Apprenticeships, Skills, Children and Learning Bill

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 However, that approach has been superseded by government Amendments 172 to 175.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.