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Apprenticeships, Skills, Children and Learning Act 2009

(4).Amendments to the provisions in the Education Act 1997 governing the regulation of qualifications in Wales, keeping the regulatory powers of Welsh Ministers broadly in step with those of Ofqual (paragraphs 14-19)
Paragraph 15

546.Paragraph 15(2) amends section 30 of the Education Act 1997 to provide revised functions for the Welsh Ministers in relation to vocational and academic qualifications. The new subsection (1) for section 30 reflects the Welsh Ministers’ existing functions, except in the following cases: the Welsh Ministers now have a function of determining whether a relevant qualification, or a description of qualification, is to be subject to a requirement that it be accredited. The Welsh Ministers also have an additional function of publishing and disseminating (or assisting in the publication or dissemination of) information relating to recognised bodies. The qualifications falling within the Welsh Ministers’ remit have also changed. As a result of the amendments, the provisions will refer to “relevant qualifications”, replacing the reference to “external qualifications”. A definition for relevant qualifications is provided in paragraph 15(6), as outlined below.

547.Paragraph 15(3) makes consequential amendments to update references to subsections in section 30 of the 1997 Act. This reflects the insertion of new functions and the re-numbering of the paragraphs in section 30(1).

548.Paragraph 15(4) replaces section 30(1B) and paragraph 15(5) repeals section 30(1C), (1D) and (2) as a consequence of the Welsh Ministers having made an order under the existing section 30(2) transferring all remaining functions under section 30 to their sole exercise. In other words, the QCA’s role in Wales has ceased by virtue of the order (and so the QCDA will have no functions in relation to Wales).

549.Paragraph 15(6) provides a description of the qualifications (the “relevant qualifications”) that fall within the Welsh Ministers’ remit. Qualifications that are foundation, first or higher degrees are excluded from that remit. A qualification is to be considered as awarded or authenticated in Wales where there are (or may reasonably be expected to be) people in Wales seeking to obtain that qualification who will be assessed wholly or mainly in Wales. References to “externality” are removed which means that the Welsh Ministers will be able to recognise bodies which both teach and award qualifications, for example, employers or colleges.

550.Paragraph 15(7) repeals section 30(6) of the 1997 Act which has the effect of disapplying the definition of external qualifications contained in section 24(7), which will be repealed, see comment on paragraph 15(2) above.

Paragraph 16

551.Paragraph 16(2) and (5) substitutes “persons with learning difficulties” for “persons with special learning needs”, mirroring the change made in relation to the QCDA. The word “reasonable” is also added, so section 32 of the 1997 Act will provide that the Welsh Ministers must have regard to the reasonable requirements of persons with learning difficulties in carrying out their functions. Paragraph 16(2)(a) also qualifies the duty to have regard to the requirements of industry, commerce, finance and the professions by reference to reasonableness.

552.Paragraph 16(3) amends the power for the Welsh Ministers to place a limit on fees charged by a recognised body for the award or authentication of a qualification. A fee capping condition may be applied to any charge levied in relation to the award or authentication of a qualification or any other service provided in relation to such a qualification. It might include, for example, any fees charged by the recognised body to recognise a school or college wishing to offer the qualification.

553.Paragraph 16(4) removes the power for the Welsh Ministers to act as agents for the QCA. It is not intended that the QCDA will exercise any functions in relation to Wales and this provision therefore becomes redundant.

Paragraph 17

554.Paragraph 17 inserts into the 1997 Act a new section 32ZA containing power for the Welsh Ministers to co-operate or work jointly with a relevant authority in connection with carrying out their qualifications functions. A “relevant authority” is a person (whether or not in the UK) carrying out functions which are similar to the functions of the Welsh Ministers in relation to qualifications. The Welsh Ministers may provide information to such an authority, subject to any such disclosure not being in contravention of any other Act. The Welsh Ministers may establish joint committees where appropriate to do so for the carrying out of any of their qualifications functions and may delegate any of their qualifications functions to such a committee on such terms as they determine. The Welsh Ministers with any other person with whom they established the committee, may direct the committee as to what it may do.

555.These powers taken together will enable the continued operation of the three-country framework, whereby the qualifications regulators in Wales, England and Northern Ireland work together on the regulation of qualifications across all three countries.

Paragraph 18

556.Paragraph 18(2) makes a consequential amendment to section 32A of the 1997 Act to reflect the QCA’s regulatory functions being transferred to Ofqual. Paragraph 18(3) makes a consequential amendment to reflect the insertion of new sections by paragraph 19. Paragraph 18(4) removes subsection 32A(6) from the 1997 Act, which becomes superfluous.

Paragraph 19

557.Paragraph 19 inserts new sections 32B and 32C into the 1997 Act. The new section 32B (which reflects the provision made for Ofqual by section 152) provides that if an awarding body has not complied with a condition of recognition or accreditation, the Welsh Ministers may withdraw recognition in relation to some or all of the qualifications for which it is recognised. However, the Welsh Ministers may only do this if the awarding body’s breach of the condition seems likely to prejudice either the proper award of a qualification or a person expecting to be awarded with a qualification.

558.Subsections (5) to (11) of the new section 32B set out the steps that the Welsh Ministers must take before withdrawing recognition or accreditation, including giving notice of their intention, taking account of representations from the awarding body, and putting in place arrangements for the review of decisions.

559.The power for the Welsh Ministers to withdraw accreditation or recognition is currently implicit in the Education Act 1997 as amended by the Education and Skills Act 2008. The insertion of an express power in relation to recognition clarifies the scope and operation of what otherwise would have been implied powers and thereby provides greater transparency.

560.New section 32C provides for a recognised awarding body to be able to surrender its recognition, in whole or in part. A recognised awarding body may give notice to the Welsh Ministers, who then determine the date the recognition is to cease. In setting that date the Welsh Ministers must have regard to the need to avoid prejudice to those seeking to obtain the qualification in question.

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