Commentary on Sections Part 7: Office of Qualifications and Examinations Regulation Minimum requirements 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.