Apprenticeships, Skills, Children and Learning Bill

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—