Apprenticeships, Skills, Children and Learning Bill

My Lords, this is another group of amendments that get right down to the detail of how Ofqual does its business. In most cases, we feel that these amendments are unnecessary, not because Ofqual should not be doing most of the things that it is set out to do, as I hasten to assure the noble Baroness, Lady Walmsley, but because it does not need to be told in the Bill to do those things. As with any Bill, we cannot cover every eventuality; we have to rely on the organisations concerned to act reasonably, backed up if necessary by public law principles and the courts. If, for example, Ofqual failed to consult any awarding bodies on changes to recognition criteria that impacted on them, it could be at risk of successful challenge. We are fortunate in this country to have awarding bodies whose expertise in assessment and qualifications dates back, in some cases, well over a century, as the noble Baroness, Lady Garden, knows, and which are recognised internationally. Of course, Ofqual will need to recognise and call upon this expertise. Against this background, requiring Ofqual to have regard to information provided by recognised awarding bodies, as Amendment 239 does, may sound unexceptional. But it would make for quite the wrong relationship for a regulator to have with those it regulates. Ofqual needs to be a transparent, listening regulator, ready to learn and ready to work co-operatively with awarding bodies, but it needs to be detached enough from awarding bodies to regulate them robustly where necessary. The Clause 143 power to keep under review activities by awarding bodies that are "connected matters" is an essential part of its toolkit. Here I respond to one of the questions asked by the noble Baroness, Lady Walmsley. It will allow Ofqual to monitor any other activities which may, for example, impact on the credibility of the qualifications offered or the effective or fair operation of the system. It allows Ofqual to look at things such as any awarding activities overseas or in the unregulated market in the UK in relation to qualifications that are similar to those that Ofqual is regulating. For example, if a body is offering overseas qualifications that are similar to those that Ofqual is regulating, that may have a bearing on the credibility of the regulated qualifications. For example, in the European market, where workers have the right to move around, if they come to the UK with a qualification we would expect that qualification to have the same integrity and quality as the qualification offered in the UK. There may be conflicts of interest. If an awarding body were insisting, say—and this is a connected activity—that those studying for its qualifications must use particular text books, then Ofqual should be able to do something about it. It is not an unduly broad power; a connected activity needs to be relevant to the awarding body’s recognition or a regulated qualification. Ofqual can use this power only to meet its objectives and in ways consistent with its general duties. We know that some awarding bodies have expressed concerns about these powers, and have suggested that they are very broad, which we do not believe they are. In any case, sometimes regulators have to be able to do things which those they regulate do not like: Ofqual’s primary focus should be the needs of the learner, not the awarding bodies. Were we to make this amendment, we may yet regret the impact on the learner of constraining Ofqual’s ability to be a robust and effective regulator. Amendment 259 would narrow Ofqual’s scope, so there is a judgment to be made as to how strong a regulator we really want Ofqual to be. If there were an activity Ofqual was concerned about, that activity would have to pass the "directly and materially" test before Ofqual could even start investigating. An unscrupulous awarding body could use that to keep Ofqual away from any activities which it would rather the regulator did not know about. That could risk damage to the qualifications system, which I am sure we would all want to avoid. On the review, any decision to refuse an application for recognition or accreditation should be subject to a formal review. If Ofqual refuses an application for recognition it must provide the awarding body with a statement setting out the reasons for its decision, but there is no requirement for a formal review process. In contrast, in the case of Ofqual withdrawing recognition, it must establish arrangements for a review, as set out in Clause 145. In practice, I imagine that Ofqual may well want to put in place review arrangements to prevent any dispute going straight to the courts. We should not be legislating unless we need to, and here we do not need to. On the question of cessation of qualifications, which concerned the noble Baroness, Lady Verma, I will have to write to her. I understand her concern. One would like to think that it would not happen, but we will deal with what would happen in the event that it did. I hope, with that explanation and those assurances, that the noble Baroness, Lady Walmsley, will feel capable of withdrawing her amendment.