Ofqual has hit back at comments made by the Royal Statistical Society about a gagging clause that it asked statisticians, offering to help with its controversial grading algorithm, to sign.

The society was concerned that the non-disclosure agreement (NDA) would have prevented its members commenting on Ofqual’s final choice of grading model “for some years after this year’s [exam] results were released”. 

But Ofqual chair Roger Taylor has written to the society stating that its concerns were “incorrect”. He says the NDA did “not preclude anyone from commenting on the model”, but just prevented the disclosure of confidential information shared through discussions about the model.

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“This approach is a normal and entirely ethical mechanism to ensure people can speak freely in the discussions and can see analyses of confidential data without fear of information being made public during the deliberative process,” Mr Taylor adds.

GCSE and A-level results: Row over Ofqual non-disclosure agreement

He also disputes the society’s claim that it had not received any communication from Ofqual in response to its concerns regarding the NDA, saying that Ofqual responded on 3 July giving assurances about the purpose of the contract. 

Mr Taylor says the society’s letter and comments had “led to widespread misunderstanding and suspicion of Ofqual’s process”.

The NDA attached to Ofqual’s letter defines confidential information as: all business, strategic, financial, technical, editorial, marketing or operational information of whatever kind (whether oral, written, or in any other form) relating to the Information Provider which may be supplied by, or on behalf of, The Information Provider (whether before or after this Agreement is actually signed by the Parties) for the purpose of the Project”.

The duration of the agreement is specified for a period of five years.

The RSS had said in a previous letter to the Office for Statistics Regulations that its offer to send two of its statisticians to help Ofqual to develop an exam grading algorithm was met with the regulator’s imposing a strict non-disclosure agreement.

The letter said: “We understood that members of such a group should not give a running commentary in any way, nor divulge any confidential information about exam centres, schools or the different models being tested - and we wrote back clearly to Ofqual to this effect.

“But the proposed confidentiality agreement would, on our reading, have precluded these Fellows (who were suggested precisely because of their relevant statistical expertise, and lack of ties to qualification regulators or exam-awarding bodies) from commenting in any way on the final choice of the model for some years after this year’s results were released.

“We set out our concerns about the terms of the proposed non-disclosure agreement, and restated our willingness to help if a more suitable agreement could be reached. In the end, we did not get an official response to those questions, and our offer to help was not taken up.”

Meanwhile, education secretary Gavin Williamson has hit back at news reports saying that he had been on holiday in the week running up to the release of the A-level results.

He tweeted: “I cancelled our family holiday abroad this year to focus on the challenges COVID-19 created for the education sector. Over the summer, I went to see family in Scarborough for the first time since lockdown, and while there I was in constant communication with the department.”

I cancelled our family holiday abroad this year to focus on the challenges COVID-19 created for the education sector. Over the summer, I went to see family in Scarborough for the first time since lockdown, and while there I was in constant communication with the Department.

- Gavin Williamson (@GavinWilliamson) August 23, 2020

But students are still angry after the exam grading fiasco and yesterday some gathered outside the Department for Education to demand the resignation of Mr Williamson.

Many have lost university places that were handed to other candidates in the days after the algorithm-based results were announced.

Campaigners say there is evidence to suggest the algorithm method disproportionately affected schools in poorer areas.

Protesters chanted “Get Gav Gone” and “We are the future”, and carried signs reading “Sack Tory Exam Cheats” and “Fair Grades for All”.

And today, a legal challenge is being launched against Ofqual for awarding a PR contract to Public First without a tender.

According to a statement from law campaigners at the Good Law Project, a pre-action protocol letter will be sent to Ofqual today, setting out why the award of that contract for “insight on public opinion for this year’s exam arrangements” and assistance with media handling is “unlawful”.

The letter will say that “the direct grant of the contract without any tender process breaches procurement law and that there is apparent bias in the grant of the contract to long-time associates of Michael Gove [Chancellor of the Duchy of Lancaster] and Dominic Cummings [chief adviser to the prime minister, Boris Johnson].” 

However, the Cabinet Office has previously said that Mr Gove “had no involvement” in the awarding of a contract by exams regulator Ofqual to a PR firm founded by former close colleagues.