Instruments drawn to the special attention of the House
Education (Coronavirus) (School Teachers’ Qualifications, Induction, Inspection Arrangements, Etc) (Amendment) Regulations 2021 (SI 2021/385)
Date laid: 25 March 2021
Parliamentary procedure: negative
These Regulations make changes to the requirements for those undergoing initial teacher training to address the impacts of the pandemic; amend the criteria for the recognition of qualifications of certain overseas teachers; alter Ofsted’s remit in relation to the inspection of teacher training; enable data about teachers undergoing a second year of induction to be collected from schools; and implement reforms to the statutory induction of early career teachers (ECTs) in England. Given the current challenges in retaining ECTs, the changes the instrument makes to the statutory induction of teachers and additional information the Department has provided about the wider approach to improving teacher recruitment and retention may be of interest to the House.
The 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.These Regulations have been laid by the Department for Education (DfE) with an Explanatory Memorandum (EM). They make changes in relation to teachers’ qualifications, training and induction, the collection of data and Ofsted’s inspection regime which are set out in more detail below.
Changes to initial teacher training requirements during the pandemic
2.The instrument relaxes some of the statutory requirements for those undergoing and completing initial teacher training (ITT). Trainees at accredited institutions in England will be allowed to undertake their practical teaching experience wholly or mainly in a school outside England before 1 September 2021, thereby enabling ITT providers to widen their pool of placement schools. According to DfE, this could include trainees training at accredited institutions in England but who may, for example, be placed mainly in schools in Wales.
3.In addition, accredited ITT providers will be able to recommend trainees for Qualified Teacher Status (QTS) if they are satisfied that the trainee has demonstrated adequate progress towards meeting the Teachers’ Standards, and would have met them, were it not for a reason relating to the pandemic. This will apply to assessments completed by the accredited provider before 1 September 2021. DfE says that these changes are made in response to the disruption caused by the pandemic and seek to protect the flow and quality of ECT supply to schools in September 2021. According to DfE, more than 41,000 trainee teachers have been recruited and are currently on ITT courses leading to the award of QTS in England.
Recognition of certain overseas teaching qualifications
4.The arrangements for the recognition of qualifications and for awarding QTS to teachers from Australia, Canada, New Zealand and the USA are amended to reflect that teachers in these countries may be regulated at regional rather than national level. In addition, teachers who have completed a comparable course to ITT in Gibraltar may be awarded QTS, ensuring that these teachers are treated the same as other teachers from Europe.
Statutory induction of ECTs
5.Changes are made to the statutory induction of ECTs. DfE explains that most teachers are required to complete successfully an induction period in order to be able to teach as a qualified teacher in maintained schools and certain other institutions in England. Each year, around 30,000 ECTs undertake their statutory induction in England. This instrument extends the induction period from one year/three terms to two years/six terms. According to DfE, this extended induction period will be underpinned by a new structured training and development programme based on the Early Career Framework (ECF).1 In addition to the 10% timetable reduction that ECTs currently receive during their one-year induction, ECTs will receive a 5% timetable reduction in the second year of induction to allow sufficient time to complete ECF professional development activities. DfE says that these changes will help address the fact that over 20% of new teachers leave the profession within their first two years of teaching, and over 30% leave within their first five years.
6.Given that the drop-out rate of ECTs is significant, we asked whether the Department was taking forward other measures to improve retention. In response, DfE explained that the 2019 Teacher Recruitment and Retention Strategy2 outlines four key areas where “focus, investment and reform can have the biggest impact on improving teacher recruitment and retention”. According to DfE, the four priority areas are:
(a)Creating the right climate for leaders to establish supportive school cultures. This includes “radically” simplifying the system and a new Ofsted framework with “an active focus on reducing teacher workload, with inspectors considering staff workload as part of the leadership and management judgement”.
(b)Transforming support for ECTs through the new ECF. DfE says that the ECF will underpin the new entitlement for two years of fully-funded structured professional development which is designed to help ECTs develop their practice, knowledge and working habits. There will be additional support for the mentors assigned to ECTs, and DfE will introduce “phased training bursaries, with staggered retention payments to encourage good people to remain in the profession, as well as to join”. According to DfE, the changes made by this instrument are central to this priority.
(c)Building a career offer that remains attractive to teachers as their careers and lives develop. According to DfE, this includes the development of “specialist qualifications to support clearer non-leadership career pathways for teachers that want to stay and excel in the classroom”, with investment focussed on challenging schools and support for headteachers to “transform flexible working”.
(d)Making it easier for “great people” to become teachers through a new ‘discover teaching initiative’ and by simplifying the process for becoming a teacher, including through a simpler digital application process for initial teacher training.
7.We asked DfE to what extent ECTs start their careers via agencies/as supply teachers, rather than being employed directly by schools, and whether ECTs employed by agencies/as supply teachers would also benefit from the new induction provisions. The Department told us that:
“We do not collect data on the number of ECTs who complete induction as supply teachers but anecdotally we think this number is relatively low. Only supply teachers who are on long-term placements (one term or more) are eligible to undertake statutory induction. Short-term supply placements of less than one term, or equivalent, cannot count towards induction, as such posts will not provide an ECT with the breadth of experience, support, and assessment. From September 2021, all ECTs who undertake statutory induction, including those on long-term supply placements, will benefit from the new induction provisions.”
8.We take the view that to help improve the recruitment and retention of ECTs, the Department may wish to develop a more comprehensive understanding of the different types of employment. This includes obtaining data about the number of ECTs employed via agencies/as supply teachers, even if these teachers are not eligible for statutory induction due to the temporary nature of their employment.
9.We also asked whether ECTs who work through agencies/as supply teachers would have their income reduced, if the 10%/5% timetable reduction is applied during induction. The Department clarified that:
“The 10%/5% timetable reduction relates to the ECT’s time in the classroom rather than their overall time in school. This time off timetable should be used to specifically enable ECTs to undertake activities in their induction programme. Supply teachers can either be hired directly by a school or through a private supply agency. Where a local authority maintained school hires a supply teacher directly, the teacher is entitled to their pay under the School teachers’ pay and conditions document (STPCD).3 Supply agencies on the other hand are private companies and as such have discretion over individual pay — the teacher’s terms and conditions (including pay) will be a matter between the supply teacher and the agency by which they are employed.”
10.Given the importance of the changes made by this instrument to the induction process, we asked why the changes had not been made by a stand-alone instrument and had instead been included in an instrument which bundles together several different measures, including temporary measures to address the impacts of the pandemic. The Department responded that:
“In order to avoid duplication of work and to minimise resourcing implications on the Department and its advisers, it was decided that amendments to the four sets of regulations should be combined into one instrument. All the changes in the instrument relate to teacher training and separate communications/guidance have been issued for each area.”
School Workforce Census
11.This instrument also amends the School Workforce Census to allow data about second year ECTs to be collected from schools. This is to enable DfE to support the delivery of statutory induction and to allocate funding to schools for the ECT’s 5% timetable reduction in the second year of induction and for their mentor.
Remit of Ofsted inspections
12.Finally, the instrument extends the remit of Ofsted to enable the regulator to inspect two types of government-funded training programmes for teachers and others engaged in the provision of education or training from September 2021: ECF provider-led training delivered to ECTs and their mentors and reformed National Professional Qualifications for teachers and others who want to develop their knowledge and skills in school leadership and specialist areas of teaching practice.
Conclusion
13.Given the current challenges in recruiting and retaining ECTs, the changes the instrument makes to the statutory induction of teachers and the additional information the Department has provided about the wider approach to improving teacher recruitment and retention may be of interest to the House. The 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.
Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 11) Regulations 2021 (SI 2021/442)
Date laid: 1 April 2021
Parliamentary procedure: negative
This instrument makes further changes to the testing regime under the International Travel Regulations. The Explanatory Memorandum (EM) accompanying the instrument is, in our view, superficial. We therefore wrote to Jo Churchill MP at the Department for Health and Social Care (DHSC) with a number of questions. The correspondence is published in Appendix 1 to the Report. This is not the first instance of an inadequate EM from the DHSC so we asked the Minister to provide an assurance that steps would be taken to these repeated failures and to ensure that the House is always provided with an adequate explanation of the policy changes in its pandemic legislation. The Minister’s response was disappointingly vague in the light of the repeated concerns we have expressed on this matter.
These Regulations are drawn to the special attention of the House on the ground that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.
14.These Regulations laid by the Department of Health and Social Care (DHSC) amend the International Travel Regulations:4 regulation 6 introduces a system of self-isolation for some road haulage workers; regulations 3, 4, 5 and 7 to 11 introduce a system of workforce testing for coronavirus. Regulation 12 amends the Health Protection (Notification) Regulations 2010 to require laboratory operators to secure consistent numbering of specimens tested and require pre-payment.
15.The explanation for the instrument stated in section 7 of the Explanatory Memorandum (EM) is scant:
“This instrument introduces a requirement for these critical sector workers to be tested. Some of these sectors are required to take as part in the general mandatory testing regime contained in the International Travel Regulations whilst other sectors are subject to bespoke workforce testing requirements. The introduction of the bespoke testing requirements also establishes a duty on their employers to take reasonable steps to facilitate testing.”
16.We regard this explanation as superficial: it fails to give any rationale for these changes or what effects are expected as a result. Several other changes made by the instrument are not explained at all.
17.We therefore wrote to Jo Churchill MP, Parliamentary Under Secretary of State at DHSC, with a number of questions, some about the practicalities of enforcement, and some about whether the changes to testing are as a result of an omission or of deliberate avoidance by travellers. The correspondence is published in Appendix 1.
18.The Minister’s letter gives a much better description of why all of these legislative steps have been taken. This is the level of information that Parliament and the public need in order to understand why these changes are being made. We have asked DHSC to publish an amended EM so that this information will be available to all readers.
19.We note that much of the legislation relies on guidance (for example, about the “reasonable steps” an employer must take). The revised EM should make any such links explicit so that the reader is given a complete picture of what actions are required to meet the legal duty and to assess whether they are reasonable.
20.We also note that section 6 of the original EM includes a list of what each regulation does. This is of limited use, in part because the numbering of the regulations is incorrect, and in part because the text is descriptive in that it simply summarises what the legislation does but not the policy rationale for why the change is thought necessary. We regard this as evidence of poor quality control within the Department.
21.We have therefore asked the Minister for an assurance that steps will be taken to ensure that, in future, the explanatory material in support of DHSC instruments, particularly those related to the pandemic, is fit for purpose. The Minister’s response was disappointingly vague in the light of the repeated concerns we have expressed on this matter.
Conclusion
22.We criticised the general quality of the policy explanation in EMs produced by DHSC in relation to pandemic legislation in our Interim Report.5 Our 49th Report recently criticised the EM accompanying the Travel No. 9 Regulations6 for being selective and the Report included an exchange of correspondence with Lord Bethell, Parliamentary Under Secretary of State at DHSC, seeking clarification of certain policy issues the EM glossed over.7 We are therefore disappointed to have had to write again so soon afterwards due to an inadequate EM: sufficient information to understand the reasons for and the effects of the legislation should be the core of every EM.
23.During the 2017–19 session we said that “Brexit pressure” would not be an acceptable excuse for any decrease in the quality of explanatory material accompanying instruments.8 We restated that view with regard to COVID-19 instruments: “the fact that the majority have been brought into effect within days makes it even more important that their intention and effect are made clear to both Parliament and the public”.9 In our letter to DHSC we asked the Department to take remedial action to make sure that they reach this standard. We will be monitoring their progress carefully.
Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021 (SI 2021/428)
Date laid: 31 March 2021
Parliamentary procedure: negative
This Order introduces several changes to local planning legislation to make it easier to change the use of buildings from commercial to residential use with the aim of supporting the economic recovery from the pandemic; to expand existing schools, colleges, universities, hospitals and prisons; and to further develop operational facilities at ports, as part of the Government’s programme for Freeports. The instrument also makes full local planning consideration a statutory requirement before any relevant statues, memorials or monuments can be removed, implementing a policy the Government announced in January following the removal of the statute of Edward Colston in Bristol last summer.
We have previously expressed concern about using secondary legislation to bring about significant changes to planning legislation during the pandemic. Given that the changes made by this Order are permanent and may have a considerable impact on high streets and the development of key infrastructure, such as schools, colleges, universities, prisons and ports, the instrument again raises the question whether it would have been more appropriate to make these changes in a Bill, enabling Parliament to scrutinise the changes and their potential impact more fully. This is particularly apposite as the instrument also puts the Government’s approach to protecting historic statues, including those which may be controversial, on a statutory footing.
This Order is drawn to the special attention of the House on the ground that it is politically or legally important and gives rise to issues of public policy likely to be of interest to the House.
24.This Order has been laid by the Ministry of Housing, Communities, and Local Government (MHCLG) with an Explanatory Memorandum (EM). The instrument makes changes to local planning legislation in relation to permitted development rights, which are explained below. A further statutory instrument will introduce the fees that will apply to these developments.
25.According to MHCLG, permitted development rights provide a more streamlined planning process with greater planning certainty than the formal local planning application process, while still enabling local planning authorities to consider key planning matters through a “light-touch” prior approval process.
Changing the use of buildings from commercial to residential use
26.The Order introduces a new permitted development right (Class MA) to allow the use of a building to be changed more easily from any use within the Commercial, Business and Service use class (Class E) to residential use (Class C3). Since 1 September 2020, Class E has included a wide range of uses such as offices, shops, cafes and gyms which are suitable for a town centre. MHCLG says that introducing a new permitted development right for such premises will support housing delivery, economic recovery from the pandemic and regeneration of high streets, meeting the Government’s “Build, Build, Build” commitment10 to allow a wider range of commercial buildings to change to residential use without the need for a formal planning application.
27.MHCLG says that to prevent gaming of the system and to protect successful businesses, the building that is being changed to residential use must have been in Class E or an equivalent commercial, business and service use for two years and must also have been vacant for three continuous months immediately before the date of application for prior approval. Any time that the premises have been closed as a result of pandemic-related restrictions will not count towards this period. The instrument provides for a number of restrictions and protections, including that no more than 1,500 square metres of floorspace in any building may change use, and that any homes delivered will have to meet, as a minimum, the nationally described space standards. In addition, the right will be subject to prior approval by the local planning authority in respect of matters such as contamination and impacts of noise from existing commercial premises; adequate natural light in all habitable rooms; the impact of the loss of ground floor commercial, business and service use and the impact of any loss of health centres and registered children’s nurseries on the provision of local services.
Allowing further development of schools, colleges, universities, hospitals and prisons
28.The Order amends permitted development rights in Class M to support the extension of school, college, university, hospital and, for the first time, prison buildings. The footprint of any buildings to be developed may be up to 25% of the cumulative footprint of existing buildings on site on 21 April 2021 or up to 250 square metres, whichever is greater. There will also be height restrictions. MHCLG says that the changes are to help implement “Project Speed” which is focused on the delivery of important public infrastructure and, specifically, the delivery of schools, colleges, hospitals and prisons.11 The development of prisons will be limited to closed prisons which operate behind a secure closed perimeter and will not be available, for example, for the development of immigration removal centres. The light-touch approval process will not impact on prison accommodation standards which, according to MHCLG, are set internally by the Ministry of Justice and through international law.
29.MHCLG says that in response to concerns raised during consultation, the Order introduces a prior approval process specifically for the development of university buildings because of their potentially sensitive city centre location and large scale. Under this process, the local authority may assess any transport and highways impacts, the design and external appearance of the development and the impact of the development on heritage and archaeology.
Allowing further development of ports
30.The Order provides the operators of “dock, pier, harbour, water transport, canal or inland navigation undertakings” with greater flexibility to develop their operational services and facilities. According to MHCLG, this supports ports as an important economic agent following the UK’s exit from the EU and meets a commitment made in response to the consultation on Freeports.12 The additional flexibilities reflect the permitted development right already available to airports. A requirement to consult the local planning authority prior to any development taking place mirrors the provision for airports and gives local planning authorities an opportunity to comment on the plans and their impacts. Consultation will not be needed where certain limited types of development are urgently required for the efficient running of a port. Asked for more detail, MHCLG told us that while the specific types of development that this encompasses “will depend on each individual circumstance and would therefore need to be considered on a case by case basis”, local planning authorities will retain their ability to take enforcement action “against development that they do not consider to be within the scope of the new permitted development right”.
Requiring full local planning consideration before any statues, memorials and monuments can be removed
31.This Order makes a permanent amendment to exempt certain statues, memorials and monuments from the permitted development right which allows their demolition. The exemption applies to statues, memorials and monuments which have been in place for at least 10 years on the date of proposed demolition, other than those in five specified exceptions. According to MHCLG, the exceptions are needed to protect the curatorial independence of museums and art galleries and to avoid every-day garden ornaments being captured by the new rules and reflect that certain statues, memorials and monuments, such as cemeteries, are governed by other regulations. The new rules mean that, in future, proposals to demolish relevant statues, memorials and monuments will require a full application for local planning permission. MHCLG says that this implements the Government’s policy intention as announced in January 2021.13
32.In addition to this Order, the Government are introducing separately a requirement for local planning authorities to notify planning applications for the removal of relevant statues, memorials and monuments to the Secretary of State. This will give the Secretary of State discretion to call in any such planning applications where he considers this necessary. MHCLG told us that this notification requirement will be set out in an amended Direction from the Secretary of State to local planning authorities, and that the Secretary of State will exercise these powers in accordance with the existing call in criteria as set out in 2021.14
33.Setting out the rationale for this change, MHCLG states in the EM that:
“statues, memorials and monuments which are erected to commemorate prominent individuals and events can become the subject of disagreement. Government considers that decisions to remove such public landmarks should be made following proper process in accordance with the local development plan, national planning policy and other material considerations, and consultation with the public. Government is committed to protecting our historic environment and its policy is that such statues should be retained and explained — to raise awareness of our country’s complex past — rather than be removed.”
34.We asked whether there have been any cases apart from the removal of the statue of Edward Colston in Bristol in June 2020 where statues have been removed without the consent of the relevant authority. MHCLG told us that:
“We are aware of 2 other cases where statues have been removed without consent — Dunham Massey sundial and the carved head forming part of the sign to the Green Man and Black’s Head at Ashbourne, Derbyshire, although both of these can be distinguished from the removal of the Colston statute in that they were removed as a precaution, and in both cases the parties are engaging constructively.”
Conclusion
35.We have previously expressed concern about using secondary legislation to bring about significant changes to planning legislation during the pandemic.15 Given that the changes made by this Order are permanent and may have a considerable impact on high streets and the development of key infrastructure, such as schools, colleges, universities, prisons and ports, the instrument again raises the question whether it would have been more appropriate to make these changes in a Bill, enabling Parliament to scrutinise the changes and their potential impact more fully. This is particularly apposite as the instrument also puts the Government’s approach to protecting historic statues, including those which may be controversial, on a statutory footing. The Order is drawn to the special attention of the House on the ground that it is politically or legally important and gives rise to issues of public policy likely to be of interest to the House.
1 DfE, Early Career Framework (January 2019): https://www.gov.uk/government/publications/early-career-framework [accessed 15 April 2021].
2 DfE, Teacher recruitment and retention strategy (January 2019): https://www.gov.uk/government/publications/teacher-recruitment-and-retention-strategy [accessed 15 March 2021].
3 DfE, School teachers’ pay and conditions document 2020 and guidance on school teachers’ pay and conditions (September 2020) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/920904/2020_STPCD_FINAL_230920.pdf [accessed 15 April 2021].
4 Health Protection (Coronavirus, International Travel) (England) Regulations 2020 (SI 2020/568).
5 Interim report on the Work of the Committee in Session 2019 (39th Report, Session 2019-21, HL Paper 200); see paragraphs 10 and 12.
6 49th Report, Session 2019-21 (HL Paper 245): third item, Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 9) Regulations 2021 (SI 2021/223).
7 49th Report; Appendix 1.
8 26th Report, Session 2017–19 (HL Paper 1250): see para 49 onwards.
10 Prime Minister Boris Johnson, Press Release: Build Build Build on 30 June 2020.
11 Prime Minister Boris Johnson, Speech in Dudley, 30 June 2020: https://www.gov.uk/government/speeches/pm-economy-speech-30-june-2020 [accessed 15 April 2021].
12 DIT and HMT, ‘Freeports consultation’ (October 2020): https://www.gov.uk/government/consultations/freeports-consultation [accessed 15 April 2021].
14 See: HC Deb, 26 October 2012, col 71WS. According to this statement, planning issues may be of more than local importance if they conflict with national policies on important matters; have significant long-term impact on economic growth and meet housing needs across a wider area than a single local authority; could have significant effects beyond their immediate locality; give rise to substantial cross-boundary or national controversy; raise significant architectural and urban design issues; or involve the interests of national security or of foreign governments.
15 25th Report, Session 2019-21 (HL Paper 123).