Technical and Further Education Bill

Baroness Vere of Norbiton Excerpts

Report stage (Hansard): House of Lords
Monday 27th March 2017 Lords Chamber

[Baroness Vere of Norbiton (Con)]

My Lords, I am grateful to the noble Lords, Lord Young and Lord Watson, for tabling this group of amendments. I thank the noble Lord, Lord Young, in particular for his kind words relating to the intent of the Bill.

I turn first to consider Amendment 4. Ensuring that apprentices get the support they need to make the most of their apprenticeship and to progress into an engaging and rewarding career is essential. This amendment provides that the Secretary of State should bring forward proposals for the establishment of an apprenticeship helpline, managed by the Institute for Apprenticeships. Such an amendment is unnecessary as such a helpline already exists.

The National Apprenticeship Service operates a helpline that does two things: it provides advice to employers who wish to offer apprenticeships on all aspects of the scheme, including information on training providers, funding and recruitment; it also provides support to individuals who would like to apply for an apprenticeship and signposts them to vacancies on the GOV.UK site “Find an apprenticeship”. The helpline also provides help and support for apprentices and employers who have concerns or complaints. Teams within the National Apprenticeship Service investigate these where appropriate. If an apprentice raises concerns about employment law, the helpline refers them to ACAS if necessary. Advice on technical routes is currently offered by the National Careers Service. However, with the expansion of the remit of the Institute for Apprenticeships from April 2018, we will consider whether one service should be expanded to provide a one-stop shop for apprenticeships and technical routes.

I would now like to speak to Amendment 7. I welcome the sentiment behind the amendment: that small and medium-sized enterprises are encouraged and supported to employ apprentices and that these apprenticeships are of high quality. The noble Lord, Lord Young, is absolutely right that small and medium-sized employers are crucial to the success of our apprenticeship reform programme. After all, only 1.3% of employers will be paying the apprenticeship levy. To that end, the Department for Education is ensuring that smaller employers understand the benefits of apprenticeship training for their business, and that they take advantage of the support available, including the substantial contribution of 90% of the training and assessment costs for an apprenticeship.

To raise awareness and support smaller levy payers and non-levy payers, every local enterprise partnership has been given £5,000 to work on employer readiness for the levy and to support campaigns to raise the profile of apprenticeships. We are undertaking a wide range of communications and engagement activity to ensure that employers of all sizes are aware of how they can make the most of the opportunities presented by apprenticeships. The Get In Go Far campaign, for example, has focused specifically on helping small employers understand the benefits of apprenticeships.

However, on the noble Lord’s request that the institute has a specific role to monitor this, I believe that we have already established a remit for the institute which will ensure that apprenticeship standards and assessment plans are of high quality for apprentices employed in organisations of all sizes. The institute has been given a clearly defined role in which it will be responsible for: setting quality criteria for the development of apprenticeship standards and assessment plans; reviewing, approving or rejecting them; advising on the maximum level of government funding available for standards; and quality assuring some end-point assessments. While we expect the institute to engage with organisations such as local enterprise partnerships and local authorities, formally to monitor their performance would create an undue burden on the institute, preventing it from carrying out the range of its other duties effectively.

I hope I have provided sufficient reassurance that the Government recognise the importance of small and medium-sized employers and that the institute is already assuring the quality of all apprenticeship standards and plans, regardless of the size of employer.

I turn finally to Amendment 19 in this group. There is evidence that, in the past, some apprentices have not been clear on what their apprenticeship entitles them to and employers do not always understand their responsibilities towards their apprentices. Ensuring that all parties involved in an apprenticeship have a clear understanding of their roles and responsibilities is essential for it to be a success.

However, an amendment is not necessary to ensure this outcome. Section A5 of the Apprenticeships, Skills, Children and Learning Act 2009, which was inserted by the Deregulation Act 2015, provides that an apprenticeship agreement is an employment contract. It follows that all the safeguards which apply to employment contracts also apply to apprenticeship agreements. In addition, since the introduction of apprenticeship standards, we have required that apprenticeship commitment statements be signed by the apprentice, the employer and the provider at the outset of the apprenticeship. If the apprentice is under 18, it should be signed by a parent or guardian. This is required through the Skills Funding Agency funding rules.

The apprenticeship commitment statement sets out details of the apprenticeship and covers three areas: the name of the standard the apprentice is following and the start and end dates; the training that will be undertaken by the apprentice and who will deliver it; and the roles and responsibilities of the parties involved. For example, for the apprentice this might include a clear articulation of when they should attend work and when they should attend training, as well as appropriate behaviours in the workplace—although I am not sure that it will mention the laundry basket. For the employer, it might include how they will ensure successful delivery of the apprentice and preparation of the apprentice for their end-point assessment, and for the provider it might include clearly setting out the advice and support they can offer both the employer and the apprentice. The statement should also include details of how the parties will work together and how issues will be resolved. This is in addition to the employment law requirements on employers to set out the particulars of employment. Turning to the point—

[Lord Young of Norwood Green]

I welcome a lot of what the Minister has been saying, but is that formal signing process taking place now in all cases, or is the noble Baroness advising us that it will be a requirement from whenever? Can she clarify that?

[Baroness Vere of Norbiton]

Unfortunately, I am unable to clarify that at the moment, but I will write to the noble Lord. I will also unfortunately have to write to the noble Lord, Lord Watson, on his point about the Consumer Rights Act.

As a requirement of the Skills Funding Agency funding rules, the training provider must ensure that a commitment statement and the apprenticeship agreement are in place before funding is released, which implies that these things are happening—otherwise, funding would not be released—but I will confirm that. This is monitored by the SFA, and duplication by the institute is therefore not necessary. I hope that noble Lords will feel reassured enough on the basis of my explanation not to press these amendments.

[Lord Lucas]

Can my noble friend say whether the apprenticeship documents that an apprentice receives include the telephone number of the helpline?

[Baroness Vere of Norbiton]

Again, I am unable to confirm that, but I will write to my noble friend. If not, I think perhaps it should.

[Lord Young of Norwood Green]

My Lords, I thank the Minister for her comments. A number of them seem extremely helpful. I am appreciative of the fact that she will consider the one-stop-shop approach.

I may be wrong and only time will tell, and I do not accuse the Minister of complacency because I do not believe that that is the case, but I think that the Government are erring on the side of optimism in relation to small and medium-sized employers. The feedback I am getting—and I am sure I am not the only one—suggests that, while employers welcome the training costs being met, along with some other contributions, it may be that they have underestimated the position of employers who are saying, “I have a business to run and I am having enough trouble keeping it going. Now you are asking me to take on the responsibility of an apprentice”. In many cases, small employers do not have any experience of dealing with the administrative side. They may exaggerate its complexity, but nevertheless they see it as a burden and a disincentive. They say, “I still have the wage costs, which are not insignificant, and for at least the first six months and up to a year I do not necessarily have a fully productive employee”. In these dialogues I always say, “The point you are making is interesting, but when a business takes on an apprentice and the arrangement is working well, I am told that the young person is making a positive contribution”. A fresh pair of young eyes is able to suggest to the business how to make a significant number of improvements, not least in areas like IT where the young person is often more knowledgeable than the employer.

I would urge the Minister to look at the situation again. There is still uncertainty about how the levy is going to operate and how it will filter through to small and medium-sized employers. On its own, I do not think that meeting 90% of the training costs is going to achieve what is needed. The Government should not take my word for it. They should talk to chambers of commerce and the Federation of Small Businesses. I think that they will be given the kind of feedback that I have set out today.

Obviously, I welcome what has been said about the contract of employment. While there are a couple of points on which the Minister will come back to us, overall it is good. I do not know whether the response has covered the point I was trying to convey—perhaps I did not set it out well enough. I referred to trying to ensure that the formal signing of the apprenticeship contract is marked as an occasion, because it should be. I look forward to the day when I can go into a secondary school and see on the wall not only the names of those who have gone on to Oxford, Cambridge and other institutions of higher learning, but also a board showing the young people who have achieved apprenticeships. Surely that is just as important and, in my view, as life changing a proposition for young people as going to university.

Overall, I welcome some of the information we have been given because it is positive and useful. I have indicated the areas that I think the Government should revisit and I thank my noble friends who have contributed to the debate. My noble friend Lord Watson made a point about consumer rights and I welcome the support of the noble Lord, Lord Lucas. Obviously, I anxiously await the replies to the issues we have raised, but at this point I beg leave to withdraw the amendment.

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[Baroness Wolf of Dulwich]

My Lords, I rarely disagree with the noble Baroness, Lady Garden, on technical education, where I highly respect her expertise and experience, but I confess to a certain unease about the idea that there should be only one list and that it should overtly include everything. One of the key things that we are trying to do here is to create a highly respected and distinctive technical education course which sits alongside the academic one, and therefore by definition it cannot include everything that has passed a basic set of requirements for being an acceptable qualification.

I remind noble Lords that I have an interest in this, having been on the Sainsbury panel, but also looking back to my experience when I was doing the 14 to 18 vocational education review. I completely agree that one could go round for ever on vocational to technical to professional. But there is a really important distinction here between a limited set of qualifications that have been identified as having a very clear purpose and the possibility—and, I would say, high desirability—of allowing a very large number of qualifications to arise and be offered and meet a minimum threshold in the vocational and technical area. It may be that the wording of the noble Baroness’s amendment will not get in the way of that, but these distinctions are important.

When I made the 14 to 18 recommendations, I said explicitly that there should be a distinction between there being strong requirements before something could be offered in mainstream 14 to 16 education and a very different set of requirements which said that they could be out there and schools could offer them if they wished but they could not count in the league tables as being equivalent to GCSEs or A-levels. The same thing applies here with the task set for the new institute to identify qualifications which really meet the requirements of that distinctive high-status route. That is not the same as being on the Ofqual register.

This is not about whether it is craft or creative or technical, where I entirely agree with the noble Baroness, but about creating this “lost” route that we used to have without at the same time throwing overboard a large number of qualifications—some of them tiny, some of them big—which may serve quite different purposes. It is really important to recognise that one of the purposes of the institute is to create that alternative route and that part of that is about having a set of qualifications—probably not thousands long—that meet these criteria. Getting there is going to be difficult but if you do not have this end in view, it is hard to see how we will ever get out of what is at the moment a hugely confused and confusing mass of qualifications.

Again, to talk from personal experience, when I did the 14 to 18 review, I did not recommend anything like as much restriction at 16 to 18. What was recommended and adopted was this idea of a programme of study for each individual student between 16 and 18, which has worked quite well. I thought at the time that as a result of that we would move to a situation where a smaller number of good qualifications became clearly apparent as market leaders, and strongly established. I was convinced by Nick Boles, the Minister at the time the Sainsbury panel was set up, that this was just not happening; we needed to be more active and the programme of study was not enough.

It seems to me that a fundamental part of what the institute is about is creating a set of qualifications which meet the requirements for that alternative, high-status route from 16 on into adult life. Without talking to lawyers or drafting clerks, I do not know whether the amendment would have any negative impact on that but it is important to understand that one of the purposes of the institute, for which I think there is cross-party consensus, is to recreate that route. In my view, that means that you cannot just say that everything that is not an A-level can be on the institute’s list, because we need a list that is clearly part of this route without wiping out all the other many qualifications which may serve other and different purposes. That is what I wanted to say and I hope the noble Baroness and I do not really disagree.

[Baroness Vere of Norbiton]

My Lords, I welcome the opportunity to debate the amendments in this group. I thank all noble Lords for their contributions.

I fully understand why the noble Baroness and the noble Lord have tabled Amendment 6, which seeks to define technical education qualifications as,

“the full range of work-based qualifications”.

I reassure them that all relevant and appropriate occupations in the economy will be covered within the technical education routes. What is important is that there is good provision for everyone and that the reformed technical education system focuses on occupations for which skilled technical training is a requirement.

The Sainsbury panel report has already provided a clear definition:

“Technical education must require the acquisition of both a substantial body of technical knowledge and a set of practical skills valued by industry”.


Trying to define these qualifications in this manner could restrict the scope of technical education qualifications, both now and in the future. In practice, technical education qualifications will be defined by the coverage of the 15 technical education routes. Each route will provide a framework for grouping together occupations where there are shared training requirements. An occupational map will identify all the occupations within the scope of each route.

When defining the coverage of the 15 technical education routes, it is important to highlight that not all occupations will be included. The Sainsbury panel was clear that unskilled and low-skilled occupations that do not have sufficient knowledge requirements would not warrant a technical education route. Rather, these occupations can be learned entirely on the job, often within a matter of weeks. For these occupations, it would not be appropriate to offer technical education qualifications.

I reassure the noble Baroness and the noble Lord that within the technical education routes there will be comprehensive coverage of the skilled occupations that are vital to the success—

[Lord Young of Norwood Green]

I would like some clarification. The Minister said that the Sainsbury panel identified low-skilled or unskilled occupations that could be learned in a matter of weeks. We are talking about apprenticeships. The Government have already said that the minimum period for an apprenticeship is one year. That covers a very wide range of occupations. I would not necessarily call them unskilled or even low-skilled. Whether it is retail or anything else that is sometimes referred to in this manner, I do not think that is fair, especially if we are talking about an apprenticeship. We have said, I believe, that 20% of an apprenticeship should be off-the-job training. Which are the groups that do not require any technical qualifications whatever?

[Baroness Vere of Norbiton]

I thank the noble Lord for his intervention. I think it is unhelpful to try to put things into the brackets of “low-skilled”, “high-skilled” and “medium-skilled”, particularly based on what we experienced when we were much younger, and to try to connect them with apprenticeships. We are talking about technical education qualifications specifically, which may not be related to an apprenticeship. Occupations at the higher skill level will have technical education qualifications. Other occupations, while equally valid, will not.

Within the technical education routes there will be comprehensive coverage of skilled occupations. However, it is important to be clear that as well as meeting the technical education requirements set out in the Sainsbury panel, there must be labour market evidence to demonstrate employer need and a genuine skills gap. We will review this regularly and will continue to listen to any evidence from employers.

I am grateful to the noble Baroness and noble Lords for tabling Amendment 28 and for providing an opportunity to debate this issue. I hope that my explanation will put their minds at rest. The Ofqual register of regulated qualifications is a public-facing database listing the many qualifications that Ofqual regulates, including A-levels, GCSEs and functional skills. It is used as an indexing tool and includes information that helps employers, students and others understand the relative size and challenge of qualifications.

As noble Lords will be aware, new Section A2HA proposes that the institute will maintain a list of approved high-quality technical education qualifications based on the knowledge, skills and behaviours that employers have identified as requirements for particular occupations. When approving qualifications, the institute will need to ensure that the qualifications are at a level appropriate for the associated occupation or group of occupations. Qualifications will need to contain stretch and challenge that is commensurate with their ascribed level. They will need to be of an agreed size that reflects the amount of time involved in teaching and assessing them. This information will be clearly indicated in the list of qualifications maintained and published by the institute.

Once the institute has approved a new qualification, we will consider future funding for current similar qualifications on a case-by-case basis. We will not withdraw funding for students who are part-way through their course. Ofqual’s register of regulated qualifications and the institute’s register are both important parts of the system, but they have different purposes. If the institute’s register were to replace the Ofqual register, this would remove public information and a frame of reference for thousands of qualifications that would be outside the remit of the institute and which would have already been taken by students, including GCSEs and A-levels.

My noble friend Lord Lucas made a point about the suggestion from the noble Baroness, Lady Cohen, about “professional”. We have given this some consideration, and at the moment there is no consensus on an alternative to “technical education”. We have had a conversation today about technical education versus the entire gamut of qualifications or tests that you might take to work, which was mentioned by the noble Baroness, Lady Wolf. It is important that technical education retains a certain status within the minds of learner and employer.

There is a public need to maintain both registers. I hope that my explanation has reassured the noble Baroness to the extent that she is prepared to withdraw the amendment.

[Baroness Garden of Frognal]

I thank the Minister for her reply. I thank the noble Lord, Lord Lucas, for raising the matter of “professional”. I thought it had gained a certain accord in Committee, but it has obviously not found favour. I am sorry that the noble Baroness, Lady Wolf, disagrees with me on things or that she has sought to clarify. The short answer to my amendment is that there will not be only one list; there will be several lists. As the Minister explained, the Ofqual list is much broader. Presumably the institute’s list will be bits of what is on the Ofqual list. It will include some of the things on the Ofqual list which are relevant to higher technical qualifications, but if the Ofqual list is supposed to be a comprehensive list of all available qualifications, it will need to include those which the institute approves—perhaps I have misunderstood that.

I am also interested that it appears that we now have an A-list and a B-list, which I do not think was made particularly clear before. We have an A-list of qualifications which the institute approves, but in order to encompass all the other qualifications—the lower-level ones, for instance—there will be another list of qualifications which somehow will not come under the institute. This is confusing because the institute is now not only the Institute for Apprenticeships but the institute of further education, and further education, by definition, covers lower-level qualifications as well as higher-level qualifications.

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[Lord Watson of Invergowrie]

My Lords, I wish to say a few words about this group. My name appears on seven of the nine amendments before your Lordships, but I want to speak only on the question of copyright. The noble Baroness, Lady Garden, spoke to this group most effectively and I will not attempt to repeat any of her remarks because that is not necessary, but intellectual property is an important issue and we believe it must be protected.

I am aware that the Government have quoted the OECD as stating that the area of course development is not suitable for the market. It is perhaps counterintuitive for a socialist such as myself to criticise the Government for turning their back on the market in favour of introducing a monopoly. However, on this occasion I have to say—perhaps somewhat grudgingly—that I believe the Government are wrong, as there appears to be no convincing answer to the question raised by noble Lords in Committee as to what would happen if an awarding organisation failed and ultimately collapsed. The Government appear to have no plan B for such a situation, which is a very real matter for concern, not just for noble Lords but for awarding organisations.

Equally, the universally respected City & Guilds has highlighted significant concerns about its future. I think it is fair to say that at various stages in our deliberations on the Bill noble Lords have commented on the need to have qualifications and awarding organisations with some immediate recognition among the population in general. If you went out on to the street and did a vox pop asking people what City & Guilds were, you would get a pretty high proportion giving a reasonably accurate assessment of it. Therefore, I do not think that we should enter lightly into a situation where City & Guilds could be compromised. The organisation has written to noble Lords—as indeed the Minister may have seen—setting out a worst-case scenario, which could mean the end of City & Guilds as an awarding organisation in England and could signal the end of it as an awarding organisation in the devolved nations and internationally. It has also pointed out the potential negative impact on it as an apprenticeship awarding organisation due to a diminished role in the technical education route.

We believe that that should not be allowed to happen. The Bill could be amended but still achieve the aims of the Government’s skills plan through the Institute for Apprenticeships retaining copyright of the occupational standards and common qualification design criteria but allowing licensed qualification providers to retain copyright of the individual qualifications, as mentioned by the noble Baroness, Lady Garden, and the associated assessment materials.

The amendments in this group would provide some safeguards. I hope that the Minister will appreciate the spirit in which they are presented by noble Lords from across the three main political parties and take them on board, undertaking at least to come back at Third Reading with some proposals to mitigate those concerns.

[Baroness Vere of Norbiton]

My Lords, I am grateful to the noble Baroness and the noble Lords for tabling these amendments. I understand their concerns and hope that I might be able to provide an explanation that will put their mind at rest.

All these amendments relate to the copyright measures in Schedule 1. I know that how we implement the copyright measures is a cause for concern for awarding organisations, but it is important to understand that we would not be proposing these measures were they not vital for the success of the technical education reforms. I reassure noble Lords, on the record, that the legislation as set out in the Bill ensures that there is already a substantial amount of flexibility in how to implement the new system.

I should also say that it is not our intention to introduce legislation that disadvantages awarding organisations. They make a huge contribution and play a vital role in our technical education system, and we will continue to work with them to implement the reforms in the most appropriate and sensible manner. That work is ongoing and we are working with stakeholders to develop a commercial strategy that sets out in more detail how we will ensure a competitive and well-managed market for technical education qualifications. The Bill as drafted already allows us to do this.

I will take each amendment in turn. Amendment 24 would mean that the Institute for Apprenticeships could approve a technical qualification only when it had identified documents relating to,

“standards and common qualification criteria”,

and that these documents should be subject to the copyright transfer. As drafted, the legislation requires that copyright should apply to “relevant course documents”, by which we mean documents relating to the teaching and assessment of the qualifications. The Bill allows the institute the flexibility to define what is meant by “relevant course documents”. This will form part of the ongoing work to determine exactly how the measures will be implemented.

If the institute does not own the copyright for relevant course documents that are central to the delivery and assessment of a qualification, the reforms to technical education will be substantially undermined. There are a number of reasons for this. First, the new qualifications will be based on occupational standards and outline qualification content that have been developed by employers as convened by the institute. The institute will own the copyright for these. Documents relating to the teaching and assessment of qualifications that are developed by the awarding organisations will be extensions of these original documents.

Furthermore, the licensing model will succeed only if there is continuity in the system. Our intention is that, at the end of a licence period—and indeed if an organisation happens to fall into financial difficulties—there will be a new organisation, and the incoming organisation should not have to develop a completely new set of qualification documents, when the existing documents are likely to continue to be relevant or require only minor updating. In addition, it would simply not be a good use of taxpayers’ money to be paying for the development of a full suite of new materials every few years. Indeed, this defeats one of the aims of these reforms. The institute will make sure that the terms of the licence reflect the costs of developing and delivering a qualification. We have a duty to make sure that our skills system works in the interests of students and employers, and we have a responsibility to do so in the most cost-effective manner.

Amendment 25 would require the institute to make appropriate inquiries into the persons entitled to a right or interest in any copyright that could transfer. While I appreciate the intention behind the proposed changes, I hope to persuade noble Lords that it is unnecessary. New Section A2DA allows the institute, if it considers it appropriate, to approve a technical education qualification. As the legislation is currently drafted, the copyright of relevant course documents would transfer to the institute.

We recognise that there might be multiple contributors to the development of a technical education qualification, and that they are likely to want a say in matters that relate to their particular part. It would clearly be impracticable for the institute to obtain the individual consent of multiple contributors—it may not know the identity of many and they may have been subcontractors. We therefore expect that the organisation granted a licence to deliver a qualification would ensure that the authors of documents have given their consent.

The provisions as drafted already allow for the intention behind the amendment to be achieved. It requires that the institute is satisfied that each person who it thinks is entitled to a right or interest in the copyright agrees to that right or interest being transferred to the institute. We expect this to be part of the licensing arrangements too. We do not think the institute could not be satisfied that persons have agreed to the transfer unless it has received the information, which may necessitate an inquiry. Therefore, the amendment does not add anything.

Amendment 26 would replace “transferred” with “assigned”. Taken in isolation, we accept that this is unlikely to have any material effect on the proposed measures relating to copyright. However, the measure makes a similar provision to the transfer of copyright for relevant course documents as we have already done for the transfer of standards and apprenticeship assessment plans. The use of the term “transferred” in both measures is therefore designed to assure the reader that these provisions are consistent with each other.

We anticipate that the institute will hold an open competition inviting organisations to submit outline proposals to develop a qualification against pre-set criteria. Once the qualification is developed in line with the institute’s requirements, full approval would be granted with certain terms and conditions attached, including in relation to copyright of the documents defined as “relevant course documents”. The contract is likely to be a concession agreement, whereby the successful organisation enters into an agreement with the institute to have the exclusive right to offer the qualification for the duration of the contract period. At the end of the approval period, the institute would run another open competition, giving both the incumbent and other organisations the opportunity to put forward a bid.