Peers warn Government Clause 15 could be voted down

Clause 15 of the Children and Social Work Bill was debated in the House of Lords last night (11 July), and received strong opposition.

This part of the controversial Bill introduces a fast-track procedure for the removal of the majority of primary and secondary legislation, passed since 1933, related to children’s social care.

Lord Watson of Invergowrie explained:

“The Government have not made a case as to why Clause 15 is necessary. The Minister needs to explain to noble Lords precisely what problem this proposal is designed to address. As to the underlying premises of Clause 15, frankly, who knows? Suggestions have been put forward by several people and organisations. They vary from requirements in primary and secondary legislation blocking the delivery of effective children’s services to the suggestion that it might make it more attractive for private companies to get involved in the delivery of social work services.

“No evidence has been published by the Government to support the notion that legislation is an impediment.

“…Is it the case that all legislative duties in respect of children’s social care are potentially problematic? I think not, because the Government’s Red Tape Challenge concluded in 2014 that only five regulations needed to be scrapped, three of which were already redundant, and 14 separate regulations were actually improved as a consequence of that consultation. Despite that, the breadth of legislation that can be exempted by Clause 15 is extraordinarily wide.”

Lord Warner had proposed an amendment requiring an independent review panel be established, prior to the fast-track procedure being used, but stated during the debate:

“Rather unusually, I would prefer that Clause 15 were removed from the Bill altogether than that the Government accept the amendment in my name and that of the noble Baroness…

“One is entitled to be a little suspicious about what the Government are really up to with Clause 15. Of course, I am the sort of chap who takes for granted that Ministers are well intentioned when they bring measures before your Lordships’ House, but could it be that what lies behind this provision is a short-cut way of outsourcing whole chunks of services? Ofsted seems to be claiming that up to 25% of children’s services are inadequate. Rather than working with some external turnaround capacity to improve matters, is there a new-found enthusiasm within DfE for trying to get quicker results by removing legislative impediments to outsourcing?

“Personally, I have no particular objections to outsourcing if that can be shown to have a beneficial effect for children after trialling. I have been trying to probe what the DfE is up to with the transfer of children’s services to trusts. On the answers that I have received, this is clearly an expensive process, it can be very time-consuming, accountability can become extremely blurred and at present there is no body of evidence to support it as a general remedy for failure. Moreover, the DfE has still to publish the report that it commissioned in 2014 from LaingBuisson into developing capacity and diversity in the provision of children’s services. I know from my involvement in that work that it did not suggest that creating a market in children’s services would be easy.

“What we need, in writing, are the primary and secondary legislation blockages that are stopping innovation and why in those cases you cannot use the Secretary of State’s power of direction or an amendment to the statutory guidance. That is the issue, and [the Minister] has not come anywhere near tackling that proposition.”

Baroness Walmsley explained:

“These clauses, to my mind, fundamentally undermine rights that have been enshrined in children’s social care legislation following intensive debate in Parliament. They are to be removed at our peril…

“The noble Lord, Lord Warner, mentioned Professor Eileen Munro. He is quite right that she never suggested that we needed to repeal primary or secondary legislation; she just asked for less onerous guidance. Innovation has been done effectively through waiving statutory guidance in some authorities. Importantly, outcomes have been monitored and reported on and it is from such reports that lessons are learned. That is the way forward.

“I question the necessity for this part of the Bill. In particular, I want to ensure that the Secretary of State can be assured by independent experts that the benefits to children’s rights will be greater than the risks. The key word here is independent because, according to the Bill, the only people who have to be consulted are the Chief Inspector of Schools and the Children’s Commissioner. I point out that both of them will already have been appointed by the Secretary of State. Although I have every respect for the current incumbents of those offices, we need more independence than that. That is why I support this amendment. Innovation should be encouraged within a framework of fundamental rights and entitlements within the law.”

The Earl of Listowel said:

“My Lords, before speaking to my amendment in this group I make clear that I support those noble Lords who call for the clause to be removed from the Bill. This is not the time to erode the rights of vulnerable children.”

Lord Ramsbotham added:

“My Lords, I return briefly to Clause 15, which is a classic example of regulation too far. I agree with everything that has been said so far. It is inappropriate and ought to be struck out of the Bill.”

Baroness Bakewell of Hardington Mandeville said:

“My Lords, I shall speak against Clause 15 and support the arguments of the noble Lords, Lord Watson, Lord Warner and Lord Ramsbotham. Clause 15 allows local authorities to be exempted from certain legal requirements and regulations and to test different ways of working. It is important, however, that they do not dilute accountabilities, fragment responsibilities and create a two-tier system of quality and standards. All vulnerable children deserve the same level of care.”

Lord Wills, fearing the Government would not act in the face of such opposition, proposed an amendment which would require consultation with children and young people:

“The Minister will be aware that there is unease outside your Lordships’ House as well. I recognise that innovation can be crucial to the improvement of public services and I suspect, although I hope to be proved wrong, that the Government will not be unduly swayed by all the compelling arguments that we have heard against the clause.”

Baroness Pinnock explained:

“At the heart of this clause is a dichotomy. On the one hand, children’s social work is probably the most regulated of all public services and has the most legislation surrounding its practice. On the other hand, if we take the clause at face value, it appears to allow any innovation within those regulations to be set aside. I asked civil servants what the criteria are for innovative practice, what the boundaries for it are and whether anything is off the table. The answer was that there are to be no limits. I found that quite disturbing. It is not as though we are dealing with anything mechanical here; we are dealing with the most troubled and vulnerable children in our society, who deserve our protection.”

Lord Hunt of Kings Heath interjected as the Minister proceeded to respond to concerns:

“My Lords, I am no expert in this area, but I still have not got hold of an example of what the provision is that stops innovation taking place. Is it about reporting and bureaucracy, or is it to do with an actual statutory responsibility? I am unclear about that. The Minister must be aware that, at this rate, he has no chance of getting this through the House of Lords as it stands. It is a question of what he wants to convince the Committee and then the House at some point. Is it about allowing local authorities to do the right thing with fewer bureaucratic controls, or is it saying that one can actually stand down part of the core legislation? That is what I am unclear about.”

Responding for the Government, Lord Nash first dealt with wide concerns that Clause 15 could be used to usurp the current ban on profit-making in children’s services, which is only in regulations. (Lord Ramsbotham and others are seeking to enshrine this in primary legislation). The Minister said:

“Before I go into detail, I would like to return quickly to our discussion about profit of last week. I could not help reflecting that I might be the only noble Lord present who has spent most of his life, until recently, proudly in pursuit of profit. That fact may itself raise wider issues, but I say again that we have no intention of revisiting the settled position on profit-making in children’s social care or of using Clause 15 to circumvent that position. I gave that assurance at Second Reading and do so again now.”

The Minister then explained how Clause 15 could be used:

“I will try some more illustrations. I do not suppose they will get me very far but since I have more to say, perhaps people could bear with me. I shall illustrate this point with two examples. First, it is felt that on some occasions applying the full gamut of care-leaver regulations associated with children on remand, who automatically become looked-after when in custody, is not always the best option for those children. Local authorities are interested in developing a service that better responds to their needs, informed by the young person, which, where a local authority can make a professional decision, would ensure better and informed choices without an unwanted service automatically being triggered by legislation. A real-life example of that was given to us by one of our partners in practice local authorities. In this instance, the young person was returning to live with their grandmother. Applying the burdens and processes associated with looked-after children placements unnecessarily overcomplicated matters for both the authority and, most importantly, the young person and their family.

Secondly, as I highlighted at Second Reading, there is a widespread view that adoption and fostering panels do not always add value, and can often delay the process of approving prospective carers. These panels are only advisory, with the ultimate decision resting with the local authority. Local authorities explain that they think they could get to the same decision quicker without the panel in some circumstances. The freedom likely to be requested would be to remove the requirement always to have the panel in place for all cases, and for the agency decision-maker, who currently makes the decision, to continue to exercise their professional judgment. In straightforward cases, the decision would be made quicker to allow the best solution to be progressed faster so that children get the support they need…

… the department will look to evaluate the use of the power so that we understand the impact, where there is a case for permanent changes to the legislative framework—changes that would of course come back for further scrutiny to this House.”

“I would like to provide reassurance that children are at the core of this provision. In most cases, we would expect local authorities to have consulted children affected by any change and in fact many of the possible changes that local authorities have discussed with us originate from requests from children, as I have already said. For example, in the case of independent reviewing officers, children have fed back to our partner in practice authorities that they do not like additional people who they do not know to be present at their case reviews discussing intimate information. More specifically, in the case of North Yorkshire, just over 400 children and young people are looked after. The vast majority are very settled and achieving well. Older young people in this position tell the authority that they find regular formal reviews unsettling and that they would like to be treated like their non-looked-after peers. There is then a much smaller number, on average 20, who are not currently settled and require regular in-depth reviews. This is one area in which a request for use of the power to innovate may well be made to make more effective use of the experienced cohort of independent officers.”

There was then a promise to set out where primary and secondary legislation is stopping the delivery of effective children’s services:

“I am delighted that so many noble Lords have referred to excellent examples of innovation by various local authorities, but of course just because some innovation is taking place without changes to legislation does not mean that others will be able to innovate without making such changes. Of the examples that we have been discussing with local authorities, all need exemptions from secondary and in some cases primary legislation. I will write to the noble Lord, Lord Warner, setting out what primary and secondary legislation blockages are in place before Report.”

A meeting with local authorities and others was also promised:

“…in view of noble Lords’ concerns and suspicions about our motivation, the best way forward—in addition to writing to the noble Lord, Lord Warner, and sharing that letter with all Peers—is to have what I suggested. I hope that all noble Lords who are interested will come to a meeting with a number of local authorities and individuals where they can explain in detail why they need this power, and noble Lords who feel that they can achieve the same objective without using it can talk about that. We can have a detailed, granular discussion about specific examples, rather than a high-level discussion, which is always, in my view, rather dangerous. I commit to organising that, and I hope that all noble Lords will attend.”

Another example of removal of entitlements, in this case fostering allowances, was given by the Minister:

“I give another example to illustrate the use of the power. Local authorities tell us that a carer who is either a family member or friend is often thought to be the best placement option for a child in care, but the requirement that they become an approved foster carer after a 16-week grace period can be difficult to achieve, especially where family and friends have no real desire to be local authority-approved foster carers generally. We discussed in Committee last week the important role that grandparents can play. This is exactly the sort of area where use of the power could make better use of the strengths they bring.

Exemption from this requirement could mean local authorities being able to place a child with the person to whom they have the greatest attachment. There could still be an option for the carer to become an approved foster carer if they wish, but the exemption would give flexibility for the carer and a better chance of achieving the most suitable option for the child being selected.”

The Minister rejected an amendment tabled by the Earl of Listowel that would entitle a child, or their representative, to request that their legal rights be reinstated, where these had been exempted. Lord Nash said:

“… requiring a local authority to reinstate existing processes and procedures upon individual request would considerably weaken a local authority’s ability to assess the effect of the power… In order to test and evaluate exemptions properly, I feel it is right that local authorities should not be subject to an infinite range of requirements in respect of different children, but can use their professional judgment in response to the child’s request.”

The Minister additionally refused to exclude the corporate parenting principles from the list of legislation that could be exempted by local authorities in future, should Clause 15 be passed.

Summing up opposition to Clause 15, Lord Watson said at the end of the debate:

There is deep-seated resentment and opposition to this and it will not go away through the amendments in this group just being withdrawn or not moved today.”

Article 39 continues to lobby for the removal of Clause 15 from the Bill.

Read the full debate.

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