32.This instrument disregards payments made under the Test and Trace Support Payment Scheme in England to employees who are on a low income and have been asked to self-isolate by NHS Test and Trace because they have tested positive for COVID-19 or recently been in close contact with someone who has, so that payments made under the scheme will not be liable to employer or employee Class 1 National Insurance contributions (NICs). Employers will also not be liable to Class 1A NICs in respect of such payments.
33.These draft Regulations propose to revoke an earlier instrument which provided that, where higher education providers recruited first year students above the level that the Department for Education (DfE) had allocated to them for the academic year 2020–21 (through the so-called student number controls or SNC), reduced tuition fee limits would apply to those providers’ full-time undergraduate courses in the following academic year 2021–22. This was to ensure that if providers exceeded their allocated SNC, the sums available to them through the student finance system in the subsequent academic year would be reduced proportionately. The earlier instrument also provided for a proportionate reduction of the maximum tuition fee loan amounts available to English-domiciled students starting full-time courses at institutions in Scotland, Wales or Northern Ireland in the academic year 2021–22 where the number of students exceeded the SNC for that institution in the academic year 2020–21.The aim of the earlier instrument was to prevent higher education providers from adopting admissions practices, such as the large-scale use of unconditional offers, to recruit a greater share of domestic students and secure their tuition fee income and a greater share of public funding at a time when it was expected that fewer students would chose to go to university. DfE says that following the changed approach to A-level grades this year, more students than expected are now entering higher education in the academic year 2020–21. The Secretary of State therefore announced on 17 August 2020 that the SNC policy would be withdrawn and the earlier instrument be revoked. These draft Regulations propose to implement that commitment.
34.This instrument proposes changes to UK competition law to implement provisions contained in the Withdrawal Agreement. According to the Department for Business, Energy and Industrial Strategy (BEIS), the Withdrawal Agreement provides for the orderly conclusion of EU antitrust and merger cases that relate to UK markets by giving the European Commission competence to conclude its ongoing investigations. This instrument proposes amendments to UK competition law that ensure that UK competition authorities, such as the Competition and Markets Authority, can continue to support ongoing EU competition cases after the end of the Transition Period (TP). This includes giving UK competition authorities powers to monitor and enforce transferred EU remedial requirements. The instrument also ensures that changes made to the competition regime by an earlier EU Exit instrument, which created a standalone UK competition regime, have effect with reference to the end of the TP, rather than to exit day, so that the UK regime will function as intended at the end of the TP. The instrument further proposes to revoke Regulation (EU) No 2019/452, which has direct effect in the UK and establishes a framework for the screening of foreign direct investments into the EU. Asked whether this would reduce the scrutiny of foreign direct investment into the UK, BEIS told the Committee that:
“This EU Regulation relates principally to cooperation between EU Member States on the screening of foreign direct investments. It is revoked by the draft regulations because it would be redundant and have no practical application in relation to the United Kingdom outside the membership of the EU and it would be inappropriate for it to remain on the UK statute book. The UK Government has its own system of screening foreign direct investments and has powers under the Enterprise Act 2002 to intervene in mergers between businesses on public interest grounds. The Government also announced the National Security and Investment Bill in the Queen’s Speech in December, which will reform the UK’s investment screening powers in relation to national security.”
35.This instrument proposes to remove an exemption under which some schools and colleges in England that have been judged as ‘outstanding’ by Ofsted are currently not subject to regular inspections. The intention to lift the exemption was first announced in September 2019. In a consultation between 10 January and 24 February 2020, over 89% of respondents were in favour of ending the exemptions. The Department for Education (DfE) says that the exemption was introduced in 2012 to “recognise and reward high performing schools and colleges, allowing them to continue to focus on providing excellence with less intervention, and concentrating inspection where it was needed most”. DfE says that, with some schools and colleges not having been inspected since the 2006/7 school year, the exemption is now starting to lead to a loss of confidence in the ‘outstanding’ grade, the highest grade awarded by Ofsted, and that some schools, colleges, parents and students are not receiving an up to date independent assessment of quality and performance under Ofsted’s new inspection framework which was introduced in September 2019. The changes proposed by this instrument mean that these schools and colleges will in future be subject to regular Ofsted inspections. Ofsted intends to prioritise inspections of formerly exempt schools and colleges that have gone the longest since their last inspection, starting with those that have not been inspected for a decade or longer. While all routine Ofsted inspections were suspended temporarily in March to alleviate pressure on schools and colleges during the pandemic, the intention is for these inspections to resume from January 2021. DfE will keep this date under review.
36.These Regulations amend the previous EU Exit Regulations to provide for different systems in Great Britain and Northern Ireland in line with the Northern Ireland Protocol that forms part of the Withdrawal Agreement.
37.In relation to Great Britain, these Regulations provide for the use of Australian picture warnings (to replace the EU picture warnings on which the Commission holds the copyright) and for the establishment of a domestic notification system for new tobacco products including herbal products for smoking and e-cigarettes.
38.In relation to Northern Ireland, because the Tobacco Products Directive (Directive 2014/40/EU) is listed in Annex 2 of the Protocol, EU law will continue to be directly applicable in Northern Ireland. This includes a requirement to continue using the EU Common Entry Gate (EU-CEG) system for the notification of tobacco and e-cigarette products.
39.The Regulations also provide that producers will only be required to pay one fee if they notify a new product on either or both of the notification systems. However, products which are required to carry picture warnings will not have mutual access to the two markets because of the different legal requirements that apply within each area.
16 Higher Education (Fee Limits and Student Support) (England) (Coronavirus) Regulations 2020 (); , Session 2019–21 (HL 78).
17 Competition (Amendment etc.) (EU Exit) Regulations 2019 (); SLSC Sub-Committee A, , Session 2017–19 (HL 221).
18 State-funded schools other than nursery schools, special schools, pupil referral units and alternative provision academies.
19 Institutions within the statutory further education sector and 16 to 19 academies.
20 Ofsted, Education Inspection Framework (May 2019): [accessed 8 October 2020].
21 Tobacco Products and Nicotine Inhaling Products (Amendment etc.) (EU Exit) Regulations 2019 ().