Deregulation Bill

Debate between Baroness King of Bow and Lord Wallace of Saltaire

Wednesday 11th February 2015 Lords Chamber

[Baroness King of Bow (Lab)]

My Lords, I am speaking in support of Amendment 44 in the name of the noble Lord, Lord McNally, in place of my noble friend Lady Thornton. On these Benches, we are very pleased that the noble Lord has brought this matter back to the Floor of the House. We fully support having the EHRC’s exclusion from the list of regulators included in the Bill, and the noble Lord has already explained the importance of doing so—it is what he described as a copper-bottomed guarantee. We really cannot see why the Government would not want to support this. Essentially, as the noble Lord says, it would just ensure that the Government’s good intentions actually hold up regardless of what a future Administration might wish to do. We are also in no doubt that even the risk that the EHRC might be included in the regulations in future could have an adverse effect on its A status as a UN accredited national human rights institution—an NHRI. That, in turn, might impact on the UK’s compliance with European Union law.

However, the real issue here is around the independence of the EHRC. The UN International Coordinating Committee has said to the UK Government that independence from government is an essential element of a national human rights institution. In considering whether an NHRI is independent, the ICC looks at all the ways in which the particular institution in question is subject to control or direction. Although the Deregulation Bill may not intend to affect the independence of the EHRC, attaching an additional duty could be seen as competing with or limiting its existing duties, and may have that effect on its decision-making. Being subject to ministerial direction and the possibility of legal challenge could have a detrimental effect on the EHRC’s ability to make decisions in relation to upholding human rights. When combined with the existing connections and accountabilities to the British Government, these clauses will raise questions about the compliance of the EHRC with the UN Paris principles—the principles which uphold the protection of human rights by national institutions.

The real point here is that it would be a shame if—when we are all agreed that the EHRC should have that independence, and we all want to see that status maintained by the UN—we were yet again to pass the law that we pass most often here, the law of unintended consequences, and thereby damage the ECHR’s prospects when it goes through the process of UN reaccreditation. The accreditation process, when the UN considers whether an NHRI will retain its accreditation, takes place around once every five years. I am sure the Minister will be aware that the EHRC is up for that process this year. Given that, is this not the worst possible time for us to introduce uncertainty? The way to remove that uncertainty is, as we are all aware, to put the amendment on to the face of the Bill.

We know that the Minister will say that the Secretary of State for BIS has written to the EHRC to say that the Government have decided to,

“fully exclude the EHRC from the growth duty”.—[Official Report, 20/11/14; col. GC229.]

If the Government want to do that, they will accept the amendment because it delivers the Government’s aims. This is a matter of huge importance and we assume from what the noble Lord said in introducing the amendment that he will press it to a vote. However, if for any reason he decides not to do so, we on these Benches certainly will. It would be an extraordinary own goal to limit the perceived independence of the EHRC and it is something that we should not allow to happen, even if only inadvertently or by accident. I hope that the Government and indeed the House will accept the amendment.

[Lord Wallace of Saltaire]

My Lords, the noble Baroness has given us a lot of hypothetical, “If a future Government were to”, and so on. The Government have made it entirely clear and said publicly that they intend the EHRC to be excluded from the growth duty. No Parliament can bind its successors. I cannot imagine that any major party or minor party that might be part of a future Government is likely to want to do this, and as I say, no Parliament can bind its successors. Indeed, if that were to happen we would encounter heaven knows what. At the present moment the Government have taken the clear decision to exclude the EHRC from the growth duty in order to remove any threat to its international standing. We have provided the commission with a reassurance of that decision and, as has already been said twice in this debate by my noble friend Lord McNally and the noble Baroness, Lady King, the Secretary of State for Business, Innovation and Skills wrote to the EHRC in November to confirm the decision. We have also reaffirmed the commitment to exclude the commission from the duty in the recent consultation document on extending the growth of the duty.

The Government Equalities Office, which is the EHRC’s government sponsor, does not see a significant threat to the commission’s A status by not excluding it on the face of the Deregulation Bill, and the GEO has advised the commission to accept those reassurances.

[Baroness King of Bow]

When does the Minister expect that these regulations would actually be brought forward?

[Lord Wallace of Saltaire]

My Lords, my understanding is that it is going to be very difficult to bring them forward before the election. However, I will take that back and will be sure to write to the noble Baroness with any exact dates for the regulations.

No specific regulatory functions of any other particular named body are listed on the face of the Bill, and it is not necessary to do so in relation to the regulatory functions of the EHRC. The regulatory functions to which the growth duty is to apply will be set out in secondary legislation, as I have said before. Meanwhile, the Government have given a range of assurances that the EHRC is outside the scope of the growth duty and will be excluded.

Deregulation Bill

Debate between Baroness King of Bow and Lord Wallace of Saltaire

Tuesday 18th November 2014 Grand Committee

[Baroness King of Bow (Lab)]

My Lords, I support this amendment which is also in my name. Never has there been greater concern around failures of child protection and greater revulsion about the scale and breadth of the abuse visited on vulnerable children. In light of so many recent scandals, the Government’s position seems at best puzzling and at worst possibly negligent at some point in the future. The amendment would ensure the continued requirement for those providing social work services on behalf of councils to be registered, regulated or inspected. The two key points at issue are the lack of consultation on the one hand and the general opposition from almost all those involved on the other, as well as the fact that we remain unclear as to how this will work in practice for local authorities.

The Minister will no doubt have read with great interest the views of the College of Social Work. The Government’s approach is puzzling because I accept that they want to improve safeguarding services. The Minister will no doubt set out, like his counterpart in the other place, that the Government view registration of providers of social work services on top of their contractual arrangements as a potential duplication. Those of us opposing this view it as a potential extra risk to children.

The College of Social Work points out that earlier this year the Government published a set of regulations to accompany the Children and Young Persons Act 2008 to allow local authorities to delegate almost all their statutory duties. These reforms, taken in the round, could have an extremely significant impact on the delivery of social work services in England. There is a feeling in the sector and indeed elsewhere that there has been quite simply inadequate debate around these very serious and important issues.

The College of Social Work summarised its objection to Clause 71 as follows:

“The new power to delegate social work functions is at the experimental stage and the evidence is not yet available for conclusions to be reached about the impact on the most vulnerable children and adults. It may in future be appropriate to remove this requirement to register with the regulator but it would be risky to remove this safeguard at the present time”.

My main question to the Minister is: why would he want to take this risk at the present time? Why would the Government want to take the risk, given all the problems that we know are taking place at the moment?

As we heard from my noble friend Lady Donaghy, the consultation carried out by the Government did not find support for this—far from it. Even Ofsted’s own consultation found a strong desire to maintain registration checks. Local authorities themselves are calling for external inspection. Why will there be no overview of quality and working practices in some of the key areas, as outlined by my noble friend Lady Donaghy? Why is asymmetry and inequality in the services essentially being written into the Bill?

In summary, if the registration requirements are removed, the Government are essentially dismantling what the CSW describes as the backstop. Will the Minister explain why in these current circumstances the Government would want to remove a safety backstop? Surely, if anything, the Government should be bolstering the backstop and not weakening it. For that reason, I support the proposition that Clause 71 should not stand part of the Bill.

[Lord Wallace of Saltaire]

My Lords, I recognise the passion with which these objections have been made, as well as the experience and expertise of those who made them. I shall be very happy to hold further conversations between Committee and Report to make sure that we can come to some agreement about the balance between regulation and potential risk, to which the noble Baroness, Lady King, rightly pointed. We are all quite clear that children’s services are a very important area where we must make sure that we get the balance right.

The Government’s view after consultation and consideration is that the double layer of inspection provided by Ofsted’s national perspective and the responsibility of local authorities to inspect and to license providers is duplication. Our view is that Ofsted’s existing duty to register providers who may discharge children’s social care functions is completely separate from its duty to inspect and to hold local authorities to account in the discharge of their functions.

I am also very grateful for the correct comment of the noble Baroness, Lady Meacher, that we are talking not just about for-profit providers but about third sector providers, which often provide very good services in this area. Nevertheless, one wants to make sure that those services are always of a consistent quality. She has a great deal of experience in this area. I have very limited experience but I am very conscious that third sector organisations can be absolutely superb but sometimes not superb.

It is argued that the removal of the requirement for providers to register with Ofsted is a benefit to the system because it ensures that there is no doubt or confusion about where the statutory responsibilities then lie. That makes it clear that local authorities are fully accountable for any decisions made by third parties to whom they have delegated functions. The argument here is that it should not be the responsibility of Ofsted to make sure that the third parties to whom local authorities wish to delegate functions are fit for the job.

Under the current registration regulations, Ofsted is required to check on: first, the fitness of the provider to do the work; secondly, the appointment and fitness of the registered manager; and, thirdly, the staffing arrangements and premises. The regulations also include provisions for making changes to any of the above. To cover Ofsted’s costs, providers are required to pay fees for registration and for making changes to the registration once made.

These requirements duplicate the “due diligence” that a local authority will perform as part of its procurement of a provider. No local authority would appoint a third party provider to undertake its functions without making such checks. However, the current system creates confusion as to where accountability lies. The requirement for providers to register with Ofsted is separate from Ofsted’s continuing duty to inspect and to hold local authorities to account. How Ofsted inspects local authorities is for it to determine. For other provision—as for children’s homes—it conducts separate inspections, but it has concluded that delegated functions should be inspected as part of the local authority single framework inspection and has published a plan as to how this will operate. The Government consider that that is adequate and that it provides the regulation required without unacceptable risk.