Children and Families Bill

Debate between Lord Brougham and Vaux and Baroness Hughes of Stretford

Monday 9th December 2013 Lords Chamber

[Baroness Hughes of Stretford (Lab)]

My Lords, I would like to speak to Amendments 4 and 5, which variously attempt to circumscribe the power that the Secretary of State is taking in Clause 3.

Clause 3 grants the Secretary of State a new power to force local authorities to franchise out adopter recruitment services, either to another local authority or to a registered adoption agency, by amending Chapter 2 of Part 1 of the Adoption and Children Act 2002. The new section inserted by Clause 3 provides the Secretary of State with the power to direct the outsourcing of local authority adopter recruitment functions, either from individual named authorities under subsection (3)(a) or from classes or groups of local authorities under subsection (3)(b) or from all local authorities at once under subsection (3)(c). The important aspect is not the power to outsource itself but the manner in which it would allow the Secretary of State to make change on a large or even national scale at once through a direction. The Secretary of State, in issuing a direction as opposed to bringing forward primary or secondary legislation, would not obviously have to subject himself to any parliamentary scrutiny, and Members in either House would not have the opportunity to question or amend the changes. This is the nub of our concern.

Our Amendment 5 would have the effect of deleting subsections (3)(b) and (3)(c) and therefore remove the power of the Secretary of State to direct outsourcing from classes or groups of local authorities or from all local authorities at once. We tabled this amendment in Committee to probe the Government’s intentions and we do not intend to press this amendment here. It was tabled at an early stage following Grand Committee to signal our continued concern and before we were able to see the Government’s response to that debate.

At the meeting last week, Edward Timpson said that there would be an amendment to respond to those concerns and we wanted to see the terms of that amendment before finalising our position. We were hoping that the Government would address those concerns by amending the clause to make subsections (3)(b) and (3)(c) subject to an affirmative resolution order. However, unfortunately both the government amendment and the policy statement that was issued alongside it really are a wholly inadequate response to what noble Lords across the House have been saying. Government Amendment 6 would simply delay the implementation of subsection (3)(c), which provides the power to outsource to all local authorities at once. Along with the government amendment, there was also a written commitment to report that decision in some as yet unspecified way. Delaying implementation is really neither here nor there—it is irrelevant—and reporting to Parliament falls far short of parliamentary scrutiny.

The policy statement that was published does not explain why the Secretary of State is seeking power through a direction rather than through secondary legislation but simply restates the arguments about the need to reshape the market in adopter recruitment. That is an argument with which we would not necessarily disagree but in support of which the Government have provided no evidence. These are important issues, but they are wholly irrelevant to our point that taking powers to institute major change to the national system of adopter recruitment by direction is a completely unacceptable way to treat this House and the other place. We cannot support the Government’s amendment.

Therefore, our Amendment 4 would retain the powers in subsections (3)(b) and (3)(c) but make their implementation subject to an order by affirmative resolution in both Houses of Parliament. We all support efforts to improve adopter recruitment if this will mean more children finding good homes. The Government’s policy statement sets out why the Government believe that major structural change may be necessary to address the shortfall in adoptive parents despite the 34% increase in the last two years, which is a very welcome improvement. However, even here the statement is contradictory on the role of the powers in Clause 3 in reshaping that market. Paragraph 11 says that the purpose of Clause 3 is to provide a powerful market-shaping lever to help restructure fundamentally the adopter recruitment system, but paragraph 12 says that, in moving towards the Government’s vision for that restructured system, Clause 3 is not seen as the sole or even the principal driver of reform—its role is to drive change only if there is little or no progress in reshaping the structure of the market and reducing the shortfall of adopters. That is because, as the Minister admitted in Grand Committee, Clause 3 is not of itself a solution to the problem of the shortfall of adopters that the Government have identified; Clause 3 itself cannot change that market. Indeed, it can be deployed only if and when it has been demonstrated that adopters can be recruited in sufficient numbers by different arrangements.

The policy statement goes on to outline the real levers for change which are happening now on a voluntary basis and which do not need legislation—for example, the consolidation in the local authority sector through mergers such as that involving St Helens, Warrington and Wigan in my region, the north-west, and the development of commissioning and provider relationships between local authorities in adopter recruitment. The adoption leadership board is encouraging and facilitating these developments, as well as supporting partnerships involving voluntary adoption agencies.

If these developments were successful, one could envisage that the system would have changed to such an extent that it reached a tipping point at which the use of the power in, say, subsection (3)(c) might make sense. However, if these developments were not successful, what would the Secretary of State do? Would he outsource adopter recruitment from all local authorities anyway when there was no credible alternative? That would be wholly irresponsible and I cannot believe that the Government would take such a risk. Either way, the point is that there really ought to be parliamentary oversight at that point.

The point is that mobilising the power in Clause 3 becomes necessary, and indeed possible in practice, only if and when the developments between local authorities and the voluntary sector reach a critical mass such that wholesale change across the country is a viable option. That is my concern with Amendments 4A, 4B, 4C and 4D. Together, they would have the effect of applying the affirmative resolution procedure only in the event of the Secretary of State wanting to outsource these adoption functions from all local authorities simultaneously—that is, using the power in subsection (3)(c). If these amendments were agreed, the Secretary of State would still be able to direct significant proportions of local authorities in groups under the power in subsection (3)(b) and require them to outsource their adoption functions. For instance, he might require that in respect of all shire counties or all metropolitan authorities. Indeed, by announcing three or four successive directions, each of which related to a large group of authorities, the Secretary of State could effectively sweep the country without any parliamentary scrutiny. In other words, by using a few directions under subsection (3)(b), he could achieve what I think we all agree we want to prevent, which is the use of subsection (3)(c) without any scrutiny.

In my view, it is not logical to try to apply the affirmative resolution to subsection (3)(c) but not to do so also to subsection (3)(b). The effect of that would be not to constrain the Government at all, because they could still use the power in subsection (3)(b) successively to include all local authorities. That is my big concern, and it is expressed and supported by organisations in the sector such as Barnardo’s.

We believe that, apart from in relation to individual named authorities under subsection (3)(a), we should expect the Secretary of State to come to Parliament and, via an affirmative order, outline the progress that has been made and to answer the questions that Members would inevitably have—questions such as how secure the changes are, what the national picture is in terms of the number of consortia recruiting adopters, how many adopters are being recruited, and whether the capacity of the voluntary sector has grown and what role it is playing. The voluntary agencies and local authorities might have issues that they would want us to pursue, as would be normal. There would be many legitimate questions, and answers to them could be put on the record.

The Government are right to address the problem of insufficient adopters. If they wish to review the adopter recruitment system and propose something radically different, they are entirely within their rights to do so. However, they should not try to instigate radical change to a national system on the judgment and pronouncement of an individual Secretary of State. They should come to Parliament so that those proposals could be properly debated and scrutinised in the normal way. That is all we are proposing, and I think it is very reasonable and very normal. I beg to move.

[The Deputy Speaker (Lord Brougham and Vaux) (Con)]

I should advise the House that if Amendment 4D in this group is agreed to, I cannot call Amendment 5.

Education Bill

Debate between Lord Brougham and Vaux and Baroness Hughes of Stretford

Monday 4th July 2011 Grand Committee

[The Deputy Chairman of Committees]

I should advise the Committee that if this amendment is agreed I cannot call Amendments 40 to 47, inclusive, for reason of pre-emption.

[Baroness Hughes of Stretford]

My Lords, I pick up initially on some of the points that were made previously, and which the noble Baroness, Lady Walmsley, has rehearsed. We start from the recognition that a permanent exclusion can have a significant impact on the life of the excluded child, both in the short term on their education, and in the long term. In other words, a permanent exclusion is a very significant decision in the life of that child. It is very important that, in taking such profoundly significant decisions, it should be evident to everybody involved, including parents and children, that there is a process of natural justice whereby schools not only act fairly but are transparently seen to act fairly.

We have all variously recognised some of the dilemmas and difficulties for schools. However, exclusion without the right of appeal to an independent arbiter, with the possibility of reinstatement, is not a positive example of fair treatment. It sets a bad example to the very children whom we are seeking to influence, telling them that this is how things can be done when it suits the authorities.

My second point is one which we started to rehearse when we debated this issue last week but which I think we need to explore further. We know that, even now, schools permanently exclude a disproportionate number of very vulnerable children from specific groups. Last time, we talked a lot about children with special educational needs and disability, and we heard the figures for the number of those children who are excluded. However, there are other groups. The Runnymede Trust has pointed out that in 2008-09 more than 16 per cent of all black Caribbean boys were excluded compared with 8 per cent of white boys—that is, double the proportion of black Caribbean boys. Gypsy, Roma and Traveller children have similar problems, as do looked-after children and those in care.