Instruments drawn to the special attention of the House
Draft Common Rules for Exports (EU Exit) Regulations 2020
Date laid: 21 September 2020
Parliamentary procedure: affirmative
The purpose of these draft Regulations is to ensure that retained EU law on common rules for exports can operate effectively in Great Britain after the end of the Implementation Period (IP). This includes transferring from the EU to the Secretary of State a power to impose export controls or restrictions where this is necessary to prevent a critical situation arising due to a shortage of essential products or to meet international obligations. In Northern Ireland, the relevant EU Regulations will continue to apply directly under the European Union (Withdrawal) Act 2018 and the Protocol on Ireland/Northern Ireland to the Withdrawal Agreement. While this will enable the Commission to impose export restrictions in Northern Ireland after the end of the IP, the Department for International Trade says that this will be limited “to the extent strictly required by [the EU’s] international obligations”, for example in relation to the movement of endangered species. It is not clear, however, which other international obligations may be relevant here. Given the sensitivities around the future trade between Northern Ireland and the rest of the UK, the House may wish to explore these issues further.
The draft Regulations are drawn to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.
1.The Department for International Trade (DIT) has laid these draft Regulations with an Explanatory Memorandum (EM). The purpose of the instrument is to ensure that a retained EU Regulation1 on common rules for exports (“the EU Regulation”) can operate effectively in Great Britain after the end of the Implementation Period (IP). In Northern Ireland, the EU Regulation will continue to apply directly under the European Union (Withdrawal) Act 2018 and the Protocol on Ireland/Northern Ireland to the Withdrawal Agreement.
The changes proposed by this instrument
2.According to DIT, the EU Regulation sets out procedures and measures to be adopted by the European Commission (“the Commission”) and EU Member States where unusual developments on the market require temporary quantitative restrictions on certain exports. The procedures include a notification and consultation procedure as well as rules for the imposition of quantitative restrictions.
3.DIT explains that the instrument proposes to remove the notification and consultation procedures as well as information sharing and reporting requirements involving the Commission which will not be appropriate after the end of the IP as the Commission will no longer have jurisdiction over export controls in Great Britain. DIT says that the instrument would also transfer from the Commission to the Secretary of State the power to implement measures to control certain exports by way of requiring an export authorisation and/or imposing quantitative export restrictions. Such controls and restrictions are used to prevent a critical situation arising due to a shortage of essential products, or to meet international obligations. The controls and restrictions would cover, for example, the export of primary products, such as unprocessed agricultural products and raw materials.
Potential impact
4.We asked the Department when the Commission had used these powers. DIT told us that:
“This EU Regulation has rarely been used. However, the European Commission recently used powers under Regulation (EU) 2015/479 to implement export restrictions on Personal Protective Equipment (PPE) from 14 March 2020 to 26 May 2020. […] Under these restrictions, Member States and the United Kingdom were required to authorise any exports of PPE products in scope of the EU Regulation, following a review of licence applications from exporters. The European Commission considered these measures an appropriate response to shortages arising from the response to the COVID-19 pandemic.”
5.We also asked DIT whether the continued direct application of the EU Regulation in Northern Ireland after the end of the IP could potentially impact on trade between Northern Ireland and Great Britain, by allowing the Commission to control the export of certain goods from Northern Ireland to the rest of the UK under the retained EU Regulation. The Department explained that:
“Article 6(1) of the Protocol on Ireland/Northern Ireland makes clear that nothing in the Protocol shall prevent Northern Ireland businesses from enjoying unfettered market access for the movement of goods to other parts of the United Kingdom internal market. That Article also provides that any provisions of Union law which prohibit or restrict the exportation of goods shall only be applied to trade between Northern Ireland and other parts of the United Kingdom to the extent strictly required by international obligations of the Union.
This means that any export restriction applied by the EU will not be implemented on qualifying Northern Ireland goods (the meaning of which will be defined in regulations to be made under section 8(6) of the European Union (Withdrawal) Act 2018) moving from Northern Ireland to Great Britain, except to the extent strictly required by international obligations of the Union.
Rules on exporting from Northern Ireland are administered by UK authorities, who retain operational responsibility and are able to exercise their discretion as appropriate.”
6.We asked the Department for an example of the type of international obligations that could require the EU to make use of its power to impose export restrictions in Northern Ireland. DIT told us that:
“There are a very limited number of procedures relating to specific international obligations of the EU, which UK authorities may need to administer on goods moving into Great Britain. There are, for example, obligations on the movement of endangered species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
As has been stated in the Government’s Command Paper ‘UK’s Approach to the Northern Ireland Protocol’, we will ensure that the necessary procedures apply only to very minimal volumes of relevant trade necessary to comply with those obligations. For goods affected, the processes put in place in these very specific cases will have negligible implications for trade as a whole.”
Conclusion
7.While we note the Department’s explanation that the Commission could impose export controls or restrictions on Northern Ireland only in very limited circumstances, such as in relation to the movement of endangered species, it is not clear what other circumstances may allow the Commission to exercise its powers. These are issues that the House may wish to explore further, given the sensitivities around future trade between Northern Ireland and the rest of the UK. The draft Regulations are drawn to the special attention of the House on the grounds that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.
School Teachers’ Pay and Conditions (England) Order 2020 (SI 2020/1020)
Date laid: 23 September 2020
Parliamentary procedure: negative
The purpose of this Order is to introduce new pay and allowance ranges in the national pay framework for school teachers in maintained schools in England. As in previous years, organisations that were consulted during the statutory process raised concerns about the timing of the consultation over the summer. While we note the link to the wider public sector pay process and that the Department provided an eight-week consultation period, with some of this time falling outside the summer holidays, we are nevertheless disappointed that the consultation once again clashed with the holidays. This was also a time when schools and teachers were under particular pressure preparing for the new school year and the many special measures required to make schools safe during the pandemic, making it more difficult for them to engage with the proposed changes to teachers’ pay. We urge the Department to consider how the statutory process could be timed more effectively in 2021.
The Order is drawn to the special attention of the House on the ground that it gives rise to issues of public policy likely to be of interest to the House.
8.The Department for Education (DfE) has laid this Order with an Explanatory Memorandum (EM). The Order introduces new pay and allowance ranges in the national pay framework for school teachers in maintained schools in England, as set out in section 2 of the “School Teachers’ Pay and Conditions Document 2020 and Guidance on School Teachers’ Pay and Conditions” (“the Document”).2 The revised Document will come into force on 14 October 2020, with the effect of its provisions backdated to 1 September 2020. While non-maintained schools, including Academies and Free Schools, have the freedom and flexibility to adopt pay and conditions arrangements for their teachers “which best reflect their local circumstances”, DfE says that many follow the conditions for maintained schools.
The statutory process
9.DfE explains that the Order is made annually, following a statutory process. Under this process, the Secretary of State formally refers matters concerning the pay and/or other conditions of employment of school teachers to the School Teachers’ Review Body (STRB), which subsequently reports on those matters. DfE and the national representatives of teachers and teachers’ employers have the opportunity to submit evidence before the report is finalised, and then published by DfE. The Secretary of State determines how and to what extent the recommendations in the report should be implemented, and then conducts a statutory consultation on the proposals before the Order is made.
10.According to DfE, the Secretary of State asked the STRB on 18 September 2019 to consider the application of the 2020 pay award in the context of promoting recruitment and retention within the bounds of affordability across the school system. He also asked the STRB to have regard to the Government’s commitment to a £30,000 teacher starting salary by September 2022, and for the STRB’s advice on pay progression, including the performance-related pay progression pathway for classroom teachers and advisory pay points on the main and upper pay ranges, with the aim of addressing recruitment and retention challenges and reward good performance.
11.DfE told the Committee that it received the STRB’s report on 12 June 2020. This is around a month later than in previous years. DfE published and laid the STRB’s 30th report3 and its proposed response4 to that report before Parliament on 21 July 2020, following the submission of evidence by the Secretary of State5 and certain representative bodies.
The new pay arrangements
12.The STRB report recommended a 5.5% increase to the minimum of the main pay range, and that the maximum of the main pay range and the minima and maxima of all other pay and allowance ranges for teachers and school leaders should be uplifted by 2.75%. The STRB also recommended advisory pay points for teachers on the main pay range and upper pay range to support “a transparent and coherent career pathway and to assist with recruitment and retention”. The Secretary of State accepted the STRB’s recommendations in full and the Document has been revised to include the new pay and allowance ranges. In addition, a new Annex 3 has been inserted into the Document setting out the advisory pay points for the upper and main pay ranges.
13.According to DfE, the changes mean “a substantial above-inflation increase to the pay ranges for all teachers and leaders, the largest since 2005” and, with regard to the 5.5% increase for the minimum of the main pay range, represent a “significant first step towards the commitment to increase starting salaries nationally for teachers to £30,000 by 2022/23”.
14.DfE says that until recently, the annual pay order was laid by 10 August to enable the pay award and any other changes to the Document to come into force and have effect from 1 September. The Department adds that since 2018, however, it has been necessary to consider the teachers’ pay award in the context of the wider public sector pay process and awards and that, in order to allow “a meaningful (8 week) consultation”, this year the pay order will come into force on 14 October 2020 and its provisions will have effect retrospectively from 1 September 2020. The Department may wish to consider whether it is desirable to have a system in which pay awards are made retrospectively, and whether the process can be organised so that if changes are to take effect from 1 September the statutory process starts and finishes earlier.
Consultation
15.DfE invited consultees who contributed to the STRB process to comment on the STRB’s 30th report and the revised draft Document during an eight-week statutory consultation which ran from 21 July to 14 September 2020. DfE says that all eight of the consultees to the process responded, either individually or through a joint response.
16.As in previous years, the Association of School and College Leaders (ASCL), National Association of Headteachers (NAHT), the National Education Union (NEU) and Voice submitted a joint response, as well as providing individual responses, which, according to DfE, largely reiterated the messages of the joint response. While the joint response welcomed the 5.5% increase for early career teachers, it also highlighted that the majority of teachers would receive around 2.75% which would not be enough to address the recruitment and retention concerns expressed by the STRB. This was also highlighted by the British Association of Teachers of the Deaf (BATOD). The joint response also emphasised that additional funding would be required to ensure the pay awards were affordable for all schools, and that while the introduction of advisory spine points was a step in the right direction, performance related pay itself should be abolished and mandatory spine points reintroduced to establish a fair and transparent pay system for all. Responses from the National Employers Organisation for School Teachers (NEOST) and the National Governors Association (NGA) highlighted the financial pressures on schools and raised concerns over affordability and impact on budgets and redundancies.
17.With regard to funding, the Department states that “the pay award will be affordable, on average, nationally for schools as a result of the three-year investment package announced at the 2019 Spending Round”, which will be “increasing core schools funding by £2.6 billion this year, £4.8 billion in 2021-22 and £7.1 billion in 2022-23, compared to 2019-20”. The EM states that the increases to starting pay “will help ensure teaching is rightly regarded as a well-rewarded and prestigious profession, enabling us to attract the most able graduates and career changers into teaching to support improved outcomes for pupils”, adding that the pay award also takes a “decisive step towards a pay structure which better supports teacher retention, with large increases to early career pay where we know retention is most challenging”.
18.As in previous years, the consultees, including the National Association of Schoolmasters Union of Women Teachers (NASUWT), criticised the timing of the publication of the STRB report and the consultation over the school holiday period and highlighted the detrimental impact this had on school planning. The Committee has raised concerns about the timing of the consultation on teachers’ pay since 2017.6 Asked why the consultation had taken place again over the summer, DfE told us that:
“this year, like last HMT and No 10 took a much more hand-on approach to handling public-sector pay review body reports than in previous years. So, unlike previous years where, once we had agreed the recommendations with HMT and No10, we were then free to consult at a time of our choosing (which wouldn’t normally coincide with school holidays), HMT and No10 wanted to publish all pay review body reports on the same day. We had no control over when that date was. In order to mitigate the impact of consulting over the summer holidays we did increase the consultation period to 8 weeks, thereby giving consultees approximately 3 weeks of consultation period outside of the school holidays.”
Conclusion
19.While we note the link to the wider public sector pay process and that the Department received the STRB report later than in previous years and offered an eight-week consultation period, we are nevertheless disappointed that the consultation once again clashed with the holidays. This was also a time when schools and teachers were under particular pressure preparing for the new school year and the many special measures required to make schools safe during the pandemic, making it more difficult for them to engage with the proposed changes to teachers’ pay. Given that several consultees raised the timing as problematic again this year and that this has been a matter of concern, including to this Committee, since 2017, we urge the Department to consider how the statutory process could be timed more effectively in 2021.
20.The Order is drawn to the special attention of the House on the ground that it gives rise to issues of public policy likely to be of interest to the House.
Health Protection (Coronavirus, Restrictions) (Self-isolation) (England) Regulations 2020 (SI 2020/1045)
Date made: 27 September 2020
Parliamentary procedure: made affirmative
These Regulations introduce fines rising to £10,000 for those who fail to self-isolate following a notification of a positive test or contact with someone who has COVID-19. Because those using the NHS App have anonymity, we are concerned that its users could breach isolation requirements without incurring fines. This raises questions about inequalities as certain groups, for example the elderly or those on low income, may not have the necessary technology to use the NHS App and therefore be more likely to be subject to fines. Furthermore, we question the effectiveness of fines in deterring those prepared to ignore public health advice because they have taken the disease lightly or are asymptomatic.
These Regulations are drawn to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.
21.These Regulations follow the made affirmative procedure and were made on 27 September and brought into effect on 28 September. They have been laid by the Department for Health and Social Care (DHSC) and are accompanied by an Explanatory Memorandum (EM).
Stricter duties and fines
22.The Regulations strengthen the duties on those who are required to self-isolate and increase the penalties for non-compliance. Regulation 2 states that adults who have been notified, otherwise than through the NHS App, that they have tested positive for coronavirus, or have been in close contact with someone who has tested positive, must self-isolate in their home or another suitable place. Those who test positive are required to self-isolate for 10 days and those who live in the same household or have been in contact with someone who has tested positive must self-isolate for 14 days. They are also responsible for ensuring any child under 18 in their household self-isolates.
23.Regulations 7 to 9 require a worker or agency worker to notify their employer of their requirement to self-isolate as soon as reasonably practicable, and prohibit employers or agencies from allowing them to work in any place except the place where they are self-isolating. Fines are also introduced for employers who knowingly breach this requirement.
24.Fines are substantially increased, rising rapidly to £10,000, particularly where the breach of self-isolation is reckless; that is, where those doing so know that they will come into contact with other people (see regulation 11(2)).
Policy rationale
25.DHSC says that these Regulations are intended to slow or prevent a rise in the rate of reproduction (R) of COVID-19, and to reduce the total number of infected people by restricting the movement of people most at risk of spreading the virus. However. the BBC reports that these stronger measures are required because a study commissioned by the Government found just 18% of people who had symptoms went into isolation.7 We were surprised that the EM failed to mention either this figure or give the Government’s own estimate of the numbers breaching quarantine, in support of the policy change.
Potential for Discrimination
26.Regulation 2, which requires someone to self-isolate where their sample has tested positive for coronavirus or where they have been in close contact with someone who has tested positive, applies “where an adult is notified, other than by means of the NHS COVID 19 smartphone app developed and operated by the Secretary of State.” We asked DHSC whether those using the app might therefore be able to ignore such information with impunity. DHSC said:
“The NHS COVID-19 app has been explicitly designed to protect the anonymity of its users. The legal duty and associated fines do not, therefore, apply to people notified through the app that they have been in contact with someone who has tested positive for COVID-19.”
27.In response to supplementary questions, DHSC also said:
“The NHS COVID-19 app has been designed to protect the anonymity of its users alongside its role in protecting public health. An app user who needs to book a test will be redirected to the standard test booking system, where (independently of the app) they have to provide their personal details. Anyone who tests positive (whether or not they are an app user) will therefore be subject to the legal duty to self-isolate.
The legal duty to self-isolate does not apply where the app notifies someone anonymously that they have been in close contact with another app user who has tested positive. However, this does not prevent that person becoming subject to the legal duty if, through the standard contact tracing process and independently of the app, the person who has tested positive identifies them as a recent contact. This means there is no discriminatory effect: the legal duty to self-isolate applies equally to anyone identified as a contact through standard contact tracing processes, whether or not they also happen to be an app user.”
Potential for avoidance
28.While that offers some clarification of the position about equal liability for fines if a person has been tested, we were concerned that there might be a risk that this new regime might discourage people who had been notified of a contact from taking a test, thereby enabling them to continue to move about freely without incurring fines. DHSC responded:
“It is not possible to provide a reliable quantitative estimate of this potential impact. There will continue to be a strong programme of communications and engagement to promote the importance of having a test if someone has symptoms of coronavirus and the benefits of doing so – and to ensure people are aware of the support available to them if they have to self-isolate. The new Test and Trace Support Payment is specifically designed to help ensure that people on low incomes are not disincentivised from taking a test.”
Conclusion
29.These fines are substantial and depend on the effectiveness of the contact tracking system in all its forms. While Track and Trace can follow up the people that an individual with COVID-19 can identify, the NHS App works on the proximity of enabled phones to identify strangers, for example on a bus or in the supermarket queue. There are also concerns over the ability of Bluetooth to measure two metres accurately – leading to a number of false positives.
30.DHSC has announced that more than 12 million people in England have downloaded the NHS App. It is, however, only accessible to people whose phones have more modern software, thereby excluding those who have older handsets — typically, the poorer or the older members of society. Those groups are therefore more likely to be identified by Track and Trace than the NHS App, and consequently more likely to be subject to fines, compared to those with the latest smart phones.
31.The policy intention is that anyone notified that they have been in contact with an individual who has tested positive should go into self-isolation for 14 days. However, the Government cannot track those who have been informed by the NHS App. There is, therefore, the potential for those informed by the App to avoid being fined for failing to self-isolate, if they do not follow up the notification by applying for a test. Furthermore, we question the effectiveness of fines in deterring those prepared to ignore public health advice because they themselves have taken the disease lightly or are asymptomatic.
1 Regulation (EU) 2015/479 of the European Parliament and of the Council of 11 March 2015 on common rules for exports.
2 DfE, ‘School teachers’ pay and conditions document 2020 and guidance on school teachers’ pay and conditions’ (September 2020): https://publications.parliament.uk/pa/ld5801/ldselect/ldsecleg/123/12306.htm [accessed 30 September 2020].
3 School Teachers’ Review Body, ‘School Teachers’ Review Body 30th report: 2020’ (21 July 2020): https://www.gov.uk/government/publications/school-teachers-review-body-30th-report-2020 [accessed 30 September 2020.
5 DfE, ‘Government evidence to the STRB: 2020 pay award for school staff’, (21 January 2020): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/859208/STRB_Written_Evidence_2020.pdf [accessed 30 September 2020].
6 1st Report, Session 2019 (HL 3); 41st Report, Session 2017-19 (HL 190); 5th Report, Session 2017-19 (HL 20).
7 ‘Covid-19: Up to £10,000 fine for failure to self-isolate in England’, BBC (28 September 2020): https://www.bbc.co.uk/news/uk-54320482 [accessed 28 September 2020]. The research cited is Louise E Smith PhD, Henry WW Potts, PhD, Richard Amlôt, PhD, Nicola T Fear, DPhil (Oxon), Susan Michie, DPhil, G James Rubin, PhD ‘Adherence to the test, trace and isolate system: results from a time series of 21 nationally representative surveys in the UK (the COVID-19 Rapid Survey of Adherence to Interventions and Responses [CORSAIR] study)’ medrxiv 18 September 2020): https://www.medrxiv.org/content/10.1101/2020.09.15.20191957v1.full.pdf.