The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
My Lords, welcome to the 11th day of Committee on the Children and Families Bill. The noble Baroness, Lady Northover, wishes to say a word.
Baroness Northover (LD)
My Lords, with the Chairman’s leave, I would like to remind everyone taking part in Committee proceedings today and on Wednesday that these are our last two days in Committee. The usual channels and all those involved are committed to that objective. To that end, we have agreed to sit to target this evening and on Wednesday, if necessary sitting later than our usual rising time by half an hour or so. Today’s target is to complete Amendment 266AZZZA.
Baroness Hughes of Stretford (Lab)
Could I just clarify that? I think what has been agreed by the usual channels is that we will sit until 8 pm—that is, an extra half an hour, not thereabouts and not to target.
Baroness Northover
I hear what the noble Baroness says and I am sure that the usual channels will also have heard what she says. I will send an e-mail and clarify if need be.
Clause 76: Repeal of local authority’s duty to assess sufficiency of childcare provision
Baroness Howarth of Breckland (CB)
My Lords, although I had not intended to speak on this section, I would like to raise one particular concern. Before I do that, I will add my concerns to those of the noble Baronesses raising the issue of repeal under Clause 76. Earlier, before we began the Committee, the noble Lord, Lord McColl, talked to me about whether a particular group of children should be given priority and whether we could find a way of doing that. I said that, if you try that, you will find that almost every group of children that local authorities currently deal with are a priority, because those are the only groups that they deal with at the moment. It is very difficult for local authorities at the moment to move into preventive work or into other areas.
If we have one piece of legislation for adults, which has the duty, and another piece of legislation for children, which does not have it, my great concern is that children will slip down the priority list in this particular area. I am not saying that they will not be protected—that will be followed up—but proper assessment for under-five provision will slip down the priority level. It has to, because that is the only way that local authorities can manage their finances and priority ratings. I hope that the Minister and the Government will look again at this repeal. I think that the way forward is to look at the regulation and the framework and to get that into an accurate package, which would take us forward.
The other area that concerns me—this is a probing question—is those children who have additional needs and who need to be placed in under-five daycare so that their parents can work or develop skills. I am thinking in particular of children with, say, autism or similar developmental issues and am really trying to probe how this fits with the government amendment. At the moment, a local authority may provide funding for a place, but if the parent wishes to make additional payments for an extra quality of service, the local authority will not pay because that would be a mixture of private and statutory funding—even if the organisation providing that service is a voluntary, not-for-profit organisation.
I take some responsibility because I suspect that, in the past, I was one of the people who pressed for the principle of not mixing private and statutory funding, but I do not think I ever saw it coming to a position where, as a parent, you could not give added quality to children in need. The difficulty has arisen because some parents have objected to having to pay—one organisation I know in particular may have to close its doors because it cannot manage the quality of care that they need to provide for these difficult children. This is really a probing question: are the Government prepared to look at mixing or is it an absolutely sacred principle that private and public funding should not be put together? I also support the other the noble Baronesses who put the other arguments so clearly.
Baroness Northover
My Lords, this is an important debate about the role of English local authorities in securing early-years provision free of charge for young children and about sufficient childcare. In responding, I will also speak to government Amendment 240R.
The Government are as determined as other noble Lords that parents should have a wide choice of early education and childcare places, and that places are of the highest quality possible. Clause 76 will remove the requirement on local authorities to assess the sufficiency of childcare provision every three years. We recognise the concerns raised by my noble friend Lady Tyler and the noble Baroness, Lady Hughes, and I hope that I can provide some reassurance.
There are two duties on local authorities relating to the sufficiency of childcare: the duty to secure sufficient childcare under Section 6 of the Childcare Act 2006; and the duty to make an assessment of sufficiency of childcare every three years under Section 11 of the same Act, which is what we have just been addressing. The first of these duties is paramount. The duty of the local authority to secure sufficiency of childcare remains in place; it is the other element that we are talking about here. We are clear that local authorities should take steps to ensure that parents can access the childcare they need.
To satisfy themselves that there is sufficient childcare in their area—my noble friend Lady Tyler is right—local authorities do indeed need to collect information on the availability of, and demand for, childcare. Our statutory guidance makes it clear that local authorities should report to elected members annually on the steps they are taking to address any gaps in childcare provision. The annual report should also be made available to parents, allowing them to hold local authorities to account for ensuring that there is high-quality, affordable childcare in their area. The noble Baroness, Lady Hughes, mentioned a simpler annual report. We are more in agreement here than perhaps it may have appeared from our initial discussions. There will need to be an assessment because those kinds of data are required, and there will need to be an annual report.
The decision to repeal the sufficiency assessment—that three-yearly, very lengthy document—was taken after public consultation. The majority of respondents supported the repeal and the proposals that local authorities should prepare and publish an annual report on the sufficiency of childcare. The noble Baroness, Lady Hughes, referred to that consultation and suggested that perhaps we did not ask whether the duty should be repealed. Perhaps I misunderstood her—it looks as if I did not—but the department did indeed ask this. The question was: “Do you support the repeal of Section 11 and the revocation of the supporting regulations?”. That was directly asked of people, and 62% supported it; only 10% said they did not.
The consultation took place between November 2010 and February 2012, and the Government published their response in May 2011; it is available on the Department for Education website. The feeling came through that what was needed was to ensure that there were sufficient places and that too much focus was perhaps going on this rather lengthy document, produced every three years, which required a lot of effort to put together and was not easy for parents to access, and so on.
No doubt in the first place the provision was made for the best possible reasons and I fully understand why it should be there, but the purpose is to try to secure sufficient childcare and to have a mechanism of putting pressure on local authorities to ensure that that happens. That is why the department is in favour of moving to an annual assessment and giving that annual report to the councillors who are accountable. I hope that noble Lords will be reassured.
The Countess of Mar (CB)
Perhaps I might ask the noble Baroness to check the dates she gave us for the consultation. It sounds as though the Government’s response came a year before the consultation was complete, if I heard her right.
Baroness Northover
The noble Countess is right. As I read that out, I was thinking, “My goodness, that is a long consultation—a very, very thorough consultation”. No doubt I may find that it was not quite like that and, if so, I will inform the noble Countess in a moment. I hope that the substance of what I am saying provides some reassurance.
Baroness Howarth of Breckland
It may be my lack of understanding, but I think that the concern is not that the assessment is being changed from the lengthy three-year bureaucratic document, with which I am familiar, but that the statutory responsibility has been changed to regulation. Is that correct?
Baroness Northover
Perhaps I may answer the noble Countess, Lady Mar. The consultation went from November 2010 to February 2011—which, I agree, is a much more normal length of time for a consultation.
Baroness Northover
I am very flattered. I will come back to the noble Countess in a moment very precisely on her point, because obviously it is very important.
Baroness Hughes of Stretford
Perhaps the noble Baroness will give way on a point of detail about the consultation. I understood that the Government did not test views on repealing the Section 11 duty. I understand that there were two questions: first, whether to move to an annual sufficiency assessment and, secondly, whether to remove the current Section 11 duty and the associated regulations altogether in one question. An analysis of the qualitative responses that people made showed that many people were very concerned about the current regulations, but they did not express a view about Section 11 as a duty in itself; they were more concerned about the onerous regulations.
Baroness Northover
I hear what the noble Baroness says. I have seen some of the responses and she rightly puts her finger on the concern about the document that was produced. Perhaps at the very least we can agree that the three-year assessment that was put in place—no doubt for extremely sound reasons—was not doing what was intended. What we seek to do here is to make sure that we have something that delivers what is required, which is the pressure on local authorities to make sure that they know what the provision is and that it is sufficient. Therefore, moving from three years to an annual assessment is important, as the noble Baroness agrees. We need something which is not so lengthy and dense that by the time it is produced three years later, many of those children will already be in school. The assessment needs to be a little more up to date than once every three years.
Baroness Hughes of Stretford
I am grateful to the Minister for her clarification. I think there is agreement on that particular proposal. Perhaps she could address the point that the noble Baroness, Lady Tyler, I and others made: namely, why do the Government want to repeal the Section 11 duty, which we think would send a very negative message to local authorities, rather than simply amend the regulations in the way in which she is describing?
Baroness Northover
I am happy to go through some other comments, which may help address those matters. If I do not adequately address them, I will be very happy to write a letter on all the points.
I have now got my papers in the right order. My noble friend Lady Tyler asked about good practice. The department would be happy to publicise any examples of good practice and local authority annual reports. Through the Children’s Partnership, the department runs a foundation years website which provides a range of guidance and good practice material to support early-years professionals. I also point out to my noble friend Lady Walmsley that the department collects and publishes a suite of data on local authority performance in the early years benchmarking tool. So information is held centrally as well, which helps inform both the Government and local authorities. Local authorities will still need to assess local sufficiency, and these proposals will make it less bureaucratic to do so. I hope that noble Lords will be willing to withdraw their opposition and will be reassured that local authorities will still need to assess the sufficiency of childcare provision and to account for it to elected members.
Government Amendment 240R allows new regulations to be made that affect the way local authorities meet their duty to secure early-years provision for young children. The amendment will allow the Government to impose a requirement on local authorities to meet this duty by funding early-years provision at any provider that meets the quality standards set out in regulations.
The department previously set out an expectation that local authorities should undertake their own assessment of a provider’s quality before funding it to deliver places. It seems to us that it does not make sense for the Government to require local authorities to make quality judgments about providers when Ofsted is undertaking a similar role. The noble Baroness, Lady Hughes, acknowledged that we have duplication here, but she was concerned that Ofsted’s assessments might take a while to take place, would therefore be out of date, and so on. Where local authorities have got concerns about a decline in quality since an inspection, they can make representations to Ofsted, which may inspect earlier than scheduled. Given that Ofsted is in place, however, it seems to us that the duplication did not make sense.
The intention is that in future, where a provider has received a “good” or “outstanding” inspection judgment from Ofsted, it should automatically receive funding from the local authority if a parent wants to send their child there. Currently, local authorities can also require providers to meet a variety of additional local conditions in order to receive funding. Some providers report that local authority improvement recommendations have conflicted with the views of Ofsted and that inconsistent requirements have presented challenges for providers operating in more than one area and looking to expand. This clause also allows regulations to be made that limit the nature of the conditions that can be imposed whenever a local authority funds an early-education place.
The noble Baroness, Lady Howarth, asked about top-up fees for children with SEN. As she pointed out, local authorities have a statutory duty to secure early education free of charge for young children, but she raised an important point. I will write to her on whether fees could be mixed in the way she talked about.
We intend to make regulations that ensure that local authorities will be able to place conditions on providers to ensure that they meet their responsibilities to meet the needs of disabled children, or children with SEN, to keep children safe and use government funding properly. Under the regulations, local authorities will also be able to set conditions that ensure funded places are completely free, so that no parent is denied access to their child’s funded place by having to pay a fee, and places will be delivered flexibly to meet parents’ needs. Of course, the noble Baroness will have noted that they have a particular responsibility to look after children with special needs. One would hope that the provision made would be appropriate and that the parents would not need to be topping up with extra fees. Nevertheless, I will write to the noble Baroness on that.
Local authorities will continue to have an important role to play in helping providers improve the quality of their provision. They will still be able to place conditions on providers judged less than “good”, requiring them to take the necessary steps to address issues raised by Ofsted at inspection. I hope that aspect will also reassure noble Lords.
Taken together, these changes will create a level playing field for all providers across the country. Nationally consistent criteria will make it easier for good providers to expand outside their local authority area and for new providers to enter the market. In particular, it will enable more childminders to deliver places, giving parents greater choice over their childcare options so that they can do what is best for their family. I urge noble Lords to support the government amendment.
I turn to Amendment 240S in the name of the noble Baroness, Lady Hughes. We absolutely share her aim that we should fund early-education places at the highest-quality providers—there is no doubt about that. The research evidence is clear that high-quality provision has the biggest impact on children’s development. Therefore, we are working very hard to drive up the quality of provision, following on from what the noble Baroness did in her role. She will also be aware of the challenges that government encounters in trying to do that, but we are taking that forward very vigorously. We are reforming the regulatory regime, including planning more rigorous and frequent inspections and a greater role for Her Majesty’s inspectors in quality-assuring those inspections.
To improve the skills and knowledge of those caring for and educating young children, we are introducing early-years teachers at graduate level and early-years educators at A-level standard. However, we do not think that enshrining in the Bill a quality threshold for funded places is the best way to achieve this. Placing a quality threshold in primary legislation would reduce the Government’s flexibility to raise the quality bar as the quality of available provision improves. It would also prevent the Government from easily adjusting the standard to reflect changes to the inspection framework; for example, if Ofsted decided to no longer have an inspection category labelled “good”. That kind of judgment is not usually put in primary legislation, as noble Lords will be aware.
I may not have addressed all the issues. I will just see if there are any other things I need to pick up. In answer to the question asked by the noble Baroness, Lady Hughes, about keeping the regulations, the Government’s view is that the statutory guidance is a more proportionate way of supporting local authorities in their sufficiency duty than the regulations, which could be bureaucratic. The guidance is in force and is available on the department’s website. I am happy to write to noble Lords to provide greater detail on that.
The noble Baroness, Lady Hughes, and my noble friend Lady Walmsley asked about funding inadequate providers. Local authorities retain the discretion in extraordinary circumstances to fund inadequate providers. For example, this would allow an authority to fund a provider judged inadequate because of a technicality, such as out-of-date policies that will be speedily rectified. Our guidance is clear, however, that authorities should withdraw funding from inadequate providers as soon as is reasonably practical if they fail for reasons of greater substance than the kind of instance to which I have just referred. I hope that that reassures the noble Baronesses.
I hope that noble Lords will be happy to support the government amendment in this group and will not press their own amendments, and will agree that this clause should stand part of the Bill.
Baroness Tyler of Enfield
My Lords, I am very grateful to my noble friend the Minister for her very helpful responses and the very constructive tone in which she gave them. I am also very grateful to other noble Lords who participated in this debate.
I think that there is a large measure of agreement on this issue. We all agree that no one wants unnecessary bureaucratic burdens on local authorities. We all agree that the Section 6 duty to secure the provision is of paramount importance. I think we can all see that having a report once a year rather than every three years is helpful. No one wants lengthy reports. Some of us have seen reports almost like telephone directories that do not seem to help very much. Those are the things on which we are all agreed.
Baroness Northover
“Discharge of authority’s duty to secure free early years provision
(1) Part 1 of the Childcare Act 2006 (general functions of local authorities in England in relation to childcare) is amended as follows.
(2) After section 7 (duty to secure early years provision free of charge in accordance with regulations) insert—
“7A Discharge of duty under section 7
(1) Regulations may require an English local authority to discharge its duty to a young child under section 7 by making arrangements which secure that an early years provider chosen by a parent of the child provides the early years provision to which the child is entitled in cases where—
(a) the early years provider is willing to provide it, and(b) the early years provider is also willing to accept—(i) any terms as to the payments which would be made to him or her in respect of the provision, and(ii) any requirements which would be imposed in respect of it.(2) Arrangements made by an authority to satisfy any requirement imposed under subsection (1) may be made with an early years provider or with an early years childminder agency or any other person who is able to arrange for an early years provider to provide early years provision.
(3) The regulations may provide that such a requirement—
(a) applies only if the early years provider is of a prescribed description;(b) applies only if the early years provision provided by the early years provider is of a prescribed description;(c) does not apply in prescribed circumstances.(4) The regulations may provide that arrangements made by an authority for the purpose of complying with such a requirement must include provision allowing the local authority to terminate the arrangements in prescribed circumstances.
(5) In this section—
“early years childminder agency” and “early years provider” have the same meanings as in Part 3;
“parent” has the same meaning as in section 2.”
(3) After section 9 (arrangements between local authority and childcare providers) insert—
“9A Arrangements made by local authorities for the purposes of section 7
Regulations may provide that arrangements made by an English local authority for the purpose of discharging its duty under section 7—(a) may impose requirements on the person with whom the arrangements are made only if the requirements are of a prescribed description;(b) may not impose requirements of a prescribed description on the person with whom the arrangements are made.””
Baroness Northover
“Young carers
(1) In Part 3 of the Children Act 1989, after section 17 insert—
“17ZA Young carers’ needs assessments: England
(1) A local authority in England must assess whether a young carer within their area has needs for support and, if so, what those needs are, if—
(a) it appears to the authority that the young carer may have needs for support, or(b) the authority receive a request from the young carer or a parent of the young carer to assess the young carer’s needs for support.(2) An assessment under subsection (1) is referred to in this Part as a “young carer’s needs assessment”.
(3) In this Part “young carer” means a person under 18 who provides or intends to provide care for another person (but this is qualified by section 17ZB(3)).
(4) Subsection (1) does not apply in relation to a young carer if the local authority have previously carried out a care-related assessment of the young carer in relation to the same person cared for.
(5) But subsection (1) does apply (and so a young carer’s needs assessment must be carried out) if it appears to the authority that the needs or circumstances of the young carer or the person cared for have changed since the last care-related assessment.
(6) “Care-related assessment” means—
(a) a young carer’s needs assessment;(b) an assessment under any of the following—(i) section 1 of the Carers (Recognition and Services) Act 1995;(ii) section 1 of the Carers and Disabled Children Act 2000;(iii) section 4(3) of the Community Care (Delayed Discharges) Act 2003.(7) A young carer’s needs assessment must include an assessment of whether it is appropriate for the young carer to provide, or continue to provide, care for the person in question, in the light of the young carer’s needs for support, other needs and wishes.
(8) A local authority, in carrying out a young carer’s needs assessment, must have regard to—
(a) the extent to which the young carer is participating in or wishes to participate in education, training or recreation, and(b) the extent to which the young carer works or wishes to work.(9) A local authority, in carrying out a young carer’s needs assessment, must involve—
(a) the young carer,(b) the young carer’s parents, and(c) any person whom the young carer or a parent of the young carer requests the authority to involve.(10) A local authority that have carried out a young carer’s needs assessment must give a written record of the assessment to—
(a) the young carer,(b) the young carer’s parents, and(c) any person to whom the young carer or a parent of the young carer requests the authority to give a copy.(11) Where the person cared for is under 18, the written record must state whether the local authority consider him or her to be a child in need.
(12) A local authority in England must take reasonable steps to identify the extent to which there are young carers within their area who have needs for support.
17ZB Young carers’ needs assessments: supplementary
(1) This section applies for the purposes of section 17ZA.
(2) “Parent”, in relation to a young carer, includes—
(a) a parent of the young carer who does not have parental responsibility for the young carer, and(b) a person who is not a parent of the young carer but who has parental responsibility for the young carer.(3) A person is not a young carer if the person provides or intends to provide care—
(a) under or by virtue of a contract, or(b) as voluntary work.(4) But in a case where the local authority consider that the relationship between the person cared for and the person under 18 providing or intending to provide care is such that it would be appropriate for the person under 18 to be regarded as a young carer, that person is to be regarded as such (and subsection (3) is therefore to be ignored in that case).
(5) The references in section 17ZA and this section to providing care include a reference to providing practical or emotional support.
(6) Where a local authority—
(a) are required to carry out a young carer’s needs assessment, and(b) are required or have decided to carry out some other assessment of the young carer or of the person cared for;the local authority may, subject to subsection (7), combine the assessments.(7) A young carer’s needs assessment may be combined with an assessment of the person cared for only if the young carer and the person cared for agree.
(8) The Secretary of State may by regulations make further provision about carrying out a young carer’s needs assessment; the regulations may, in particular—
(a) specify matters to which a local authority is to have regard in carrying out a young carer’s needs assessment;(b) specify matters which a local authority is to determine in carrying out a young carer’s needs assessment;(c) make provision about the manner in which a young carer’s needs assessment is to be carried out;(d) make provision about the form a young carer’s needs assessment is to take.(9) The Secretary of State may by regulations amend the list in section 17ZA(6)(b) so as to—
(a) add an entry,(b) remove an entry, or(c) vary an entry.17ZC Consideration of young carers’ needs assessments
A local authority that carry out a young carer’s needs assessment must consider the assessment and decide—(a) whether the young carer has needs for support in relation to the care which he or she provides or intends to provide;(b) if so, whether those needs could be satisfied (wholly or partly) by services which the authority may provide under section 17; and(c) if they could be so satisfied, whether or not to provide any such services in relation to the young carer.”(2) In section 104 of the Children Act 1989 (regulations and orders)—
(a) in subsections (2) and (3A) (regulations within subsection (3B) or (3C) not subject to annulment but to be approved in draft) before “(3B)” insert “(3AA),”, and(b) after subsection (3A) insert— “(3AA) Regulations fall within this subsection if they are regulations made in the exercise of the power conferred by section 17ZB(9).””
Baroness Hughes of Stretford
I would be grateful if the Minister could clarify the scope and impact of Amendments 241B, in particular, and 273A. This is a genuine question. I have read the note the Minister put out saying that the amendments provide clarification. I am talking about the right amendments, am I not? I beg your pardon; I misheard.
Baroness Northover
“Duty to support pupils with medical conditions
(1) The appropriate authority for a school to which this section applies must make arrangements for supporting pupils at the school with medical conditions.
(2) In meeting the duty in subsection (1) the appropriate authority must have regard to guidance issued by the Secretary of State.
(3) The duty in subsection (1) does not apply in relation to a pupil who is a young child for the purposes of Part 3 of the Childcare Act 2006 (regulation of provision of childcare in England).
(4) This section applies to the following schools in England—
(a) a maintained school;(b) an Academy school;(c) an alternative provision Academy;(d) a pupil referral unit.(5) In this section—
“the appropriate authority for a school” means—
(a) in the case of a maintained school, the governing body,(b) in the case of an Academy, the proprietor, and (c) in the case of a pupil referral unit, the managing committee;“maintained school” means—
(a) a community, foundation or voluntary school, within the meaning of the School Standards and Framework Act 1998, or(b) a community or foundation special school, within the meaning of that Act.(6) The Education Act 1996 and this section are to be read as if this section were included in that Act.”
Baroness Northover
“Local authority functions relating to children etc: intervention
(1) Section 497A of the Education Act 1996 (which confers power on the Secretary of State to secure the proper performance of local authority education functions, and is applied to social services functions relating to children by section 50 of the Children Act 2004 and to functions relating to childcare by section 15 of the Childcare Act 2006) is amended in accordance with subsection (2).
(2) After subsection (4A) insert—
“(4AA) So far as is appropriate in consequence of a direction given under subsection (4A), a reference (however expressed) in an enactment, instrument or other document to a local authority is to be read as a reference to the person by whom the function is exercisable.
(4AB) Subsection (4AC) applies if a direction given under subsection (4A) expires or is revoked without being replaced.
(4AC) So far as is appropriate in consequence of the expiry or revocation, a reference (however expressed) in an instrument or other document to the person by whom the function was exercisable is to be read as a reference to the local authority to which the direction was given.”
(3) In section 15 of the Local Government Act 1999 (Secretary of State’s power to secure compliance with requirements of Part 1 of that Act) after subsection (6) insert—
“(6A) So far as is appropriate in consequence of a direction given under subsection (6)(a), a reference (however expressed) in an enactment, instrument or other document to a best value authority is to be read as a reference to the person by whom the function is exercisable.
(6B) Subsection (6C) applies if a direction given under subsection (6)(a) expires or is revoked without being replaced.
(6C) So far as is appropriate in consequence of the expiry or revocation, a reference (however expressed) in an instrument or other document to the person by whom the function was exercisable is to be read as a reference to the best value authority to which the direction was given.””
Baroness Northover
I think that this is the amendment the noble Baroness was thinking about. I shall speak also to Amendment 273A, which is a technical amendment to bring the substantive amendment into force two months after Royal Assent. These amendments clarify the law in relation to the Secretary of State’s power to intervene in failing local authorities under the 1996 Education Act and the Children Act 2004.
In most cases, as noble Lords will know, government intervention in local authorities rests on the use of non-statutory improvement notices or, less often, on statutory directions to ensure that locally led improvement is effective. There are currently five local authorities in England under statutory direction, and 20 subject to improvement notices. The Secretary of State’s ability to remove functions entirely from a local authority is essential only in exceptional cases of persistent underperformance that put at risk the welfare of vulnerable children over an extended period.
Parliament agreed that those powers were necessary when it passed important provisions in the Education Act 1996 and the Children Act 2004. That legislation allows the Secretary of State to direct that where a local authority fails to perform its children’s services functions to an adequate standard or at all, those functions can be exercised directly by the Secretary of State or by a third-party nominee. For these powers to be exercised effectively, it is essential that the Secretary of State or the third-party nominee can fulfil all the functions required to keep vulnerable children safe and intervene to improve their life chances.
However, although this legislation is in place and its intention is clear, it leaves room for potential legal argument over how the courts would view a direction under subsection (4A). This is because, in introducing the provisions in the 1996 Act and the 2004 Act, Parliament did not clarify in legislation all the powers that are consequential upon those provisions. It is not clear beyond doubt, for instance, whether the family court would feel able to recognise a third-party nominee as if it were a local authority in care or adoption proceedings. There might also be some doubt as to whether the chief inspector had the powers necessary to inspect and report on a nominee’s performance of the local authority’s functions.
We propose, therefore, to clarify the relevant legislation to put these questions beyond doubt. This is important to enable the Secretary of State to intervene not just where the most serious social care failures occur but in the interests of certainty for children who may be taken into care or placed for adoption. In order that these powers can be exercised effectively, the new clause makes it clear that where functions are being exercised directly by the Secretary of State himself or by a third -party nominee, the Secretary of State or his or her nominee would, for example, be able to apply for or be named in care orders under Section 31 of the Children Act 1989; exercise the functions set out in Section 92(2) of the Adoption and Children Act 2002; and exercise certain other court-related functions in the same way that the local authority can. This is clearly the intention and purpose behind the provisions in the Education Act 1996 and the Children Act 2004, but in such an important area that is critical to the safety of children it is essential that there is no room for uncertainty. This new clause therefore clarifies existing powers. It does not seek to expand them.
The amendment also makes it clear that, following a direction that local authority functions be exercised by the Secretary of State or a third-party nominee, other relevant references in legislation to a “local authority” should be read as references also to the Secretary of State or a nominee. For example, in relation to the chief inspector’s inspection functions and powers, such as under Sections 136 to 141 of the Education and Inspections Act 2006, the amendment will ensure that the performance of these functions by the Secretary of State or his nominee should also be subject and open to inspection in the same way as when those functions are performed by a local authority. We do not want to leave any uncertainty over Ofsted’s power to inspect children’s services in whatever form they might be delivered. I beg to move.
Baroness Hughes of Stretford
Will the Minister clarify a couple of points about the potential scope and impact of the amendment? I can readily understand what she is saying about the need for any third-party nominee that the Secretary of State appoints to take over the administration of children’s services to be recognised by the courts in any orders for which it needs to apply to protect the safety of particular children. Because these powers have been around for some time and have been exercised in relation to a number of local authorities by this and previous Governments, can the Minister provide an example of any problem that has led to the amendment being necessary?
Secondly and more fundamentally, and because in the reference back to parent legislation it is hard to discern scope and impact, will she clarify what proposed new subsections (6A), (6B) and (6C), mean in practice? I am not clear about why the reference here is to “a best value authority” and whether that means that the powers in the amendment under which the Secretary of State can intervene in a local authority go far beyond applying to a local authority that is failing in the performance of its duty. May it, in fact, be some reference to a local authority that is not achieving best value, according to someone’s criteria?
I know I am not explaining that terribly clearly myself, but it seems that the wording here potentially widens the scope of these powers beyond their use in relation to what the Minister described at the outset as authorities that have failed and have persistently failed. This seems to be a much more generalised category of authority. I wonder whether she could put on record the department’s understanding of this issue in relation to proposed new subsections (6A), (6B) and (6C).
Baroness Northover
As the noble Baroness noted, these powers have been there but have not been used. I want to be extremely clear that this amendment speaks only to the very few cases where the capacity of local authorities to improve the quality of their children’s services is so seriously in doubt as to require them to be delivered by the Secretary of State or a third-party nominee. As she notes, we have never had to use this power.
Some examples may help to clarify the point. In the Isle of Wight, we asked Hampshire County Council to take over the delivery of services. In Doncaster, where there were huge problems, we considered using the power, but the council is now working with us to establish a trust that is clearly separate from the local authority. Therefore, the Secretary of State has decided not to remove the council’s statutory children’s services functions, and that will remain the position as long as good and constructive progress continues to be made. In both those cases, the decision was made that it was not necessary to use the powers that we are clarifying here. Nevertheless, given that those powers are there, and that it was envisaged in the 1996 and 2004 Acts that there could be instances where they needed to be used, we feel that there needs to be absolute legal clarity about the full range of powers that Parliament intended.
I re-emphasise that the powers we are talking about here in relation to children’s services would be used only in cases of extreme failure. As I say, not even in the two cases that I have cited, where things were extremely problematic, as the noble Baroness will know, were the powers used.
Baroness Hughes of Stretford
Can the Minister possibly write to me about this? I am particularly interested in proposed new subsections (6A), (6B) and (6C). She said that the powers would be used only in cases of extreme failure. Is that extreme failure in the delivery of services or is it failure, on somebody’s definition, to achieve “best value”? In other words, it is not clear whether the reference here to the Local Government Act 1999 and the references to “best value” authorities go beyond failure in service delivery and performance and could actually be a wider and more general definition of a local authority failing to deliver best value.
Baroness Northover
Perhaps the best thing would be for me to reiterate that the Secretary of State’s ability to remove functions entirely from a local authority is essential only in exceptional cases of persistent underperformance that puts at risk the welfare of vulnerable children over an extended period. I hope that that reassures her.
“Disqualification from carrying on, or being employed in, a children’s home
(1) Section 65 of the Children Act 1989 (person disqualified from fostering a child privately to be disqualified from carrying on etc children’s home) is amended as follows.
(2) Before subsection (1) insert—
“(A1) A person (“P”) who is disqualified (under section 68) from fostering a child privately must not carry on, or be otherwise concerned in the management of, or have any financial interest in, a children’s home in England unless—
(a) P has, within the period of 28 days beginning with the day on which P became aware of P’s disqualification, disclosed to the appropriate authority the fact that P is so disqualified, and(b) P has obtained the appropriate authority’s written consent.(A2) A person (“E”) must not employ a person (“P”) who is so disqualified in a children’s home in England unless—
(a) E has, within the period of 28 days beginning with the day on which E became aware of P’s disqualification, disclosed to the appropriate authority the fact that P is so disqualified, and(b) E has obtained the appropriate authority’s written consent.”(3) In subsection (1), after “children’s home” insert “in Wales”.
(4) In subsection (2), after “children’s home” insert “in Wales”.
(5) In subsection (4), after “subsection” insert “(A1), (A2),”.
(6) In subsection (5) after “subsection” insert “(A2) or”.”
Lord Nash (Con)
My Lords, I will speak to all the amendments in this group: Amendments 241BA, 241C, 241D, 273B and 273C.
Four of these amendments will make small changes to the Care Standards Act 2000. My intention in proposing the amendments is to pave the way for the introduction of a reformed framework for regulating and inspecting children’s homes. Amendment 241BA amends Section 65 of the Children Act 1989, which concerns the disqualification of persons from carrying on working, or being employed in, a children’s home.
In March 2013 there were 4,930 children living in children’s homes, representing just over 7% of all looked-after children. The majority of children living in homes will have been placed there by local authorities because they cannot be cared for in a family setting. They will usually be older; children in homes have an average age of over 14. A recent research study found that 62% of children in children’s homes had clinically significant mental health difficulties, and 74% were reported to have been violent or aggressive in the preceding six months. Few children stay in one children’s home for more than a year; 30% live outside the local authority responsible for their care, often at some considerable distance.
Given these children’s vulnerability, it is particularly worrying that there are significant concerns about the quality of care in some homes. While by 31 March 2013 the majority of homes were judged by Ofsted to be good or outstanding, a significant minority, 28%, were judged only adequate or poor against current minimum standards.
My department has been pushing forward for some time with a programme for reforming the pattern of care in children’s homes. We have recently consulted on some immediate changes to regulations designed to more effectively safeguard children living in children’s homes, especially those in distant, or out-of-authority, places. We have also published a comprehensive data pack, with details of children’s homes’ locations, quality and costs, and of the needs of the children in their care. We are considering ways to enhance the training and skills of the children’s homes workforce, and how to support improved commissioning of homes by local authorities.
As my department worked with Ofsted and others on plans for improving care in children’s homes, we reached a view that the current regulatory framework, established by the Care Standards Act 2000, is having a limiting effect on our ambitions to drive improvements in the quality of care provided by homes. In our view, it should only be acceptable for any children’s home to offer care that is “good”, with all homes having a clear remit to strive for excellence in respect of the children they care for. These amendments put beyond doubt the fact that the Secretary of State can make regulations that are able to define high standards for all children’s homes. Every home must have the capacity to enable all the children it cares for to achieve their full potential. These amendments pave the way for my right honourable friend the Secretary of State for Education to develop new, more stretching, quality objectives and standards for children’s homes.
We intend to support innovation by creating regulations which specify high objectives and standards. Homes should be free to decide how they achieve these standards. We intend to set high standards for homes in a number of areas, such as requirements for effective leadership and management; for the provision of excellent education; and for access to healthcare that meets recognised clinical standards. We will, of course, have to be confident that homes respond effectively to the risks and vulnerabilities faced by the children they care for. We have worked very closely with Ofsted to develop the proposal that I am outlining. As the inspectorate for children’s homes, Ofsted welcomes our aim of taking a decisive step away from a regulatory system based on minimum standards.
Our work with Ofsted also identified a small but potentially significant problem with the process involved when Ofsted has reason to consider whether a person should be disqualified from carrying on working, or being employed, in a children’s home. This power is set out in Section 65 of the Children Act 1989. I am tabling a small amendment to this section to improve the practical workability of this process. The amendment introduces a time limit of 28 days for a person to inform Ofsted that he or she has become disqualified, perhaps as a result of a past offence, in order to seek Ofsted’s consent to be involved in a children’s home. Without this explicit waiver from Ofsted, the person would be committing an offence.
Officials from my department have had the opportunity to share our thinking on all these amendments with representatives of local authorities, of children’s homes providers and of the voluntary sector campaigning for children. These services are united in their broad support for the direction of travel I am signalling today, which marks a decisive step in driving forward our ambitions for reforming the children’s homes sector. We are determined to improve the quality of all children’s homes, so that the only acceptable standard for children’s homes is good care, with all homes having a clear remit to strive for excellence. I hope I have explained the important objectives that these amendments will enable us to achieve, and that noble Lords will support them.
The Earl of Listowel (CB)
Perhaps the best way I can thank the Minister is by speaking as briefly as possible. Having worked in residential settings with young people and spent a week in a children’s home, and having been deeply concerned about the quality of the experience for children in children’s homes since I first entered this House, my perception is that the Government have taken a very careful and thoughtful approach to meeting the needs of these very needy young people—albeit that they are few in number. In the past two years or so we have realised that a number of young girls have been sexually exploited, often in children’s homes.
The Government have responded admirably to this challenge. Tim Loughton MP, the former Children’s Minister, has children’s homes in his Hove constituency, so he is aware of the problem. He addressed it carefully by setting up three working groups to look at the issue, which resulted in regulations being laid. The current Children’s Minister, Edward Timpson MP, has pursued that direction of travel with the attention to detail that is familiar to those who have worked with him. I am deeply grateful for that. The Minister is absolutely correct to emphasise the importance of staff training. It is extremely encouraging that the Government are taking this issue so seriously.
“Objectives and standards for establishments and agencies in England
(1) In section 22 of the Care Standards Act 2000 (regulation of establishments and agencies), in subsection (1), for the words from “may in particular” to the end substitute “—
(a) regulations made by the Secretary of State may in particular make any provision such as is mentioned in subsection (1A), (2), (7) or (8), and(b) regulations made by the Welsh Ministers may in particular make any provision such as is mentioned in subsection (2), (7) or (8).”(2) In that section, after subsection (1) insert—
“(1A) Regulations made by the Secretary of State may prescribe objectives and standards which must be met in relation to an establishment or agency for which the CIECSS is the registration authority.””
Baroness Massey of Darwen
I apologise for addressing my noble friend Lady Jones as my noble friend Lady Hughes throughout my speech. They are not the same person.
Baroness Northover
My Lords, we all merge into one after a while. I start by emphasising to noble Lords that the Government believe that children’s centres provide a very important service and have a vital role to play in supporting outcomes for children and families.
I turn, first, to the issue of data sharing. We agree on the importance of information sharing. Clearly, professionals should work together to identify families who are in need of support and offer them that support. Indeed, the Department for Education’s statutory guidance for children’s centres is clear that health services and local authorities should share information, such as live birth data, with children’s centres on a regular basis where doing so enables professionals to work better with one another to provide services for families. Moreover, current legislation makes it clear that information can already be shared where there are local agreements and processes in place that meet the legal requirements about confidentiality, consent and security of information. Naturally, we wish to support information sharing between professionals. In order to encourage this, my colleagues at the Department of Health have undertaken to liaise with NHS England and other partners to promote the sharing of live birth data and to explore the practical issues.
Baroness Jones of Whitchurch
Will the Minister say a little more about the Jo Swinson task-and-finish group? I understand that culture and professional practice were barriers to data sharing, but did any positive recommendations come out of that group that the Government are intending to take forward, or just a list of barriers that make these things more difficult?
Baroness Northover
I think it would be best if I wrote to the noble Baroness with further details and copied the letter to other noble Lords, who will clearly be very interested in what the group reported.
The Earl of Listowel
My Lords, I thank all noble Lords who took part in this debate. I particularly thank the Minister for her careful, sympathetic and encouraging response. It is good to hear that Councillor Simmonds has been meeting her department with regard to this matter and about the work that has been undertaken through 4Children to circulate information about this. I know that the Children’s Minister occasionally writes to local authorities on important matters. Perhaps this could be kept in mind, especially if we do not make the progress that we hope we will make in this area.
I omitted to pay tribute to Andrea Leadsom MP in my opening remarks. She is chair of the All-Party Group for Sure Start Children’s Centres which produced this report, and she tabled an amendment very similar, perhaps identical, to this in the other place, so she started the ball rolling on this.
The noble Baroness, Lady Massey, talked about information sharing. I remember working in a play scheme five or six years ago. I worked with a boy who was just about to be adopted. We did not know he was going to be adopted. He behaved appallingly, and it would have been so easy for us to come down hard on him because we did not know that he had just come out of care and was moving into an adoptive family. It is so important that people on the front line know what is going on with a family or with a child. How can they react sensibly otherwise?
I take what the noble Baroness says about the culture, the people and things like what is being done for social work. One hopes that the appointment of the Chief Social Worker will give front-line professionals the confidence to share information. Occasionally there are inhibitions about sharing information for legal reasons, and that may apply to some of this information; I am not too sure. I will look into that, and if it is an issue, I will come back to the Minister. I am grateful to the Minister for what she said. I will take it away and think about it. I beg leave to withdraw the amendment.
Baroness Benjamin (LD)
My Lords, I, too, strongly support the amendments of my noble friend Lady Walmsley.
I will speak first to Amendment 243. For many years I was a school governor. One of my roles was that of child protection officer, for which I had to undergo training provided by the local council. These training sessions were attended by people across the borough, with responsibilities not just in schools but in community centres, Saturday schools and churches. At one such session I realised the worrying extent of superstition in these latter environments, involving children who, it was believed, were possessed by evil spirits.
The protection officers who also attended the training asked for better policies and advice to be put in place in establishments other than schools. They highlighted the need for training to protect children from what they believed was serious physical and mental abuse, driven by traditional superstition and sometimes religious beliefs. This abuse punished children who showed strong will or who misbehaved, perhaps because of learning difficulties, or because of conditions such as autism or dyslexia, or undiagnosed conditions which parents and families might not have been aware of or familiar with.
I also support Amendment 246. It has been brought to my attention, for some years now and from people across the country, that many children have had to endure corporal punishment and beatings in part-time educational institutions if they do not remember or learn work set for them, or achieve what is expected of them. This cruelty has to stop. We must not ignore any plea to safeguard all children, no matter where they are, what communities they live in, or where they come from. I therefore wholeheartedly support these amendments and hope that the Minister will put in place measures to protect these unfortunate children who have had to endure such awful and highly illegal abuse and cruelty.
Baroness Northover
My Lords, these amendments both relate to safeguarding specific groups of children. I will turn first to Amendment 243. While of course we believe that people should be free to express their views, I assure my noble friend Lady Walmsley and others that what is absolutely not acceptable is where expression of belief is intended to or causes harm to a child. My noble friends have made very powerful cases. Sometimes children are harmed by their parents or others. As a society we must be satisfied that we have the criminal offences to prosecute those who commit such behaviour. The Government have a key role to play, as do voluntary and other organisations working in the sector. We commend them for their work in shining a spotlight on this problem.
It is essential to raise awareness among the relevant communities and faith groups, and also among social workers and other practitioners—as the noble Baroness, Lady Howarth, said—who may come into contact with families where such accusations have been made. It is only through awareness of the potential threat posed to a child’s well-being by such accusations that families, communities and practitioners can be empowered to prevent harm from taking place and, failing that, to act with confidence in reporting concerns to the relevant authorities.
At this point I would like to look at the criminal law. My noble friend made a powerful case that she thought that these kinds of witchcraft cases were excluded. The noble Baroness, Lady Howarth, said the opposite. We have considered the amendment carefully and we do not believe that it is necessary. We agree with the noble Baroness, Lady Howarth, in this regard. This is quite simply about child protection and human rights. If we cannot include these kinds of cases, what does our child protection mean? Although existing legislation does not specifically mention communication of a belief that a child is possessed by spirits, the current offence of child neglect already includes conduct likely to cause a child unnecessary suffering or injury to health. In addition, conduct not caught by the Section 1 offence could be caught by other offences, depending on the circumstances of the case.
For example, any person, not just a child’s parents or carers, who caused physical or psychiatric harm to a child—which I think is what my noble friends Lady Walmsley and Lady Brinton are talking about—could be prosecuted for the offence of assault. Similarly, any person whose words or behaviour cause serious alarm or distress to a child, or made the child fear that violence could be used against them, could be prosecuted under Sections 4 or 4A of the Public Order Act 1986 —or, if the behaviour formed part of a course of conduct, it could constitute an offence under the Protection from Harassment Act 1997.
In addition, any person who encourages or assists such conduct could be prosecuted as a secondary participant, or on the basis of an offence under Part 2 of the Serious Crime Act 2007. For example, a religious leader who encourages or assists parents or others to abuse or neglect a child, in the belief that the child is possessed by evil spirits, could be guilty of an offence. We must ensure that our child protection policy is overarching, and includes cases such as these and all other manifestations of child abuse.
Lord Storey
I understand the point my noble friend makes about the reluctance of parents to report abuses. Does that not indicate that the law needs to be changed so that corporal punishment is not allowed in any setting? What will happen if certain settings refuse to sign the code of conduct? What sanctions have we got?
Baroness Northover
As I mentioned, this is a voluntary code. We are developing it and taking it forward. I am well aware that my noble friends may feel that that may not immediately go as far as they might wish, but I hope that they will welcome a move in the right direction. Let us see how we can take this forward. We need to make sure that a number of these organisations begin to sign up to this, because that is what will make a difference as they change the way they do things in relation to children in their care. We need to move things forward in a number of different ways. We will keep this under review and see how it is working. No doubt noble Lords will wish to probe to see how it is working out.
Baroness Walmsley
I thank the Minister for her comprehensive reply to all noble Lords who have spoken in the debate. I think we have succeeded in highlighting the issue. On Amendment 243, I particularly thank the noble Baroness, Lady Howarth, and pay tribute to all her work on this subject.
It is quite clear that within the communities that are affected by witch branding, there are differences of opinion about what would and would not be helpful. None of us is saying that working with the communities and making them aware that this is child abuse is a bad thing. Of course it is a good thing. I just do not think it is quite enough for some people.
The noble Baroness, Lady Howarth, talked about the existing law, as did the Minister. She said it is quite enough to catch people who abuse children in this way. What I am talking about is early intervention, if you like. Although once a child is physically abused, all kinds of laws have been broken and people can be charged on that basis, what I would like to get absolutely clear from the Minister is an acceptance that telling a child that they are possessed by evil spirits is child abuse. It causes the child enormous mental trauma, and you just do not know how that will affect them over many years. The Minister said a great deal about that amendment, so I will go away and read Hansard very carefully to try to find out whether there was an acceptance that simply telling a child before you lay a hand on them that they are possessed is child abuse.
The Minister mentioned a number of laws under which somebody might be charged with child abuse for doing that sort of thing, but I wonder how many cases there have been. How many people have actually been charged and imprisoned for that? Do communities and parents really understand that simply telling a child that is enough to qualify as child abuse, and that it should be reported and the child should be given special protection? Will my noble friend write and tell me what sort of guidance there is for social workers on this particular issue?
I thank the noble Baroness, Lady Lister, and my noble friend Lord Storey and others who supported Amendment 246. My difficulty with what the Minister said is that you can charge and imprison somebody only when the case is reported. One of the major problems is the reluctance of parents to come forward and tell the authorities that the child is being abused, perhaps particularly if the abuse is happening in a place of faith instruction. The Under-Secretary of State for Children and Families, Edward Timpson, has been very open to discussions with me, as the Minister said. I am quite sure that he, like me, would like to iron out this sort of practice once and for all.
However, a voluntary code of conduct just will not do. Would a code of conduct do in the comprehensive school down the road? Would it do in the primary school round the corner? No, it would not. Parliament said a long time ago that a code of conduct for teachers was not good enough in those settings. I am afraid that it is not good enough in a place of part-time education, either. I shall undoubtedly keep on badgering Ministers about this until the law is implemented. A piece of legislation was passed, but it is no use if it is not implemented. It needs implementing in order to stop this. It is not going to be a magic bullet—I know that. Neither of my amendments would be a magic bullet, but they would contribute towards moving us to a completely different situation.
I will go back to Amendment 243. The noble Baroness, Lady Howarth, talked about Africa. I am not suggesting that, just because a number of African countries have changed the law, things are all wonderful. They absolutely are not; they are horrendous. The fact is that it is very early days in those countries for the laws that have been put in place. When you have a situation where these beliefs and activities are as entrenched as they are in some of these countries—much worse than they are here—it will take years for the change in the law to have any effect. I do not accept that point.
Viscount Eccles (Con)
My Lords, I will be leading on another group of amendments and will try not to duplicate anything, but it is very urgent that the Government clarify what they believe the position of the Children’s Commissioner to have been and what they believe it is going to be. In principle, nothing is changed by the Bill in front of us—there is an extension of words but nothing is changed. The Children’s Commissioner is a corporation sole, which is quite a strange type of institution and not necessarily much beloved by the Treasury, but there you are, that is what the Children’s Commissioner is. The Children’s Commissioner has, I think, 27 staff and a budget of just over £2 million, or under £2.5 million. The office is one-tenth the size of the Equality and Human Rights Commission, which has just been reduced in size by quite a large amount but remains 10 times the size of the Office of the Children’s Commissioner. That is a nationally accredited human rights institution. There is a question as to whether we want two, which I will raise in more detail in the next group of amendments.
The fact of the matter is that the Children’s Commissioner has been really rather successful. It is a thorn in the flesh, to quote the noble and learned Baroness, Lady Butler-Sloss. It has freewheeled pretty well on a very small platform and produced some very interesting work. It can produce only recommendations: it has no power to make anybody do anything except write back to it under the 2004 Act to tell it, “Thank you for telling us what you told us and this is what we are going to do about it”. It has no executive authority at all. Do the Government intend that it should have any executive authority? I cannot see any in the Bill. It seems to me that some of the comment on what might or might not happen has got rather ahead of the Government’s game, and we are looking for clarity from the Government as to what they intend and what they expect.
The noble Baroness, Lady Lister, raised a very interesting point about raising expectations and then disappointing them. That is one of the reasons why the electorate are being turned off election after election: the Westminster system has a brilliant way of raising expectations and then disappointing them. I hope that this will not be another example, because it is not a good idea that it should be. There are some very serious questions here about resources, about what the role is and about what the Government expect of the Children’s Commissioner. I do not think that we have had answers as yet to those questions. I hope to hear them from my noble friend on the Front Bench.
Lord Nash
My Lords, Amendments 245, 255A and 257 through to 262 deal with issues related to the Children’s Commissioner’s independence. The independence of the commissioner is an important point of principle—and it is helpful to have this discussion, so that I may provide noble Lords with some assurances. I am grateful to all noble Lords involved in raising these issues, especially the noble Baroness, Lady Massey, my noble friend Lord Lester and the noble Baroness, Lady Lister, for speaking on his behalf—all of whom I know have long been passionate champions in relation to children’s rights.
John Dunford identified that a “perceived” lack of independence from government had affected the Children’s Commissioner’s credibility and, following his review, he made various recommendations to counter those perceptions. The Government have acted on his recommendations in full. We have removed the provisions that allowed the Secretary of State to direct the commissioner and the requirement for the commissioner to consult the Secretary of State. We are changing the terms of appointment to a single, six-year term, to remove the potential for political influence through the reappointment process. We have also made provision for direct contact between the commissioner and Parliament, including the laying of the annual report directly before Parliament and the ability of the commissioner to raise matters directly with Parliament.
I thank noble Lords who have spoken to Amendment 245 and give assurances that the Bill already provides that the commissioner has complete freedom in deciding his or her activities, timetables and priorities; under the primary function, it is made explicit that the commissioner has a free hand to investigate any matter relating to the rights or interests of children. Having carried out an investigation, the commissioner is free to make any recommendation that he or she deems appropriate.
It is true that as a non-departmental public body, the OCC is subject to some controls in relation to its spending. These controls apply to all NDPBs and are designed to ensure value for money for the taxpayer and to avoid unnecessary public spending at a time when the Government are seeking to reduce the budget deficit. Extremely important though the role of Children’s Commissioner is, I do not think that she should be completely exempt from these controls. However, where the commissioner has sought an exemption or relaxation from these arrangements and has demonstrated that they could compromise his or her independence, those requests have been granted. This arrangement seems to be working well and we see no need to change it.
The Government agree that the Children’s Commissioner should be accountable to Parliament through his or her annual report and are therefore grateful that the Joint Committee on Human Rights has made a commitment to hold an annual evidence session to scrutinise the commissioner’s work. I share the noble Lord’s concerns about overburdening the commissioner with reports to parliamentary committees but it is important for his or her independence that the commissioner is not accountable to the Secretary of State or another Minister. That is why we have welcomed the offer from the JCHR to hold an annual debate. This will be an opportunity for Parliament to ask questions and raise issues with the commissioner and, in turn, the committee will be able to raise matters with all the relevant Secretaries of State.
Amendments 257, 258, 259, 260 and 261 in this group concern the appointment of the commissioner, any dismissal of the commissioner and the involvement of Parliament in these processes. The role of the Children’s Commissioner is an important one and I fully accept that the appointment and dismissal procedures need to be fair and transparent. However, I do not think that it is necessary or appropriate to define the conditions for either process further than is already done in the legislation.
We have provided a note in the other place on how the appointment process is expected to work. That note explains that the appointment of the commissioner would be in accordance with the Office of the Commissioner for Public Appointments’ code of practice. This ensures that candidates are appointed on merit, following a fair and open recruitment process.
The note also clarifies that children will be involved in the recruitment process and that we would expect Parliament, through one of its committees, to have a role in agreeing the job description and carrying out a pre-appointment hearing. However, the OCPA code of practice is clear that the parliamentary committee undertaking the pre-appointment hearing should not have a right of veto on the appointment. To pick up the point made by the noble Baroness, Lady Jones, about the Secretary of State explaining publicly if he disagrees with the Select Committee, I do not think it appropriate for such a public debate to take place about the suitability of candidates.
In addition, I do not consider that legislation is the right place to set out the personal qualities needed for the role. These will be determined by the panel that is established to lead the appointment process, which is chaired by an independent assessor appointed by OCPA, and subject to quality assurance by Parliament. I hope that this provides the necessary assurances.
On dismissal, the existing provisions represent a high threshold. A dismissal could potentially be subject to judicial review and overturned if it was found to have been made inappropriately. The courts provide ample protection against the commissioner being dismissed on arbitrary grounds. I would expect the Secretary of State to want to consult the chair of a relevant parliamentary committee before taking such a drastic action. However, there may well be reasons why such matters would need to be treated in confidence. I hope that noble Lords are reassured that both the appointments and dismissal processes currently in place are fair and transparent without the need for further prescription in legislation.
Baroness Lister of Burtersett
I am sorry to interrupt but perhaps the Minister can say what he considers to be the appropriate time. I suggest that it is before Report.
Baroness Lister of Burtersett
I am sorry but the point is that the devil is in the detail, as I said, and Report, or possibly Third Reading, would be the last opportunity for parliamentarians to comment in a way that might affect the outcome. After Royal Assent seems rather late.
Lord Nash
We will take this away and consider it further. As regards the point made by the noble Baroness, Lady Hughes, on accountability and to whom it should be, our view is that the commissioner should be wholly independent as regards his or her views and priorities from both government and Parliament. However, I accept that Parliament should be able to scrutinise what the commissioner does and have an opportunity to debate issues that he has raised.
I hope that my responses on these important points provide assurances to noble Lords and I urge the noble Baroness to withdraw her amendment.
Baroness Massey of Darwen
My Lords, I thank the Minister for that response. This has been an incredibly perceptive debate and noble Lords have provided a lot of expertise. My noble friend Lady Hughes said at the beginning of her speech that it is the right time to review the role of the Office of the Children’s Commissioner. I agree with that. We have experience of two commissioners, both of whom have put the voice of the child at the centre of activity and have done significant work with vulnerable children. The Minister listed some things that the Children’s Commissioner could do. However, as many noble Lords have pointed out, funding is an issue, and we need to look at that again.
Others have mentioned the scope of the commissioner’s remit, accountability, quality assurance and the JCHR. For me two key issues have come out of our discussions today to which I certainly want answers before Report. One is that we absolutely need the framework agreement before we get to Report. In fact, we need it some time in advance of getting to Report; otherwise, how can we debate this seriously? How can we put down sensible amendments if we do not have the detail of that framework agreement? Stemming from that, I need to think about—as I am sure others do—what should go in this legislation; obviously not in too much detail but issues have come up today that certainly need more consideration when we think about what goes in the legislation.
I hope that the issue of the framework agreement will be resolved long before Report. That will influence what we think should go in the legislation. In the mean time, I beg leave to withdraw the amendment.
Viscount Eccles
My Lords, I have a third amendment in this group, to Schedule 6 and on a very different subject. It is proposed that the Children’s Rights Director, who is part of Ofsted, is to be transferred to the Office of the Children’s Commissioner, taking the duties and powers of the office with him. Is that already happening? If it is, will the resources that are transferred balance with the duties and the costs of carrying out those duties in such a way as to make no material difference to the Office of the Children’s Commissioner in respect of resources?
Lord Nash
My Lords, I shall speak to Amendments 249A to 256, 266A and 266AZZA.
Amendment 249A was tabled by my noble friend Lord Eccles, who asked how we are strengthening the commissioner’s function. We believe that amending the commissioner’s primary function to one of promoting and protecting children’s rights is, as my noble friend Lady Walmsley and the noble Baroness, Lady Lister, said, an important step forward in establishing the OCC as a credible organisation that meets the key requirements expected of human rights institutions. There is much support for our proposals. For example, in its report following pre-legislative scrutiny, the Joint Committee on Human Rights described the proposed new remit of the commissioner as,
“a significant strengthening of the Commissioner’s mandate, and is an important step in the transformation of the office into a fully fledged human rights institution for children”.
The way in which the primary function is described matters. The lack of a statutory rights-based remit is the main reason why the Children’s Commissioner has, to date, only been accepted as an associate, rather than full, member of the European Network of Commissioners.
I turn now to Amendment 250, which was tabled by my noble friend Lady Walmsley, to whom I pay tribute for her effective and long-standing work on children’s rights. I agree with her that part of the commissioner’s role should be to raise awareness of children’s rights. However, in determining what activities to set out in the Bill, our approach has been to avoid including activities that are already implicit within the commissioner’s primary function, and we believe that raising public awareness of children’s rights is an inherent part of the commissioner’s new primary function of promoting and protecting children’s rights.
The commissioner can intervene in legal cases where he or she has a sufficient interest in the matter before the courts. Indeed, the commissioner has used her current powers to intervene in a number of legal cases in the past. However, the effect of the proposed amendment could be to create an expectation that the commissioner would respond to every request to intervene in legal matters that he or she receives. I do not believe that this would be helpful. In his review, John Dunford gave an example of another commissioner who had instigated legal proceedings to take a particular children’s rights issue to the courts which were unsuccessful and costly. This is not something we would want to encourage.
Turning to Amendment 251, I assure noble Lords that there is nothing in the Bill that prevents the commissioner talking to individual children or using evidence drawn from the cases of individual children to inform the primary function. In fact, it is hard to imagine that the commissioner could investigate a matter strategically without using evidence from individual cases to support his or her findings.
As noble Lords will be aware, where the commissioner makes recommendations under the primary function, he or she can require a written response setting out how those recommendations will be addressed. Amendment 253, tabled by the noble Lord, Lord Touhig, seeks to make similar provision in respect of the separate advice and assistance function. This role is currently provided by the Children’s Rights Director to the children within his remit and is intended to be an informal, light-touch service. It may involve as little as a telephone call to the DCS in a local authority, and the amendment therefore runs the risk of overformalising what is working well as an informal process.
I fully recognise that other groups of children are vulnerable and in need of extra support, including those mentioned in Amendment 256. However, I do not believe that this means that we should include them in the definition set out in Clause 86—the purpose of which is to provide a definition of the children who currently fall within the Children’s Rights Director’s remit—so that other provisions in the Bill can be applied specifically to that group of children. Clause 86 is not an attempt to define vulnerable children for the purposes of the commissioner’s primary function and there is therefore no reason to include other groups of vulnerable children within it, as the Bill makes clear through the provision in Clause 79. When determining how best to discharge the primary function, the commissioner must have particular regard to,
“other groups of children who the Commissioner considers to be at particular risk of having their rights infringed”.
I am grateful to the noble Baroness, Lady Lister, for highlighting in Amendment 252 the importance of the UNCRC to the commissioner’s primary function. Our view is that, in exercising his or her primary function, the commissioner would be expected to take account of all children’s rights that are relevant. This would include the UNCRC and its optional protocols that the UK has ratified, rights set out in other international treaties and rights within domestic law. However, we also recognise that the UNCRC is central to the children’s rights arena and so make an explicit reference to the UNCRC in the Bill. We believe that this represents the best formulation.
Turning to Amendment 252A, it is our clear intention that the commissioner’s work should be informed by the views and interests of children. As well as the overarching requirement to involve children as set out in new Section 2B(1) of the Children Act, the Bill includes requirements on the commissioner to: make children aware of his or her role and how they can contact him or her; consult children on the commissioner’s forward plans, before finalising his or her business plan for the year ahead; and to report on the action he or she has taken to involve children in his or her annual report.
In meeting all these requirements, the commissioner will be required to take particular steps to involve children whom he or she considers have fewer opportunities to make their views known. I am sure that noble Lords will therefore agree that the Bill includes ample provision for children to be involved in the commissioner’s activities and to influence his or her agenda. We agree that this should include a wide range of children’s views but we do not think it is feasible to include a requirement to involve all children, which Amendment 252A seeks to do.
With respect to reporting on the extent to which children enjoy the rights set out in the UNCRC, I note that in response to a recommendation by the Joint Committee on Human Rights, we have made it clear that monitoring implementation of the UNCRC is within the scope of the commissioner’s remit. Amendment 254 goes further than this, however, and creates an expectation that the commissioner would conduct an annual review of UNCRC implementation. This would be a significant undertaking and place a burden on the commissioner’s office that would inevitably divert resources away from other priorities. We have no objection to the commissioner carrying out an annual review but do not think that he or she should be required to do so.
I agree it is important that the Children’s Commissioner should not just consult children but take their views into consideration, but I am not persuaded that Amendment 255 is necessary. The commissioner’s primary function includes promoting awareness of the views and interests of children, and it is difficult to imagine how a commissioner could carry out that function without taking account of those views. Reporting on how he or she has done so is a matter of good practice and therefore it is expected that this would happen without having the requirement to that effect in the Bill.
Amendment 266AZZZA relates to provision in the Bill that enables the Secretary of State to make a staff transfer scheme. This will allow staff working for the Office of the Children’s Rights Director, currently located in Ofsted, to transfer to the Office of the Children’s Commissioner and will ensure that those staff are protected in terms of, for example, their continuity of employment and pension entitlements.
I would like to assure my noble friend Lord Eccles that these arrangements are already well in hand and that Roger Morgan, the current Children’s Rights Director, has been closely involved in the design and development of these provisions and continues to be part of the working group which is overseeing the transition to the new arrangements.
Lord Mawson (CB)
My Lords, I have not been able to sit through the passage of this Bill, so I am not in a position to comment on it. However, over the past few months I have been sitting on the draft deregulation Bill which is concerned to reduce red tape and bureaucracy. I have come to the conclusion that the Government have a serious intent to get a grip on red tape and bureaucracy.
Can the Minister help me understand where this Bill and this discussion sit within this wider agenda? Will this Bill increase red tape and bureaucracy? What are its unintended consequences and where does it sit in the one-in-and-two-out agenda? It would be helpful to understand the scale of the red tape that will be generated by this Bill and this discussion. I would find it helpful to have the Minister respond to this further point briefly, if that is possible.
Viscount Eccles
My Lords, I am grateful to all those who took part and to the Minister for his reply. At the risk of repeating myself, you can strengthen a mandate, but that is not the same as strengthening the organisation which has to carry the mandate out. If I remember rightly, John Dunford joined in the disappointment with the way that the Children’s Commissioner operated until 2010. I think that disappointment, if it is shared, will continue because the Government’s answers are that business will continue as usual. I make no negative or positive comment on that. I just wish I knew whether that was the correct interpretation in the view of the Government. In particular, the relationship of the Children’s Commissioner with the Equality and Human Rights Commission is very important. If they are going to co-operate, work together and do things jointly, there is a strong case for leaving the Children’s Commissioner pretty open, pretty freewheeling and able to look at whatever the commissioner thinks should be looked at and to make recommendations as a result of that work, which is what has been happening and, in my view, has happened rather successfully. I do not want to stand in criticism; I just wish I knew what the Government really expect so that we could understand what they expect and out there the public could understand what they could really expect. I beg leave to withdraw the amendment.
Baroness Northover
My Lords, we have been given permission to go on until 8 pm, as I announced at the beginning of this Sitting, because we are running behind in the consideration of this Bill. I am acutely aware that the staff of Hansard need to work beyond their normal hours to do that. Therefore, we will need to finish at 8 pm. I realise that a number of noble Lords are here specifically for the next two groups and that they have helpfully combined them so that the subject matter can be addressed. My initial feeling was that if everybody was very brief, we might be able to get through. My sense now is that we may have to break in the middle of the debate. We will see how we get on.
Lord Ribeiro (Con)
My Lords, I hear my name mentioned and I think I ought to say something very briefly. Your Lordships are influenced only by evidence. The evidence following the legislation in 2006 in Scotland and 2007 in England has already shown measurable effects in improving healthcare, particularly among non-smoking bar workers, in whom one study found an 89% reduction in cotinine concentration, which is a specific marker for tobacco smoke exposure.
That benefit should not be restricted to bar workers but should be the right of children who find themselves confined in cars where adults are smoking. I support this amendment very strongly. I hope that my noble friend the Minister will be minded to consider it. I realise that the Government have a programme for behavioural change and education and may wish to pursue that. The research, however, points to the fact that there is an improvement if we reduce second-hand smoke.
Baroness Northover
My words in front of me say that this may be a convenient moment for the Committee to adjourn. I know it is not. I am very grateful to noble Lords for abbreviating what they had to say. I am extremely grateful to our Hansard colleagues for staying on beyond their allotted time. I am sure that we will come back to this on Wednesday, but I am afraid that I will have to adjourn the Committee.