My Lords, I shall speak to my Amendments 57, 58, 64 and 68. I begin, however, by welcoming government Amendment 54, following an amendment that I tabled earlier in the proceedings of the Bill, and hope that it will remain the Government’s position even if, as I hope, Clause 29 is left out of the resulting Act.
I acknowledge the case that the Minister has made for retaining the section headed “Children’s social care: different ways of working”, but each of my amendments seeks to leave out a separate clause, thus removing the whole section. Since we discussed these clauses in Grand Committee, no one could accuse Ministers or their officials of being idle, including as they have—among a deluge of letters, amendments, explanatory documents and offers of meetings—a policy statement on the power to test different ways of working and government Amendments 55, 56 and 59, which spell out the parliamentary procedures applicable to any use of Clause 29 to exempt from or modify existing legislation, and Amendment 61, which introduces the proposal of the appointment of an expert advisory panel.
However, I submit that Clauses 29 to 33 amount to nothing less than the subversion of Parliament’s constitutional position. It is not only wrong but totally unnecessary, in view of existing arrangements, to process proposed innovation because new ways of working can already be tested within the existing legal and regulatory frameworks, as my noble friend Lord Warner will explain. Therefore I contend that, however outwardly reasonable the processes proposed by the Government may seem, they do not alter the need to leave out Clauses 29 to 33 of the Bill for reasons of constitutional and legal principle, as I will attempt to explain.
I emphasise that I am in no way opposed to innovation or a bottom-up approach to it, a lifetime in the Army having taught me that the best way to make improvements is to identify good practice somewhere and turn it into common practice everywhere. I agree that good local authorities often feel frustrated and restricted by legislation, regulation and excessive bureaucracy, but it is of interest that when the Department for Education brought in similar powers for schools they were virtually never sought. That the Government have produced so many amendments to a Bill that was sprung on us at such short notice reinforces the suspicion that, rather than the result of careful consideration, it was in fact a panicked reaction to this year’s report by the Ofsted single inspection framework that the social care work of three-quarters of local authorities inspected either was inadequate or required improvement, which, had they been parents, might have resulted in their children being placed in care.
At Second Reading I quoted the regret of the Constitution Committee of this House that,
“despite the concerns expressed in the past by this and other committees, the Government continues to introduce legislation that depends so heavily on an array of broad delegated powers”.
I also quoted the noble Baroness, Lady Smith of Basildon, who, referring to this Bill in particular in a debate about the balance of power between the Government and Parliament, said that,
“there are more provisions for the Secretary of State to use regulations than there are clauses in the Bill, including on issues that should be considered matters of significant policy”.—[Official Report, 9/6/16; col. 860.]
I suggest that the mechanism for innovation set out in the clauses amounts to nothing less than the usurpation of the proper parliamentary process and subversion of the rule of law. I am not alone in believing that it is entirely inappropriate for primary legislation to be amended by regulations made by a Secretary of State at the request of, and applicable to, a single local authority.
In addition, all legal duties and obligations placed on local authorities by children’s social care law are ultimately enforceable by the courts, meaning that if a local authority fails to meet its statutory obligations, the young person or family concerned can take legal action to ensure that the protections laid down by Parliament are put in place, but the courts will be unable to enforce the rights of the young person or family concerned if a local authority has received an exemption from acting in accordance with the law. I therefore ask the Minister how the courts are expected to respond where a young person or child in a particular local authority area is clearly disadvantaged by the arbitrary disapplication or modification of the law as it is applied in all other parts of the country.
Clause 29 has been mentioned many times in connection with previous amendments which were tabled because of fears that the Secretary of State might use it to set aside legislation and regulations in a number of specific areas, such as the care of unaccompanied asylum-seeking children, whose care status has been adversely affected by the provisions of the Immigration Act 2016.
As I have said many times in this House in connection with prisons, not all local authorities are good, and the Government must always strive to ensure that standards of care for vulnerable children are not a postcode lottery by imposing and overseeing consistency. I suspect that the acknowledged importance of consistency is behind many of the other proposals in the Bill, such as corporate parenting principles, safeguarding arrangements and social worker regulations.
I have been struck by the united opposition to the clauses of so many practitioners, some of whom I shall cite. The Professional Standards Authority states that it has some concerns about the current drafting of the clauses relating to its power to scrutinise and refer fitness-to-practise decisions to the High Court. Together for Children has more than 104,000 signatures to a campaign for their removal. Article 39, representing 43 involved voluntary organisations, sees them as a smokescreen for deregulation which poses profound risks for children. No deregulation is allowed in adult social care, but the clauses could be used to remove transition-to-adulthood entitlements from disabled children until the age of 18, and from care leavers until the ages of 21 or 25.
The Local Government Association has found that councils are struggling to cope with reduced government funding, and that the specialised care that some children need for conditions that we were assured were covered by the very welcome government Amendment 1 is at risk, because the need to maintain a core statutory service leaves little room for discretionary cost savings and efficiencies. In welcoming the powers in Clause 29, subject to the additional safeguards set out in the policy statement, the Local Government Association is, however, concerned that Clause 32 gives the Secretary of State power to remove legislative provisions from a local authority in intervention without any local democratic scrutiny or consultation with local partners. The Royal College of Nursing is concerned that local authorities may use the clauses to water down nationally agreed standards set out in the Children Act 1989, leading to unacceptable local variations in outcomes for children. The British Association of Social Workers points out that there is no detail in the Bill about monitoring or quality assurance of any authorised different way of working, or who is responsible for it. UNISON reported last week that 69% of social workers oppose any exemptions on the ground that they would lead to more children being put at risk, and so on. Such a wide spectrum of opposition inevitably raises the question of whether the Government actually consulted these practitioners before making their proposals.
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In conclusion, these clauses seem like a bad idea dreamed up in Whitehall that have not been properly evaluated or impact-assessed. Their introduction appears
very likely to result in the unhelpful adversarial dimension to the relationship between children and young people and their local authorities in their role of corporate parents, which the Minister said he feared in his response to my amendment about access to legal advice.
The National Audit Office, which has already cited concerns about the lack of a credible whole systems approach to the quality of children’s social work across the country, is hardly likely to endorse anything that so detracts from so much that is good in the Bill. I presume that the Government are taking the criticisms of the United Nations Convention on the Rights of the Child seriously. Based on that presumption, which I hope is not a pious one, I ask the Minister to at least withdraw the clauses for further consideration, which I hope will include full and proper consultation with extremely worried practitioners who have indicated that they are ready, willing and able to collaborate with the Government to design a framework for innovation that satisfies both parties, and most importantly, leads to improvements in the lives of these very vulnerable children.