Ofqual’s exam results algorithm was unlawful, the shadow attorney general has said, as Gavin Williamson finally gave his backing to the beleaguered regulator.
The education secretary, who has previously pointed the finger at Ofqual over the exams fiasco, issued a statement on Wednesday saying he had full confidence in the regulator. He admitted it had ultimately been Ofqual’s decision to make U-turn on results produced by its algorithm in favour of teacher-assessed grades.
Meanwhile, Charlie Falconer, who was lord chancellor under Tony Blair and is now a Labour frontbencher in the Lords, argued that ministers and Ofqual would have been aware of at least three breaches of the law in the standardisation formula used.
In a letter to Williamson and Ofqual’s chief regulator, Sally Collier, Lord Falconer said the saga “should never have come down to this, so late on, when Ofqual and the SoS [the secretary of state, Williamson] have been fully in the knowledge that the standardisation formula that was being used was unlawful.”
Falconer said Williamson’s claim to have only become aware of the issues around the algorithm at the weekend was extremely concerning, citing an education select committee report that had raised concerns in early June.
He said Williamson should now confirm when exactly the Department for Education (DfE) was made aware of concerns about the algorithm and publish any legal advice it had received about the formula.
Falconer said the formula breached equality legislation and the 2009 act under which Ofqual was established.
The letter, written jointly with the shadow education secretary, Kate Green, said: “The chaos, confusion and unfairness of the way in which Ofqual have acted in recent weeks under the direction of the SoS, and the way the UK government have handled the A-level results, has been a complete fiasco, putting thousands of young people through an enormous amount of stress, worry and uncertainty because of government incompetence.”
Falconer said the formula for standardising grades was in breach of the overarching objectives under which Ofqual was established by the Apprenticeships, Skills, Children and Learning Act 2009.
The objectives require that the grading system gives a reliable indication of the knowledge, skills and understanding of the student, and that it allows for reliable comparisons to be made with students taking exams graded by other boards and to be made with students who took comparable exams in previous years.
“No comparison is valid if the system does not adequately measure the student’s achievement,” Falconer wrote, pointing to a document published by Ofqual on 13 August that said it had “placed more weight” on the standardisation formula than grades predicted by teacher.
Falconer said that was “clearly not in compliance” with the objectives set out in the 2009 act, including giving a reliable indication of a student’s ability.
He said the exams body had also acted contrary to Williamson’s instructions on 31 March when he had asked Ofqual to calculate students’ grades based on teachers’ “judgments of their ability in the relevant subjects, supplemented by a range of other evidence”.
Falconer continued: “Nor have Ofqual respected the point in their announcement of 3 April that teachers know best about their pupils and the standardisation model would only fine tune the results.”
He said it was “inherently unfair” and unlawful that students had initially not been given the right to appeal apart from on the basis of errors in the system.
He said the formula also breached anti-discrimination laws. “There will be a mass of discriminatory impacts by operating the process on the basis of reflecting the previous years’ results from their institutions,” he said. “It is bound to disadvantage a whole range of groups with protected characteristics, in breach of a range of anti-discrimination legislation. That is a third unlawfulness.”
Williamson, who on Tuesday refused to say he had confidence in Collier’s leadership of Ofqual, bowed to pressure to back her and the regulator on Wednesday.
A DfE spokesperson said: “As the government has made clear, we have full confidence in Ofqual and its leadership in their role as independent regulator and we continue to work closely with Ofqual to deliver fair results for our young people at this unprecedented time.
“The decision they took to move from moderated grades to centre assessed grades was one that we agreed with.”
Falconer said there were questions still to be answered about the use of an “unlawful” standardisation algorithm in GCSE results, which are out on Thursday.
The government has announced standardised grades will be used only where they were higher than predicted grades.
An Ofqual spokesman said: “Ofqual has at all times had appropriate legal advice. We will not discuss the content of the advice given, which is privileged.”
Ofqual’s advisers have said privately that the organisation committed itself to ensuring there was no grade inflation in this year’s results. When external advisers objected to elements of the statistical model and warned of the consequences, Ofqual’s executives invoked that pledge.