Fourteenth Report
Instruments drawn to the special attention of the House
Draft Higher Education (Access and Participation Plans) (England) Regulations 2018
Date laid: 4 December 2017
Parliamentary procedure: affirmative
Higher Education and Research Act 2017 (Transitory Provisions) Regulations 2017 (SI 2017/1145)
Date laid: 27 November 2017
Parliamentary procedure: negative
Higher Education (Fee Limit Condition) (England) Regulations 2017 (SI 2017/1189)
Date laid: 4 December 2017
Parliamentary procedure: negative
Office for Students (Register of English Higher Education Providers) Regulations 2017 (SI 2017/1196)
Date laid: 4 December 2017
Parliamentary procedure: negative
Summary: Under the Higher Education and Research Act 2017, the Office for Students, the new regulator of higher education providers, will replace both the Higher Education Funding Council for England and the Office of the Director of Fair Access to Higher Education from 1 April 2018. All these instruments relate to the establishment and operation of the Office for Students, including its register of higher education providers. The Department for Education has told us that it is consulting on behalf of the Office for Students on a condition of registration that would require providers to publish the number of staff paid over £100,000 per annum; no secondary legislation is required to implement such a requirement.
We draw these instruments to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
1.The Department for Education (DfE) has laid these four sets of Regulations, each with an Explanatory Memorandum (EM). DfE intends that, under the Higher Education and Research Act 2017 (“the 2017 Act”), the Office for Students (OfS), the new regulator of higher education (HE) providers, will replace both the Higher Education Funding Council for England (HEFCE) and the Office of the Director of Fair Access (DFA) to Higher Education from 1 April 2018. All these instruments relate to the establishment and operation of the OfS. The Department intends to lay a further instrument to provide that, from 1 April 2018, HEFCE and the DFA will cease to exist, and the OfS will take on their statutory functions during the rest of academic year 2017-18 and the whole of academic year 2018-19.
Higher Education and Research Act 2017 (Transitory Provisions) Regulations 2017 (SI 2017/1145)
2.A key activity for the OfS before April 2018 will be to publish its regulatory framework and guidance for providers (including guidance on access and participation) following consultation. Before April 2018, the OfS must also make statutory designations of the quality and data bodies to perform functions set out in the 2017 Act. The quality body will carry out the teaching quality and academic standards assessment functions described in the 2017 Act, while the data body will perform data-related functions on behalf of the OfS. These Regulations make transitional and transitory provision to enable the OfS to publish the regulatory framework and to designate the quality and data bodies before April 2018.
Office for Students (Register of English Higher Education Providers) Regulations 2017 (SI 2017/1196)
Higher Education (Fee Limit Condition) (England) Regulations 2017 (SI 2017/1189)
3.The OfS will maintain a register, providing details on the English Higher Education (HE) providers that have satisfied the OfS’s initial registration requirements. SI 2017/1196 enables the OfS to set up and operate the register, and to ensure that some key information is included.
4.DfE says that guidance is to be published setting out how HE providers can register with the OfS, and specifying the full list of information to be published on its register. In the EM to SI 2017/1189, DfE says that the policy intention is that the OfS register will be divided into three parts: (i) Registered Basic; (ii) Approved; and (iii) Approved (fee cap). The provisions of SI 2017/1189 pave the way for the register by providing that tuition fees payable in respect of certain qualifying HE courses do not exceed a limit (which is to be set out in separate regulations).
Draft Higher Education (Access and Participation Plans) (England) Regulations 2018
5.Currently, the DFA is responsible for approving access agreements from HEFCE-funded institutions and further education colleges, enabling them to charge fees up to the higher amount. The intention underlying the draft Higher Education (Access and Participation Plans) (England) Regulations 2018 is that, alongside receiving initial applications from providers to register, the OfS will invite providers to submit their access and participation plans for the 2019-20 academic year for approval in summer 2018. Access agreements were originally introduced in 2004 in response to concerns that the introduction of higher variable fees might deter students from disadvantaged backgrounds and under-represented groups from applying to HE. The 2017 Act replaces the existing system with new arrangements which largely replicate the existing position. DfE says that the main changes are to ensure that plans should cover not only access to HE, but also participation activities (ensuring that students are supported to progress to good outcomes).
Remuneration issues
6.We sought additional information from DfE about whether the OfS would have any function of oversight over the remuneration of university vice-chancellors, and, if so, whether further secondary legislation would be required to enable it to carry out such oversight. DfE has told us that “The Office for Students will have a role in relation to remuneration of vice-chancellors. We are consulting on behalf of the OfS on a condition of registration that would require providers to publish the number of staff paid over £100,000 per annum. For pay above £150,000, it is proposed that providers be required to publish the role descriptions and full remuneration packages of staff members, along with the provider’s justifications of these salaries. No secondary legislation is required. The Higher Education and Research Act 2017 (section 5) provides the OfS with the power to determine conditions of registration. Where there are concerns about effectiveness, efficiency or economy, for example in relation to senior staff pay, the OfS will be able to arrange for efficiency reviews into a provider. This is provided for under section 69 of HERA.”
Draft Transfer of Responsibility for Relevant Children (Extension to Wales, Scotland and Northern Ireland) Regulations 2017
Date laid: 7 December 2017
Parliamentary procedure: affirmative
Summary: Unaccompanied migrant children arriving in the UK place a disproportionate burden on the authorities in Kent and Croydon. There are already provisions to allow them to be transferred to other English authorities. These Regulations extend the scheme so that the responsibility can be transferred not only from an English local authority to the relevant authority in Northern Ireland, Scotland or Wales, but also from a local authority (or equivalent body) in one of the devolved territories to another authority in the same territory. The scheme remains voluntary but the Home Office states that these Regulations will ensure that the National Transfer Scheme is able to respond to any future changes in migratory patterns and trends.
These Regulations are drawn to the special attention of the House on the ground that they give rise to issues of public policy likely to be of interest to the House.
7.These Regulations have been laid by the Home Office under provisions in the Immigration Act 2016 (“the 2016 Act”) and are accompanied by an Explanatory Memorandum (EM).
Background
8.Since 2014 there has been a significant increase in the number of unaccompanied children claiming asylum in the UK. The most recent Department for Education statistics state that, on 31 March 2017, there were 4,560 in local authority care in England alone – a rise of 134% since 2013. This places a disproportionate burden on the authorities in Kent and Croydon, which are currently the main points of entry.
9.Working with the Local Government Association and the Association of Directors of Children’s Services, the Government have, since 1 July 2016, been running a voluntary transfer scheme to ensure a more equitable distribution of caring responsibilities for unaccompanied asylum-seeking children. Section 69 of the 2016 Act underpins those voluntary arrangements by making it easier to transfer such children from one local authority in England to another. By 1 October 2017 555 asylum-seeking children had been transferred under the scheme.
10.With the assent and cooperation of the Devolved Administrations, these Regulations extend that provision so that local authorities in any part of the United Kingdom may transfer responsibility for such children to local authorities in any part of the United Kingdom. That means the responsibility for unaccompanied migrant children can be transferred not only from an English local authority to the relevant authority in Northern Ireland, Scotland or Wales, but also from a local authority (or equivalent body) in one of the devolved territories to another authority in the same territory. The scheme remains voluntary but the Home Office states that these Regulations will ensure that the National Transfer Scheme is able to respond to any future changes in migratory patterns and trends.
Funding review
11.To help local authorities provide appropriate care and support for unaccompanied asylum-seeking children, on 1 July 2016 the Government increased the funding available; by 20% for local authorities caring for migrant children aged 16 and under, by 28% for local authorities caring for those aged 16 and 17, and by 33% for local authorities with responsibility for former migrants who left care. The Government are currently undertaking a review of the funding provided to local authorities looking after unaccompanied asylum-seeking children.
Conclusion
12.The Committee welcomes this extension of the transfer scheme, not only to assist the local authorities but also to allow for the children’s best interests to be catered for – there are circumstances in which children need to be moved out of a particular area, for example to remove them from the influence of traffickers. The scheme’s objectives are spelled out more fully in the Government’s Safeguarding Strategy.1
Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2017 (SI 2017/1207)
Date laid: 6 December
Parliamentary procedure: negative
Summary: These Regulations amend the compliance deadlines under the EU Emissions Trading Scheme for stationary installations and aviation operators regulated by the UK, so that they are obliged to verify and report 2018 emissions and surrender allowances for those emissions in 2019 before the date when the UK will leave the EU, 29 March 2019. It is striking that, as exemplified by these Regulations, anticipation of the UK’s exit from the EU is already affecting policy areas such as the control of greenhouse gas emissions and leading to the need for secondary legislation under existing Acts.
We draw these Regulations to the special attention of the House on the ground that they are politically and legally important and give rise to issues of public policy likely to be of interest to the House.
13.The Department for Business, Energy and Industrial Strategy (BEIS) has laid these Regulations with an Explanatory Memorandum (EM). In amending an earlier instrument,2 which transposed the provisions of the EU Emissions Trading Scheme (EU ETS) Directive,3 these Regulations amend the EU ETS 2018 compliance deadlines for stationary installations and aviation operators regulated by the UK. BEIS says that the effect of the amendments is that such operators are obliged to verify and report 2018 emissions and surrender allowances for those emissions in 2019 before the date when the UK will leave the EU, 29 March 2019.
EU Emissions Trading Scheme (EU ETS)
14.BEIS explains that the EU ETS is a “cap and trade” scheme that limits emissions of carbon dioxide (CO2) from the EU’s power and heavy industrial sectors and aviation operators: there is a cap on all greenhouse gas emissions from covered operators of installations and aviation operators, and within this cap operators can buy, sell or trade allowances. The limit on the total number of allowances available ensures that they have a value. The scheme covers more than 10,000 installations across the EU, mainly large emitters such as fossil fuel power stations, steel plants and refineries. Operators of installations and aviation operators are required to monitor and report their emissions each year and to surrender EU ETS allowances against these emissions (one allowance equates to one tonne of CO2).
15.EU ETS compliance obligations require operators to monitor their emissions during a calendar year, and report emissions and surrender allowances for those emissions by 31 March and 30 April respectively of the following year. Allowances are issued by Member States, with a share allocated for free to participants considered at risk of “carbon leakage”, and the rest auctioned. Revenue from UK auctions returns to the Exchequer. The UK Government are due to issue approximately 150 million allowances in 2018. BEIS states that the Government expect to raise about £400 million per annum in revenue through auctioning ETS allowances in 2018 (though due to a recent rise in the EU ETS price this figure could increase significantly).
Concern among EU institutions over implications of Brexit for EU ETS
16.BEIS explains that, in 2017, there has been concern among the EU institutions that, if there was no agreed implementation period and an abrupt UK exit from the EU ETS in March 2019, there would be no requirement in EU law for UK regulated operators and aviation operators to comply with their EU ETS obligations for the 2018 calendar year (as the compliance obligations would fall after Brexit). This would mean that UK operators could sell their allowances, which would damage the environmental integrity of the system by artificially inflating the cap on greenhouse gas emissions. As a result, in October 2017, the European Parliament and Council agreed an amendment to the EU ETS Directive to protect the EU ETS against a UK departure in March 2019. The amendment would have made UK-issued 2018 allowances invalid for compliance by operators.
17.A European Commission proposal of October 2017 to implement the powers prescribed through the amendment to the EU ETS Directive was voted on by Member State officials at the Climate Change Committee, when, contrary to the proposal, it was agreed that from 1 January 2018 UK-issued 2018 allowances will be able to be used for compliance. This agreement was subject either to an obligation on UK operators to surrender allowances by 15 March 2019 at the latest, in a legally enforceable manner before the Treaties cease to apply, or to the continued application of EU law after the EU Treaties cease to apply (that is, if an implementation period is agreed). The UK will be required to report to the Commission and Member States on compliance by operators immediately after 15 March 2019, and has committed to enforce any non-compliance with the earlier deadlines, after Brexit.
18.In amending an earlier instrument, these Regulations bring forward the 2018 deadlines to report emissions and surrender allowances for those emissions, from 30 March 2019 to 11 March 2019, and from 30 April 2019 to 15 March 2019, respectively.
BEIS consultation
19.BEIS explains that it carried out a public consultation on the proposal to bring forward the 2018 compliance deadlines, over a three-week period to 24 November 2017. There were 94 responses, showing near-unanimous support for the view that bringing forward the deadlines was a proportionate response to the alternative, that UK-issued allowances would be identified with a country code from 1 January 2018 (which would render them unusable for compliance).
20.BEIS states that the Government’s response to this consultation will be published after the laying of the Regulations. We normally look to Departments to publish such responses at the same time as statutory instrument are laid: in these circumstances, we understand that the urgency of settling the policy has made this impossible.
Conclusion
21.There is a good deal of interest at present, within and outside Parliament, in the scrutiny of Brexit-related secondary legislation that is expected to flow from the EU (Withdrawal) Bill once enacted. It is striking, however, that, as exemplified by these Regulations, anticipation of the UK’s exit from the EU is already affecting policy areas such as the control of greenhouse gas emissions and leading to the need for secondary legislation under existing Acts.
1 Safeguarding Strategy: Unaccompanied asylum seeking and refugee children, November 2017: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/656425/UASC_Safeguarding_Strategy_2017.pdf [accessed 19 December 2017]
2 The Greenhouse Gas Emissions Trading Scheme Regulations 2012 (SI 2012/3038).
3 Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community.