We hope that these will move in that direction. We certainly have sympathy with the amendment tabled by the noble Lord, Lord Lucas, and note that it has the support of the Association of Colleges, which can see that the amendment would ensure that each local authority uses the same rules of intervention, rather than each interpreting the legislation in a slightly different way. On those grounds, we certainly have sympathy with the noble Lord’s amendment and we welcome the Government’s amendments.

My Lords, this is in fact a very big issue: the question of the ultimate independence of places of education from political direction. Those of us who have lived through the last couple of generations will remember times when political parties in local authorities have been very keen to intervene in that way. Therefore, I hope that my noble friends on the Front Bench will give my noble friend Lord Lucas, who is behind me, the comfort that he wants.

My Lords, could the Minister explain why she would not be in favour of the proposed wording? Any explanation she can give as to why she prefers the wording that is already there must mean that she is less than concerned that the right amount of attention is given to these bodies. I would be very grateful if, when the Minister replies, she could answer that question,

My Lords, first, I declare my interests, which are recorded in the Register, in particular as a partner in the national commercial law firm Beachcroft LLP. I do not have much to say in response to the government amendments on sixth-form colleges, other than to thank the Minister very much for taking on board the concerns we expressed in Committee; and for coming back to us with what certainly appear to be positive amendments, which address the worries that we expressed on that occasion. We are particularly grateful not only that the Minister has accepted the amendment that requires local authorities to consult sixth-form colleges before appointing any governor to the board, but that—in line with our thinking—the power has also been extended to the YPLA. We welcome the Government’s commitment to our intentions here, and are grateful for the fruitful discussions that we have had with the Minister and her team.

However, we now move on to the amendment tabled by my noble friend Lord Lucas. His Amendment 142 seems most appropriate and sensible. I found very interesting not only the arguments that he adduced, which brought us into the real world, but the support that they received from the noble Baroness, Lady Garden, my noble friend Lord Elton and the noble Baroness, Lady Howe of Idlicote. If the YPLA must publish a statement of policy about intervention in sixth-form colleges, which then has to be approved by the Secretary of State, where is the sense in asking the local education authority only to “have regard to” it, rather than “act in accordance with” it?

In her opening remarks, the Minister sought to meet the points that she anticipated would be made by saying that no local authority would engage in costly intervention. It would have to have strong reasons. As my noble friend Lord Lucas said, it is all about the balance of power and the balance of influence. That summarises some very important arguments which were put forward. I assume that most local education authorities will indeed automatically act in accordance with such a statement. I have faith that they will operate in this manner.

Nevertheless, we are dealing here with legislation. Sometimes—I speak with some scars on this—it is just not enough to have faith. If the intention is that local education authorities should comply with the statement, which has, after all, been approved by the Secretary of State and the YPLA, why on earth is it not in the Bill? Does the Minister not accept, as has been pointed out in this short debate, that this would provide more security for sixth-form colleges, while one would not expect it to place further burdens on local education authorities which will be complying with the statement anyway?

My Lords, I hope that I can offer some reassurance, although, given the remarks that I have just listened to, I am not sure that I am necessarily going to be able to give all the reassurance that noble Lords are looking for. I will try very hard. I start by thanking the noble Lord, Lord Hunt, for his kind and generous opening remarks and both opposition parties for their constructive engagement with us in what has been a very busy few weeks.

I want to be clear on the critical point of what might trigger an intervention by a local authority in a college. As with the Learning and Skills Council now, local authorities can intervene only on the grounds currently set out in Section 56A(2) of the Further and Higher Education Act 1992. These include mismanagement by the governing body, failure to carry out a statutory duty, acting unreasonably or underperformance of the college. Those are quite significant triggers. The local authority will have to notify the YPLA and the Secretary of State of the decision to intervene and the grounds for intervention and then inform the college. Just to be clear, we expect intervention to be proportionate and to follow reasoned triggers—it is helpful, perhaps, to put these on the record—such as underperformance where there has been serious misuse of public funds, where there have been previous attempts to intervene that have failed, where there has been fraud and where there have been significant failures in management that would put learners’ health and safety at risk. So these are very significant triggers.

The noble Baroness said that the local authority would have to report its intervention to the Secretary of State. Will the Secretary of State then have any role other than to hear what it says? Will he have any power to change the course of events, or will he have powers merely to advise?

I may get some inspiration on the point made by the noble Lord, Lord Elton, in a moment. I will do my best to answer him fully. I would hope that there is a point in reporting something to the Secretary of State; otherwise, why would we be expecting local authorities to do it? If there is no point then I, too, would question that. Having been clear that intervention from a local authority should be triggered only—

Might I come back briefly on that point and ask the noble Baroness a question? New Section 56E(2)(b) refers to a situation in which the,

“governing body have failed to discharge any duty imposed on them by or for the purposes of any Act”.

Where is the sense of proportion in that? Is intervention not triggered by any failure, however minor? Myriad Acts apply to the governing bodies of schools.

I am trying to clarify that, under Section 56A(2) of the 1992 Act, the grounds for intervention that exist currently for the Learning and Skills Council are the same as they will be for local authorities in the future. Those include mismanagement by the governing body, failure to carry out a statutory duty, the college acting unreasonably or underperformance of the college. I am advised that local authorities will have to act proportionately in response to a breach.

The noble Lord, Lord Elton, asked about notifying the Secretary of State. The local authority will have to notify the YPLA and the Secretary of State of the decision to intervene and the grounds for that and then inform the college.

My question was: what happens next? Can the Secretary of State then say, “No, you can’t do this”?

That is what I am asking, too, my Lords. I am afraid that I have not received a very helpful note.

If the House will indulge me, I should like to continue for a moment. On the whole question of a duty to “have regard to”, of course the noble Lord, Lord Lucas, is right to say that such a duty in one part of the Bill is the same as in another. I was very clear about the fact that such a duty is not the same as “must”. However—the noble Baroness, Lady Howe, asked about this—if we accepted the amendment tabled by the noble Lord, Lord Lucas, we would have an incredibly rigid set of requirements, which would make it difficult to take into account local variations. Perhaps I may deal with this at some length, for which I apologise.

I am advised that a duty to have regard to guidance is the standard formulation throughout education law, balancing a statutory duty to take the guidance into account with the flexibility for those implementing policies to take their individual and local circumstances into account when exercising functions. I know that the noble Lord, Lord Lucas, is concerned about that. The one exception to this in education law relates to the schools admissions code, with which LEAs and school governing bodies must strictly act in accordance. The duty was changed by the Education and Inspections Act 2006. Noble Lords will be interested to learn more detail about that. It enables certain important matters to be given statutory force. For example, governing bodies and local education authorities are prohibited from taking children’s or parents’ behaviour into account when considering whether to offer a school place. There is a detailed set of circumstances. Therefore, Parliament decided that a duty to act in accordance was necessary in order to be specific about admissions policies.

The intervention policy of the YPLA—and currently that of the Learning and Skills Council—is not of that order of specificity. It will deal with the processes and triggers for local authorities to use and for governing bodies, clerks and senior managers to understand. As with the Learning and Skills Council, we intend that the YPLA will set out in its guidance a public and transparent policy statement that is kept under review. That guidance will be consulted on before it is published.

I return to the question asked by the noble Lord, Lord Elton: what will the Secretary of State do when he is notified of a potential intervention? The Secretary of State would consider the case and direct the YPLA, if necessary, under his powers under Clause 75, but would do that on a case-by-case basis.

The local authority, not the YPLA, is reporting this, so my question is what the control is on the local authority. Does the YPLA transmit the embargo placed by the Secretary of State or what?

My Lords, I would expect that to be the case; otherwise, why do we have the power under Clause 75? I am advised that that is the case.

Perhaps I can help the House by summing up and sitting down; that might be the useful thing to do at this point. We listened to the views expressed in Committee and have tabled government amendments that will require local authorities and the YPLA to consult the governing body of a sixth-form college before exercising the powers to appoint governors. That is extremely important. I believe that local authorities and sixth-form colleges have been working closely together in anticipation of the change, which is, as I said in Committee, widely supported. There are strong safeguards in place. In the extremely unlikely case, which we would want to avoid, where intervention powers were used, the strong safeguards set out in the Bill should give sixth-form colleges the comfort that they seek. I hope that the noble Lord, Lord Lucas, will not press his amendment and that noble Lords can support the government amendments.

Amendment 139 agreed.

Schedule 8 : Sixth form college sector

Amendments 140 and 141

Moved by

140: Schedule 8, page 200, line 23, at end insert—

“(2A) Before exercising the power conferred by subsection (1) in relation to a governing body, the responsible local education authority must consult the governing body.”

141: Schedule 8, page 200, line 27, leave out “to be treated, on and after that date,” and insert “, on and after that date, to be treated for the purposes of subsection (2) of this section”

Amendments 140 and 141 agreed.

Amendment 142

Tabled by

142: Schedule 8, page 201, line 11, leave out “have regard to” and insert “act in accordance with”

My Lords, I was considerably comforted by what the noble Baroness said about the proposed new subsection having to be subject to proportionality. I shall accept that comfort but I would be enormously grateful if she would write and tell me where that proportionality comes from.

Amendment 142 not moved.

Amendments 143 and 144

Moved by

143: Schedule 8, page 202, line 34, at end insert—

“(2A) Before exercising the power conferred by subsection (1) in relation to a governing body, the YPLA must consult the governing body.”

144: Schedule 8, page 202, line 38, leave out “to be treated, on and after that date,” and insert “, on and after that date, to be treated for the purposes of subsection (2) of this section”

Amendments 143 and 144 agreed.

Schedule 9 : The Office of Qualifications and Examinations Regulation

Amendment 145

Moved by

145: Schedule 9, page 205, line 24, at end insert—

“(1A) The person appointed by Her Majesty to chair Ofqual is to be known as the Chief Regulator of Qualifications and Examinations (“the Chief Regulator”).”

I shall also speak to the other amendments standing in my name. I have been delighted, but not surprised at the level of support from all sides of the House for the establishment of an independent qualifications regulator. The Bill provides for Ofqual to be a robust, independent regulator. It will enable Ofqual to ensure that standards of qualifications and assessments are maintained. Like Ofsted, it will report to Parliament, not Ministers. It has a critical role to play in developing and improving the qualifications that are central to the success of education and training in this country. It will improve confidence in those qualifications—because confidence is the currency of qualifications. That will be good, above all, for children and learners. Their achievements will be properly recognised and valued.

We shall start by looking at Schedule 9 and Ofqual’s governance. There has understandably been a lot of interest in governance in parliamentary debates. We need to make sure that the process for appointing members of Ofqual reinforces its independence. We have therefore laid two further sets of amendments to put this independence beyond doubt. First, it will now be for Ofqual rather than the Secretary of State to choose the deputy chair from among its members—members of the board. Ofqual will also be able to remove the deputy from office.

Secondly, the Secretary of State will now be required to consult the chief regulator before appointing or dismissing a member of Ofqual. This also responds to the points made in Committee about the need for the chief regulator to have a formal role in appointing Ofqual members. There are also provisions allowing for a situation where the chief regulator or the deputy chair is unable to be consulted. Those amendments are rather long and detailed, but we are advised that the safeguards are necessary. There are also some consequential, tidying-up amendments to make Schedule 9 easier to read.

Let me move on to Amendment 164, tabled by the noble Lord, Lord Lucas, and to the other amendments. I am committed, and said so in Committee, to publishing any directions made to Ofqual under Clause 128 because we would risk undermining confidence if the Secretary of State were making directions in secret. I do not believe that it is necessary for this provision to be in the Bill, but I give an absolute commitment that this is going to happen.

On Amendment 150, tabled by the noble Baroness, Lady Verma, and the noble Lord, Lord De Mauley, of course it is important that members of Ofqual should not be subject to a conflict of interest. Noble Lords opposite are rightly concerned about that. It would be counter to the strict requirements of the Treasury, the Cabinet Office and the Commissioner for Public Appointments. In particular, no one with a direct and current connection with an awarding body could ever be appointed to Ofqual. However, almost anyone who has something to contribute to Ofqual, who has an interest in or experience relevant to Ofqual’s work, could be regarded as having some conflict of interest, if we take it to extremes. It was suggested in Committee in the other place that a head teacher, for example, might be so regarded if the performance of their school were measured by the qualifications that Ofqual regulates. I do not agree with that view. We need to have one or two head teachers as members of Ofqual to bring direct and current experience of qualifications delivery. Head teachers, like all of us, need a robust system in which standards are maintained and confidence is high. We do not, however, need too many head teachers in Ofqual. We must make sure that Ofqual has a balanced membership and a range of perspectives.

I move on to Amendment 155 and the concerns of the noble Baroness, Lady Walmsley, about the appointment of the chief executive. The Secretary of State’s approval of a chief executive, which is normal for Civil Service posts at this level, must be in line with the Civil Service recruitment code. I hope that that will reassure noble Lords. It would be unusual for a parliamentary committee to report on something as detailed as the appointment of a position in this way, or on the terms and conditions of a particular civil servant, but should it choose to do so, I would expect that the Secretary of State would want to take its views into account. I am not sure that it is necessary to put this in the Bill.

On the appointment of the first chief executive, I am happy to repeat the commitment I made in Committee that we will work with interim Ofqual over the appointment of the first—interim—chief executive of Ofqual. Thereafter Ofqual will appoint its own chief executives, so I hope the House will feel that this amendment is not necessary. I hope that I have given the House the comfort that it is looking for, and I beg to move.

We now begin discussions about Ofqual and I have no doubt that sighs of relief are being heaved around the Chamber, not only because it means we are about halfway through Report stage, but also, much more importantly, because of the large number of government amendments which have taken on board certain of the concerns expressed in Committee by a large number of your Lordships. I am afraid that we cannot join in, however, with all the expressions of relief, because we remain concerned about the provisions being made for those on the board of Ofqual. The Government appear to be advocating independence. They have decided that they no longer believe it necessary for the deputy chairman to be appointed by the Secretary of State, or for the Secretary of State to have the power to dismiss him. Instead, they now seem to have decided that Ofqual should retain this power. This is despite what we took to be very clear assurances to the contrary expressed in Committee. The Minister said that people should not be nervous that a board was appointed by the Secretary of State because a board appointed by the Secretary of State was,

“entirely consistent with a reputation for fierce independence”.—[Official Report, 15/10/09; col. 377.]

She said that it would be regulated by the Commissioner for Public Appointments and the appointees would be in no way answerable to the Secretary of State. Perhaps since then she has had a change of heart.

We agree that Ofqual needs to be independent. That is the reason for our Amendment 150 which would ensure that a member of the Ofqual board cannot have a financial or occupational interest that would constitute a conflict of interest with Ofqual. Despite what the Minister said a moment ago, we still believe that it would not be helpful to have serving on that board anyone with any sort of conflict of interest with the objectives of that regulator. Surely we should ensure that the board of Ofqual is free of those currently involved, by occupation or financially, in education. We suggest that we should bend over backwards to avoid any suggestion of a conflict of interest in the regulation of standards. Instead, it should be composed of those with the necessary expertise to help form a rigorous and effective regulator. We cannot believe that our amendment would mean that such people were impossible to find. Katherine Tattersall, the chairman of Ofqual, wrote in her letter to Mr Chope and Mrs Humble that,

“as a regulator of qualifications in England, I can assure you that I am quite clear about the importance of maintaining standards over time and across awarding bodies so that learners and the public can have confidence in the integrity of the qualifications system”.

The Minister also referred to the importance of confidence in the system when she moved her amendment. In order to achieve this objective, we believe that it is necessary to have a board composed of people who cannot have or be thought to have in any way a vested interest in creating the perception that standards have risen regardless of the facts.

We are pleased to note that in Committee we received support for the principle behind this amendment. The noble Lord, Lord Sutherland, said that he fully supported the emphasis behind Amendment 220A—as it then was—but expressed reservations that it might be difficult to apply. The Minister said:

“It is important that members of Ofqual should not be subject to conflicts of interest”,

and that,

“it would clearly be inappropriate to appoint to Ofqual anyone with a direct and current connection with an awarding body which Ofqual might regulate”.—[Official Report, 15/10/09; col. 378.]

I heard what she said today on this.

We acknowledge that there may be some technical difficulties with our amendment. There have also been expressions of concern that it may preclude those with expertise in assessments and academia. That is not the intention. We wish to exclude only those who have a current vested interest. They should have no reputational or other interest in demonstrating that the United Kingdom’s examination system has maintained standards over the years. In the quest for independent regulation, this seems only sensible and necessary.

We cannot express much support for the government amendments in this group or for Amendment 154, tabled by the noble Baroness, Lady Walmsley. I am interested to hear the Government’s response on Amendment 155. Amendment 164 was tabled by my noble friend Lord Lucas and appears to us to be very sensible. We may have had some disagreements about the role of the Secretary of State with regard to Ofqual, but we are in agreement on this. It is important that government policy and directives that are sent to Ofqual with the purpose of direction should be available and published. This will add to the transparent nature of Ofqual. The body has an important function to fulfil. It must regulate standards but, in consequence, should reassure the public that standards are being upheld and are improving. Any published document of government policy that Ofqual has had to take into account should help to ensure that trust is maintained between the public and the regulator.

My Lords, this group contains Amendments 154 and 155, which are tabled in my name. I shall speak to them in a moment. First, I welcome government Amendments 146, 148 and 152, which were laid at our instigation. Amendments 146 and 152 relate to the appointment or removal of the deputy chair, and we are delighted that the Government have accepted that this person should be elected or removed by the members of Ofqual rather than by the Secretary of State. This goes a small way towards reducing the power of the Secretary of State over Ofqual and thereby increases Ofqual’s independence.

Government Amendments 148 and 153 concern the Secretary of State consulting with the chair or deputy before appointing ordinary members. Again, that consultation is at our instigation and we welcome it. However—here comes the but—we do not like the last part of each of these amendments, which enable the Secretary of State to appoint or remove a person without consultation if he or she thinks that it is “not practicable” to consult. These appointments usually take weeks or even months and the idea that it would not be practicable to consult during that period is ridiculous. The Government say that this paragraph is only there to take care of rare situations where perhaps both the chair and the deputy are ill or have been killed in an accident. In these situations, the Secretary of State will deal with the matter without legislation.

The Lord Chancellor endorses the appointment of lots of people, but the statutes are not full of clauses about what happens if he cannot consult or if he himself lands under a bus. It is over the top to legislate for a highly unlikely occurrence such as this. The problem is that it makes me suspect that the Government want it there to allow the Secretary of State to appoint without consulting if he feels like it. If the amendments are carried, I will seek some means or another of removing those paragraphs at a later stage.

I am afraid that we do not support the Opposition Benches on Amendment 150 because we have confidence in the fact that the public appointments procedure is now moving in the right direction and would ensure that nothing inappropriate happens in relation to conflicts of interest.

I now turn to my own amendments. The first chief executive of Ofqual will have an enormous influence on the way that it starts its new duties, so this is an important appointment. Amendment 154 would ensure that the first chief executive is an interim appointment whose confirmation as a permanent employee or replacement by somebody different as the first permanent CEO will be done by Ofqual itself. The Minister has been quite clear about that today and I thank her for it. I am also grateful to the Bill team for confirming it in a letter dated 2 November—it arrived five minutes before we started Report on Monday—so I am quite happy about that. I will not pursue the matter further, but will the Minister say how long the interim appointment is expected to last and what is the mechanism for the confirmation or replacement of that person as the first permanent chief executive?

Amendment 155 would simply give Parliament a role in the appointment of the first and subsequent permanent chief executives. Because this post is such an important one, Parliament’s voice should be heard about the suitability of the people appointed and the terms and conditions of their appointment. I was somewhat reassured by the Minister saying that if Parliament expresses a view about these things that will be taken into account, so I will not be pressing that matter.

My Lords, I thank the Government and commend them for the amendments they have moved in the light of Committee discussion. That is good practice and we should note the fact. However, in relation to Amendment 150, where my name has been prayed in aid, I give limited aid because I support the principle of independence, which I am sure was understood. I cannot support the amendment as it stands, because it would rule out quite a number of immensely helpful and able people who have, in one way or another, a financial interest in education—they are employed in schools or whatever. That being said, I am interested to hear the response to the question relating to Amendment 154 about the expected length of period of office for the first chief executive of the regulatory body.

My Lords, I am grateful for the noble Baroness’s attention to my Amendment 164, but I am left asking, why not? Most Bills have clauses that say exactly what my amendment says and this Bill has several. If the intention is that the Government will act in accordance with my Amendment 164, surely they ought to be prepared to put something in the Bill to make sure that future Governments do too.

My Lords, the Minister, in her rejection of Amendment 150, said she wished to have head teachers on the Ofqual board. It prompted me to think of a question that has often been through my mind in these debates, and I know it is a concern of my colleagues. While the Government give such priority to education, and while we regularly have such legislation before this House, there are no primary or secondary school heads in your Lordships’ House. Does the Minister join me in regretting this?

I will respond to the noble Earl, Lord Listowel, first of all. I agree that it would be wonderful to have primary or secondary head teachers in our House. I am sure we would make them very welcome and value their contributions. We have a wonderfully diverse House, and anything that adds to that diversity has to be a good thing.

In response to the noble Lord, Lord Lucas, I can say that if I have not been able to satisfy his concerns, then I will see what I can do further. I am not sure what I can do but, in the light of today’s debate, I can see that there is a consensus around putting something in the Bill on the need to publish in the way he suggests. I will try again, as I do on many fronts.

I turn to the remarks of the noble Baroness, Lady Walmsley, particularly in regard to her concerns about Amendments 148 and 153 and the question about consultation following extremely unlikely events. I understand her concerns, but the Secretary of State cannot consult if it is necessary to act before it is practicable to consult. This is a legal duty set out in proposed new sub-paragraph (5B)(b) in Amendment 153. We will have to discuss this further, because we do not want to get into a situation where there needs to be an appointment, but because of an extremely unlikely set of events it cannot be made. However, the noble Baroness has very generously agreed to move forward and deal with this in a very practical way.

Moving on to Amendment 150, I appreciate the concerns around conflict of interest; of course it is right to ensure that Ofqual has a board that is independent of any undue influence. That is why we have a really strong public appointments process: it is there to make sure that the board has the right skills, and that the people appointed have the right qualities and are free from undue influence. Amendment 150 would simply go too far.

We have listened very carefully to what noble Lords said in Committee. For example, we have ensured that Ofqual will choose its deputy; we are now delivering on that. We said we would do that in Committee, and that is what we are doing now. We also wanted to make sure that the chief regulator was consulted, and that is what we are delivering on now. Noble Lords can be reassured that we are setting in place the necessary safeguards to ensure that Ofqual is truly independent.

Finally, as regards the interim appointments becoming permanent, Ofqual will set procedures running for the permanent appointments on the day it comes into existence. All being well, that will be 1 April. Bill permitting, the interim appointment will end when the permanent appointment is made. We expect that process to begin on the day Ofqual comes into existence. I hope that I have answered the questions and that noble Lords opposite will not move their amendment and will support the Government’s amendment.

Amendment 145 agreed.

Amendments 146 to 149

Moved by

146: Schedule 9, page 205, line 25, leave out “The Secretary of State” and insert “Ofqual”

147: Schedule 9, page 205, line 26, leave out “person appointed to chair Ofqual” and insert “Chief Regulator”

148: Schedule 9, page 205, line 26, at end insert—

“(2A) Before appointing a person as an ordinary member, the Secretary of State must consult the Chief Regulator or the deputy (subject to sub-paragraph (2C)).

(2B) The Secretary of State may consult the deputy instead of the Chief Regulator only if satisfied that—

(a) it is not practicable to consult the Chief Regulator, and(b) it is necessary to make the appointment before it would be practicable to do so.(2C) The Secretary of State may appoint a person as an ordinary member without consulting either the Chief Regulator or the deputy if satisfied that—

(a) it is not practicable to consult either of those persons, and (b) it is necessary to make the appointment before it would be practicable to do so.”

149: Schedule 9, page 205, line 31, leave out sub-paragraphs (1) and (2)

Amendments 146 to 149 agreed.

Amendment 150 not moved.

Amendments 151 to 153

Moved by

151: Schedule 9, page 206, line 15, leave out “and other” and insert “may resign from office at any time by giving written notice to Ofqual.

(3A) The”

152: Schedule 9, page 206, line 17, leave out from beginning to “thinks” in line 18 and insert “Ofqual may remove the deputy from office if Ofqual”

153: Schedule 9, page 206, line 23, at end insert—

“(5A) Before removing an ordinary member from office, the Secretary of State must consult the Chief Regulator or the deputy (subject to sub-paragraph (5C)).

(5B) The Secretary of State may consult the deputy instead of the Chief Regulator only if—

(a) the ordinary member to be removed from office is not the deputy, and(b) the Secretary of State is satisfied that—(i) it is not practicable to consult the Chief Regulator, and(ii) it is necessary to remove the ordinary member from office before it would be practicable to do so.(5C) The Secretary of State may remove an ordinary member from office without consulting either the Chief Regulator or the deputy if satisfied that—

(a) if the ordinary member to be removed from office is the deputy, sub-paragraph (5D) applies;(b) in any other case, sub-paragraph (5E) applies.(5D) This sub-paragraph applies if—

(a) it is not practicable to consult the Chief Regulator, and(b) it is necessary to remove the ordinary member from office before it would be practicable to do so.(5E) This sub-paragraph applies if—

(a) it is not practicable to consult either the Chief Regulator or the deputy, and(b) it is necessary to remove the ordinary member from office before it would be practicable to do so.”

Amendments 151 to 153 agreed.

Amendments 154 and 155 not moved.

Clause 127 : Objectives

Amendment 156

Moved by

156: Clause 127, page 77, line 30, at end insert “, and

“( ) the educational standard and performance objective”

My Lords, I shall speak also to Amendment 160. Through the passage of this Bill, we have been setting up, it is hoped, a second independent regulator which will influence and report on the standard of education in this country. That is Ofqual, which will be able to monitor standards only through the medium of current qualifications. The other one is Ofsted, which was set up quite a few years ago, with many fewer powers than it has now. It was initially set up to inspect the standards of education in schools, but now it deals with young offender institutions, early years’ settings, children’s homes and several other things.

Ofsted has also looked into examinations, with its recent report published in August about the 14 to 19 reorganisation and the new diplomas. Here, I believe it impinges slightly on the role which Ofqual might have if that role were to be extended in the way my amendments suggest. In the situation here, where we have two regulators, we need to be clear about the role of each. We in the Liberal Democrats would have no such problem, were we to be in government. Our vision is of a single unified education standards authority whose role is to monitor and report on the whole breadth of education standards in England and compare them over time and with other countries, and which would oversee Ofsted as part of its remit.

Without Ofqual having the power to investigate beyond the boundaries of qualifications, we will not really know what success in any particular exam really means. With the system that the Government are setting up, the demarcation between Ofqual and Ofsted is blurred, and we are concerned that no one will have either the power or the duty to let us all know how we are really doing compared to 10 years ago, or to other similar developed countries. Perhaps the Minister will tell me who is supposed to do that under her system.

We believe that the role of Ofqual has been designed too narrowly in assessing standards, and that therefore its success in restoring public confidence in qualifications is put at risk. We may continue to have the annual debate about falling standards and dumbing down, which is what the Government are trying to avoid. We on these Benches are committed to Ofqual’s success, which is why we have put so much time and energy into making it more independent and fair in its operations through this Bill, and that is why we would like its powers extended through these amendments.

The CFS Select Committee, in its report, Testing and Assessment, clearly agreed with us. It was clear about the potential for a discrepancy between the apparent education standards revealed by regulated qualifications and the underlying measures of educational performance, standards and effectiveness. In paragraph 250, it said:

“Until the Government allows for standardised sample testing for monitoring purposes, the regulator will be left without the tools required to fulfil its primary function”.

The committee essentially argued that because examination standards and the nature of examinations had changed so much over time, and because of the difficulty of comparability brought about by test reform, the targets set by the Government and the different assessment standards used at different times, it was impossible to use one or even a number of examinations to form an objective assessment of standards over time—or even at any point in time. In their response to the committee report, the Government said:

“Ofqual’s role is not to monitor education standards as a whole; it is to regulate the qualifications and assessments which are one of the means by which those standards are measured”.

Parliament’s voice was ignored yet again.

If not Ofqual, then who? When this matter was debated in another place, Ministers contradicted each other as to whether Ofqual could conduct sampling. In the end they came down on the side of Ofqual being able to do so only in pursuit of its current powers as expressed in the Bill. Yet Kathleen Tattersall in her evidence to the Public Bill Committee on 3 March said she did not believe this legislation precluded Ofqual over time pursuing the type of strategy I have outlined. However, the Minister, Jim Knight, said he did not think it appropriate for Ofqual to simply take such powers of its own accord. It is time we sorted this out. Before the Bill leaves your Lordships’ House, I would like the matter clarified.

If Ofqual is to have these powers, they should be put on the face of the Bill. Then no one could argue if the chair of Ofqual sought at some future time, when the organisation has bedded in, to provide this valuable service and information which could inform policy in such an important way. Do the Government not want to base their policy on evidence any more? After the way the Cambridge Primary Review and the expert committee on drugs have been treated recently, I suspect not. We on these Benches seek evidence-based policy not policy-based evidence.

We have tinkered with this Bill. Thanks to our listening Ministers and the hard work of the Bill team we have improved it a lot, but we were never going to be in a position to revise the whole architecture of the thing, as we on these Benches would have liked, based on the alternative vision I have outlined. At the least, can we please allow Ofqual to do what the public are crying out for—to really tell us what is happening to standards? For it to do so, we need unequivocal clarity about whether it can sample, research, study and report on the underlying standards of education, not just those that are measured by examinations. I beg to move.

My Lords, I have great sympathy with the amendments. We have been through painful periods of public lack of confidence in standards—the creep in A-levels, GCSEs and so on. Some device, whether via Ofqual or some other agency, is badly needed to assure the public that standards are not falling and that examinations are kept up to the mark.

I am personally a great advocate of some kind of agency which keeps item banks which are properly valid and which do not represent league tables of individual schools or local authorities, but which sample representative groups within the school population. Year on year, using properly validated item banks, they could tell us whether and where the performance in schools is rising or falling. However, I am not sure that Ofqual is necessarily the right agency to take this on. In default of any other agency I support the concept of Ofqual as the place where it should happen.

My Lords, I join my noble friend and the Liberal Democrats in recommending these amendments—or, at the very least, the spirit of these amendments. With all the efforts that we have made to make Ofqual independent, it is enormously important that it should turn its mind to being the benchmark for examination standards. That cannot be done without evidence. It must be done, over a long time, on the basis of a regular series of relatively standard assessments that are not affected by changes in the national curriculum or by changes in emphasis that rightly come from Ministers. These cause examinations to evolve and change over time and make it hard to pin down what is happening on standards. It is difficult to do—it is not a perfect science—and Ofqual needs all the help that it can get to get it right.

My Lords, the task that is outlined here is certainly difficult, but I agree about its importance. Whether this is the best way to meet it I am less certain. It would be good to hear from the Minister suggestions about how this might be carried out otherwise.

My Lords, we support some of the principles behind the amendments. Noble Lords will be aware that we tabled a series of amendments to similar effect in Committee. Indeed, we would have liked to have gone further than the noble Baroness, Lady Walmsley, in some instances.

Amendments 156 and 160 would require standards to be monitored across England as a whole and for it to be reported how standards and education are changing over time. This would be very useful and help to ensure that standards were consistently maintained across the country. It is appropriate that Ofqual should produce a report on these matters that will, as we go forward, allow comparisons to be made between years. This would help to provide Ofqual with the information that it requires in order to regulate standards and to reassure the public that those standards are being maintained.

As my noble friend Lady Perry said, year on year we see headlines proclaiming that standards have fallen and that our qualifications are being undermined. An analysis across England as a whole and an annual report would add to transparency and would demonstrate to the wider public that standards were being maintained, if indeed they were. We would like to go further and ensure not only that this happens in the future but also that studies can be made into past years so that helpful comparisons can be made.

When we raised this matter in Committee, the Minister rather uncharitably stated:

“It is unhelpful to trade statistics and to go into the issue in such a way”.

It is no use saying that we do not wish to face difficult issues on the grounds that they might call into question,

“the achievements of young people, teachers and the education system around the country”.—[Official Report, 15/10/09; col. 387.]

We pay tribute to the hard work and achievements of young people, teachers and the education system. One of the best ways in which we can do this is by securing a qualifications system worthy of them—one that challenges them sufficiently and ensures that their qualifications truly reflect the hard work that they have put in and the achievements that they have attained.

It is important to allow a comparison with earlier years. For example, Duncan Lawson from the University of Coventry has found that students entering university in 2001 with a B in maths A-level displayed a level of knowledge that would be equivalent to a grade N—or a fail—10 years before. This may be hard to accept, but it does not necessarily reflect on the young people, teachers and the education system; it reflects on the standards of qualifications.

We sympathise with the desire to see a comparison made between standards in this country and those in other OECD countries. This reflects a concern that we raised in Committee in Amendment 316, which called for an international benchmark to be instituted. The PISA studies on advanced economies and their educational performance show that we have dropped from fourth to 14th place for science, seventh to 17th place for literacy and eighth to 24th place for mathematics. These figures are no doubt familiar to the Minister, but they deserve repetition. They underline the fact that, while we are constantly being told that standards in this country are rising, in reality we are falling behind the international field. That is why we on these Benches have commissioned a review by Sir Richard Sykes, the former rector of Imperial College, of assessment and qualifications in this country with the aim, again, of making them internationally competitive.

As I said, we have considerable sympathy with some of the intentions behind these amendments, but we would like to go further.

My Lords, might one of the benefits of such an international benchmark be to help us when policy perhaps inadvertently strays away from the best interests of our children? A recent Cambridge review of primary education, to which the noble Baroness, Lady Walmsley, alluded, praised the Government for their investment in education in primary schools and for many of the innovations that they have introduced, but also commented critically—I am paraphrasing what it said—that the top-down culture of edicts in children’s education and the attempt to overly control what children learn at a particular time have been to the detriment of our children’s education. If we had a benchmark, we could see over a number of years, when we have put a lot of investment into children’s education, how they are performing against similar states with similar sorts of investment.

My Lords, I shall start by being clear about the question asked by the noble Lord, Lord Lucas. If Ofqual wants to do sample testing—the noble Baroness, Lady Walmsley, asked this as well—the Secretary of State can do nothing to stop it; it will be an independent regulator.

Ofqual can perform sample testing but, as the noble Baroness suggested in her opening remarks, not for the purposes set out in the amendments. It can do so as part of fulfilling its objectives—to check the consistency year on year, if it so wishes, under the standards objective. The noble Lord, Lord De Mauley, spoke eloquently just now, although I do not agree with his analysis, making the case for why we need this independent organisation, Ofqual.

This is set out in paragraph 14 of Schedule 9, where it is clear that Ofqual can perform sample testing as part of fulfilling its objectives. There are supplementary powers in Schedule 9, while Clause 164 gives Ofqual the ability to undertake research. As the noble Lord reminded us, he talked in Committee about the importance of Ofqual undertaking research and providing a strong evidence base for its work. We must, and do, support that.

On several occasions we have used the analogy of the height of the hurdle and the number of children who jump over it. The noble Baroness, Lady Walmsley, has asked whose job it is to ensure that as many children jump over it as possible. That is an important question. It is a policy responsibility of Ministers to work to increase performance standards in our schools, and Ministers must be and are held to account by Parliament. There are a number of sources of evidence about whether standards are improving; qualifications and assessments are one way of measuring that, but by no means the only one.

As the noble Baroness knows, Ofsted looks at standards through its inspection judgments. Those judgments will be brought together in the new school report card, which, I hope, we will enjoy debating at length in a few weeks. We do not think, however, that there is much value in seeking to come to a single judgment on standards, as it is a complex issue. Even if that were possible, rather than combining the variety of measures across all ages, subjects and areas, it would be much better to focus our efforts.

The noble Baroness, Lady Walmsley, asked about the Ofsted report on 14 to 19 delivery. Ofsted was reporting on the teaching of 14 to 19 qualifications; Ofqual will regulate them. The noble Baroness has expressed her party’s vision eloquently, but her amendments would turn Ofqual into a kind of super-regulator, which would have to come to a view on the performance of the education system as a whole, from young children right through to adults. There is a debate to be had on whether there would be value in establishing a body to try to come to such a view; indeed, such a debate, as the noble Baroness suggested, was held in another place in March. The Government disagreed then with the view underlying the amendments and we do so now.

We are discussing what Ofqual is for. Ofqual’s role, as set out in the Bill, should be to maintain standards of qualifications and assessments. That is a challenging but vital job, as the noble Lord, Lord De Mauley, stressed. We firmly believe that Ofqual should be allowed to have real focus. Others share that view. In their evidence to the Bill Committee in another place, both the chair of interim Ofqual and the director-general of the AQA awarding body were very clear, saying that for Ofqual to take on the job of looking at performance standards as a whole would give it too wide a remit and would create enormous challenges for it.

There are some issues of principle, too. The amendments suggest that the single most important role of qualifications is to test the performance of the system—the number of children and young people who jump over the hurdle. While that is one purpose, as we shall discuss when we reach Amendment 185, it is not the most important. The single most important reason for having qualifications is to recognise and reflect the achievements of learners—to make sure that the skills and knowledge that they have gained can be understood by employers and higher education institutions and that we as a society can recognise their achievements. If Ofqual were to focus on the performance of the system, it would risk losing sight of the needs of learners, which could be very damaging.

Moreover, this objective would add significantly to Ofqual’s costs. Conducting proper annual sample tests in different subjects across all age ranges and making meaningful international comparisons would not be inexpensive. We are not convinced that it would be a good use of Ofqual’s resources as it starts out. It would be better to focus those resources on improving the quality of education.

Finally, the amendment would leave Ofqual conflicted. If Ofqual ran sample tests, who would check, and provide assurance, that those tests were being organised fairly and that standards were being maintained? We want Ofqual to be the regulator. Let us leave it to do that critical job.

With regard to Amendment 160, it has been suggested to me by my officials that we could look at amending the Bill at Third Reading to require Ofqual to report its view on standards overall in its annual report. I am not sure how the noble Baroness, Lady Walmsley, or other Members of the House would feel about that. We discussed the relationship between Ofqual and Parliament in Committee. The Committee was keen that there should be a comprehensive exchange of information between Ofqual and Parliament, so I am prepared to think about that carefully.

I ask noble Lords to think about the hurdle picture. We are keen to ensure that we can be clear in this country that, when our young people leap over a hurdle, they can be really sure that we will all recognise how high they have achieved.

My Lords, I thank the Minister for her reply and for the support of other noble Lords. She has made two things very clear. First, Ofqual can do sampling but only against the objectives that it has in the Bill. That is why I have added another in Amendment 156, which covers the educational standard and performance objective so that Ofqual could do sampling in pursuit of that. If it tried to do so unless we put the objective in, I suspect that it would be held to account for doing something that was not consistent with the objectives it had in the Bill. Secondly, the Minister made it clear that if standards fall it is Ministers who should be held to account. However, how can Ministers adjust policy to ensure that standards do not fall if they do not have the information? Somebody has to collect it. I feel that Ofqual—

I ask the noble Baroness to think about the role of the QCDA and its work in assessing the national curriculum. Ofqual will have a very significant role in ensuring that those assessments are of the appropriate and expected standard. Ofqual will have a view about how the contribution of a qualification contributes towards the standing of a school in school league tables, for example. Ofqual will have a very important analysis that will help to hold Ministers to account, which is why we are doing this.

My Lords, I have not been involved in the discussions on this issue. I ask the Minister how a body set up to regulate standards of the quality of qualifications can carry out that task without at least having the authority on occasions to assess the way in which those qualifications are delivered at the coal face.

The purpose of Ofqual is to look at qualifications and the criteria for qualifications. Ofqual will be able to undertake research and will have a regular programme of research looking at comparisons over time. It will be empowered to do the assessments we are talking about. However, we are not asking Ofqual to assess the performance of the whole education system. We are asking it to assess the quality of the qualifications and the standards. If you have a GCSE today and you gain a GCSE in five years’ time or 10 years’ time, do they have the same value? This is the problem. When all our young people do so well at school and get their As at A-level and so on—there is huge concern that they have not done as well, as standards of A-levels are perceived to have fallen—we will have a mechanism, an independent body, that will be able to advise us on whether this is the case.

I hope that I will be permitted to complete my remarks after those two very useful interventions by the Minister and the noble Lord, Lord Walton of Detchant. I only have one more major point. The Minister suggests that to do what I propose would mean that we had a super-regulator. I do not expect that this sort of thing could be done by Ofqual right at the beginning. Ofsted started off as a fairly small, limited-powers organisation and its responsibilities have grown. I envisage a day when Ofqual will be asked by whichever Government are in power at the time to collect that sort of information, on which policy can then be based. I hardly think that I need to answer the question that the noble Baroness posed about what would regulate Ofqual; we could just go on and ask what would regulate it as well. However, I welcomed her suggestion that something might be added to go some way towards addressing my concerns at Third Reading, and I look forward to a conversation with her about that. I beg leave to withdraw my amendment.

Amendment 156 withdrawn.

Amendment 157 not moved.

Amendment 158

Moved by

158: Clause 127, page 78, line 15, at end insert “and that any increase in sums payable is not above the rate of inflation”

My Lords, I shall speak also to Amendments 162, 166, 168 and 184. In doing so, I will refer to a number of government amendments in this group which, while welcome as a step in the right direction, do not go far enough. The issues are the level and conditions of fee capping, the review of fee-capping decisions and the fairness of appeals against them, and the fairness of reviews of decisions to withdraw recognition from an awarding body. It is important that any decision on fee capping does not put undue burdens on colleges, which currently spend £170 million a year on exam entrance fees—for example, Leyton Sixth Form College in east London has 1,900 students and last year paid £284,000 in exam fees. Schools too pay very large sums. This is an enormous amount of public money and it should not be allowed to rise exponentially. That is why we have tabled Amendment 158. Can the Government assure us that this enormous financial burden will not get any further out of hand, and how Ofqual will ensure that that happens?

Amendment 162 recognises that Ofqual will not be able to deliver its aims unless it is given the remit of regulating the qualifications system as a whole, rather than the narrow remit of regulating qualifications providers. In Committee the Minister—the noble Lord, Lord Young—said that our earlier amendment on this matter, Amendment 233, would give Ofqual the responsibility of regulating the efficiency of the qualifications system without having the power to do so. He said:

“It would not be able to do anything to secure the efficiency of the wider system”.—[Official Report, 15/10/09; col. 404.]

However, there are things that Ofqual can do to assist the efficiency of the market within its powers as currently drafted. For example, it can require awarding bodies to provide certain types of information to schools and colleges to assist them to make efficient purchasing decisions. Our understanding is that Ofqual is already considering this. We understand the Government’s concerns, so we have proposed a good middle ground in Amendment 162. This would require Ofqual in performing its functions to have regard to the,

“efficiency of relevant markets for regulated qualifications”.

It would no longer be an objective—something Ofqual must aim to achieve—but simply something Ofqual were required to take into account. I hope the noble Baroness will be able to accept this.

Amendment 166 is about the fair operation of the fee-capping powers. It was tabled in the same form in Committee and I am afraid that the Government’s attempt in Amendment 165 to come some way towards us on this matter is just not good enough. In replying, the Minister suggested that it would not be practicable for Ofqual to carry out a market review before imposing a fee cap. But all the other regulators do this and Ofqual, if it is doing its job well, will probably have all the relevant information immediately to hand. We on these Benches feel it is important, in the interests of fairness and to protect innovation and choice, that Ofqual does not impose a fee cap unless it has taken the right precautions and assembled all the relevant facts. I hope that the Minister will be able to accept the need for this, so that Ofqual can be seen to be operating fairly.

That brings me nicely to Amendments 168 and 184, both of which relate to an independent appeals process. Amendment 168 relates to decisions on fee capping and Amendment 184 to decisions to withdraw recognition from an awarding body. A body whose main objective is to restore public confidence in qualifications should have the fairness of its own operations right at the top of its priorities. In setting it up in legislation, it is our duty to ensure that its procedures are fair. I do not think that it is fair, in Clause 135(5)(a) and Clause 148(9). For the person to be a senior member of Ofqual staff who is not involved in the original decision is just not independent enough.

I welcome government Amendments 167 and 183 as an attempt to make the reviewer someone outside Ofqual. The Government have accepted that any member of Ofqual staff would be compromised in that situation, which is why my two amendments seek to take the matter right away and put it in the hands of someone competent outside Ofqual—or outside the DCSF and government as a whole. Surely, there are competent people other than civil servants, bless them, who could do this job and in whose judgment both sides could have confidence. It would be even better if that person’s competence and independence could be accepted by both sides in the dispute. I hope that the Government will continue to demonstrate their willingness to listen to reason and accept at least the principle of the amendments, if they cannot accept the amendments as such.

I shall say a word about Amendment 180, tabled by the noble Lord, Lord Lucas, to which I have added my name. He will say more but, following the Minister’s explanation about connected activities in Committee, the impact on the credibility of UK qualifications or the fair operation of the system are the only legitimate reasons for Ofqual to have the right to look into other activities of the awarding bodies. Other than this, it is none of its business. If that is the reason for the connected activities reference, it should be put clearly and transparently in the Bill, as the noble Lord, Lord Lucas, suggested. I also support the amendments proposed by the noble Baroness, Lady Perry, on timeliness. I beg to move.

My Lords, I shall speak to Amendments 171, 181 and 182. In Amendment 170, as I made clear in Committee, I would like to see the power of Ofqual to intervene in fee capping removed altogether. I do not believe that it is necessary; it is really not a proper part of a regulator concerned with the academic and educational standards to be involved in the pricing and costing. I still believe, although the Minister teased me about a perfect market, that the market works perfectly well and needs no intervention from anyone. The Secretary of State at any moment in time can always intervene with a heavy hand by simply declaring his or her displeasure. Awarding bodies would probably jump very quickly to that. I accept that the Government have come a long way in their amendments to meet my concerns and those of many other noble Lords. I thank Ministers for having addressed the concerns to a very large degree.

I feel much more supportive of Amendment 168 than of Amendment 167, simply because the independence of the person who is to make the judgment in the government amendment has to appear only to Ofqual to be independent, whereas in the amendment proposed by the noble Baroness, Lady Walmsley, the person has to appear independent to the organisation subjected to the fee capping, which is a much healthier way in which to describe the independence. I hope that the Government take that on board at a later stage. Meanwhile I thank the Government for having met some of our objections to the fee capping.

Amendments 181 and 182 introduce the concept of timeliness, which we discussed in Committee. If Ofqual is to impose various kinds of draconian sanctions on any awarding body, it is vital that it should do so in a timely manner. In Committee, the Minister seemed to think that timeliness simply meant quickness or speed. Of course, it does not. You can be slow but timely; what matters about timeliness is that the time is appropriate and takes into consideration all the factors involved, not least the concerns of the young people who will follow the qualifications that may be removed or drastically altered by this. Will the Minister consider again the importance of putting in the Bill something that ensures that, when Ofqual moves in this fashion—to sanction or to close down an operation, or part of an operation, of an awarding body—it pays attention to doing so in a timely way?

I have three amendments in this group, but I shall speak to Amendment 171 separately, in its own place in the Marshalled List. That amendment is to do with the exercise of powers by Ministers and not by Ofqual and, since I want to say a fair bit on it, I would rather say it separately.

I start by welcoming Amendment 185, a perfectly drafted amendment, which absolutely meets the point that I made in Committee. I am extremely chuffed to see it on the Marshalled List.

Amendments 163 and 180 also come back to discussions in Committee. Amendment 163, which amends Clause 128, looks at the powers that Ofqual has to limit the number of different regulated qualifications in similar subject areas or serving similar functions. We had a good explanation of that power from the Minister in Committee. What I hope that I have done in Amendment 163 is to reflect the way in which he thought that that power should be used, clearing up confusion to make it plain that when you have a number of different awarding bodies, particularly in the vocational area, offering qualifications that are essentially the same, they must be brought under one banner. It does not matter whether it is the institution of this or the association of that offering it, but it must all have the same name at the end of the day, so that the pattern of qualifications is clear to those who have to evaluate them—principally, I imagine, employers.

That is an objective that I share, but as the clause stands it could be read much more widely than that and that Ofqual could go about striking out entire qualifications because it thought that there were enough of them. That is an activity that the Government are fond of; they are determined to limit the number of qualifications available for school use and not to allow any proliferation or variety. That is their present attitude. I very much hope that it will not be the attitude of the next Government. However, I do not think that it should be Ofqual's attitude under any circumstances. Ofqual ought to be there to judge the quality. Under Clause 128(3)(b), it ought to be improving the clarity and coherence of the offering to the public, but it ought not to be trying to remove variety and innovation.

My Amendment 180 is very much on a similar theme. As the noble Baroness, Lady Walmsley, has already said, Clause 145(1) allows Ofqual to,

“keep under review any connected activities of a recognised body”.

My amendment aims to limit that power to the area where such powers are necessary and justified, by adding,

“where it has reasonable grounds to believe these may impact on the credibility of the qualifications offered or the effective or fair operation of the system”.

Awarding bodies are large businesses with many activities outside the scope of Ofqual. In particular, they have succeeded in establishing throughout the world a system of British qualifications that is well known and extremely well respected. That is one of the main reasons why people from overseas wish to come here and study at British universities, and why our qualifications are respected throughout the world. They have a high degree of probity in doing that, and should not be subject to a degree of control by Ofqual beyond that which is necessary.

In the context of their general activities, it seems to me that awarding bodies may want to brief parliamentarians or to research problems with existing qualifications and propose remedies. They may want to have particular marketing plans for qualifications which are the same as or equivalent to our own domestic qualifications; they may want to have quite a strong media presence. All of those are things that Ofqual should not have any ability to stick its nose into, so the objective of my amendment is not in any way to keep Ofqual out of the area in which it should be involved, but just to say that it should not stray.

If one looks back at the history of the QCA, which was set up with a fine set of objectives, over time it reached and stretched out to see how much control it could exert over the whole educational system. At the point where it was put to death by this Government it had become a sprawling and invasive quango with all sorts of influences, most of them malign, in areas where it should never have had them. I would not like to see that happen to Ofqual which is, at its heart, an immensely useful body that should be set up to survive with a clear focus for many generations.

My Lords, I wish to speak to Amendments 158 and 165. My initial inclination is to follow the line proposed by my noble friend and colleague Lady Perry to the effect that we should minimise, as far as possible, reference to fee-capping powers and so on in the legislation. If we were to go for one or other of those, I prefer government Amendment 165 because it does not mention specific sums of money. My reason is that, as was shown to be the case in what went wrong with SATs 18 months ago, efficiency, effectiveness and value for money do not necessarily line up with price. I would wish to leave a freedom with those responsible for ensuring value for money that precludes naming specific sums and setting very specific limits.

My Lords, there are a large number of amendments in this group, and I start by recognising with gratitude—even admiration—that a great deal of work by Ministers and their officials, and, indeed, by noble Lords all around the House has gone into seeking consensus. Yet the sheer number of non-government amendments here suggests that we are still some way short of complete agreement, so I look forward to the Minister’s response to those.

I turn first to the amendments tabled by the Government. In this group, we see a number of concessions to the strength of opinion that Ofqual’s fee-capping powers should be constrained. In Committee, we expressed a desire to ensure that the market was not interfered with unduly, while ensuring that fees to exam boards should not be extortionate. Groups such as Edexcel had expressed concern that Ofqual’s power to cap fees might also have the potential artificially to alter the market and, in this way, could restrict the breadth of qualifications offered. Like my noble friend Lady Perry, we on these Benches strongly support diversity and choice. The power to cap fees must not be abused so as to risk smaller and more specialised qualifications being driven out of the market.

We recognise that the Bill brings in further safeguards, and so effectively limits further the fee-capping powers which were available to Ofqual under the Education Act 1997. Nevertheless, we welcome the fact that the Government have responded so positively to the issues raised in Committee. The power to cap fees will, assuming the amendment is accepted, be restricted to when it is necessary to ensure value for money. It is to be hoped that this will allow smaller and perhaps less overtly economic qualifications to survive, because the cap will be triggered only when it is necessary to restrict the cost to ensure that fees are not disproportionately high. That seems appropriate.

While we accept that it is often better to let the market have control of these situations, there are also occasions when schools and colleges are put in a position where exam fees are too high. In 2004-05, for example, my information—which I think is similar to that of the noble Baroness, Lady Walmsley—is that secondary schools spent £197 million on exam fees compared with £150 million on books for both primary and secondary schools. The Minister might like to consider those rather startling figures. Can she also provide your Lordships with some information about the use of powers to cap fees under the status quo ante? What impact does she feel that the changes and safeguards contained in the Bill will have on the market, and on the expenditure which schools have to make? We also support the need for an independent person to review decisions. The review must certainly be external and impartial if it is to be a transparent process and to have any real teeth. I will be interested to hear whether the Government have given any thought to Amendment 184, tabled by the noble Baroness, Lady Walmsley.

However, I am afraid I find myself unable to support her Amendment 166, which requires Ofqual to review the market and to impose a cap on fees only if it seems that the market is being distorted. While we see the rationale, we are worried that it could involve a great deal of extra work every time an issue arose where a fee was considered too high. It seems to follow that if Ofqual should be awarded the powers to cap fees, it should also be allowed to exercise its own judgment here. For the times when that breaks down, there is already to be an independent review process. I look forward to the response from the Minister to my noble friend Lord Lucas’s amendments. Regarding Amendment 171, can the Minister give us the Government’s assessment of the cost of doing that?

I turn to the amendments tabled by my noble friend Lady Perry. Amendments 181 and 182 refer to the fact that Ofqual must operate “in a timely manner”, whether recognising a body or withdrawing recognition. We accept the Government’s response that Ofqual already has an efficiency objective. Nevertheless, the powers to recognise and withdraw recognition are of paramount importance to Ofqual’s remit. The timeliness objective deserves to be underlined. Timeliness with regard to recognising an exam can be critical. It is simply not the same as efficiency—or even, as my noble friend said, as speed—as much as one might like it to be. We want to ensure that standards rise and that the public are reassured on this point. How can Ofqual hope to achieve that if it does not act in a timely manner?

Finally, we support and welcome the Government’s intentions in Amendment 185, but we rather hoped that they might have been a little braver. We on these Benches believe firmly in the rigour that examinations should have in ensuring that students enjoy the complete confidence of the receiving educational institution—or, indeed, the employer—after the exam has been taken. The meddling in, and micromanagement of, exams has, as my honourable friend Michael Gove said recently, dumbed the system down. There should be a distinction between what are seen as hard and soft subjects. We should not just measure, as the Government currently do, the GCSE performance of a school by the proportion of pupils who gain five A* to C grades, without taking into account which subjects have been taken. The argument that vocational subjects will be seen as less important is redundant. It is crucial to put an appropriate value on both academic and vocational subjects so that potential higher education institutions and employers can rightly distinguish the level of attainment. I very much look forward to the Minister’s response.

My Lords, as the noble Lord, Lord De Mauley, said at the start of his remarks, this is a large and, you could say, diverse group of amendments. I hope I can respond to noble Lords with the courtesy and attention that all the amendments require.

The noble Lord, Lord De Mauley, said that choice and innovation in the system are essential. I completely agree. I sense that we are all champing at the bit to have the debate about report cards, which will come to this House in the next Session; we are all looking forward to that. Of course, Ofqual has duties to have regard to reasonable levels of choice for learners and the desirability of facilitating innovation. The noble Lord, Lord De Mauley, should feel encouraged and reassured by that. He was particularly concerned that fee capping could limit innovation in the market and stop small qualification organisations from thriving. Ofqual will have to make sure that it does not do this; I am happy to say so on the record. It would risk not meeting its duty to have regard to the needs of learners if that were to happen.

I detected a concern in the noble Lord’s remarks about the potential impact on the market of the fee-capping provisions, and the kind of research that we have done to look at that. The QCA does not have an efficiency objective at the moment. As the noble Lord knows, its main focus has been on standards. It has only recently begun to investigate the efficiency of the market, as concern has grown in recent years. The noble Baroness, Lady Walmsley, referred to this. There is a great deal more work to be done before the regulator could seriously consider a cap on fees. I think we will all agree that this work will become increasingly important as pressures on the public purse grow.

Turning to the amendments relating to efficiency, it is important that Ofqual has an efficiency objective. I think we all agree on that. As the noble Lord, Lord De Mauley, and the noble Baroness, Lady Walmsley, reminded us, hundreds of millions of pounds of public money are spent on qualifications each year, and the taxpayer would rightly expect us to make sure that expenditure provides good value. I think we are as one on that. The ability to cap fees is a key power, needed to deliver the efficiency objective. The noble Baroness, Lady Perry, has argued that qualifications offer value for money. I am sure that she is right. The Association of Colleges argues equally forcefully, however, that they do not always offer value for money. There is a balance in here somewhere. If the association is right, Ofqual must be able to act. Given the debate in Committee, we have tabled amendments to place further constraints around the power.

The noble Baroness, Lady Walmsley, was concerned to stop spiralling qualification fees in schools and colleges. A key part of the answer here is for Ofqual to have an effective but proportionate fee-capping power to meet its efficiency objective. The question of whether Ofqual can ensure that awarding bodies provide good information to help schools in efficient decision-making is, as the noble Baroness, Lady Walmsley, said, extremely important. Yes, Ofqual will be able to do this, and it would be appropriate for it to do so. We very much hope that it will provide such information.

Amendment 165 sets a stiff test before Ofqual could impose a fee-capping condition. It must be necessary to cap fees to ensure value for money. The noble Baroness, Lady Walmsley, seeks to do something similar in her amendment. I am disappointed that she was not happy with our amendment because I think we are driving at the same thing. I am not sure how we can go forward on this; I hope that she will be able to support the government amendment because we have similar objectives.

Amendment 167, alongside Amendment 168 in the name of the noble Baroness, Lady Walmsley, looks at an independent review of fee capping. This would change the review arrangements for the fee-capping decisions, so that they must be carried out by someone independent of Ofqual. As the noble Lord, Lord De Mauley, said, we are inching in the right direction. I am glad that he was able to support us. Again, I hope the noble Baroness will accept this in place of her amendment. The “independent of government” restriction in Amendment 168 is unnecessary. If Ofqual established new arrangements which were not independent of government, the arrangements would not be considered sufficiently credible and impartial. I would expect Ofqual to publish details of the review arrangements.

Government Amendment 183, which looks at independent review of the withdrawal of recognition from an awarding body, is important. It makes the same changes to the review arrangements for withdrawal of recognition. Again, I hope the noble Baroness, Lady Walmsley, will accept this amendment in place of hers. We are attempting to achieve what the Committee flagged up as being extremely important. The final government amendment puts in the Bill our commitment to publish any guidance given by the Secretary of State on fee capping. This is a very important point, which noble Lords were concerned about.

Index-linking fee increases would add to Ofqual’s objectives that fees should not increase above the rate of inflation. It would push Ofqual to use its fee-capping powers even where there was no problem with value for money. That is not the right way to go. It would risk stifling innovation and investment, which are extremely important. We should instead trust Ofqual to come to the right judgments about whether and when fee caps should be used. I assure the noble Baroness, Lady Walmsley, that Ofqual would have to assess the efficiency of relevant markets to deliver its efficiency objective. Before it could consider fee capping, I would expect it to have to move quickly in doing so. I will come to timeliness shortly.

I am grateful to the noble Baroness, Lady Perry, for her generous remarks. If qualifications are value for money, with the amendments tabled today, Ofqual would not be able to cap. So she should have nothing to fear and I hope that I am reassuring her slightly. I was pleased that she made the point about timely not always being quick. I completely agree with her analysis. Timeliness does not always mean speed; it means “at an appropriate time”. Ofqual has to perform all its functions in a reasonable, timely and efficient way. I have rather a legalese line to give here, but I hope the noble Baroness will be generous in listening. My advice is that Amendments 181 and 182 would make the legislation inconsistent. They imply that these words add something which would not be there if they were left out. I had to warn noble Lords that that was coming. The serious point is that Ofqual would have to act in a timely manner when carrying out all its obligations under the Bill. If the noble Baroness wishes me to, I will certainly consider how we can tackle this question of timeliness, but rationally, the efficiency objective should cover timeliness.

If the House will forgive me, I will speak now to the amendments tabled by the noble Lord, Lord Lucas. Amendment 163 is about changing the names of qualifications. The noble Lord was also generous in his remarks. The amendment relates to the duty on Ofqual to seek to ensure that the number of titles for qualifications in similar subject areas, or serving similar functions, is not excessive. This provision, as the noble Lord reminded us, was debated at some length in Committee, and the noble Lord concluded by saying that our policy seemed to be immensely sensible. I welcome his support of our approach and I know that this amendment is trying to help us. I remain convinced, however, that the Bill delivers the policy intent and that this amendment would not work in practice.

I will say how we envisage that the duty might be implemented in the hope that this can be equally helpful. Ofqual is required to have regard to the reasonable requirements of employers and will, in particular, have to have regard to information provided by sector skills councils. So we expect that Ofqual will require any awarding body that wished to offer, say, an engineering qualification to do two things—first, to reflect in the design of the qualification the expectations of engineering employers and secondly, to call the qualification by a specified name, such as “Level 3 Engineering”. Provided that these requirements are met, Ofqual would not need to change the name of the qualification. If an awarding body wanted to put forward a qualification which did not meet the needs of employers and did not use the expected title, Ofqual would not need to consider whether it was, none the less, appropriate to regulate the qualification. If it did so, it would not be right for Ofqual to change the name of the qualification to “Level 3 Engineering”. That title would mean that the qualification met the needs of engineering employers and so should not be used for a qualification that was not approved by the sector skills council. So in that way the amendment would not work.

On Amendment 180, it has been suggested that this clause would give Ofqual a free rein to investigate the activities of any awarding body. I want to reassure noble Lords that this would not be the case. Ofqual, like any statutory body, can only use any of its powers to meet its objectives in ways that are consistent with its general duties. Before investigating a connected activity, Ofqual would have to be satisfied that doing so would support those objectives. It is hard to see how investigating an awarding body’s parliamentary briefings would help to meet Ofqual’s objectives. So this amendment is unnecessary. If Ofqual could not show that it was acting in a way that is consistent with its objectives and duties, it would be at risk of a successful challenge. I hope that my putting this on the record is helpful.

I will close by saying how pleased I am that the noble Lord, Lord Lucas, was delighted by government Amendment 185. I, too, am delighted to be able to finish on a positive note. This amendment follows a commitment I made in Committee after hearing the debate on the noble Lord’s amendment. It gives Ofqual a role reviewing the allocation of points to qualifications for the purposes of achievement and attainment tables and, in future, the school report card. As with national curriculum tests, Ofqual will have a duty to review the delivery of government policies. This amendment allows Ofqual to require the Secretary of State to provide it with relevant information. I hope my reassurances will persuade noble Lords.

My Lords, I am most grateful to the Minister and to everybody who has taken part in this wide-ranging debate. On my own amendments on fee capping, I have not tried to set any particular price. As the noble Lord, Lord Sutherland, rightly said, you would not want anything like that. But I have tried to set some sort of hurdle before the fee-capping power could be used. I am a little concerned about the phrase “value for money” in government Amendment 165. I am mainly concerned here about innovation and competition. I can envisage a situation where a new qualification is introduced and, without the economies of scale that might come later if it becomes popular, the awarding body may have to charge quite a high fee at first. I would not want innovation of that sort stifled by Ofqual jumping in right away and saying that the fee is too high, thereby causing the awarding body to withdraw the qualification because it is not profitable. We on these Benches accept that Ofqual should have the ability to cap but we want to ensure that it does so judiciously. I was reassured by the Minister saying that they would have to review the efficiency of the market before fee capping and that it would all be published.

On the two different kinds of reviews, the Minister said that the independence of the people doing the review would be assured because their names would have to be published. That would be all right for fee-capping decisions but it may not be all right for decisions relating to the possible withdrawal of recognition of an awarding body. The awarding body may not want the whole world to know that it is being reviewed because that might affect its reputation. Indeed, if it comes out that the decision to withdraw recognition was not justified, then the awarding body would go out into the world again with its reputation damaged. So we need to be very careful about publishing something like that.

On fee capping I am not so worried. The noble Baroness is right that publication of who is doing the review would certainly help, because Ofqual would not want to have its reputation damaged by publishing the fact that it is having a review done by somebody who is not independent. I accept what the noble Baroness said about that and would trust Ofqual. I am also reassured that government guidance on fee capping will be published and that those decisions will be in the public domain.

These are very complex issues, but with those slight additional concerns, I beg leave to withdraw the amendment.

Amendment 158 withdrawn.

Amendments 159 and 160 not moved.

Clause 128 : General duties

Amendment 161

Moved by

161: Clause 128, page 78, line 41, at end insert—

“( ) the need to ensure there are sufficient regulated qualifications to assess the National Curriculum;( ) the need to ensure there are sufficient regulated qualifications to assess the requirements for entry into institutions of higher education”

My Lords, I shall comment also on other amendments in the group. It is a somewhat complicated situation given that this is entirely new material which was not discussed in Committee, let alone earlier, although Ministers have been generous in sharing some of their thinking.

We are all conscious that it is most important that Ofqual should be independent and perceived as being independent. Those are the two benchmarks against which we need to judge the amendments in this group. The amendment simply sets out the crucial responsibilities that Ofqual must discharge if it is to be held to account by the Secretary of State when making a determination. The idea is surely that the Secretary of State may wish to make not just any old determination but specific determinations when Ofqual fails in certain duties. Hence, those duties need to be set out, and they are fairly set out—although one may disagree with the wording—in the two subsections of the amendment. Those should provide the hook for the appropriate way in which the focus on permissible determinations is to be formulated. For example, it would be perfectly reasonable to say that if Ofqual fails in these duties, then—but only then—the Secretary of State may instruct it to perform those duties. That is a limited and restricted reach-in power. It is not a general power to reach in and make determinations on the requirements of examinations.

However, that approach has been superseded by government Amendments 172 to 175. Noble Lords will remember a nice little rant by the noble Lord, Lord Baker of Dorking, who I am sorry is not in his seat, on 14 October, in which he pointed out that the Bill contained many different requirements with which it would not be possible for the bodies that have to act to comply. This is the sort of legislative pretence that we sometimes get into.

We might be into a similar pretence in Amendments 172, 173, 174 and 175. These are extremely complicated, but one of the crucial changes—I confess that I do not fully understand it, which gives me some pause, because I have tried to understand it—is in subsection (2) in Amendment 172, which, after all, provides a power to determine minimum requirements in examinations or assessments. It is a power to make determinations to which Ofqual must have regard in securing the provision of assessments for regulated qualifications. Amendment 172 states that the Secretary of State may do this under subsection (1),

“only if satisfied that it is necessary to do so for the purpose of ensuring that the curriculum studied by persons taking a course leading to the qualification, or a qualification of the description, is appropriate, having regard to the likely ages of those persons”.

We seem to have wandered into QCDA territory and to have left Ofqual territory behind. I hope that this can be clarified but, if not, this is an extension which is in one respect unnecessary because the Secretary of State in any case, rightly, can make determinations on what the QCDA does. However, this was meant to be a determination on what Ofqual does. I do not see how, as drafted, that amendment achieves that objective.

I might raise many other difficulties about the elaborate construction of Amendments 173 to 175, but in many cases they simply fall under the heading of regulatory excess, with the following effect. Ministers’ proposals may have to some extent converged with some Lib Dem amendments, but they may fail to hit the nail on the head for everyone. I do not know whether that is the case, because even after a lot of consideration I am not certain how the amendments—in particular, subsection (2) in Amendment 172—would actually work.

I shall speak briefly to Amendments 176 to 179. This is a curious situation. Clause 140—formerly Clause 138—caused us so many problems previously that the Government, the Lib Dems and the noble Lord, Lord Lucas, think that it should not stand part of the Bill. Therefore, I am a loss to understand the two amendments that have been tabled by the Lib Dem Front Bench and the noble Lord, Lord Lucas. Those amendments invoke a principle that needs clarifying if we are to understand the accountabilities that they introduce. The idea is that Ofqual should be independent and accountable to Parliament for its overall work, not that it should be accountable for particular requirements in particular examinations. Yet Amendments 177 and 178, unfortunately, if they were agreed, would introduce shared accountability between the Secretary of State and Parliament for particular determinations. Is this the way that we want to go? It would not just party-politicise the governance of Ofqual as a whole—because it is, appropriately, accountable to Parliament—but risk party-politicising particular requirements in particular examinations. My understanding was that everyone would wish to avoid that. I beg to move.

My Lords, I support the amendment tabled by my noble friend Lady O’Neill, to which I have attached my name. I wish also to address government Amendment 172.

We are all agreed that it is crucial to protect as far as possible the independence of Ofqual. The problem with standards in this country will never be resolved if the public believe that these questions are subject to political intervention. That would inevitably raise doubts, so there has to be an independent body, in so far as we can achieve that. I accept that in the course of the debate the Government have moved to meet the concerns of Members of the House who want to protect the independence of Ofqual. Today we have been offered, in effect, a new solution to that problem.

Amendment 161, on which my noble friend Lady O’Neill has expanded, is none the less a calm and precise way of dealing with and modulating the problem by accepting that there are circumstances in which the Secretary of State may intervene. She has put context around that, whereby an intervention would be practical, pragmatic and have proper objectives.

The difficulty with the solution proposed in Amendment 172 is that it is profoundly messy. To put it simply, the best argument—and it is a very good one—to be made for Amendment 172 is that, given the requirement to go before Parliament, the Secretary of State will avoid intervening in this area because it will be such a time-consuming and controversial activity. I can well accept that the news within any government Whips’ office that the Secretary of State wanted to devote parliamentary time to a determination in this area would be greeted with some disfavour.

I understand that the Government are proposing an inhibition; to that extent, there is greater protection for Ofqual. I value the attempt to do that, but there is a difficulty. Ministers may be of a more excited and interventionist disposition in this matter than perhaps they ought to be. Even today, the decision by the Minister responsible for schools, Ian Wright, on the Cambridge international certificates suggests that there is a degree of an interventionist disposition. It may be stronger than we suspect; it may be that Ministers are drawn like a moth to this particular flame.

When this matter reaches the Floor of the House of Commons, there is a danger of petty, partisan wrangling and, in particular, on historical questions—I speak as a practising academic historian—of non-productive debate in which people strike poses. No conceivable advantage to the academic reputation of qualifications in this country is likely to flow from such debates.

We respect the Government’s intention. We have to concede that there is serious enough logic behind the proposal, but even at this last moment I would be grateful if the Minister might consider that Amendment 161 is a quieter and calmer way of achieving the same type of compromise.

My Lords, I begin by saying how much I agree with the noble Baroness, Lady O’Neill, about the need to narrow as much as possible the circumstances in which the Secretary of State would appropriately lay a determination. I also agree with her that the solution to our disputes about Clause 140 that the Government have proposed is far from elegant. Compromises are often messy. Indeed, they are a complex spider’s web, which commentators and Secretaries of State will have difficulty penetrating. Perhaps that is quite a good thing, as it might dissuade them from trying to use the power at all.

However, I thank the Minister for listening to us about this and for coming up with some sort of compromise, imperfect though it may be. It may be complex and inelegant, but with one caveat I think that it will serve our purpose. My caveat is my Amendment 177, through which I would have any Secretary of State who was unwise enough to try to reach into Ofqual by making an appropriate determination subjected to the full glare of publicity by having to justify himself in Parliament prior to making that determination, which Parliament could vote against if it saw fit. I have been led to expect that the Government may well accept the principle of this amendment. That, of course, would then have to be drafted into the new replacement clause rather than into Clause 140, which I hope will be well and truly deleted and go into the history books as a result of Amendment 177, tabled by the noble Lord, Lord Lucas, to which I put my name.

I hear what the noble Baroness, Lady O’Neill, says about the possibility of the nature of the debate in Parliament. I do not think that I agree with her about what would happen. I think that the debate would be about the appropriateness of making a determination at all rather than about the detail of what that determination should be. However, if the Government accept the principle of my amendment, I would like to discuss with the Bill team the wording to be drafted into the Bill at Third Reading to pick up the principle of parliamentary scrutiny and to protect us from what the noble Baroness is concerned about. I agree with the noble Baroness and the noble Lord, Lord Bew, that that sort of debate is not desirable. In Parliament, the Secretary of State would be subject to forensic scrutiny, certainly at this end of the building.

Let me be clear. Most of all I would like to see this power removed completely. I would like to vote for Amendment 179 and leave it at that. Indeed, that is what we argued for in Committee. I simply do not accept that we need to legislate for the rare and improbable situation of a total breakdown of relations between Ofqual and the QCDA. If that was what the clause was for, the Government should have said so in the Bill. However, we now have a considerable narrowing of the door through which a meddling Secretary of State can slip—indeed, to Alice in Wonderland dimensions. Mr Ed Balls will need to be a white rabbit if he is to get through it. He would also need to be a very persuasive white rabbit if my Amendment 177 is accepted in principle and drafted in at Third Reading. He would have to convince Parliament that it was necessary and appropriate to interfere. It is inconceivable that Parliament would sanction such a thing if it were not unavoidably necessary.

This power of determination is the linchpin in the perception of the independence of Ofqual. I have already said how important we think that is. The public will not have confidence in Ofqual if they think that the Secretary of State can tell it what to do if he disagrees with it. There has been far too much of that. That is why we have negotiated long and hard with the Government on this matter. As long as we can have parliamentary scrutiny, we can now back the government amendments as a reasonable second best to the annihilation of the whole sorry thing.

My Lords, it is very seldom, if ever, that I have the temerity to disagree with my noble friend Lady O’Neill, but there is a first time for everything and this may well be it. I refer to the comments that she and the noble Lord, Lord Bew, made about government Amendment 172. Perhaps overnaively I simply read this, first, as a partial compromise but, secondly, as a way of ensuring that we know the relative powers of the Secretary of State and Ofqual. That is essential if we are to ensure the independence of Ofqual.

The one way of being assured that these powers are limited is to demand that there are public statements and scrutiny in both Houses. The temptation to which Ministers and Secretaries of State—present company excepted, I am sure—are subject often leads to meddling behind the scenes. There have been difficulties in the past over the work of QCA and its predecessor. The whole drive of many of us has been to bring all such comment into the public arena so that the Secretary of State or any other Minister must say publicly what the advice and activity are and, particularly through these amendments, must be subject to the scrutiny of Parliament. It may be that party politics occasionally breaks out down the Corridor, but I am sure that in the cooler and more temperate discussions that we tend to have here we might move a step beyond that. I support the Government and think that they have moved significantly.

My Lords, I, too, think that the Government’s compromise is liveable with, although I should have preferred Amendment 179. The Government have demonstrated today that JACQA gives them all the power that they need by demolishing the possibility of the IGCSE in English state schools. That is a terminal enough decision to give the Secretary of State all the power that he wanted over the qualifications system. People will pay attention to that. They will say, “We will not produce qualifications that the Secretary of State will blow out of the water at the last moment when we have spent a great deal of money trying to get them through the system”. I think that the Secretary of State will find himself consulted at a fairly early stage. I really do not think that the powers that the Government are retaining for themselves in their new amendments are necessary, but at least, as the noble Baroness, Lady Walmsley, says, they are restricted and public and I think that I can live with them.

My Lords, as we have said on several occasions in these debates, it is absolutely crucial—indeed, the noble Baroness, Lady O’Neill, said this—that Ofqual both is, and is perceived to be, independent. We also feel that it is essential that the Secretary of State is able to issue minimum standards. After all, it is the Secretary of State who is accountable to the public and will need to answer to concerns if standards are seen to be declining.

Throughout the passage of the Bill, we on these Benches have asked for greater transparency and clarity on the role of the independent regulator, so we are able to support Amendment 175 in its reinforcement of the Secretary of State being held to account before Parliament. In ensuring that Ofqual meets all the requirements laid down, we think it absolutely right that it reports to Parliament. We ask the Minister this: if Ofqual were to identify quality assurance issues in the context of qualification content, what action would the Government take to respond to that and would that response be publicly available?

The other amendments, however, serve to create further bureaucracy. Indeed, we fear that they would, in the rare event of the Secretary of State needing to set minimum standards, prevent him from being able to do so.

I thank noble Lords for what I think has been a helpful and important debate, including all those noble Lords who have been complimentary about our willingness to listen. I stress that our willingness to listen comes from the power and thoughtfulness of the arguments presented in this House. Our discussions around Ofqual and the powers of the Secretary of State to reach in to Ofqual, as the noble Baroness, Lady O’Neill, said in Committee, are at the heart of what Ofqual is about, but what we are discussing now is also testament to the power of scrutiny in this House. I did promise in Committee, in the light of concerns expressed, that we would review these provisions and come back on Report and we have, as noble Lords know, done that. I accept that the provisions are not elegant. I appreciate that it is not always easy to craft beautiful prose in legislation, but I assure noble Lords that we have been working hard to meet their concerns.

I start by reminding the House of the need for this power—I know that it feels as though we are going back a bit. We expect that QCDA will draft the qualifications criteria for qualifications such as GCSEs and A-levels that assess the national curriculum and the curriculum for 16 to 18 year-olds. The noble Baroness, Lady O’Neill, was very clear about the importance of that job and the role of the Government in doing that. These regulatory criteria do not just cover regulatory issues. They also set out the curriculum and what is being assessed. Ofqual will then decide whether it is content to adopt those criteria as its own and to regulate against them. It will need to be satisfied that the criteria are appropriate and that they allow standards to be maintained. If Ofqual decides that it cannot accept the criteria, for regulatory reasons, there is nothing Ministers can do about it. Ofqual must and will have absolute control of standards and other regulatory issues, such as grading, assessment and standards.

The position is different, however, if Ofqual decides that it does not like some aspects of the criteria that relate to the curriculum. Ofqual is not answerable for the curriculum; that is a policy issue for Ministers, advised by QCDA. If the national curriculum changed a book by Greene or Waugh, for example, there would be no reason for Ofqual to object to that. It is perfectly possible to set exams and grade those exams in a way that maintains standards, so it would not be right for Ofqual to object to such a change. All that this power does is to make that clear. If Ofqual did object to a change in the curriculum, Ministers could make a determination requiring the implementation of specified minimum requirements. Put another way, these provisions let Ofqual off the hook over the curriculum. They make it clear that Ministers are accountable for the curriculum, even though the criteria are Ofqual’s. It is not a reach-in power, as was suggested in Committee. In practice, of course, I do not expect that a determination would ever be needed, because Ofqual is unlikely to reject a determination. However, it is important that the Bill reflects proper accountability for the curriculum.

We have laid nine amendments to replace Clause 140 with four new clauses and to make various consequential amendments. These changes reflect what we have said in this House and elsewhere about how the power would be used. The net effect is that it would be difficult for Ministers to use the power. That is not to say that the power is not there, but it will be very difficult for Ministers to use. The amendments introduce a number of new checks and balances, of which two are particularly important. The first prevents a Secretary of State’s determination from being made unless there is a good reason for doing so—that is, unless there is a risk that the curriculum would not be appropriate for people who are at an age likely to take that qualification. So that is about the curriculum. By “appropriate”, we mean the national curriculum for people under the age of 16 and the Secretary of State’s policies for post-16 learning for people over the age of 16.

The noble Baroness, Lady O’Neill, suggested that this subsection wanders into QCDA territory. Indeed it does, in a sense. As ever, she is being extremely forensic. As I said at the beginning, the qualifications criteria, in part, implement the national curriculum. That is for Ministers. This subsection requires Ministers to worry about any damage to the curriculum before making a determination. In that, it reflects Ministers’ proper accountability. If Ofqual were acting—this is an extremely unlikely event—in a way that meant that an appropriate curriculum could not be delivered, a determination could be made to remedy that, but not otherwise.

The second key safeguard in the amendments addresses the concern that has been expressed about standards. Amendment 174 gives Ofqual a veto over any determination that would affect the depth of knowledge, skills or understanding required to pass the qualification—in other words, that would make it no longer consistent with the level of comparable qualifications. Standards are, of course, determined substantially by assessment and grading, which remain in Ofqual’s control. But this safeguard would allow Ofqual not to implement a determination if the minimum requirements were completely inappropriate for the standard of the qualification. I used the example in Committee of a determination that required the Mr Men to be studied at A-level. Ofqual could now throw that out, as I am sure it would, unless there was an unusual publication in the Mr Men series.

There are three further safeguards. The first is to make it clear that determinations can apply only to qualifications delivered to young people in maintained schools and colleges. That makes it clear that the Secretary of State can make determinations in areas where he has important concerns. The second is to require the Secretary of State to consult Ofqual and others before making a determination and to publish a document justifying the proposed determination. This reflects the fact that a determination would in practice be issued only where QCDA and Ofqual had not been able to agree on criteria. A determination would not come out of the blue for Ofqual; Ofqual would know that it was coming. The final safeguard is to make it explicit that determinations should be laid before Parliament. As the noble Baroness, Lady Walmsley, suggested, this is a very important safeguard. With these changes, I hope that the House is reassured about this power. It is important, but it is constrained in a way that is entirely appropriate and there are hurdles—if we keep that analogy—that would test that if it had not been properly thought through.

I shall speak briefly on Amendment 161. We had something similar to this amendment in Committee. I welcome the thinking behind it, which is to establish the principle that Ofqual is not responsible for the curriculum. However, the curriculum is what qualifications assess, and what qualifications assess is set out in the qualifications criteria, which are Ofqual’s. Therefore, this amendment would still put Ofqual formally in the lead in defining curriculum requirements. It could not replace Clause 140, and I do not think it would add anything if the government amendments I have just discussed are accepted.

Amendment 176 seeks to do something very similar to subsection (3) of the clause to be inserted by Amendment 174. Indeed, the Government’s amendment was inspired by an earlier version of this amendment tabled by the noble Baroness in Committee, and I am very grateful to her. I acknowledge that the Government’s clause is not easy to follow, and I appreciate the difficulty we are creating, but we believe it is the best way of achieving a standards veto for Ofqual.

I had hoped that with all the safeguards—

My Lords, can the Minister be clear that—this is how I understand it—she and the Bill team are prepared to work with me before Third Reading to make sure that we do not just lay this before Parliament but that it goes through the affirmative resolution procedure?

My Lords, the noble Baroness rises to speak slightly too quickly for me.

I had hoped that the safeguards we were proposing would provide the comfort that the House was looking for. However, having listened to the arguments, I am content to bring back at Third Reading an amendment that would require any determinations to be subject to parliamentary approval through the affirmative resolution process. The noble Baroness, Lady Walmsley, has convinced me that a determination needs to be debated in Parliament. I listened with interest to the alternative arguments put forward by the noble Baroness, Lady O’Neill, whose contributions to these debates on this clause have been most incisive and thought-provoking for me and for others, but on balance I am persuaded that the affirmative resolution procedure is reasonable and reflects Parliament’s oversight. My note says “oversight of Ofqual”, but I think it is actually oversight of the Secretary of State that the noble Baroness, Lady Walmsley, is looking for. I commit to continue working with noble Lords to ensure that there are no surprises for Third Reading—I shall do my very best—and that all those around the House can be comfortable with what we bring forward.

My Lords, the Minister listens very well, and she has been enormously patient with many of us who have had reservations. As I think I said in Committee, there are several ways to skin this cat. The Minister has gone for the way that we might call process-heavy and focus-light; I have been advocating the way that is focus-heavy and process-light. This reflects a general view about regulation. However, I believe that this will impose considerable constraints on any Secretary of State who seeks to make determinations that alter the requirements for the assessments for regulated qualifications, and I beg leave to withdraw the amendment.

Amendment 161 withdrawn.

Amendments 162 to 164 not moved.

Clause 135 : Fee capping conditions: supplementary

Amendment 165

Moved by

165: Clause 135, page 83, line 3, at end insert—

“(A1) Ofqual may impose a fee capping condition limiting the amount of a particular fee only if satisfied that the limit is necessary in order to secure value for money.”

Amendment 165 agreed.

Amendment 166 not moved.

Amendment 167

Moved by

167: Clause 135, page 83, line 17, leave out from “arrangements” to end of line 24 and insert “must require the decision on review to be made by a person within subsection (5A).

(5A) A person within this subsection is one who—

(a) appears to Ofqual to have skills likely to be relevant to decisions to impose fee capping conditions, and(b) is independent of Ofqual.(5B) A person is independent of Ofqual for the purposes of subsection (5A) if the person is—

(a) an individual who is not a member of Ofqual or Ofqual’s staff, or(b) a body none of whose members is a member of Ofqual or Ofqual’s staff.”

Amendment 167 agreed.

Amendment 168 not moved.

Amendment 169

Moved by

169: Clause 135, page 83, line 31, at end insert—

“(8) The Secretary of State must publish any guidance given under subsection (7).”

Amendment 169 agreed.

Amendment 170 not moved.

Amendment 171

Moved by

171: After Clause 139, insert the following new Clause—

“Funding of qualifications

The Secretary of State may not refuse to provide apporpiate funding for any qualification that has been approved by Ofqual if a city academy states in writing that the qualification offers advantages to its pupils.”

My Lords, I am afraid we may be putting off supper longer than some noble Lords expect by going on to this amendment. Certainly, I had expected to be released before supper, but there we go. I reassure the Minister that I do not actually want to put the word “apporpiate” into statute and that there are other reasons for not intending to press this amendment.

We are returning to the question of JACQA and the control that the Secretary of State has on what qualifications are provided in English schools. JACQA is explained at some length in a 45-page document that I had the pleasure of browsing through. It was not drafted with the same skill as the Bill, if I can put it that way, but the intent is quite clear. On page 6, it shows where the Government are heading, which is towards a very limited range of qualifications to be available in English schools: either GCSEs and A-levels or diplomas, apprenticeships, and, beyond that, foundation learning and some specialist qualifications. We have had the first taste of that today with the decision by the Government not to approve IGCSEs for use in English mainstream schools.

Not so long ago, the Minister was praising diversity and innovation—indeed, that is embedded in the Bill in the requirements for Ofqual—but that is not where her colleagues in another place are headed. To quote from today’s press announcement:

“Our qualifications strategy is securing real choice for young people with different learning needs”.

That lines up with what the Minister said. It continues:

“GCSE is robust, rigorous and proven … It … allows plenty of opportunity for pupils to be stretched”.

Many people have disagreed with that for many years. The main way in which that has expressed itself has been the growth of the IGCSE. The GCSE has never gained any currency internationally. The IGCSE has become increasingly popular in schools that are free to choose between it and GCSE because of the stretch that it provides—the way in which, for instance, in languages, it provides a real qualification rather than a pretend one—and many other aspects of the way in which it is better fitted to pupils with a degree of ambition who are likely to want to take the subject further.

The Commons Minister concludes:

“We don't want to go back to where qualifications served the needs only of a tiny few”.

What the Minister is doing is making sure that qualifications serve only the majority and that those who would be fitted by something different—by a minority qualification—are not to be allowed that qualification. What is to come after this? Presumably the international baccalaureate—I can see no mention here of the words in any context— which so recently was promoted by the noble Baroness’s department, is to be wiped off the face of state education. We are to have a system where the particular needs of pupils are subjugated to the wish of the Government for conformity and a system of examinations that is plain vanilla and simple and does not allow for variations. In particular, it does not allow for other qualifications to, I suppose the Minister would argue, show up the weaknesses in the qualifications that the department has chosen.

This is an immensely regrettable state of affairs. I do not have much hope that the Government will change their mind—in fact I have no hope—but I very much hope that my noble friends on the Front Bench and my colleagues in another place will continue to share my view about the iniquity of this. Qualifications ought, at the ultimate, to suit the people who are doing the learning. That ought to be what we care about. It is reasonable to wish to impose some structure on this and make it sensible, but it ought not to be done at the expense of the learners. Here we are, disadvantaging the whole of the state sector compared with independent schools, equipping them with a qualification that in many instances is a worse preparation for A-level than the IGCSE.

I presume that the Bill is looking to deprive those schools of the international baccalaureate—a qualification which for breadth stands over and above anything offered in the UK pantheon. It restricts vocational qualifications to diplomas, which are as yet untried and unproven; as with any innovation, they will clunk and squeak and need oiling, repairing and reassessing. Yet we are looking at destroying vocational qualifications, which have achieved a wide currency and respect, all in the name of conformity and of not allowing the best to succeed where the mediocre can be universal. I really hope that we will not find ourselves going in that direction.

I have a suggestion for how to deal with this—I am mainly talking to my noble friends. If we do not have flexibility generally and we want to be able to keep control of what is happening in the majority of schools, at least we should allow the best—those who we are absolutely certain are capable of taking decisions in the interests of their pupils—to vary from the government line and strike out to find qualifications that suit their learners. They will be approved by Ofqual and that whole process will be gone through to obtain a proper level of funding for them, which will be reflected in the determination, as we have seen elsewhere in this Bill, of the learning hours involved. This is looking at where the balance should be between schools and the Secretary of State and what qualifications should be delivered, and saying that the best schools should be allowed to choose the best qualifications for their pupils and should not be subject to the blanket blindness of the Secretary of State. I beg to move.

If it is really necessary for my noble friend, may I quote from my noble friend Lady Verma? She said in Committee that,

“increased choice in examination qualifications will help to drive up standards in schools. The schools which offer these diverse exam choices know that their parents have an option about where they send their children”.—[Official Report, 19/10/09; col. 460.]

My Lords, I do not want to keep noble Lords from their dinner, but I want to give the noble Lord's amendment the attention that it deserves. For the record, there were specific reasons for not funding Cambridge international certificates in some subjects. They did not meet the requirements of the curriculum. There is plenty of opportunity for diversity and innovation within the four national routes that the Government have identified. As noble Lords are aware, in time, we will undertake a review of the qualification system. The Secretary of State quite rightly has powers to ensure that public funding cannot be used to fund courses leading to qualifications that are not approved by him, even where they are regulated by Ofqual. Maintained schools can only offer courses that have been approved by the Secretary of State in practice. We have set out that we require qualifications to be regulated by Ofqual before they are even considered for use in maintained schools.

Funding agreements for academies require an academy trust to offer only courses at an academy that lead to external qualifications approved by the Secretary of State. However, academies have—this is what the amendment is about—more flexibility than maintained schools because they can submit proposals to the Secretary of State if they want to offer a course leading to a qualification that has not been approved by the Secretary of State, provided that it is regulated by Ofqual. It would be open to the Secretary of State to approve such proposals and agree an appropriate variation in the funding agreement. He might do so when he felt that it would raise standards or secure educational transformation in the circumstances that the academy is operating in.

There is flexibility for academies that wish to offer unapproved qualifications. In considering such approvals from academies, Ministers will need to take into account the views of parents, the impact on other local schools and the effect on pupils who may transfer out of an academy to another school. Ministers must take into account the importance of the educational opportunities for a young person should they decide to move.

With regard to the international baccalaureate, as we all know, young people are motivated by different types of learning. Some may prefer the IB and the noble Baroness, Lady Verma, spoke about the IB very passionately in Committee. They may prefer the new diplomas to A-levels and it is right that they have the choice. Entries for the IB are a fraction of those for A-level. A-level remains the overwhelming choice for students, schools, colleges and higher education. More than 200,000 people take A-levels each year, which is 100 times more than the IB. But we recognise that many HE institutions like the international baccalaureate for its broad base of study and we take heed of that view. The amendment would create an unnecessary requirement within the Bill. I hear the conversation between the Benches opposite and listen with great interest, but hope that the noble Lord will withdraw his amendment.

My Lords, I am comforted by the noble Baroness’s words about the IB, although given the contrast between what she said about choice and diversity and today's decision, I remain in a fairly bleak mood about where the Government are headed. In all of the 44 pages, I do not see the international baccalaureate mentioned in JACQA’s scheme for filing down and limiting the options for the qualifications that state schools can take. I hope for a better Government and I beg leave to withdraw the amendment.

Amendment 171 withdrawn.

Amendments 172 to 175

Moved by

172: Before Clause 140, insert the following new Clause—

“Power to determine minimum requirements

(1) The Secretary of State may make a determination specifying minimum requirements in respect of a specified qualification, or description of qualification, to which this section applies.

(2) But the Secretary of State may make a determination under subsection (1) only if satisfied that it is necessary to do so for the purpose of ensuring that the curriculum studied by persons taking a course leading to the qualification, or a qualification of the description, is appropriate, having regard to the likely ages of those persons.

(3) This section applies to a qualification, or description of qualification, if the qualification is one to which this Part applies and—

(a) one or more forms of the qualification (or qualifications of the description) is (or are) approved under section 98 of the Learning and Skills Act 2000, or(b) the Secretary of State reasonably expects approval under that section to be sought for one or more forms of the qualification (or qualifications of the description).(4) A minimum requirement in respect of a qualification or description of qualification is a requirement which relates to the knowledge, skills or understanding which a person must demonstrate in order to obtain the qualification or a qualification of the description.

(5) If the Secretary of State makes a determination under subsection (1) the Secretary of State must—

(a) publish the determination,(b) give notice of the determination to Ofqual, and(c) lay the determination before Parliament.”

173: Before Clause 140, insert the following new Clause—

“Consultation before making determination of minimum requirements

(1) Before making a determination under section (Power to determine minimum requirements)(1) the Secretary of State must consult Ofqual and such other persons as the Secretary of State considers appropriate.

(2) For the purposes of consulting under subsection (1) the Secretary of State must publish a document setting out—

(a) the grounds on which the Secretary of State is satisfied of the matter specified in section (Power to determine minimum requirements)(2),(b) the proposed minimum requirements, and(c) the Secretary of State’s reasons for proposing those minimum requirements.(3) The Secretary of State must provide a copy of the document to Ofqual and any other persons the Secretary of State proposes to consult under subsection (1).”

174: Before Clause 140, insert the following new Clause—

“Effect of determination of minimum requirements

(1) This section applies in relation to a qualification or description of qualification in respect of which a determination under section (Power to determine minimum requirements)(1) has effect.

(2) Ofqual must perform its functions under sections 132, 133 and 139 in relation to the qualification or description of qualification in a way which secures that the minimum requirements in respect of the qualification or description of qualification are met.

(3) But Ofqual is not required to comply with the duty imposed by subsection (2) if it appears to Ofqual that complying with that duty would result in the level of attainment (in terms of depth of knowledge, skills or understanding) indicated by the qualification or description of qualification not being consistent with that indicated by comparable regulated qualifications.”

175: Before Clause 140, insert the following new Clause—

“Amendment and revocation of determination of minimum requirements

(1) A determination under section (Power to determine minimum requirements)(1) may be amended or revoked by the Secretary of State.

(2) Sections (Power to determine minimum requirements)(2) and (Consultation before making determination of minimum requirements) apply to the amendment of a determination as those provisions apply to the making of a determination.

(3) If the Secretary of State amends a determination under subsection (1) the Secretary of State must—

(a) publish the amendment, or the determination as amended,(b) give notice of the amendment to Ofqual, and (c) lay the amendment, or the determination as amended, before Parliament.(4) If the Secretary of State revokes a determination under subsection (1) the Secretary of State must—

(a) publish notice of the revocation,(b) give notice of the revocation to Ofqual, and(c) lay notice of the revocation before Parliament.”

Amendments 172 to 175 agreed.

Clause 140 : Power of Secretary of State to determine minimum requirements

Amendments 176 to 178 not moved.

Amendment 179

Moved by

179: Clause 140, leave out Clause 140

Amendment 179 agreed.

Clause 145 : Review of activities of recognised bodies

Amendment 180 not moved.

Clause 147 : Power to give directions

Amendment 181 not moved.

Clause 148 : Power to withdraw recognition

Amendment 182 not moved.

Amendment 183

Moved by

183: Clause 148, page 90, line 3, leave out from “(8)” to end of line 10 and insert “must require the decision on review to be made by a person who is independent of Ofqual.

(10) A person is independent of Ofqual for the purposes of subsection (9) if the person is—

(a) an individual who is not a member of Ofqual or Ofqual’s staff, or(b) a body none of whose members is a member of Ofqual or Ofqual’s staff.”

Amendment 183 agreed.

Amendment 184 not moved.

Amendment 185

Moved by

185: After Clause 150, insert the following new Clause—

“Review of system for allocating values to qualifications

(1) Ofqual must keep under review any system used by the Secretary of State for allocating values to qualifications to which this Part applies by reference to the level of attainment indicated by the qualifications.

(2) The duty in subsection (1) applies only if the values are to be allocated for the purpose of a qualifications-based performance management system.

(3) A qualifications-based performance management system is a system for measuring the relative performance of schools by reference to the performance of pupils at the schools in qualifications to which this Part applies.

(4) Ofqual may at any time require the Secretary of State to provide it with any information which Ofqual considers it necessary or expedient to have for the purposes of, or in connection with, the performance by Ofqual of its duty under subsection (1).”

Amendment 185 agreed.

Clause 153 : Interpretation of Chapter

Amendment 186

Moved by

186: Clause 153, page 91, line 35, leave out “has the meaning given by section 140” and insert “means a qualification in respect of which the persons who are, or who may reasonably be expected to be, seeking to obtain the qualification are, will be or may reasonably be expected to be assessed for those purposes wholly in Northern Ireland;”

Amendment 186 agreed.

Consideration on Report adjourned until not before 8.41 pm.