Apprenticeships, Skills, Children and Learning Bill

My Lords, I apologise; I had the benefit of the Minister’s introduction, for which I was grateful, but thereafter I had to chair a Select Committee that was taking evidence and, regretfully, missed a number of the earlier speeches. I declare my interests. I chair the Chartered Institute of Education Assessors, which inevitably has interests in some of the issues in the Bill. I was also the author of an independent inquiry on SATs that is referred to in the Explanatory Notes. I take full responsibility for that. There is much in the Bill that deserves comment. It is a varied and multi-headed Bill, as has been pointed out—almost Hydra-headed. I shall restrict my comments to Part 7, which deals with the setting up of Ofqual. I warmly welcome its creation as an independent regulator and a non-ministerial government department. Your Lordships might be interested to know that I believe the expression "non-ministerial government department" was first used in the context of education in the Education (Schools) Act 1992. In fact, I was given the responsibility of developing that department, which became known colloquially as "Ofsted". In order to find out what the job was, I went, as I thought sensibly I should, to speak to the Cabinet Secretary, one Robin Butler. When we sat down, he said affably, "What can I do for you?". I said, "I would like to know what a non-ministerial government department is". He said, "So would I. I thought you were going to tell me". We have moved a long way since then. It is now a term of art and, if properly applied to Ofqual, will improve significantly the way we deal with some of these matters. The critical issues in relation to Ofqual properly carrying out its role relate to its having the necessary powers and resources, having sufficient independence and having clear lines of accountability. Much of the background to this is what I had to plough through when looking at what went wrong with SATs last year. There have to be clear lines of independence and accountability, including a line to Parliament; provision is made in the Bill for an annual report to be laid before the House of Commons. There have to be lines to the Secretary of State, and it is correct that there will be a duty on Ofqual to report to the Secretary of State should it have reason to believe that there may be a malfunction, or even a potential malfunction, in the national assessment procedures. There will have to be lines of accountability and clear lines of communication with the various providers of regulated qualifications and, significantly, with the students and pupils who will be subject to these assessments. There is more in the Bill about accountability to the providers than about that to the students, and that is a weakness that we may want to look at in some detail. As part of accountability, the core report will be the annual report. "Who lays it before the House of Commons?" is an interesting question; I do not think too much hangs on it, but we ought to be clear. Is it the Secretary of State, or is it perhaps the chair of the relevant Select Committee in the House of Commons? I have mentioned the responsibilities of the Secretary of State. It is important that Ofqual understands that if malfunction appears on the horizon, there must immediately be a report. That was a failing last year when such reports were not forthcoming in time. There are responsibilities to the wider community, which the Explanatory Notes refer to as "the public confidence objective". The most important responsibility Ofqual will have is to issue a stream of independent reports commenting on processes, procedures and the quality of what is being done. In the minds of a number of people, there is some question about the relationship to the Secretary of State. The Bill gives the Secretary of State significant powers. For example, there is the power to determine minimum requirements, which, in effect, means minimum standards. The role of Ofqual is therefore, according to the Bill, among other things to monitor and regulate how these minimum requirements are met and enforced. There are some who question this and see this as a route to undermine the independence of Ofqual. I have thought hard about this. On reflection, I do not agree that that is an inevitable outcome, but there are certain points that must be taken into account. Two or three different considerations are relevant. On the one hand, who better to hold responsibility for minimum requirements? In some ways, it seems to be the least worst option. At least it is an identifiable figure, and if there are questions of standards not being met, we know who is responsible and where questions should be directed, and there are procedures inside and outside Parliament to direct those questions specifically. I was pleased to see in the Bill that a Secretary of State laying down or changing minimum requirements would be required to publish them. Publication is a key feature of this, and without it, it would not work. There would be a desperate temptation to interfere. If they are published, they can be questioned and analysed, not least—and I shall come to this in a moment—by Ofqual. Ofqual must have the independence necessary to comment on these minimum requirements. It may not agree with them, but part of its job is to check whether they are being met. If it is an independent body, it should also have the responsibility of ensuring that these minimum requirements are subject to proper public scrutiny and it can be an important partner in that. There are other grounds in the Bill for suspicion that there is a risk that a Secretary of State might interfere. For example, Clause 125 refers to the assessments standards objective—I was not quite sure about all these titles—which is, ""to promote the development and implementation of regulated assessment arrangements"." That responsibility is given to Ofqual. So far, so good, but in the Explanatory Notes there is a gloss on that: ""The ultimate responsibility for regulated assessment arrangements, which are statutory assessments, lies with the Secretary of State, so Ofqual‘s role is to monitor and report on those arrangements"." That is a significant diminution. What happened to "develop"? The Bill refers to promoting the development, but the Explanatory Notes refer to "monitor and report", and they are rather different. It is important to have that clarified by the Minister. "Monitor and report" is not the same responsibility as promoting "development and implementation". Another area I question—these are just two examples, but there are more—relates to Clause 126(6): ""Ofqual must also have regard to such aspects of government policy as the Secretary of State may direct"." That may seem looming and threatening, but I see the point. If Ofqual does not have regard to that policy, part of its job is not being done. However, does this preclude evidence-based comment by Ofqual on these policies? I hope not, and I hope we can have reassurance from the Minister that Ofqual is not prevented from commenting on the policies that will be stated by the Secretary of State. Ofqual must have adequate resources and powers. It must have an annual budget and means of determining that, and there must be all the usual discussions, bilaterals and arguments. I assume all that will take place, but we are told of something called the efficiency objective. This takes the remit significantly beyond the assessment of standards, which of course a regulatory body such as Ofqual is certainly engaged to do. My point here—it is important to be clear and precise—is whether Ofqual has responsibility under this efficiency objective to ensure that the processes are adequate and working well. What went wrong last year was that the processes looked good on paper, but they were not working. There needs to be some form of monitoring. Ofqual is an obvious way of doing that. If so, there is little mention in the Bill of ensuring that it has the resource and skill to monitor process. For example, one of the things I recommended was that if a contract was issued to an external provider it could in the early stages be subject to comment from Ofqual. In other words, what does it need in order to carry out the appropriate monitoring of the process? I would welcome reassurance from the Minister that it will have the responsibility of monitoring process as well specifically as standards. There is a further point on this. One of the clauses refers to entry and inspection conditions, which "may be" imposed on granting regulated standing. The Bill says that this "may be imposed"; I think it must be imposed. Indeed, it should not be a "may" or a "must" but a "will be imposed". Unless Ofqual has the right to ask for relevant information and data whenever it sees fit and appropriate, the risk of the thing going off the rails is considerable. That happened last year. The embryo Ofqual, which at that time was still part of QCA, was not able to receive, to ask for and be provided with, the information it thought necessary to do its job. There must be a specific power to ensure that it has that capacity. I have one last point. Ofqual is also responsible for handling changes of criteria for recognition. What account will be taken of the needs of those seeking recognised assessed qualifications; in other words, the students and pupils? The handling, withdrawal or surrender of recognition could have a significant impact on students already on a course, or who have made earlier education choices with the aim of picking up a particular qualification. If the provider can no longer provide these because of decisions by Ofqual, there needs to be assurance that Ofqual will take this into account and have plan B so that students are not left hanging. I can see that we are in for an interesting time. There will be many questions to raise in Committee.