Forty Fourth Report Contents

Drawn to the special attention of the House

Draft Immigration and Nationality (Fees) (Amendment) Order 2023

Date laid: 6 June 2023

Parliamentary procedure: affirmative

Among other measures, this Order would set the maximum fee that can be charged for the new Electronic Travel Authorisation and increase the maxima for a wide range of other immigration and nationality fees. The Home Office’s Explanatory Memorandum (EM) omitted key information about the wider context of the policy changes, something that has been a theme of our comments on recent EMs from the department. We ask the Home Office to reconsider its approach to EMs. The Order would also increase maximum chargeable fees for a number of visas. The rationale for increasing the maximum for student visas, in particular, appears weak and the House may wish to enquire further about the Government’s intention and rationale for this change. Alongside the Order, the Home Office published its Impact Assessment (IA) for the wider ETA policy. The IA is limited in some respects, and we encourage the Home Office to undertake and publish comprehensive analysis of the effects of ETA in practice, including specifically in Northern Ireland which may experience larger effects than the rest of the UK.

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.

Background

1.This Order contains a number of provisions in relation to the fees that can be charged for immigration and nationality services (for example, visa applications). The most noteworthy changes are:

2.In our 35th Report, in March 2023, we drew the instruments that introduced ETAs to the special attention of the House.1 We raised questions about the practical implementation of the system and criticised the Home Office for not providing any impact information in relation to ETAs. In May 2023, we sought further information at an evidence session with Lord Murray of Blidworth, Parliamentary Under Secretary of State for Migration and Borders at the Home Office.2 Following that session, we wrote to Lord Murray with further questions (see Appendix 1). Alongside these Regulations, the Home Office published a full Impact Assessment (IA) for ETAs3 and Lord Murray responded to our letter (also included in Appendix 1).

3.In relation to increases in fee maxima, the instrument would not itself set or introduce the new fees, only specifying their maximum levels, as well as the purposes for which fees may be charged. Further regulations would be required to set the fees themselves.

ETA fee level

4.The Order would set the maxima for an ETA at £15. Separately, the Home Office stated that the actual fee during the initial implementation period will be £10.4 In response to our question on why the actual fee level was not included in the Explanatory Memorandum (EM) accompanying the instrument, the Home Office said:

“As the Order amendment only establishes the chargeable function and maximum chargeable fee, and not the actual intended fee, we have focused the content of the accompanying EM accordingly, with the setting of the ETA fee in Regulations at a later date as referenced at Section 7.2 of the EM.”

5.We also asked the Home Office why the fee, and the maxima, had been set at £10 and £15 respectively, as the EM contained no information in this area. The Home Office replied that the initial £10 fee had been “primarily set with regard to the costs of administering applications […] as well as fees charged by other countries for comparable schemes in order to ensure that the ETA fee level is internationally competitive”. On the maxima, it said this will “provide the Government with reasonable flexibility to adjust the fee level” in response to “the needs of the department, the revealed costs of running the scheme, customers and taxpayers”. The Home Office noted that any change to the fee level would be made through separate legislation which would be subject to further Parliamentary scrutiny.

6.While the actual fee is not the subject of the Order, its level and rationale are relevant to the ‘bigger picture’ of how the policy will be implemented, and therefore to scrutiny of the instrument. Readers should not have to refer to multiple sources to understand a policy fully. The intended level of the fee, and the rationale for both the fee and the maxima, should have been included in the EM.

ETA Impact Assessment

7.Our Report on the original ETA instruments, and our follow-up exchanges with Lord Murray, included questions about the effect on the economy of falls in visitor numbers resulting from the cost, and administrative burdens, of applying for an ETA. A particular concern related to travel and tourism around the Republic of Ireland/Northern Ireland (NI) border, as the Home Office said that an ETA would be required to cross the land border into NI—although also stating that there would be no checks at the border.

8.The IA for ETAs estimated a net present social value (NPSV) gain for the overall policy of £540 million over 12 years, principally as a result of ETA fee income. This included a central estimate for the fall in visitor numbers of approximately 1% as a result of the £10 cost of an ETA. This fall in visitor numbers was estimated to result in an economic cost within the NPSV of £400 million.5 However, this only incorporates losses to the exchequer; for example, from reduced VAT, duties and other taxes. The IA states that wider costs (for example, to businesses) are “not quantified as it is unclear how much visitor expenditure directly benefits the resident population”. In ‘sensitivity analysis’, the Home Office estimates the present value of these wider costs to businesses at £950 million, although this estimate is described as “very uncertain”. Such costs would be sufficient to reduce the overall central NPSV of the policy from a £540 million gain to a £410 million loss.

9.In addition, the main NPSV only includes reductions in visitor numbers as a result of the cost of the ETA, not the administrative and technological burden of applying for one. The Home Office estimates that this administrative effect could lead to a further reduction in visitors of 0.7% (again, described as “very uncertain”) and an additional fall in tax revenue, with potentially further costs (not estimated) from the wider impacts on businesses. Again, these effects could convert the overall NPSV from a gain to a loss.

10.The IA indicates that the economic impact of the ETA is highly sensitive to assumptions about falls in visitor numbers and the associated costs, only some of which are included in the assessment. We appreciate that forecasts and estimates in this area are difficult and uncertain. We encourage the Home Office to monitor the impact when the ETAs are introduced and publish comprehensive information to help in assessing the effects in practice.

11.The IA does not include any information specific to NI or the Irish land border. In response to our questions, the Home Office said that “the Impact Assessment considers the impact on visitors to the UK as a whole, it does not differentiate between countries”. In the May 2023 evidence session, we welcomed Lord Murray’s assurance that the Government were working with tourism bodies on both sides of the border in implementing the policy. We also encourage the Home Office to work with relevant bodies to assess the specific impact of ETAs in NI, where the impact may be greater than in the rest of the UK.

12.The IA reported that in the US, the majority of the comparable (ESTA) fee is allocated towards the promotion of tourism to the US, “which may have negated some of the potential negative impact” on visitor numbers. In response to our questions, the Home Office said that “there are no current plans for income from ETA to be used for the purposes of tourism promotion”. The House may wish to enquire further about whether the income from ETA applications could be used to promote tourism to the UK.

Increases in existing maxima

13.The Order would implement a range of increases to maximum chargeable fees, while also consolidating a number of categories of fee; for example, equalising maxima for ‘in-country’ and ‘out-of-country’ applications. The Home Office states that increases in the maxima are required because some actual fees have moved closer to the maxima over time. In addition, the Home Office said some maxima are either below or close to the processing costs for that application type, meaning that fees cannot be increased to a level that would fully recover costs.

14.Some of the increases in maxima are high in percentage terms.6 However, many of the actual fees remain significantly below the maxima. Moreover, the Home Office told us that the majority of the maxima have not been increased since 2016.

15.One noticeable exception is the student visa, where the maxima was last increased in January 2022 and the current fee is at the maxima level (£490), despite an estimated unit cost for processing an application of less than half that (£221 to £223). The Order would increase the maxima to £600, a further 22% increase. The EM states the increase is required because student fees are already set at the maxima, with the increase providing “a reasonable degree of flexibility to consider fee increases in future years”. This is a somewhat circular argument: the Home Office increased the maxima then chose to set the fee at that maximum level, and now states that it needs to increase the maxima again to permit future fee increases. The House may wish to enquire further about whether the Home Office proposes to increase these fees in practice and, if so, why.

Conclusion

16.This Order would set the maximum fee that can be charged for the new ETA and would increase maxima for a wide range of other immigration and nationality fees (although the Order does not itself set or change any fees). The Home Office provided limited information about the ‘bigger picture’ of the ETA policy, including the intended level of fees and the rationale for them. This has been a theme of recent Home Office EMs:7 we ask the Home Office to reconsider its approach to them.

17.Alongside the Order, the Home Office laid the IA for the ETA policy as a whole. This showed that the economic impact of ETAs is sensitive to assumptions about falls in travel and tourism to the UK but provided limited information in this (admittedly difficult to forecast) area. We encourage the Home Office to undertake, and publish, comprehensive analysis of the effect of ETAs in practice, including specifically in Northern Ireland.

18.The increased maxima would include a large increase in that for a student visa not long after it was last increased, with an unconvincing explanation. The House may wish to enquire further about the Government’s intention and rationale for this change.

Draft Pensions Dashboards (Amendment) Regulations 2023

Date laid: 8 June 2023

Parliamentary procedure: affirmative

These Regulations amend the Pensions Dashboards Regulations 2022 to move the staged implementation programme (by size of pension scheme) from legislation into guidance and to delay the compliance date by a year to 31 October 2026. The Explanatory Memorandum (EM) provided simply states that the change in the implementation programme is being made without adequately explaining the reasons or the consequences. This Report contains additional information for the benefit of the House and recommends that the Department for Work and Pensions (DWP) replaces the EM so that the information is made available to any reader. We are disappointed to once again find our Report supplying basic information to the House that DWP should have published in the EM.

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 and intended implementation.

Background

19.The Pension Dashboard Regulations 2022 (“the original Regulations”) set out provision for the construction of the proposed online ‘Pensions Dashboards’ that are intended to reunite a user with all their pensions information, including their state pension. This is not intended to be a single central database, but what the Department for Work and Pensions (DWP) described as an “ecosystem” which functions like a giant switchboard, connecting users with their pensions supplier via dashboards.

20.We took a keen interest in the original Regulations and our 16th Report included additional practical details about DWP’s implementation plans.8 In that Report we commented that it was evident that DWP had not, at that stage fully worked out the mechanics of the proposed system.

21.Schedule 2 to the original Regulations nonetheless included a detailed timetable of which schemes would join the dashboards first. As the first of the deadlines approaches, these new Regulations remove that schedule as “the digital architecture will not be ready to facilitate the connection of pension schemes in time for the first connection deadline in the staging profile of 31 August 2023”.

22.Instead, these Regulations move the connection timetable into guidance, which allows for greater flexibility. The legal obligation for schemes of all sizes to have complied by 31 October 2025 is also delayed by 12 months to 31 October 2026.

What is the nature of the delay?

23.While our 16th Report noted that the implementation programme was evidently still “a work in progress”, we found it surprising that the Minister announced that the timeline was not deliverable, less than three months after the original regulations took effect.9 We therefore asked DWP to explain the nature of the problems with the digital architecture. DWP responded:

“The PDP [Pensions Dashboard Programme] had challenges with several issues. The technical solution has not been sufficiently tested, more work is needed to set up adequate support for industry with their connection journey and there is still work to do to finalise the necessary supporting guidance and standards.

DWP acted swiftly in investigating the PDP’s delivery plans and found that a reset of the Programme was required, and we informed Parliament and the pensions industry at the earliest opportunity. We have now laid amendment Regulations and are fully focussed on the reset of the PDP.

The work of the reset so far has ensured that we have clarity on what needs to be delivered and the steps to achieve this. Resilience and contingency time have been built into this approach to ensure PDP has time to deliver before industry begins to connect. This will also allow for greater collaboration with industry on areas such as user testing. 

DWP is confident that this timeline is deliverable and achievable for PDP and industry.”

24.We also noted that in her statement, the Minister, Laura Trott MP, said that she would update the House before the summer recess. We asked how Parliament would be informed about the continuing progress of the dashboards. DWP replied:

“The Pensions Dashboards Programme issues Progress Update Reports which are published in April and October each year. These reports will continue to be deposited in the House Library. The Department for Work and Pensions has also committed to facilitating meetings between the Pensions Dashboards Programme and interested Peers following publication of each report and we expect these meetings to continue.”

How will guidance be enforced?

25.These Regulations move the dates for the pensions schemes to comply out of legislation and into guidance “to which the industry must have regard”. We were uncertain what this meant in practice if the legal requirement is only for schemes to have complied by the end of October 2026 and, therefore, enquired what sanction would be available for schemes that missed the connection date set out in guidance. DWP replied:

“All trustees must connect by the connection deadline set out in the Regulations (31 October 2026). Failing to do so could result in regulatory action by the regulator. 

The Regulations include a requirement to have regard to guidance issued on connection. We expect to set out a staging profile in guidance in due course, developed in collaboration with industry. Although the timeline in guidance will not be mandatory, trustees will be expected to demonstrate how they have had regard to the guidance. Trustees must have regard to the guidance and not doing so will also be a breach. 

The 2022 Regulations provided the Pensions Regulator with new pensions dashboards-specific powers to tackle non-compliance.

In the event of non-compliance with any of the requirements in Part 3 of the Regulations, the Pensions Regulator may at their discretion issue compliance notices, third party compliance notices, and penalty notices. If the Regulator chooses to issue a financial penalty, this can be up to a maximum of £5,000 in the case of an individual, or up to £50,000 in other cases, such as corporate trustees. The levels are consistent with other areas of pensions legislation. In the event of multiple breaches of the Regulations, the Pensions Regulator may issue multiple penalties. 

If the Pensions Regulator is of the opinion that non-compliance by a trustee or manager was “wholly or partly, a result of an act or omission by another person”, then they may issue third party compliance notices to that person. A failure to comply with a third party compliance notice may lead to a penalty notice being issued. 

The Pensions Regulator will also continue to be able to utilise its general powers where appropriate, which includes the ability to issue improvement notices, appoint skilled persons to a scheme, remove trustees, or even wind up a scheme.”

What are the costs of the delay?

26.We are sensitive to the costs of pensions legislation, because costs imposed on pension providers ultimately reduce the potential payments to scheme members. DWP has revised the original Impact Assessment (IA) to reflect the change in the programme but chose not to identify the changes caused by the delay and the extension in the EM. We asked for clarification. DWP responded:

“We have estimated that total costs for dashboards have decreased from the 2022 impact assessment. This is driven by a decrease in ongoing costs as a result of the new staging profile (to be set out in guidance) happening at a later date in the 10-year period. We understand some schemes may have faced upfront costs already due to the timetable changes. We have reflected this by assuming an additional 10% of upfront costs are faced for large schemes in each year until 2026/27. This assumption adds around £69 million (undiscounted) to transitional costs but doesn’t offset the overall decrease in total costs.

The benefits to all dashboards’ users have been revised slightly downwards from around £1.1bn to around £1.0bn. This reflects a reduction in the number of years consumers “benefit” from accessing Dashboards over a 10-year period (note that net benefits are estimated to increase going forwards past the ten-year period). However, this is largely offset by an increase in our estimate of lost pots recovered. The significant increase in the value of lost pots and those recovered for a key demographic of users (55–74 year-olds) is based on new evidence from a Pensions Policy Institute survey. 

We have increased our estimate of the net present value of dashboards from £30 million to £174 million. This reflects the fact that ongoing industry costs have decreased as they have moved to occur later in the 10-year profile, but many benefits (particularly driven by the recovery of lost pots) are forecast to still be captured within 10 years and remain over £1 billion.

The total transitional cost is estimated at £463.9 million (55% of the industry and public costs) and this covers the period from 2022/23 to 2026/27. In the 2022 impact assessment, transitional costs were estimated at £344.3 million over a two-year period. Therefore, we estimate industry and public transitional costs have increased by around £120 million.

Conclusion

27.In our 16th Report, in relation to the original Regulations, we said: “We encourage the Government to take this opportunity to address the complexity and costs of the dashboard, […] by simplifying and standardising the system wherever possible.” This remains our position..

28.We also remind DWP that an EM is not supposed to just state that a change has been decided, consultation has taken place and the IA has been updated – as this EM does. It also needs to set out the reasons for the change and the consequences, and we ask for the EM to be substantially revised to make the additional information in this Report available to any reader. Parliament agreed the original Regulations on the basis of specific information; if DWP later decides, as now, to move the goal posts, then the background and consequences of that change need equally specific explanation. We are disappointed to, once again, find our Report supplying basic information to the House that DWP should have published in the EM.

Relationships and Sexuality Education (Northern Ireland) (Amendment) Regulations 2023 (SI 2023/602)

Date laid: 6 June 2023

Parliamentary procedure: made affirmative

These Regulations make Relationship and Sexuality Education (RSE), with certain specified components, compulsory for children in key stages 3 and 4 (ages 11 to 16) in Northern Ireland (NI). The Regulations implement a commitment contained in primary legislation, itself deriving from a recommendation of a United Nations Committee. This is a controversial area of policy, as a number of submissions we have received, including from diverse religious denominations, make clear.

The Regulations allow parents to withdraw their children from sexuality education, but NIO cannot guarantee that the necessary procedures for this will be in place by the policy implementation date of 1 January 2024. We understand that the ability to withdraw children will be an important protection for parents in NI, and we would be concerned if it were not available from the outset. NIO has also brought the Regulations into force immediately, to “allow the DE as much time as possible to progress work on the guidance in preparation for delivery of the education”. Bringing the Regulations into force immediately should only be done where there is an ‘urgent need’, to justify the adverse impact on parliamentary scrutiny; given the implementation date, this is concerning. Considering these points together, we are concerned that the implementation schedule may be rushed.

Moreover, many of the submissions highlighted the absence of a full consultation on the Regulations. We agree that such a consultation would be appropriate, and we note that prior to other comparable policy changes–including to RSE in England–a public consultation was carried out. When taken alongside the other concerns on timing, the House may wish to press the Minister to bring forward the necessary legislation to push back the implementation date. This could allow time for a public consultation and would ensure the policy can be fully developed.

These Regulations are drawn to the special attention of the House on the ground that there appear to be inadequacies in the consultation process which relates to the instrument.

Background

29.These Regulations make “age-appropriate, comprehensive and scientifically accurate education on sexual and reproductive health and rights”, including on the prevention of early pregnancy and access to abortion, compulsory for children in key stages 3 and 4 (ages 11 to 16) in Northern Ireland (NI).

30.The Regulations implement a provision in the Northern Ireland (Executive Formation etc) Act 2019 (“the Act”) that, in turn, requires the implementation of recommendations in a 2018 report by the United Nations’ Committee on the Elimination of Discrimination against Women (CEDAW).10 CEDAW found that “young people in Northern Ireland were denied the education necessary to enjoy their sexual and reproductive health and rights”, and suggested this was due to the influence of both Catholic and Protestant church representatives in school management. CEDAW also found that “where relationship and sexuality education is delivered, it is frequently provided by third parties and based on anti-abortion and abstinence ethos.”

31.CEDAW concluded that these factors point to “state negligence in pregnancy prevention through a failure to implement its recommended curriculum on relationship and sexuality education”. The report made a number of recommendations, including that the state should:

“Make age-appropriate, comprehensive and scientifically accurate education on sexual and reproductive health and rights a compulsory component of curriculum for adolescents, covering prevention of early pregnancy and access to abortion, and monitor its implementation.”

32.The Northern Ireland Office (NIO) says these recommendations were incorporated into the Act due to the absence of a functioning Northern Ireland Executive in 2019. The NI Assembly was restored in January 2020 but dissolved again in February 2022 (although some ministers, including the Minister of Education, remained in post as ‘caretaker ministers’ until October 2022).

33.We have received around 40 submissions on the Regulations, including from representatives of the Catholic and Presbyterian Churches, the Christian Institute, Right to Life, the Democratic Unionist Party and the Transferor Representatives’ Council, as well as from individual teachers, school governors and parents. All submissions are published in full on our website.11

Committee’s role and remit

34.Some of the submissions implied that our role in relation to these Regulations is to agree or “pass” the legislation. That is not correct. Our role is only to consider instruments laid before the House of Lords and to draw the House’s attention to those that meet our reporting grounds.12 It is then for the House to determine what further action, if any, to take.

35.Several of the submissions also made representations to the effect that the relevant measures were included in the Act only as a result of an “unusual” and “undesirable” legislative process. We note that our remit only allows us to consider the instruments before us, not the legitimacy of the powers in the parent Act.

What do the Regulations require?

36.The measures in the Regulations apply only to grant-aided schools in NI and apply only to those in education key stages 3 and 4 (ages 11 to 16). The instrument requires that the curriculum for all such pupils should include Relationships and Sexuality Education (RSE) that meets the CEDAW recommendation, quoted above.

37.The Regulations place a duty on the NI Department of Education (DE) to issue, by 1 January 2024, guidance on the content and delivery of RSE. They also place a duty on school governing boards to have regard to this guidance when formulating their RSE policies. NIO states that this guidance is being developed by DE alongside the Council for the Curriculum, Examinations and Assessment (CCEA), and with “significant” stakeholder consultation.

38.The Government recognise that relationship and sexuality education in NI “can be politically sensitive”, but state that the overarching policy aim is to ensure that adolescents receive RSE “without advocating a particular view on the moral and ethical considerations”.

Is the legislation needed?

39.The Explanatory Memorandum (EM) to the Regulations examined the question of whether the Regulations were necessary, given DE’s steps to implement the CEDAW recommendation to date. NIO states that DE “initially provided assurances” that it was implementing the recommendation. Likewise, several submissions argued that the Regulations are unnecessary because DE is already meeting, or making progress towards meeting, the requirements of the 2019 Act. Some referred to the measures noted in a follow-up to the CEDAW report, published in January 2023,13 and to existing work by the CCEA in providing RSE teaching resources.

40.However, NIO assessed that the legislation is necessary because “actions taken to date, and evidence provided have so far fallen short” of ensuring the CEDAW recommendation is implemented. In addition, NIO reported that, in July 2022, the then NI Minister for Education stated DE’s position was that RSE was “a matter for schools and teachers to decide how it should be delivered, which resources to use, and which specific topics should be covered”. NIO said this position is “in direct conflict” with the legal duty to implement the CEDAW recommendation.

What will the guidance contain?

41.We asked NIO about the extent to which DE’s guidance will prescribe how schools deliver RSE and how far schools will have their own discretion. NIO said the guidance will “set out for teachers and schools the specifics of what should be taught at each Key Stage in schools, and include approaches to teaching sensitive issues such as abortion, consent and domestic and sexual violence.” NIO also stated that CCEA’s resources and materials for schools “will need to be examined to ensure that they comply with the updated curriculum”. Similarly, NIO said that schools using third party providers to deliver RSE will need to ensure that resources used are appropriate.

42.Several submissions referred to the difficulty in defining “age-appropriate, comprehensive and scientifically accurate” for the purposes of the legislation. For example, the Catholic Schools’ Trustee Service notes that the wording implies that there is scientific agreement on the point, which the Trustee Service says is “manifestly untrue”, going on to state that “in every major democratic jurisdiction, issues such as abortion, gender bioethics, human sexuality, are highly contested scientific and ethical issues, subject to democratic debate and shifting electoral and legislative positions”. The Council for Public Affairs of the Presbyterian Church in Ireland said that there is “no such thing as ‘value neutral’ RSE” and asked how, without such definitions, “the Secretary of State can ensure the implementation of the legislation is adequately assessed and measured”.

43.When we asked NIO how “age-appropriate, comprehensive and scientifically accurate” guidance would be determined, NIO responded that this was a matter for DE. On such a key point, this is not an illuminating response; at the least, it would have been helpful for NIO to have liaised with DE to provide more detailed information. Questions remain about how this key aspect of the legislation will be implemented.

Parents’ right to withdraw children

44.The Regulations provide that parents should have the opportunity to withdraw their children from receiving sexuality education or elements of it (but not from relationships education). For parents, this could be a key provision; for example, the submission we received from the Christian Institute suggested that the new RSE framework could significantly increase such withdrawals.

45.The instrument requires DE to make regulations about the circumstances in which, at the request of a parent, a pupil may be excused. However, NIO has stated that “there is no guarantee” that DE will have these regulations in place by 1 January 2024. This leads to the possibility that parents will not be able to excuse their children at the point the education begins to be delivered. NIO accepts that this “may attract criticism from faith-based schools, and some teachers and parents”. NIO told us that “this is for the DE to lead on. The DE has yet to advise on a timeline for making regulations. We will continue to engage with the department on this issue.” The House may wish to enquire further why the instrument does not place a duty on DE to have regulations in place to facilitate parents withdrawing their children from sexuality education by the implementation date of the policy, and what steps NIO is taking to ensure DE does in fact have such regulations in place.

Conscientious objection by teachers

46.We asked NIO whether teachers would have the right to ‘conscientiously object’ to delivering the approved material. Again, NIO said this would be a matter for DE, although NIO noted that a “large majority” of schools currently outsource RSE to third party providers.

Funding

47.We asked NIO whether schools will require any additional funding to implement the new requirements. NIO said that it was “not setting a new policy direction” but would “work with the DE to understand the level of any funding pressures, and if any mitigations can be put in place. As with any other devolved responsibility, it remains the responsibility of the Northern Ireland Executive to fund education in Northern Ireland”.

Interaction between NIO and DE

48.The range of matters falling within the remit of DE, as discussed in the preceding paragraphs, mean that important contextual information on the policy—for example, on how key terms will be interpreted, on the rights of teachers to conscientiously object and on funding—has not yet been determined or, at least, has not been made available to Parliament. This is unfortunate; it would have helped if NIO had liaised with DE to ensure more detailed information was available, even on matters not specifically the responsibility of NIO. The House may wish to press the Minister for further specifics.

Sanctions

49.We asked the NIO what sanctions would be available if a school did not conform to the requirements. NIO said that this “could be challenged by way of an application for judicial review.”

Impact

50.Some of the submissions said that the statement in the EM that the Regulations would have “no, or no significant, impact on the private, voluntary or public sector” understated the effect of the Regulations on schools. For example, the Catholic Schools Trustee Service argued that “the imposition of the legislation will create challenge to and from schools, parents, and carers”, particularly if it is not consistent with the school’s broader ethos.

Differences from England

51.A number of submissions argued that the approach suggested in the Regulations would put NI at variance with England. For example, the Council for Public Affairs of the Presbyterian Church in Ireland stated that guidance on RSE in England places more weight on the context of teaching, including the wider ethos of the school, the religious background of pupils and the resulting “faith perspectives” on relationships and sex.

Lack of public consultation

52.The Regulations have not been subject to a public consultation. The EM stated there is no legal requirement to do so and that “during the course of developing the policy, we engaged with a range of stakeholders and statutory organisations to ensure the aims of the policy were met”.

53.In response to our questions, NIO also said that a consultation was not necessary because each school must have a written policy on how it will deliver Relationship and Sexuality Education, and that this policy should be subject to consultation with parents. However, school policies will only be able to operate within the already-established government guidance, meaning that such consultation is too late to affect the framework of RSE delivery.

54.It is striking that full public consultations were carried out when comparable regulations were introduced in England,14 and when similarly controversial regulations on abortion were introduced in NI.15 NIO has not offered any convincing reasons why these Regulations should be treated differently.

55.The lack of a consultation was also the criticism most frequently mentioned in the submissions, including from teachers, parents and school governors as well as representative organisations. Other points advanced in submissions included:

56.In our recent Interim Report on the work of the Committee, we set out how consultations can, even if not legally required, provide opportunities to improve a policy and can also help to improve confidence in the policy.18 Given that this is a controversial policy with a wide range of interested parties and strongly felt views, a public consultation would have been appropriate as a matter of good policy making.

Parliamentary process

57.Parts of the Regulations were brought into effect on 6 June 2023, the same day that they were laid. We asked NIO why it had chosen to breach the convention that at least 21 days should be allowed between laying an instrument and bringing it into effect. NIO said that this was “to allow the DE as much time as possible to progress work on the guidance in preparation for delivery of the education”.

58.Statutory Instruments Practice, the National Archives’ guidance for government departments, states:

“If the 21-day period is reduced, you are reducing the time Parliament has to scrutinise the SI. This should not be done simply for Departmental convenience. If observing the ‘21-day rule’ is impossible, you must explain in the EM why the SI could not have been made and laid sooner, and why it had to come into effect on the day specified. If the reasons are matters of policy, explain why the policy requires such urgent action. The explanation in the EM should also include what the financial or other impact of delaying the legislation to meet the rule would be."19

59.It is doubtful whether the need to prepare guidance in advance of the (self-imposed) implementation deadline of 1 January 2024 constitutes a requirement for “urgent action” that justifies the adverse impact on parliamentary scrutiny. Moreover, there is no explanation in the EM, or in NIO’s responses to us, of what the impact of delaying the coming-into-force date to meet the rule would be, and we are not clear whether work on the guidance could have progressed immediately, even with a later coming-into-force date. We also note that we made a very similar criticism of NIO when it introduced regulations relating to abortions in NI in 2020.20

60.It would appear that either the NIO has breached the convention without adequate reason, or the timetable for producing guidance in advance of the implementation date of 1 January 2024 is so tight that a 21-day delay now would put it in jeopardy. The House may wish to press the Minister for further justification on why the 21-day convention was breached. We also ask NIO to consider carefully any possible future breaches of the convention.

Conclusion

61.These Regulations make RSE, with certain specified components, compulsory for children in key stages 3 and 4 in Northern Ireland. They implement a commitment contained in primary legislation, itself deriving from a recommendation of a United Nations Committee.

62.DE is responsible for implementing the details of the policy, including preparing guidance to enable schools to meet the requirements. As a result, NIO has not been able to provide some details on the policy that would have assisted scrutiny. It would have been helpful for NIO to liaise with DE to ensure that more information was available.

63.There are some indications that the implementation date of 1 January 2024 might not allow sufficient time for all the components of the policy to be fully developed. These include the possibility, acknowledged by NIO, that procedures may not be in place to allow parents to withdraw children from sexuality education. In addition, the bringing into force of the Regulations on the same day they were laid raises concerns that the process of writing guidance prior to the implementation date may be rushed.

64.In the submissions we received, the most commonly raised issue, including from diverse religious denominations, was the lack of a consultation. Based on both the principles of good policymaking and on a comparison with comparable prior legislation, we agree that there should have been a public consultation. When taken alongside the other concerns on timing outlined above, the House may wish to consider pressing the Minister to bring forward the necessary legislation to push back the implementation date. This could allow time for a public consultation and would ensure the policy can be fully developed.


1 35th Report (Session 2022–23, HL Paper 177), paras 53–68.

2 40th Report (Session 2022–23, HL Paper 197), paras 1–16. A transcript of the session can be found at: Secondary Legislation Scrutiny Committee, ‘Oral Evidence: Statement of Changes to the Immigration Rules and Immigration (Electronic Travel Authorisations) (Consequential Amendment) Regulations 2023’ (11 May 2023): https://committees.parliament.uk/event/18282/formal-meeting-oral-evidence-session/.

3 Home Office, ‘Impact assessment: Introduction of an Electronic Travel Authorisation (ETA) Scheme’ (May 2023): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1161771/Electronic_Travel_Authorisation_impact_assessment.pdf [accessed 21 June 2023].

4 HC Deb, 6 June 2023, col WS821.

5 Home Office, ‘Impact assessment: Introduction of an Electronic Travel Authorisation (ETA) Scheme’ (May 2023), tables 3 and 6: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1161771/Electronic_Travel_Authorisation_impact_assessment.pdf [accessed 19 June 2023].

6 The Impact Assessment for the Order contains a full table of changes to maxima: see Home Office, ‘Impact assessment for Immigration and Nationality (Fees) Order (Amendment) 2023’ (23 May 2023), pp 33–5: https://www.legislation.gov.uk/ukia/2023/63/pdfs/ukia_20230063_en.pdf [accessed 19 June 2023].

7 As well as the instruments and correspondence referred to earlier in this Report, see also our Report on the Draft Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023—38th Report (Session 2022–23, HL Paper 189), paras 11–25.

8 16th Report (Session 2022–23, HL Paper 88), Appendix 1.

9 HC Deb, 2 March 2023, HCWS594.

10 United Nations, ‘Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women: report of the Committee on the Elimination of Discrimination against Women’ (March 2018): https://digitallibrary.un.org/record/1480026?ln=en. [accessed 21 June 2023].

13 United Nations Committee on the Elimination of Discrimination against Women, ‘Inquiry concerning the United Kingdom of Great Britain and Northern Ireland conducted under article 8 of the Optional Protocol to the Convention: Follow-up report submitted by the United Kingdom of Great Britain and Northern Ireland’ (16 January 2023): https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2FC%2FOP.8%2FGBR%2F3%2FADD.1&Lang=en [accessed 21 June 2023].

14 Relationships Education, Relationships and Sex Education and Health Education (England) Regulations 2019 (SI 2019/924).

15 Abortion (Northern Ireland) Regulations 2020 (SI 2020/345).

16 High Court of Justice in Northern Ireland, In the Matter of an Application by SPUC Pro-Life Ltd for Judicial Review, [2022] NIQB 9 (8 February 2022).

17 Council of Europe, ‘European Convention on Human Rights’, p 34: https://www.echr.coe.int/documents/convention_eng.pdf [accessed 21 June 2023].

18 Interim Report on the Work of the Committee in Session 2022–23 (42nd Report, Session 2022–23, HL Paper 205), para 24.

19 National Archives, Statutory Instruments Practice: 5th Edition (November 2017), para 2.11.4: https://www.legislation.gov.uk/pdfs/StatutoryInstrumentPractice_5th_Edition.pdf [accessed 21 June 2023].

20 51st Report (Session 2019–21, HL Paper 264), paras 16–18.




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