Section 141: Power to determine minimum requirements
427.This section allows the Secretary of State to make an order specifying the minimum requirements in respect of knowledge, skills or understanding that someone must be able to demonstrate to gain a particular qualification or a qualification of a particular description (a term explained in paragraph 405 above). This reflects the fact that, in relation to young people’s learning, the Secretary of State is accountable for the curriculum, or knowledge, skills and understanding, assessed through qualifications; but it is specified at least in part through Ofqual’s qualifications criteria. These provisions therefore establish that Ofqual is not accountable for any parts of its criteria which, in effect, specify curriculum. An order could be used, for example, to ensure that the content of GCSEs properly reflects the NC Key Stage 4 Programmes of Study, which they are intended to assess. The Secretary of State cannot specify features of the qualification other than minimum knowledge, skills or understanding, such as grading or assessment. And an order cannot remove a requirement over knowledge, skills or understanding from a qualification.
428.The Government intends that the power to specify minimum requirements will be used only in exceptional circumstances. Normally any policy requirements relating to the content of a qualification would be reflected in the recognition or accreditation criteria, without any need for an order: we would expect the criteria to be drafted by the QCDA, reflecting the Secretary of State’s policy, and adopted by Ofqual provided that it was content that the criteria were appropriate and enabled standards to be maintained. An order would only be needed where that process had failed to reach agreement about some aspects of the criteria.
429.Reflecting this, the Secretary of State may only specify minimum requirements in relation to qualifications which are, or are likely to be, approved for public funding for people under 19, under section 98 of the Learning and Skills Act 2000 (subsection (4)).
430.Additionally, the Secretary of State may make an order only if satisfied that it is necessary to do so in order to ensure that the curriculum is appropriate for the ages of the people likely to be studying for the qualification (subsection 141(2)). For qualifications likely to be taken by people under 16 (for example, GCSEs), the curriculum leading to a qualification is likely to be “appropriate” if it is consistent with the National Curriculum. If, for example, Ofqual was proposing not to adopt draft GCSE criteria that reflected a particular aspect of the National Curriculum, then that may mean that young people studying for that GCSE will not study the full National Curriculum. In that case, an order may be appropriate.
431.For qualifications likely to be studied by people between the ages of 16 and 19, where there is no National Curriculum, the curriculum leading to a qualification is likely to be appropriate if it is consistent with the Secretary of State’s policies for learning in that age group. For example, the Secretary of State may have decided that all people of that age should seek to attain functional skills (core skills in English, maths and ICT), and an order could be made were it necessary to do so to secure that.
432.The Secretary of State intends to put in place and consult on a Memorandum of Understanding with Ofqual about the use of this power, setting out a clear process to ensure that the regulator’s independence and ability to maintain standards are not compromised.
Section 142: Consultation before making determination of minimum requirements
433.Before making an order, under this section the Secretary of State must consult with Ofqual and with others as appropriate (subsection (1)). We might expect him or her to consult, for example, with awarding bodies and with subject associations and professional bodies with an interest in the subject of the qualification. The requirement to consult with Ofqual reflects the expectation that an order will only be made where it has previously been discussed with Ofqual, usually following the development of draft criteria by QCDA.
434.For the purposes of the consultation, the Secretary of State must publish a document (subsection (2)) setting out:
why he or she believes that making an order is necessary to ensure that the curriculum is appropriate;
the minimum requirements he or she proposes to specify; and
the reasons for proposing these minimum requirements.
435.An order is subject to affirmative resolution. This means that, once the consultation has been completed, the Secretary of State must seek approval from both Houses of Parliament for the order before making it. There is no opportunity for Parliament to amend the order: it can only either approve or reject the order as proposed by the Secretary of State.
Section 143: Effect of determination of minimum requirements
436.Where an order is made specifying minimum requirements, Ofqual must then (subsection (2)) set recognition criteria, recognition conditions, and/or accreditation criteria for the qualification or description of qualification so that the minimum requirements set out in the order are met. It would then be for awarding bodies recognised to award the qualification or description of qualification to develop qualifications that met the criteria or conditions.
437.Where such an order has been made, there is an expectation that the QCDA would support the development of the criteria associated with the qualification (see section 180), which is why there is a duty on the QCDA to assist Ofqual in these circumstances where requested to do so.
438.Ofqual does not have to comply with the order if it would mean (section 143(3)) that doing so would result in the depth, or level, of knowledge, skills or understanding of the qualification or description of qualification not being consistent with comparable qualifications – i.e. those qualifications which were supposed to be at the same level. So if, in seeking to set criteria, Ofqual discovered that the content specified in the order was at a level that was inappropriate for the qualification, and therefore Ofqual could not maintain standards, it would not be required to implement the order.
Section 144: Revocation and amendment of orders specifying minimum requirements
439.The Secretary of State may by order revoke an order specifying minimum requirements, including where the qualification is no longer approved under section 98 of the Learning and Skills Act 2000 for use in a publicly funded setting. An order revoking an order containing a determination, or an order removing a qualification from the scope of such an order, is not subject to affirmative resolution and needs only to be laid before Parliament.