On 13 July 2021, the House of Lords is scheduled to debate a motion relating to the Early Years Foundation Stage (Miscellaneous Amendments) and Childcare Fees (Amendment) Regulations 2021. Tabled by Lord Watson of Invergowrie, Labour’s Shadow Spokesperson for Education in the House of Lords, the motion reads:

Lord Watson of Invergowrie to move that this House regrets that the Early Years Foundation Stage (Miscellaneous Amendments) and Childcare Fees (Amendment) Regulations 2021 introduces the reception baseline assessment that takes effect in September 2021, when the workload of teachers will be significant, schools will be focused on reopening, and special attention will need to be paid to those children who were unable to develop their language skills because of social isolation during the pandemic; and calls on Her Majesty’s Government to provide schools with the flexibility to defer implementation of the reception baseline assessment for the cohort of children starting reception this year until January 2022.

Nick Gibb, Minister of State at the Department for Education, signed the regulations into law on 30 March 2021 and laid them before Parliament the following day. Because the instrument is subject to the ‘made negative’ procedure, either House of Parliament had until 11 June to stop it from remaining law. Neither House formally overturned the instrument before this date, so it is set to come into force on 1 September 2021 as planned.

However, if agreed, Lord Watson’s ‘regret’ motion would formally signal that the House has reservations about the instrument for the reasons stated. But it would not stop the regulations from having legal effect.

What does the instrument do?

The instrument’s explanatory memorandum (EM) states that it has three key purposes. It would:

Reception baseline assessment: introduce a reception baseline assessment (RBA), to be administered in schools within the first six weeks of a child entering reception class, to help measure the progress children make from starting school to the end of year 6. The Government says the aim of the assessment is to “produce a primary accountability measure which will take account of pupils’ progress throughout the whole of primary school”.

Early years foundation stage reforms: update the statutory framework for the early years foundation stage (EYFS), which all early years providers in England will have to follow from 1 September 2021. This will contain new requirements in respect of learning and assessment and safeguarding and welfare. The Government says the aims of the changes are to “improve outcomes for all children at age five, especially disadvantaged children, and to reduce teacher and practitioner workload so that more time can be spent interacting with children in their care”.

Transitional arrangements: temporarily extend transitional arrangements for certain childcare providers that operate for less than four hours a day, so they continue to pay the same annual registration application fee rate until 31 August 2023 at the latest. Without the extension, annual fees would increase from £50 to £220. The Government says this “will help to reduce the financial burden on these providers whilst the department develops new fee arrangements for all early years providers”.

The EM contains detailed policy background on the measures. The changes would apply in England only.

The Government has said that a full impact assessment has not been produced for the instrument “as no, or no significant, impact on the private, voluntary or public sector is foreseen”.

However, the Government has published an equalities impact assessment on the RBA. The Government has also said an equalities impact assessment on the EYFS has been prepared, and “is available upon request”.

What parliamentary scrutiny has there been to date?

The House of Lords Secondary Legislation Scrutiny Committee drew the regulations to the ‘special attention’ of the House in a report published on 29 April 2021. This was on the grounds that they were “politically or legally important and give rise to issues of public policy likely to be of interest to the House”. The committee said:

We are concerned that the RBA will be introduced at a time when the workload of teachers will be significant, schools will be focused on reopening and special attention will need to be paid to those children who were unable to develop their language skills because of social isolation during the pandemic: we believe that it would be helpful to provide schools with flexibility and enable them to implement the RBA for the cohort of children starting reception this year in January 2022.

This conclusion formed the basis of Lord Watson’s regret motion, which was tabled on 7 June 2021.

The Joint Committee on Statutory Instruments reported on the regulations in a report published on 11 June. It said they were defectively drafted in one respect; in that they should have specified the “manner of publication of delegated supplementary provisions”. The committee noted that the Department for Education had undertaken to amend the regulations to correct the defect “at the next available opportunity”, and that in the meantime the relevant statutory guidance was available online.

Selected reaction and government response

The House of Commons Library has noted that the introduction of the RBA has been controversial, with many detractors arguing it would be inappropriate for children to be assessed at the very beginning of their schooling. For example, the ‘More than a Score’ campaign has called the RBA a “flawed and inappropriate test”. It has explained its objections as follows:

More than a Score’s opposition to the pointless and harmful testing of four-year-olds is based on professional understanding of this age group. Anyone working with four-year-olds knows that one size most definitely doesn’t fit all. Small children develop social and cognitive skills at varying rates, with each day giving a different snapshot of their abilities.

Not only that, standardised tests would be significantly more difficult for those with special educational needs, or a summer birthday, or for whom English isn’t their first language. Yet they’d sit the same tests as everyone else in their class.

A campaign petition against the RBA has received over 112,000 signatures.

On 31 March 2021, TES (formerly the Times Educational Supplement) reported on the forthcoming introduction of the RBA. It quoted critical remarks made by Kevin Courtney, joint-general secretary of the National Education Union, in response to news the measure would be introduced in September:

In yet another end-of-term announcement, the Government is confronting schools with new, unnecessary and harmful policies.

The answer to the challenges of educational recovery is not more testing, but this is a lesson that the Government is finding it hard to learn.

Research into baseline pilots has suggested that it will disrupt children’s settling-in period in their new school and that it will provide no useful information to teachers. Its main function will be to hold schools to account for their test results.

Like the rest of the panoply of statutory assessment in primary schools it will work to damage the quality of educational experience, in the name of principles which most educators see as irrelevant to their current priorities.

In contrast, the Government has argued that assessment is a “crucial part of a child’s schooling and fundamental in a high performing education system”. On 21 May 2021, Nick Gibb set out the Government’s reasons for implementing the RBA in September 2021:

Statutory assessments at primary school are an essential part of ensuring that all pupils master the basics of reading, writing and mathematics to prepare them for secondary school. Assessment data will also enable parents, schools and the Department [for Education] to understand the impact of lost time in education and recovery initiatives. As such, the department has no plans to cancel the statutory implementation of the reception baseline assessment in September 2021, and the department continues to plan for a return to a full programme of primary assessments in the 2021/22 academic year.

On 5 July 2021, Baroness Berridge, Parliamentary Under Secretary of State at the Department for Education, repeated that the Government intended to introduce the new RBA in the 2021/22 academic year.

Read more

Cover image by Gautam Arora on Unsplash.