My Lords, I want to start by setting out the Government’s case for why the power is needed before I come to speak about the amendments that I have tabled in this group. The Government believe that the legislative framework is the bedrock of children’s social care services. It provides the critical architecture that protects the rights of children and young people. We believe this framework is essentially correct. However, at times we have legislated in response to failure with laws that are focused on achieving the right outcome but have unintended consequences on the ground.
The Munro review in 2011 showed us that overregulation can get in the way of good social work practice and prevent social workers putting children’s needs and wishes first. Too often legislation not only sets out what local authorities need to do to protect children but gives a significant level of detail about how they should do it.
We believe that changes to legislation should be built on evidence of what works in practice, but at present we do not have the ability to trial some of the new ideas local authorities tell us about; we can change the law for all or for none. The power would allow us to test new grass-roots approaches with careful controls, monitoring and evaluation. This might mean, for example, testing more flexible approaches for assessing kinship carers or trialling a new approach to the reviewing process.
The power to test different ways of working is about putting those on the front line in the driving seat and empowering them to find better ways of working to protect the children in their care. This is not about local authorities opting out of their legal duties towards children or being allowed to remove services. It is about empowering them to try something different. By passing this power, we would be creating the opportunity for local authorities to consider how they can give children the best possible service, starting from the needs of the children and their own professional expertise, rather than from a set of regulatory requirements. These provisions will empower professionals to look at international examples and their own experience to design the best possible service for the children in their care.
Not every idea will be a good one, and not every application will be granted. This is why it is so important that there is a robust scrutiny process about how the power is used to ensure that no trial is granted that questions the fundamentals of children’s rights or would not be in their best interests. I know that some concerns have been raised about the scrutiny of proposals and the safeguards surrounding how this power is used. It is absolutely right that noble Lords should want reassurance on this point.
I have considered carefully the views raised in Committee and the extensive discussions we have had around this since. I would like to take this opportunity to outline the amendments the Government have made to improve these clauses and provide more robust and transparent safeguards.
I shall speak first to Amendment 54. As I said on the first day on Report, when we discussed the amendment on profit tabled by the noble Lord, Lord Ramsbotham, I recognise that this is a sensitive area. I also know that there have been concerns from those in this Chamber that the power to innovate could be used to revisit restrictions on profit-making. I have said before, and I will say again, that the Government have no intention for these clauses to be used to amend restrictions on profit-making. However, to put this point absolutely beyond doubt. I have tabled a government amendment to rule out use of the power to amend restrictions on profit-making in children’s social care. I hope this amendment makes it clear to the House that these clauses have nothing to do with profit-making in children’s social care.
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I turn next to Amendments 55, 56 and 60. One of the key issues that we have heard from noble Lords is the need for a more rigorous and transparent process for considering applications. To this end, the noble
Lords, Lord Watson and Lord Warner, have tabled an amendment to introduce a panel to comment on applications to use the power. I agree with the noble Lords’ intention here, and to give it practical effect I have tabled a similar amendment to introduce an expert advisory panel to scrutinise applications to use the power, and I am grateful to them for raising this point.
The panel will include Her Majesty’s Chief Inspector and the Children’s Commissioner, as well as other representatives with relevant expertise to an application, including a representative from the voluntary sector, a practice expert and a representative from local government. The panel will be able to consider the full application, including all of the details of the consultation a local authority has undertaken ahead of applying for the power, their assessment of the risk to children, and the safeguards and the monitoring and evaluation arrangements proposed.
The Secretary of State must ask for the advice of the panel on how a trial would impact on children and the monitoring arrangements in place. However, the panel will also be able to comment on wider aspects of the application. The panel’s advice will be published ahead of regulations being laid, and it will be available to Peers alongside an explanatory report from the Government to help inform the parliamentary scrutiny process.
Amendment 59 concerns parliamentary scrutiny of applications. As I said in Grand Committee, I have listened to noble Lords’ concerns and considered the advice of the Delegated Powers and Regulatory Reform Committee. I have therefore tabled this amendment to strengthen parliamentary scrutiny of use of the power. The Joint Committee on Human Rights, in its report on the Bill, has said it welcomes this amendment. The amendment broadens the range of applications for use of the power that will be subject to the affirmative resolution procedure, so that both primary legislation and secondary legislation originally passed through the affirmative procedure will follow the affirmative route. Only secondary legislation passed through the negative procedure, and applications by the Secretary of State to end a trial by revoking regulations, will be subject to the negative procedure. This change is important as it will ensure that many more applications will be subject to debate in both Houses.
In addition, the amendment provides that the Secretary of State will, for each application to use the power, lay before Parliament an explanatory report setting out the details of the local authority’s request and an assessment of the impact on children. I hope noble Lords will agree that this report, alongside the published advice of an advisory panel, will provide the detailed information that Parliament needs to properly scrutinise requests. The final government amendment in this group, Amendment 67, is a technical amendment that clarifies the definitions of “child” and “children” which feature in the two amendments I have just discussed.
I would like to take this opportunity to set out the entire application process in full, to reassure noble Lords of the very detailed level of scrutiny each application will gain. A local authority that wants to use the power must consult locally on its proposal. The legislation
sets out that, as a minimum, consultation must take place with safeguarding partners. However, we will set out in guidance to local authorities more detail on what we expect from applications. For example, strong applications, particularly those where more significant changes are proposed, would require consultation with all affected parties, including, for instance, children in care, councils and affected families. The local authority would then submit an application to the Secretary of State, who would carefully scrutinise it, looking at safeguards, the proposed monitoring and evaluation procedures, and the likely impact on children. If she decides to proceed, she must ask the advice of the expert advisory panel.
Having considered the panel’s published advice and having made any resulting changes, the Secretary of State would then lay regulations in Parliament to be scrutinised in both Houses, if she was satisfied that it was right to proceed. This will be accompanied by an explanatory report, setting out the intended benefits, why there is not expected to be any detrimental effect on children’s welfare, and the monitoring and evaluation arrangements. If the regulations are passed by Parliament, the resulting trial will be carefully monitored and evaluated as agreed in the application. All applications will be granted only for a time-limited period. If, following a successful trial, the Government wanted to change the law for all local authorities, the full parliamentary process would apply. To summarise, there will be local consultation, advice from an expert panel and parliamentary scrutiny for every application.
I hope noble Lords can see that these clauses are a genuine attempt to help front-line practitioners and us as lawmakers to work together to ensure that our legislation genuinely works in the best interests of children.