HL Deb 01 July 1993 vol 547 cc999-1013

7.55 p.m.

Earl Russell rose to ask Her Majesty's Government whether, in view of the current difficulties about testing in schools, they will in future refrain from introducing contentious matters by regulation.

The noble Earl said: My Lords, I am sorry if any of your Lordships thought five minutes ago that I had perhaps skipped bail. I assure the House that I was in fact on remand not far away and am now in my place. It is not my intention to make a party political speech. Whether I shall achieve that intention I do not know; but I shall try. I have given notice to the noble Lord, Lord Judd, and to the Minister, that I shall try.

Some questions are too important to be used for party politics. I am concerned about the need for consent in the processes of government and the difficulty of achieving that consent. That should never be a party matter; and I hope that it will not be. In the specific context of school tests, I say only that I very much hope that we shall not be discussing them in this Chamber in a year's time. Whenever the Dearing review reports, and whatever it states, I hope that the review will give rise to a genuine dialogue, and that whatever comes out of that dialogue will be a system that those concerned can, with conscience, operate.

I do not believe that anyone in any quarter of the House can regard the present situation with entire satisfaction. I wish to suggest that the bad politics of this situation are the result of a faulty parliamentary and legislative procedure. I remember extremely well the debate of 5th May 1988. It was my first full day in Committee in this Chamber. Therefore I remember it a good deal better than I may remember other days. In that debate it was clear that there was support in every quarter of the House for the principle of school testing and a great deal of doubt about what type of tests the Government intended to introduce.

As the debate continued, it emerged slowly that the Government did not know. The noble Baroness, Lady Hooper, who was at the Dispatch Box, said: It was never the Government's intention to put this sort of detail into the Bill. It is a framework Bill".—[Official Report, 5/5/88; col. 707.] I place that remark beside the memorandum of the Hansard Society when giving evidence to the Delegated Powers Scrutiny Committee of this House, which stated: We emphasise that statutory delegation should never leave an Act bare of everything except a framework of ministerial powers, with all the real substances being left to ministerial regulations".

In 1988 the situation was even worse because the decisions on those vital and contentious questions of how tests should be conducted were left not even to statutory instrument, nor to the affirmative or negative procedure, but simply to a plain executive order. The effect was to let the Secretary of State off the lead of the requirement to look for consent. When let off the lead, it is a great temptation to start chasing hares. He was let off the lead, and I think that the effects were unfortunate. In making something like this work, there is a need for bargaining, consultation, adaptation and even occasional changes of mind. Most vital, there is a need to recognise that there are independent professional values, even if they should happen to be wrong. One cannot expect self-respecting members of a profession to operate procedures which they believe—however mistakenly it may appear to be —by their own professional standards to be wrong. There has to be a diplomatic negotiation.

Therefore, we need a procedure which ensures that that takes place. This procedure by executive order does not allow that at all. As my noble friend Lady Seear said in 1988, it looks like a diktat handed down from on high. In fact, it was a procedure without the proper safeguards. It had no proper safeguards for ensuring that what was put forward was ready. I shall not go into the detail of key stage 3, but I make the point that when trouble arose, there was an attempt to deal with it, in effect, by hectoring. That is what happens when one is rushed into a situation and one has no chance of getting out of it, except by driving straight on.

The Government have spent so long dealing with trade unions that they tend to see trade unions under everything. Therefore, I shall quote on this something which is about as far from a trade union organ as I can think of: the editorial in the Oxford Magazine in the first week of this term. It said that the Government, showed an unhealthy (and not unfamiliar) mistrust of a profession's ability to do its job without rigid specifying and recording, … [this] would explain far more recalcitrance than teachers have yet shown. So far from being quick to resist, they have been remarkably patient". That is an opinion which I think ought to cause some anxiety.

It is also vitally important that we should not be in this position in a year's time when the Dearing review reports. Dr. John Marenbon, a fellow historian whom I know and like, said that the time limit would not allow for the thorough reconsideration of basic principles which is needed if national testing is to survive.

Those last words are important, for national testing cannot survive unless a dialogue takes place between the Government and the teaching profession, with the understanding that their values are different. Unless some point of accommodation can happen, nothing can be done.

That is where it is so important to have a procedure which allows not only for the consultation, but also for time in which mistakes can be ironed out. No one is perfect, every proposal when first put forward contains some things which are not right and which may not work. The other point which is of vital importance is that in this culture there is an indissoluble association in most of our minds between the giving of consent and the process of voting. Many professional associations outside Parliament know well that the best chance of defeating any government proposal to which they find it difficult to consent is in this House. So when this House cannot vote, it is a great deal more difficult to achieve consent in the outside world.

I would not wish to imply by that any doubt about the legal force of regulations. Were I to do that, as soon as he reads this, the noble and learned Lord, Lord Simon of Glaisdale, would be quick to put me right. Regulations, if they are intra vires—and the Woolwich building society will stress that that is a vital qualification—are legally as binding as Acts of Parliament. However, they do not feel as if they carry as much consent. Without the process of voting, there is not the sense of giving consent.

Those of us who were in the Chamber in 1988, during the Local Government Finance Bill, will know that, after the number of times we voted on the Bill, to refuse to consent to the legislation afterwards would have been not merely morally wrong, it would have felt utterly ridiculous because we had voted on it so many times. We had had our chance and we felt bound by the result of the vote. So there was an emotional as well as a legal force behind it. It is that emotional force which I think we lose by having a procedure to put through contentious matters on which we in this House have no chance to vote. I believe that that undermines the fabric of government by consent. That is a good deal more serious even than any mistake which may or may not have been made in the course of testing. Government by consent is more difficult than I used to think. I should be sorry to see us do anything to make it harder.

8.6 p.m

Lord Elton

My Lords, the noble Earl, Lord Russell, has put down a Motion which draws your Lordships' attention to contentious matters: the question of testing in schools. I shall delay your Lordships for only a moment because I believe that some of the contentious nature arises from the background which needs to be examined, and some of it from perceptions of the effects of the proposals for testing. I am not sure that those perceptions are well founded. It would be useful to have the Minister resolve that doubt.

I am only looking at a narrow aspect of the subject: the testing of English at the age of 16—next year, 1994. I am aware of some of the anxieties because of a useful conversation that I had with the National Association for the Teaching of English.

I understand, as your Lordships will understand, that the syllabus to be tested at the age of 16 in 1994 will have already been in the schools and taught for a year. Noble Lords will recall that during the last term —the term in which it is tested—much of the time will be spent in revision. That means that we are looking at a syllabus for which only two remaining terms of teaching are left.

When the syllabus was introduced, I understand that it was published on time in the summer of 1992. It was nevertheless subject to revision later on, and there were a number of doubts about it which had to be resolved. I have had it said to me twice now that changes were made to the syllabus in the first term in which it should have been taught. If so, that is a matter for concern and would explain some of the anxiety of the profession because programmes have to be worked out, teachers have to read the material, books and so on have to be bought before the school year begins. If the syllabus is not finally in place before the school year begins, the teaching will not be fully effective until well into the first of the five-and-a-half terms available for teaching it. That is the background.

As to the substance and effect of the orders, I understand that from 1988 to 1991 there was a seven point, A to G scale for assessing work. That work could be 100 per cent. course work, if so wished. In 1991, course work was reduced to a maximum of 30 per cent. and at about then, the change was predicted to a 10 point numerical scale. That gave rise, I understand, to unease and was contentious.

Later, Sir Ron Dearing was brought to bear on the problem as to the future of this scale. He suggested that it would be wrong to implement it while it was under his consideration, and proposed—and the Government accepted—that A to G scales should be reintroduced, but augmented by an A* grade for exceptionally outstanding work.

Teachers who have been preparing themselves for the 1-10 numeric scale, and who may be new to the profession, not having had experience of anything else, are concerned about their ability to convert A to G. I would be most grateful if my noble friend could confirm that they can use the old (or rather the new, and now shelved) 1–10 scale and submit that, with their evidence for the marks for the scales that they have awarded, to the boards, and that the boards themselves will convert them from the numeric to the alphabetic scale. If that is so, my noble friend might like to comment on the reflection of some teachers that this helpful service will in some way put them one remove further away from assessment of their pupils themselves.

My final point relates to the draft English order now out for consultation. I believe that it is due to be made in September. Because of the anxieties and lack of trust that are about at the moment, there is a general suspicion that this order will affect syllabuses that will he due to be tested before two years have elapsed from its making. I hope I have made that clear. It is clear (is it not?) that if an order is to be made affecting the way children are tested, the way they are taught and the syllabus that they are taught, that order must be made in time not only for the teaching to begin the day after, but for the preparation for that teaching, and the purchase of the books, and so on, if necessary, to be done ahead of the first term in which it is taught. If my noble friend can give an assurance that that will indeed be the case, that will also do something to relieve the anxieties which at the moment, I have to tell her, are very real among the profession of which I used to be a member.

8.11 p.m.

Lord Skelmersdale

My Lords, it is with some trepidation that I enter the list on an education debate in your Lordships' House for only the fourth time in almost two decades. I do so for two reasons. The first is that in the last year I have become a governor of a large comprehensive school in Taunton, and therefore know just a little about what the Question euphemistically calls the "current difficulties" of testing in schools. The other is that when I first saw the Question of the noble Earl, Lord Russell, I was struck, as a member of the Joint Committee on Statutory Instruments by the generality of the concept behind it. The noble Earl could so easily have chosen, say, social security orders or the upgrading of prescription charges, or a whole range of order-making powers —in which case, of course, this debate would have been answered by another Minister. I therefore empathise with my noble friend Lady Blatch, and gently suggest that a debate such as this would have been perhaps rather better answered by my noble friend the Leader of the House.

Be that as it may, I believe in the old adage that the electorate gets the government it deserves, and, by extension, that means the elected MPs it deserves. By slightly further extension, I believe that Parliament gets the primary legislation that it deserves. My comparatively recent interest in statutory instruments has reinforced that view.

The joint committee is bound by three things: the standing orders of both Houses; their terms of reference; and the Acts of Parliament providing for the many pieces of subordinate legislation that we examine each year. In passing, perhaps I may put in a plea for fewer, better drafted, orders. In 1983, according to the First Report of your Lordships' Select Committee on the Scrutiny of Delegated Powers, the joint commit tee considered and reported on 1,965 orders. Nine years later (that is, last year) the number had grown to a massive 3,359. I can report that the latest figures that I have show that we have considered 2,155 since the start of this Session of Parliament. A better comparison, however, might be to say that we have considered some 1,700 since 1st January this year.

At present the joint committee is under-resourced, which means that our reports are not always as timely as they might be. But a paper is always produced when Parliament wishes to discuss a particular order. In my view, that is putting the cart before the horse, and I have argued on occasion that reports should be produced in time for Parliament to decide whether it wants to debate an order. I see a nod from the noble Earl opposite.

Tonight is not the appropriate time to discuss this particular hobby-horse of mine any further, but I trust that the House will forgive my mentioning it. It is germane to the generality of the Question that we are discussing.

The joint committee considers the orders that it receives mostly in terms of "vires"; clarity of drafting —which incidentally accounts for some 25 per cent. of all our comments; of unusual use of powers; and of exceptional financial provisions. Of these, the one that matters tonight is vires. It is important that it is outside our terms of reference to discuss the appropriateness of a particular order-making power in the parent Act. That, as we all know, comes in various forms, the most serious of which is that giving rise to instruments requiring affirmative approval and draft instruments requiring affirmative approval (the difference here is largely technical); through instruments subject to annulment (that is, the negative resolution procedure) and which may or may not include some Northern Ireland legislation; on through instruments not subject to parliamentary proceedings laid before Parliament; finally, to the group which particularly concerns us this evening: instruments not subject to parliamentary proceedings, not laid before Parliament. It is this last group that Parliament has decided, through enacting the Education Reform Act 1988, and particularly Section 4 thereof, is appropriate for the implementation of key stage attainment targets, programmes of study and assessment arrangements for the national curriculum.

I decided that it was worthy of some study as to how that position was reached. The noble Earl, as a good professor, prompted me to carry out just such a study. It took me a little time, as the Education Reform Bill was rather like the Maastricht Bill in the thorough way in which the House debated it. Indeed, it gives me a little ironical amusement that this debate comes the day after the end of the Committee stage of the European Communities (Amendment) Bill. The House spent two days on the Second Reading debate; seven days in Committee; five days on Report; and two days on the Third Reading. The noble Earl was too modest to say that not only was it the first Committee stage that he was involved in but that it was also the Bill on which he made his maiden speech.

That said, my memory is that key stage assessment testing turned out to be slightly faulty. I discovered on Second Reading that the subject was certainly a minor issue—I think the noble Earl would agree. My evidence is the fact that the noble Baroness, Lady Seear, winding up for the Liberal Democrats did not mention the subject at all; nor did the noble Lord, Lord Peston, sitting in the position of the noble Lord, Lord Judd, this evening. My noble friend Lady Hooper, the then Minister, did, however, touch on it by commenting on the report which had aroused the interest of the noble Lord, Lord Ritchie, earlier and some others. The noble Baroness concluded: I assure your Lordships that the attainment targets, programmes of study and assessments taken together will be carefully constructed to ensure that they do not lead to a narrowing of focus that could undermine the Government's whole policy for the curriculum". The issue, then, at that stage was a minor one. That, however, as the noble Earl said, was not to be maintained. It flared up in Committee and was the subject of the first Division on the second day. Even then it was not about testing per se; it was about the type of testing which was then envisaged. The amendment was not carried, but the important point is that my researches on Clause 4 at Committee stage revealed no mention of upgrading, still less attempt to upgrade, the order-making power to negative or even affirmative procedure. That was in Committee.

I pursued my inquiries to the Report stage. I eventually found Amendment No. 61A, moved by the noble Lord, Lord Ritchie, to the effect that any order which was at variance with the advice of the National Curriculum Council or the Schools Examination and Assessment Council should be by affirmative resolution, and that any dispute as to the extent of the disagreement should be settled by judicial review. That was certainly rather a novel procedure but the matter was debated. Perhaps because of its novelty the amendment was resisted by the Government and subsequently defeated. I suppose it is just possible that the result, and certainly the debate, would have been rather different and better informed if we had had the advice of the Select Committee on delegated legislation, as we have for this year's Education Bill, as my noble friend will know. The whole subject had died away by the time that the Bill reached Third Reading.

The net result was that so far as the order-making provision in Clause 4, the Bill that arrived in your Lordships' House was the same in every respect as when it left it. We all know that since then the subject of key stage assessment testing has risen higher and higher on the political agenda. In the words of my right honourable friend the Chancellor, the Government are "in a hole". If my noble friend is to follow the implicit advice of the noble Earl, she has one of two courses open to her: either to drop any idea of laying any more orders on testing or to change the law to allow a fiercer order-making procedure. As I said, Parliament gets the legislation that it deserves.

As a parent and a governor I hope that my noble friend will resist both proposals. I want to know how well my child is doing at school in competition with his or her classmates. I want to know how well the school is doing vis-à-vis the other schools in Taunton. The hole in which the Government find themselves is a political and not a legislative one. It is a political solution that is required. I am therefore particularly grateful for the wise advice of my noble friend Lord Elton on how to achieve the solution. I hope that my noble friend Lady Blatch will follow that advice.

8.20 p.m.

Lord Judd

My Lords, I am sure that we are all very grateful to the noble Earl, Lord Russell, for having introduced this subject tonight. He was obviously right to emphasise that this is not a party political issue and that what concerns us above all are the interests of children. It is important that we face up to the weaknesses in the system and to what has gone wrong.

First, perhaps I may say that it has been a particular pleasure to listen to the noble Lord, Lord Skelmersdale, who has presided with such charm and effectiveness over so much of our work in the Education Committee. It is good to hear him participate in this little exchange this evening.

Since the inception of the national curriculum and the assessment arrangements, decisions over what is taught in schools and how it is assessed seem to have been rather dominated by top-down regulations. A characteristic of both the national curriculum subjects and testing appears to have been that no significant aspect has been agreed by genuine discussion and agreement between the Government and teachers, parents and governors. Despite that, some national curriculum orders have indeed gained acceptance and support from teachers because of the sensitivity of their subject working groups. The best examples are arguably the English order and the orders for modern foreign languages, art, music and PE. But such examples have been rather unusual.

The truth is that all too often the Secretary of State appears to have ridden roughshod over the views of teachers. The clearest example was when the Government, despite overwhelming opposition from the profession, parents and governors, drastically reduced the coursework element of GCSE. Most contentious was the reduction of the coursework element in English to an upper limit of 30 per cent. At a stroke, in that subject, as in others, teachers' ability to motivate young people was drastically undermined.

One of the characteristics of the national curriculum subject implementation has been the impossibly short timetable which the Government have forced on schools. That has been almost totally rigid and non-adaptable. It has led to tremendous work overload, especially in primary schools. For example, Coopers & Lybrand's 1991 investigation into the cost of introducing the national curriculum into primary schools detailed the effects of overload on teaching pupils the basic skills. I quote: There is no doubt that the National Curriculum and present levels of resourcing have changed the balance of the primary curriculum away from reading, writing and numbers towards the other National Curriculum subjects. As we have seen, time spent listening to reading has particularly been reduced". A recent Ofsted report confirmed that finding. In that report a 1991–92 overview of the teaching of English found that: The pace of improvement in English in Key Stages 1 and 2 has slowed. This seems to be associated with the fact that teachers have had to respond to implementing other national curriculum subjects and the assessment of them, leading to less time for planning and less attention to developing the teaching of English". When teachers, parents' and governors' groups have attempted to put moderate and reasonable proposals to the Government about how to find a way forward based on consensus, I am afraid that such proposals have been largely ignored. For instance, the Government, the current NCC, SEAC, the future SCAA and LEAs have the 1988 Act (Section 16) regulations at their disposal. That would permit the national curriculum to he wholly or partially suspended to allow experimental and developmental work on the curriculum and assessment. But the use of those regulations has never been considered. In fact, when a joint deputation from the National Union of Teachers and the National Association of Head Teachers, the parent-governor organisations and CASE met the Secretary of State in October 1991 to present alternative assessment proposals, it was suggested that those proposals should be tried out in pilot schools. That suggestion was turned down flat by the Secretary of State. More recently, the Government's determination to stick to their goal regardless of mounting opposition has led to what I hope will not be considered overdoing it when I describe it as new heights of absurdity.

The last minute decision by the Secretary of State to switch to forms of testing of key stage 3 English, with materials being introduced into schools in the middle of the year, led to damaging disruption in secondary schools. The recently released survey of the 1993 national curriculum assessment arrangements in English in key stage 3 by the National Association for the Teaching of English, to which the noble Lord, Lord Elton, referred, found that: By September 1992 almost all schools had established detailed plans (schemes of work) for Key Stage 3 based on the English order. But during the month that followed, most schools had been forced to make substantial changes to these schemes … The test requirements and the late announcements had led to substantial reductions—and in some cases omission —of elements of the National Curriculum programmes of study … Schools had set budgets and purchased books before the resource requirements of the SATs were published. As a consequence, schools had to find substantial additional financial resources". The controversy over testing in schools this summer is part of the failure by government to listen to teachers and parents about the kinds of tests that are needed for the national curriculum. Quite unnecessarily the Secretary of State has alienated teachers, parents, governors and educationists. I find it highly disturbing that his concession to review the national curriculum was not the result of some reasoned discussion between himself and parents, governors and teachers but because of industrial action taken in despair.

Unfortunately, it is still all too evident that the Government have yet to learn one fundamental lesson; namely, that it is just not possible to improve the quality of education and increase teachers' morale by top-down order and diktat. Only recently the Secretary of State introduced new regulations which require the reporting of test results at key stage 1 in English, mathematics, science, technology, history and geography and at key stage 3 in English. mathematics, science and technology. Yet he knows full well that practically all schools in England and Wales have not completed the assessment arrangements and are not prepared to report the results this year. Further, the Secretary of State's decision to suspend assessment in technology, history and geography at key stage 1 in 1994 and to reconsider whether assessment should go ahead in technology at key stage 3 in 1994 seems to indicate that his right hand does not know what his left hand is doing.

Finally, it is worth pointing out that the Dearing review itself is in danger of being compromised. When Sir Ron Dearing started the first of his round of consultative conferences on the review of the curriculum and assessment, he reassuringly said: I came to the task with no preconception. The agenda is on the table; the questions raise fundamentals and we shall be studying everything that is said in reply". Yet the Minister has shown how far removed she is from those hopes. She firmly refused to recognise that the new powers of assessment audit which the Education Bill introduces could well alienate teachers even further. She has equally firmly refused to recognise the hopes of teachers, parents and governors. In short, she has imposed severe restraints on the ability of Sir Ron Dearing to reach agreement.

I am sure that the noble Baroness will recall that as recently as 21st June she said, I end by saying that three principal factors are absolutely crucial and are not negotiable. One is the framework of the national curriculum. The second is a system of assessment and testing; and the third is public information on performance". —[Official Report, 21/6/93; col. 89.] The Government still have a chance to allow the Dearing review to do its job convincingly. The Secretary of State could regain considerable credibility and respect by facing up to reality and recognising the irrelevance of this year's assessment and testing arrangements. He could describe his 11th May Statement as a contribution to the review, not fixed in stone, and make clear that it is capable of rejection by the review's interim proposals. The Secretary of Stale could insist that the review must not be rushed and that the views of teachers', parents' arid governors' organisations are fundamental to the direction of the review.

In Scotland regional negotiations followed a decision of government in 1992 to withdraw regulations on imposed national tests and to introduce flexibility and improve new areas of professional discretion into the assessment arrangements. We on these Benches support testing schemes that. are coherent, meaningful and manageable. As we have repeatedly made plain, we support a system similar to that in Scotland for England and Wales.

It is manifestly inconsistent and most unfair to deny the parents, children and teachers of England and Wales the benefits of a system which has been conceded by the Government in Scotland. Although not perfect, the Scottish system enjoys the confidence of the vast majority of those concerned. That is why we seek assurances from the Government that the Dearing review will not be prevented from examining the possibility of extending the Scottish system of testing school pupils to England and Wales.

We, like our Liberal colleagues—with whom I am glad we share so much in common in our approach to education—seek assurances that the Government will not continue to proceed with contentious issues by regulations.

8.32 p.m.

The Minister of State, Department for Education (Baroness Blatch)

My Lords, I am going to stick, if I may, to the Motion on the Order Paper. I should like more time to take issue with much of what the noble Lord, Lord Judd, said. A great deal of what he said was unsubstantiated and some was innuendo. Given that he was going to remain apolitical, it was an extraordinary 10 minutes of his time in the debate.

I shall take the advice of my noble friend Lord Skelmersdale. We are discussing a subject which is in any event contentious and the noble Lord, Lord Judd, has made no secret of that. He has said something contentious about the system of assessment and testing many times since his entry into this House. Therefore any order or regulation that comes before this House I feel would not meet with his acquiescence.

I wish to make two points in regard to the Ron Dearing review. First, I do not intend to come to this Dispatch Box and pre-empt the outcome of the review. On the one hand I am accused of interfering with, pre-empting or stifling that review; and on the other I am invited to say something definitive about it. Secondly, there is an extensive dialogue taking place with teachers. It has a wide remit. I am not going to do anything to inhibit that, nor do I intend to enter into any redefinition of what the remit should be.

I have listened with interest to the debate. As my noble friend Lord Skelmersdale said, if one removed the issue of testing one could talk about any order, any regulation and indeed the use of subordinate legislation for issues which might be considered contentious—which is what I thought the Motion was concerned with.

I am very conscious that the noble Earl, Lord Russell, and others who have spoken in the debate have made a thorough study of these matters. The noble Earl made a distinguished and powerful contribution to the debates which led to the establishment of the House's new Select Committee on the Scrutiny of Delegated Powers—and indeed played an equally influential part in informing the analysis which appears in the committee's first report.

The Government's position on the use of delegated powers and secondary legislation was set out in the memorandum we submitted to the Select Committee in January this year. I shall not try the patience of your Lordships by repeating today all that we said in that memorandum. But I would emphasise that what we are seeking to do—and what the Select Committee itself seeks to do—is to steer a sensible and proper course between the demands of effective scrutiny of legislation and the no less pressing demands on the time of this House.

No one would dispute the need to distinguish between primary legislation and the detailed secondary legislation which is consequential to it and flows from it. Like everyone else who has looked into this subject, the Government have considered carefully whether some set of criteria could be drawn up which would provide a clear test of when something was primary and when it was consequential; and in the latter case, where a delegated power was appropriate, whether there were criteria which could be laid down in advance to determine whether a secondary measure should be introduced by means of an affirmative resolution, a negative resolution or without scrutiny.

We concluded, as have previous governments, that that is just not practicable. Those matters have to be determined case by case on their merits. The new Select Committee on scrutiny came to the same conclusion and indeed quotes the Government's memorandum with approval on that point in its own list of conclusions.

The noble Earl, Lord Russell, makes the particular point that a measure should not appear in secondary legislation if it is contentious or controversial. That is an attractive proposition. The noble Earl's evidence to the Select Committee, and published as part of the committee's first report, states his view that major matters of political controversy should not be embodied in regulations. The noble Earl went on to say—and I hope that he will forgive my quoting his words: It is not, of course, possible to draw up constitutional lists of matters of political controversy. This is a matter of political good sense rather than the making of rules. I would endorse that. It is clearly not possible to know what matters will provoke great concern. It is certainly not necessary for an issue to stray outside the basic structures and principles established in a piece of primary legislation for it to provoke debate. Moreover, what is contentious to one person is not to another. What is controversial now may not have been so in the past and vice versa.

With the Select Committee on the Scrutiny of Delegated Powers we now have a potentially powerful mechanism for considering in an informed way just those questions as Bills come before the House. My noble friend Lord Elton is an eminent member of that body. The Government, as your Lordships will know, have undertaken to provide a separate memorandum to the Select Committee on each Bill as it comes up. I have no doubt that the Select Committee, under its chairman, my noble friend Lord Rippon, will be quick to report if it feels that an inappropriate proposal has been made and that something should appear on the face of a Bill which at present does not. My department had the honour, or at least the distinction, of producing the first such memorandum in relation to the Education Bill.

I turn now from the general to the particular of the national curriculum assessment orders. The principle of assessment and testing is not itself contentious. It is an integral and vital element of the national curriculum. Parliament gave its assent to assessment as part of the national curriculum in passing the Education Reform Act.

The noble Earl did however raise the question as to whether the assessment orders and associated tests should be subject to affirmative or to negative resolution. We have to ask whether it is realistic to expect Parliament to approve the details of the assessment and testing arrangements. Those are essentially operational matters and matters of detail.

The orders give effect to the arrangements for assessment and testing. They cover such matters as the way in which an overall score for a subject is derived from the constituent parts of the tests and teacher assessment. They set out provisions for the case where a pupil misses a test for various reasons. They provide for the verification of the results from the tests.

Those matters are the bare bones of the assessment arrangements. While teachers and others naturally have an interest in them—and that is why we consult on the orders —they are not really the stuff of which controversy is made.

Of course I accept that the tests themselves this year have provoked heated debate. The question then arises whether Parliament should scrutinise the tests. I cannot accept that it is right for Parliament to do so. My reasons are three-fold. First, the tests are largely taken "unseen" by pupils. It would not be a fair test of what pupils can do if the papers are public knowledge well in advance. That would defeat the purpose of testing. And how could the tests be kept confidential if Parliament were asked to scrutinise them?

Secondly, the tests are in their nature detailed documents. Looking at the tests of 14 year-olds this year, each pupil takes three papers in each subject. There are different sets of papers in each subject depending on the ability of the child and the level for which he or she is entered. There is surely too much detail here for it to be appropriate for Parliament to get to grips with.

Thirdly, it is not Ministers who write the test questions. They are not written by officials in my department. The School Examinations and Assessment Council commissions those with a particular expertise in examining to devise the questions and to try them out. Ministers and our officials are not well placed to determine what the questions should be and how they should be put. I would argue that the same consideration applies to Parliament and that it is a rare noble Lord who would be well-placed to consider the tests.

I think that the Government's record in this matter is an honourable one. In addition, I believe that both the findings of the Second Report of the delegated powers scrutiny committee on the Education Bill and the response of the House and of the Government to those findings augurs well for the important role of this House as a revising and scrutinising Chamber.

My noble friend Lord Elton was kind enough to give me notice of some specific questions. If I may link his questions with what my noble friend Lord Skelmersdale said, resolving teachers' concern about assessment and testing is not a procedural issue. It is a practical one and one of policy and perhaps even of politics. That is why Sir Ron Dearing is conducting the review. But I shall answer the specific question of how the GCSE levels 10 to 4 will be converted to grades A to G. For written examinations, conversion between the two grading scales will be undertaken by the GCSE examining groups. For course work, schools have been advised by the School Examinations and Assessment Council to submit marks or levels to the examining groups which will combine course work and examination marks to determine subject grades.

I was asked whether I was aware that English syllabuses for 1992–94 for the GCSE examination cycle were issued to schools late and then altered in the autumn. As my noble friend said, the syllabuses for English courses introduced in the classroom last September were sent to schools in April 1992. This was a little later than usual. The programmes of study underpinning the syllabuses had been with the schools since March 1990. That needs to be understood. I also understand that subsequently some late additions were made by the GCSE examining groups to certain of the English literature syllabuses. However. in contrast to what the noble Lord, Lord Judd, said, the impact on schools of these changes was minimal and none of them affected the national curriculum English syllabuses.

I was asked how the GCSE syllabuses geared to the 10-level scale could be used for grades A to G. The syllabuses are geared to the programmes of study in the national curriculum. The Government and the School Examinations and Assessment Council have both recently taken steps to reassure teachers and schools that the recently announced grading changes do not mean any discontinuity in the GCSE work that they started last September. I can assure my noble friend that there will not be changes before they sit the examinations.

I was also asked whether schools would suffer further disruption to GCSE studies in English because the syllabuses which pupils are now studying will be changed before they take their examinations in 1994. They will not. The plan is that a new English order will come into effect in 1994 in key stages 1, 2 and 3, anti in 1995 in key stage 4. Pupils will not therefore start to study new GCSE syllabuses based on new curriculum requirements for English until the autumn of 1995, and will not be examined on those syllabuses before the summer of 1997.

It has not been the easiest of years. It certainly has not been easy for teachers and schools. We recognise that and understand it. We wish Sir Ron Dearing well. There is a real dialogue taking place between Sir Ron, his colleagues, the teachers and the schools. We hope that will continue and produce a positive outcome. I can say to all noble Lords who have spoken in the debate that we will take careful note of what the committee and the House have to say on these matters and of what your Lordships have said today.

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