Ken Boston: Independent regulator? The signs are not good

Is the Government serious about Ofqual being an independent regulatory authority reporting directly to Parliament on qualifications, exams and tests? Will it tolerate a regulator with authority to challenge Government itself? Will Ofqual be permitted autonomy beyond that ever allowed the Qualifications and Curriculum Authority (QCA), whose limited independence was sufficient to ruffle ministerial feathers? I hope so, but I doubt it. Two signs point in the opposite direction.

The first is the Sutherland Inquiry. Lord Sutherland should have been able to examine the role of all three partners in the failed delivery of the 2008 key stage tests: the Department for Children Schools and Families (DCSF), the QCA and the Educational Testing Service (ETS), not just QCA and ETS.

The Department determines the nature of the tests; the pupils to be tested; the subjects in which they are to be tested; the test dates and the result date; the budget; whether the tests are to be taken and marked manually or on screen; the form of the results data; and how results are returned to schools. In these core elements of delivery, neither the QCA nor the supplier has discretion. The tests are not at "arm's length" from Government; ministers and DCSF officials are at arm's length only from setting and marking the questions and deciding the results. The 2008 test failure presented Ofqual with the opportunity to establish itself as a truly independent regulator.

If Government had wanted Ofqual to exercise such independence, and to get to the causes of the failure, it would have encouraged Ofqual to establish terms of reference for Lord Sutherland which encompassed the role of all three partners in test development and delivery.

It should have been beyond question that Ofqual, with Lord Sutherland as its agent, would account to Parliament not the Secretary of State, and do so through the Select Committee.

Instead, the Secretary of State had Lord Sutherland report to him, not Ofqual, on QCA management of the ETS contract, which would otherwise have been a critical part of a comprehensive Ofqual inquiry. He narrowed the potential scope of the inquiry; put a fence around the DCSF; focused the spotlight on QCA and ETS; prevented some of the real causes of the failure from being identified; and compromised the independence of Ofqual.

Lord Sutherland had no remit to identify which decisions made by which ministers and officials had a direct impact on the 2008 failure, despite having such a remit with regard to the QCA test procurement, which began in March 2006. Ironically, onscreen marking – recommended by QCA and rejected by ministers in 2006 – became one of the principal recommendations of the Sutherland Report.

The second inauspicious sign is that the Department has placed "observers" on the interim Ofqual Board and its committees. Lord Sutherland has called for clarification of the role of observers. The DCSF observers within QCA have performed three functions: they have provided specialist expertise; they have served the traditional civil service role of providing separate advice to ministers; and they have spoken on behalf of ministers.

My view is that Ofqual should not have observers from any Government agency. The first of the above three functions can be achieved by direct consultation with the DCSF before any decision-making; the other two are inappropriate for an independent regulator reporting to Parliament.

A particular problem arises when observers see their role as that of speaking for ministers: typically, in phrases such as "ministers would be minded" or "not minded" to agree with a particular recommendation.

The risk is that independent advice offered to the Minister by the regulatory authority is negotiated in advance with DCSF observers, rather than arrived at independently but with the benefit of prior DCSF input. This leads to compromise solutions which erode the independence and public accountability.

I fear that Ofqual will not be seen as conspicuously and unquestionably separate from Government so long as it accepts DCSF observers on to its board and committees. The public and Parliament need to be certain that ministers are being told what they need to know, not what they want to hear.

It is Ofqual's job to be, when necessary, a burr under the saddle of Government. The legislation will create the conditions for this. But independence will need to be asserted, defended and won.

The writer resigned as chief executive of the Qualifications and Curriculum Authority last year after the fiasco over marking SAT tests.

The writer is former chief executive of the Qualifications and Curriculum Authority