Ofqual has been "seriously damaged" by this summer's GCSE grading fiasco and will have trouble defending its conduct when court action begins next week, according to the minister who oversaw the creation of the watchdog.
Former schools minister Lord Knight (pictured, left), who steered Ofqual legislation through Parliament in 2009, said the regulator had failed to carry out its job of maintaining standards, leading to the dramatic change in grade boundaries for pupils taking exams in January and June this year.
A judicial review examining claims that the watchdog and two exam boards failed to take responsibility for the problems begins on Monday. Lord Knight said Ofqual's chances of success look slim.
"The legislation is really clear about what the stated responsibility of Ofqual is, which is to maintain standards over time and make sure they are comparable. That's why I think they are in trouble," he told TES. "They haven't regulated the summer exams properly - something has gone wrong with the equivalence between January and June. Given they said the marking in January was too generous it was their responsibility to regulate."
The Labour peer said the decision to create Ofqual came from Ed Balls, then education secretary, who wanted an independent body in the same vein as the Bank of England, with powers to protect the system from "dumbing down".
Lord Knight also questioned whether the watchdog would survive in the longer term, given education secretary Michael Gove's plans to hand control over single subjects to individual exam boards. "That is removing the main point of Ofqual, which was to regulate and to avoid the kind of problems we've had," he said.
The legal challenge, which will be heard in the High Court, is being brought against Ofqual by a coalition of schools, pupils, teaching unions and local authorities, after the watchdog refused to regrade the exam papers of students affected by the decision to move the grade boundaries midway through the year.
Headteachers claim that thousands of pupils received lower than expected grades as a result of the change.
As TES revealed in September, correspondence between the regulator and exam boards showed that Ofqual put pressure on Edexcel to shift boundaries even though examiners had insisted they were "fair" just two weeks before.
A report published last month by Ofqual attempted to divert the focus on to teachers, finding them guilty of "significant overmarking" in controlled assessments sat by pupils in January.
Brian Lightman, general secretary of the Association of School and College Leaders, which is part of the alliance taking legal action, said he agrees with Lord Knight. "We have said all along that the implementation of the examination has been a complete failure and that means the regulator is responsible," he argued.
Geoff Barton, head of King Edward VI School in Suffolk, has been one of the most outspoken critics of Ofqual on this issue. He said heads' confidence in the watchdog is at an all-time low.
"Many of us believe that Ofqual has forfeited its right be called regulator," Mr Barton said. "Regulate this summer's GCSEs is what they conspicuously failed to do. To many of us, their reports have read as a catalogue of self-justifying excuses, and the credibility of the organisation - certainly in the eyes of many school leaders - must be seriously in doubt."
Ofqual has pledged to "rigorously defend" its decisions in next week's court case.