Children and Social Work Bill [HL]

Lord Watson of Invergowrie Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 8th November 2016 Lords Chamber

[Baroness Howarth of Breckland (CB)]

My Lords, briefly, I support the noble Baroness. I know that the Government are committed to both safeguarding and equality, and this is a safeguarding and equality issue. It has always amazed me, after my years in Cafcass—I am sure the noble Baroness, Lady Tyler, would agree with this—that women who suffer domestic violence, whose children are often likely to face that violence, must prove that they are in that situation before they can get legal aid to go to court. That is an injustice and I hope that the Government will look at this carefully. It is one example of the very broad issue of legal aid, but a very pertinent one in relation to children.

[Lord Watson of Invergowrie (Lab)]

My Lords, my noble friend Lady Thornton clearly outlined the issues involved in this amendment. Domestic violence victims suffer enough. GPs should not be able to charge them to access justice because in many cases that will, in effect, deny them justice. The fee that can be charged for a letter is, as my noble friend said, discretionary—but where GPs charge it can range anywhere from £20 to £180. All too often, that would be impossible for the victim to pay. We have no knowledge of how many GPs charge because the Government do not hold that information. There is a clear need to collect it because this is a loophole in the legal aid regulations that needs to be closed.

Calls for change are not restricted to domestic violence support groups. Many MPs and Peers also support the need for change, as do both the medical and legal professions. The British Medical Association was dismayed not to be consulted prior to the regulations being introduced and made it clear that it would have opposed the inclusion of medical evidence, if only on the basis that such requests can compromise the doctor’s relationship with their patient.

As my noble friend Lady Thornton said, the Law Society agrees that these changes should be scrapped. Indeed, its former president said:

“Without legal aid, women are unable to access family law remedies, which are vital in order to help them escape from violent relationships and protect their children. They are being forced to face their perpetrators in court without legal representation”.

The Government should listen to the medical and legal experts. Above all, they should listen to women who suffer at the hands of the men who perpetrate this appalling abuse.

In a debate in another place on 15 September the Parliamentary Under-Secretary of State for Justice, Dr Phillip Lee, said:

“Where arrangements have been found wanting, we have taken action. For example, when the Court of Appeal ruled earlier this year that elements of the evidence requirements for making legal aid available to victims of domestic abuse in private family cases were invalid, we changed the regulations as an interim measure ”.—[Official Report, Commons, 15/9/16; col. 1117.]

I ask the Minister now: if an interim change can be made in one instance, why not in this one?

The Government acknowledge that there are issues with the current system because they consulted specifically on evidence requirements for accessing legal aid in private family cases; that consultation closed in July. If this is an unintended consequence of poorly drafted legislation, it needs to be changed. I look to the Minister to show what I hope will be leadership on this issue and say that he will take this forward and discuss with ministerial colleagues how to bring about the required change, rather than say simply that the Government will report in due course with potential changes. Victims of domestic violence are losing out now, so change is urgent. It is a question first and foremost of supporting women who suffer domestic violence; it is also a question of natural justice.

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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.

[Lord Watson of Invergowrie]

My Lords, since the Bill had its Second Reading, there has been a wide and varied selection of briefing meetings provided by Ministers and civil servants. In some cases, outside experts were also present, and I commend the Minister for facilitating these sessions, which in many ways have proved helpful in enabling noble Lords to better understand the Bill and to articulate our concerns in greater detail than is possible in this Chamber, or indeed in Committee.

Much progress has been made, and this has resulted in a number of concessions by the Government, particularly in respect of Part 2, on social workers. However, I am confused, having heard the Minister’s opening remarks. He said, and I am pretty sure I am quoting quite accurately, that Clause 29 was not about local authorities opting out or removing services from them. However, Clause 29(2) says:

“The Secretary of State may by regulations … exempt a local authority … from a requirement imposed by children’s social care legislation”.

Surely the Minister’s remarks and the Bill are at odds. Perhaps he can explain that when he replies.

That said, and for all the discussions we have had, we still do not believe, as the noble Lord, Lord Ramsbotham, said very powerfully, that it has been possible for a convincing case to be made by Ministers as to why the exemptions outlined in Clause 29 are necessary. For the avoidance of doubt, it should be made clear that innovation in the delivery of local authority children’s services is to be welcomed. Indeed, throughout this process, I cannot recall anybody—whether noble Lords or people from the various organisations who have assiduously and very helpfully provided us with briefings—argue against innovation per se, or as the Bill describes it, the power to test new ways of working.

The terminology is not that important. What matters is that the children’s services are delivered comprehensively, effectively and safely, and that these services are available across the country. The standard may vary, though that can and must be addressed when it arises. The nature of the services provided should be, as near as possible, uniform across the country. This is about defending children’s social care rights. The alternative is a postcode lottery, as was referred to by the noble Lord, Lord Ramsbotham.

I am sure the Minister would not want that, yet I cannot see how such an outcome is anything other than inevitable if a local authority is allowed to withdraw from providing a service while the neighbouring authority continues to provide it. Exemptions from service provision raise the prospect of looked-after siblings living in different areas having different legal safeguards, and children from different local authorities living in the same children’s home having different forms of legal protection. How can that be regarded as a step forward?

The Government set out their stall in their strategy Putting Children First, which was published in July. It referred to,

“a controlled environment in which we could enable local authorities to test deregulatory approaches that are not currently possible, before taking a decision to make substantial changes to existing legislation that would apply across the board”.

However, the document itself did not identify the “deregulatory approaches” that cannot be tested presently. In the document, the Chief Social Worker for Children and Families asserts:

“We must be enabled to use our professional judgment in flexible and creative ways, rather than having to follow a procedural path or series of legal rules”.

For the chief social worker to seek to avoid having to follow “legal rules” is worrying at the very least and invites the question as to whose side she is on; some have recently questioned whether the answer is vulnerable children. If local authorities are unable to provide a full and effective service in social care, then the main reason is usually a lack of resources, especially in terms of staffing. I think it is pertinent to ask: why is the chief social worker not using her position of influence to campaign for more resources to enable her fellow social workers to do their job to the best of their ability, rather than undermining and demoralising the profession as many social workers feel that she is doing?

The bottom line is that Clause 29 is not necessary. We have been unable to find any evidence that local authorities have their hands tied by existing legislation to the extent that they cannot test “new ways of working”. I am not going to repeat the list of a dozen councils that I gave to the Minister in Committee, and there are more. The message is clear: there are no impediments to such change; at least, it appears from the evidence that none cannot be overcome. Clauses 29 to 33 would undermine a rights-based approach to children’s social care. In doing so they risk removing vital protections from vulnerable young people who rely on the law to keep them safe and guarantee the provision of essential services. I accept that is not what the Minister intends. Of course it is not. However, many people involved in the sector are absolutely clear that that would be the result.

The Government have come forward with a number of what they regard as safeguards. The powers cannot be used to make a profit. I certainly echo the noble Lord, Lord Ramsbotham, in welcoming government Amendment 54. The affirmative resolution procedure will be required to make exemptions from or modifications to legislation. The Secretary of State must consult an expert panel to advise her before she makes any recommendations. However, I contend that these are all open to question. We believe that the Government’s ultimate intention is to open up the field of social work services completely, either to the private sector or to the third sector, with local authorities having their role reduced to a bare minimum. Initially, the most attractive services would be outsourced, but in time the only services not outsourced will be the less attractive and the more problematic ones. At that point, the only means of taking them out of local authority control will be by allowing them to be run for profit and, at that stage if not before, this section of the Bill would be amended, just as so many pieces of children’s protection legislation are amended in this Bill.

As for affirmative resolutions, it is extremely rare for statutory instruments presented to Parliament to be rejected, whether they follow the negative or the affirmative resolution procedure. Indeed, the Hansard Society recently reported that over the past 50 years, a mere 0.01% of such instruments have not been passed. That is one in 10,000. Given the “take it or leave it” proposition inherent in them, that is perhaps not too surprising, but it does take most of the wind out of the Minister’s sails as regards his Amendments 55 and 56.

It is perhaps instructive that the panel is described as an expert panel, rather than an independent panel as we seek in Amendment 60. The reason is clear, though, because in no way could the people mentioned in Amendment 61 be regarded as independent. Two of them are there ex officio, having been appointed to those offices by the Secretary of State. The two “other persons” to join the panel would be chosen by—that is right—the Secretary of State. Given that the Government have made their long-term plan clear in Putting Children First, it would be a brave panel member who argued against a local authority request being approved. The suspicion is that those panel members would become the equivalent of regional schools commissioners, charged with the de facto responsibility of removing services from local authorities as widely as possible.

There are rigorous safeguards that the Minister could consider, such as limiting the powers to local authorities rated good or outstanding; requiring local authorities seeking exemption to hold full and open local consultations, based on a properly considered assessment of the impact of the exemption on the children and families concerned; or perhaps most importantly, requiring that exemptions are not used to reduce overall investment in children’s social care.

Clause 32 also remains a worry, because local authorities in intervention is the most likely situation in which those powers will be used and because the Bill gives responsibility for that to the Secretary of State, without the consultation of local partners that exists for Clause 29. That is why we have submitted Amendment 65, suggesting that the Secretary of State must consider the advice of the Children’s Improvement Board.

The Minister must be aware of the opposition to Clause 29. A petition calling for the exemption powers to be scrapped has received over 100,000 signatures. More than 40 expert organisations have come together to oppose the inclusion of these clauses in the Bill. Last week UNISON published a report which showed that, in a survey of almost 3,000 of its social workers, just one in 10 supported the Government’s proposals.

This clause, and the ones which relate to it, have long been the main concern of noble Lords and a wide range of opinion beyond. I accept that the Minister has tried to mitigate its effects and the fears that it has engendered, but I am afraid he has not succeeded. For that reason, should the noble Lord, Lord Ramsbotham, decide to press Amendment 57, he will have the support of these Benches.

[Lord Warner]

My Lords, as someone who strongly supports reform and innovation across the public services, I rise, perhaps a little surprisingly, to support Amendments 57, 58, 64, 66 and 68, tabled by the noble Lord, Lord Ramsbotham, and to which I have added my name. I will not rehearse again the arguments that he and the noble Lord, Lord Watson, have made, and with which I totally agree. I welcome, and accept, that the Government have crafted some safeguards to meet the extensive concerns expressed across the Benches of this House in Committee and by many concerned interests outside Parliament, most notably the social work profession itself and the major children’s charities.

The Government’s amendments include one of my proposals, for which I am grateful—namely the establishment of an independent panel to consider particular proposals. Ultimately, however, after reflecting further on this issue following a pretty lengthy meeting with Edward Timpson, many of his officials and people from local government, I think that these clauses remain fundamentally flawed, even with the proposed safeguards, for three main reasons.

First, the examples that the Government have cited in support of the clauses do not justify the kind of draconian powers that the Secretary of State has sought. All the examples I have heard about are relatively minor changes which may or may not improve effectiveness and efficiency. The Government have simply not shown why such wide powers are needed, or the scale of innovation that cannot be attempted because of primary legislation. We simply do not have the evidence base to show that there are a lot of hungry people out there wanting to innovate who are frustrated by primary legislation. In any case, if the Government thought that the changes they have cited were necessary and needed primary legislation, they could, and should, have used this Bill to make them, and subjected their ideas to parliamentary scrutiny. There was nothing to stop them including those proposals in the Bill and explaining why they needed to introduce changes and why children’s services would be improved. However, the Government have chosen not to do so. Instead, they have chosen an extremely large sledgehammer to crack quite small nuts, which has only caused many people to wonder what the Government are really up to. The Government’s failure to consult properly on this Bill in advance has only fuelled that suspicion.

Secondly, the Government have singularly failed to convince all the major children’s charities, Liberty and the majority of social workers that what they are proposing in Clauses 29 to 33, even with the proposed safeguards, will benefit outcomes for vulnerable children. The charities, along with the professional interests, simply do not consider that the Government have made the case for Parliament to open the door to remove long-standing protective rights granted by Parliament to safeguard highly vulnerable children. They are right to warn us to draw back from granting these wide powers to the Government, even with the proposed safeguards, without much more convincing evidence. As the charities said in the briefing to us, the Government should go back to the drawing board on innovation and conduct a proper review of what is needed in consultation with the various interests. It is striking that all the briefing we have received shows that these bodies have an appetite for innovation. They are not being Luddites about innovation and reform. They are saying that the process which the Government have adopted is totally inappropriate if we want to safeguard rights-based children’s protection services.

Finally, the noble Lord, Lord Ramsbotham, referred to an argument which is currently being given a good airing over the triggering of Article 50. The argument is that when Parliament puts legislation in place, Parliament should amend it and not allow a Secretary of State to take wide powers to amend what he thinks fit. That is a particularly important consideration when the rights of vulnerable children are involved. For those reasons, if the noble Lord, Lord Ramsbotham, chooses to test the opinion of the House, I will vote with him.

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Moved by

[Lord Watson of Invergowrie]

70: After Clause 33, insert the following new Clause—
“Safeguarding unaccompanied refugee children
After section 67 of the Immigration Act 2016 (unaccompanied refugee children: relocation and support), insert—“67A Strategy for safeguarding of unaccompanied refugee children(1) The Secretary of State must, by 1 May 2017, publish a strategy for the safeguarding of unaccompanied refugee children living in the United Kingdom, and children who have been identified for resettlement in the United Kingdom under section 67 of this Act.(2) In formulating the strategy, the Secretary of State must, in addition to other actions he or she considers relevant to the duty under subsection (1)— (a) consult with all public agencies who may be required to provide services to child refugees, including the European Asylum Support Office, local government and the devolved administrations, for the purposes of enabling them to discharge their safeguarding duties towards those unaccompanied children, as set out in—(i) section 17 of the Children Act 1989 (provision of services for children in need, their families and others),(ii) section 47 of that Act (local authority’s duty to investigate), and(iii) the sections of that Act which deal with public agencies’ housing and care-leaving responsibilities;(b) evaluate the procedures for, and speed of, resettling those unaccompanied refugee children who have been identified for resettlement in the United Kingdom under section 67 of this Act;(c) liaise with non-governmental bodies relevant to the implementation of the strategy;(d) make recommendations on how to ensure the provision of full-cost reimbursement to agencies required to provide services under the strategy for whatever period is required to fulfil their duties.(3) The strategy must include—(a) how safeguarding will differ for those children covered by the strategy who have family members in the United Kingdom and those who do not;(b) plans for coordinating operational activity with, and learning best practice from, the Syrian Vulnerable Person Resettlement Programme for the purposes of—(i) expediting a speedy and safe transfer to the United Kingdom of the children who have been identified for resettlement in the United Kingdom under section 67 of this Act; and(ii) involving local authorities in assessments prior to the arrival of those children, to ensure that safeguarding and other duties are fulfilled;(c) plans for the publication of monthly updates on the progress of the strategy;(d) plans to ensure that the Children’s Commissioners of England, Wales, Scotland and Northern Ireland are able to make representations on behalf of children relocated under section 67 of this Act, as part of their statutory duty under section 2 of the Children Act 2004 (primary function: children's rights, views and interests), and for the government to consult with the Children’s Commissioners of other countries about those countries’ arrangements for the safeguarding of unaccompanied refugee children living in those countries;(e) plans to provide an annual update to Parliament on the arrangements made to support refugee children in the United Kingdom covered by the strategy, which must include details of funding provided, staff deployed, local authorities involved and those children’s legal status.””

[Lord Watson of Invergowrie]

My Lords, my noble friend Lord Dubs is abroad at the moment. He has asked me to move Amendment 70, to which I am also a signatory, on his behalf. The amendment, which seeks to amend the Immigration Act 2016, is comprehensive and self-explanatory. Noble Lords will be well aware that my noble friend recently convinced the former Prime Minister, David Cameron, that vulnerable young people, many from war-torn Syria, should be admitted to the UK. My noble friend recently met with the Children’s Minister, Edward Timpson, the Immigration Minister, Robert Goodwill and the noble Baroness, Lady Williams—whom I am pleased to see on the Front Bench for the first time—to discuss the amendment to the Bill which he moved in Committee.

My noble friend Lord Dubs’s suggestions, based on his unrivalled experience in this field, were listened to by Ministers and some were incorporated in the Written Ministerial Statement on safeguarding issued on 1 November. It contained details of a new strategy which was much needed and most welcome. In many ways, the Statement met the proposals contained in Amendment 70; in others it exceeded them. For instance, there is to be an increase in the number of foster carers, as well as fresh proposals to fund supported lodgings for young people.

One critical issue that my noble friend Lord Dubs had raised with Ministers was additional financial support for local authorities that receive the vulnerable young people. Although the Statement stops short of promising a specific figure, the implication is clear in the Government’s commitment to,

“regularly review funding to support and care for unaccompanied asylum-seeking and refugee children, working closely with the LGA and local authorities”.—[Official Report, Commons, 1/11/16; col. 29WS.]

Like my noble friend, I am prepared to accept the spirit in which that has been offered and we look forward to hearing details in the near future.

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[Baroness Williams of Trafford]

I cannot give the noble Baroness a specific figure, because the figures change all the time depending on the capacity that is needed at the camp at various times.

[Lord Watson of Invergowrie]

My Lords, this has been a vigorous debate on a very important subject with a very broad base of agreement. I take on board the points made by the noble Baroness, Lady Sheehan—I was not aware of that before, but I think that the Minister has answered the question on Section 67 of the Immigration Act, and the two points raised by my noble friend Lady Lister will be addressed by letter. All in all, and given what was said at the outset—that my noble friend Lord Dubs was very satisfied with the Statement—I beg leave to withdraw the amendment.

Some Lords objected to the request for leave to withdraw the amendment, so it was not granted.