6.This instrument proposes changes to the operation of the capacity market in Great Britain, both to support market participants during the pandemic and to meet commitments made by the Government in response to an investigation by the European Commission. The Department for Business, Energy and Industrial Strategy (BEIS) explains that the instrument proposes to remove or relax temporarily certain obligations or deadlines to support capacity providers during the pandemic. These changes include, for example, allowing for the current delivery year (1 October 2019 to 30 September 2020) only, capacity payments that have been suspended because capacity providers have failed to meet the performance requirements to be paid if and when the requirements are met by a specified date; and providing the Secretary of State with greater discretion, when determining appeals against termination notices, to extend the time for capacity providers to achieve compliance, where non-compliance arises as a result of the pandemic. In addition, the instrument proposes permanent changes to implement commitments the UK made to improve the Capacity Market in response to a decision by the General Court of the Court of Justice of the European Union in November 2018 to annul the Capacity Market’s original State aid approval and a subsequent investigation by the European which found in October 2019 that the Capacity Market complied with EU State aid rules. These changes include, for example, reducing the threshold of connected capacity at which providers may enter the Capacity Market from 2MW to 1MW which will align the Capacity Market with other energy markets and make it easier for providers to compete in multiple markets. BEIS says that a further instrument will be laid soon to help implement the commitments made by the UK and to provide further support for capacity providers during the pandemic.
7.These Regulations came into force at 12.01am on 1 June 2020 to further amend the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (“the original lockdown regulations”) to gradually relax certain restrictions in line with public health information that the risk of infection is lower outdoors. They:
8.Schedule 2 is amended to allow all outdoor markets to open, with vehicle showrooms, and amenities for certain outdoor sports including golf but requires the closure of venues for indoor games or entertainment; theme parks and adventure activities; social clubs; zoos, aquariums, and safari parks; and any indoor attractions at landmarks, heritage sites, film studios and gardens including observation wheels.
9.The Regulations also amend the requirement in the original lockdown regulations for review of the restrictions and requirements from every three weeks to every four weeks. The next review will therefore take place by 28 days from the last review, that is by 25 June.
10.This instrument enables schools’ forums to hold public meetings remotely, for a temporary period, while they are unable to meet physically during the pandemic. According to the Department for Education (DfE), remote meetings may take place via telephone or video conferencing, live webcast or live interactive streaming or by other means. DfE says that the instrument provides certainty that school forums can continue to meet during the pandemic, to support the delivery of schools and early years funding. Schools forums may meet remotely up to and including 31 March 2021, the end of the 2020–21 financial year, to align with the schools and early years funding cycle. DfE says that it will consider making the changes permanent following the 2020–21 financial year.
11.This instrument allows for more flexibility when applications for enhanced criminal record checks are processed in relation to proprietors and members of proprietor bodies of independent schools (including chairs of academy and free school trusts), as well as staff and supply staff in independent schools. DfE explains that such checks are part of the safe recruitment checks necessary for all those who work in schools and are also required, for example, when a new school applies for registration or when the individual proprietor or chair of a proprietor body changes, so that a decision can be made as to the suitability of the new person to carry out that role. The Department says that it carries out around 1,100 paper-based Disclosure and Barring Service checks each year, but that it is currently unable to process these checks because of the pandemic and that, as a result, applications to register new independent schools and approve changes of proprietors have stalled. This instrument introduces more flexibility into the process, including by allowing checks to be transmitted electronically, thereby enabling DfE to restart processing applications. The Department told the Committee that the changes “are intended to be permanent” and that they will “create a system which will be quicker and better for all parties”, but that for “the very small number of applicants who will not be able to use the new system, we will also be retaining the current paper based postal system”. DfE says that it “would have proposed [the changes] in any event” when next reviewing the current rules which it plans to do “in the next 12 months”. The Department did not consult on the changes but says that it held informal discussions with the Independent Schools’ Council and inspectorates which, according to DfE, were content with the approach.
12.This instrument relaxes temporarily during the pandemic certain procedural requirements that maintained schools, academies and pupil referral units must follow in relation to reinstatement decisions and review panels where pupils have been excluded from school. The instrument allows responsible bodies and independent review panels to meet via “remote access” (that is via live audio or video-link) to consider exclusions, where it is not reasonably practicable for the meeting to take place in person during the pandemic. DfE says that certain conditions have to be met to ensure procedural fairness: participants must be able to take part fully; they must have given their agreement to the use of remote access; they must all have access to the necessary technology; and it must be possible to hold the meeting fairly and transparently in this way. While it will be for the responsible body or those arranging the meeting to decide whether the conditions are met, pupils and/or parents can refuse consent to a remote meeting if they wish for the meeting to be held in person, for example, if they do not feel they could put across their case virtually due to language barriers. The instrument also extends the time limits for certain exclusion and review processes. The changes are temporary and apply to exclusions occurring between 1 June 2020 and 24 September 2020, as well as to exclusions occurring before 1 June 2020 where the scrutiny procedures have not yet been exhausted.
13.This instrument suspends temporarily an obligation on schools to record details in the attendance register between 1 June 2020 until the end of the 2019–20 school year. The instrument applies to all schools, including independent schools, but exempts schools where all pupils are boarders. DfE explains that as schools are welcoming back more children from 1 June, the temporary suspension aims to help them manage the non-attendance of certain pupils and the phased return of particular groups of pupils by providing them with greater flexibility to record attendance and absence than is available under the current rules. The Department says that without the changes there would be significant additional work for schools which would, for example, have to grant a leave of absence for each of the pupils on their roll who are not eligible to attend or would have to record the absence as unauthorised. According to DfE, local authorities and school leaders are content with the temporary suspension and no absence data from the
2019–20 school year will be published in performance tables. Where a child that is expected to attend fails to do so, DfE expects schools, local authorities and other relevant parties to work with the child’s parents to support their return to school, but parents will not be penalised if their child does not attend school during this period.
14.The Department for Work and Pensions (DWP) states that these Regulations provide an incentive to individuals to follow government advice to isolate for 14 days if they are notified that they have been in contact with a person with coronavirus. Anyone in Great Britain who receives a relevant notification (that is from a health authority or someone employed by the government in communicable disease surveillance) will be entitled to Statutory Sick Pay if they are unable to work as a result, whether they go on to contract the disease or not. DWP states that this forms an important part of the UK Government’s Contact Tracing strategy to limit or contain the spread of the virus.
4 The Capacity Market helps to maintain a secure and reliable electricity supply during times of system shortage and stress. It operates through auctions in which successful bidders (capacity providers) are awarded agreements which oblige them to deliver capacity by generating electricity or reducing demand at times of system stress. Providers receive capacity payments when they deliver and face financial penalties if they fail to do so.
7 . Those Regulations, and any amendments to it, are still due to expire at the end of six months beginning with 26 March 2020 (the day on which they came into force).
8 Schools forums are statutory bodies established by each local authority to advise on matters relating to the local authority’s schools’ budget, including five to 16-year old provision in mainstream schools, early years provision and high needs provision for children and young people (aged 0-25) with complex needs.
9 The ‘responsible body’ is the governing body in the case of a maintained school, the management committee in the case of a pupil referral unit, and the proprietor (Academy Trust) in the case of an academy.