Children and Families Bill
Debate between Viscount Eccles and Lord Nash(11 years ago)
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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.
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.
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.
Children and Families Bill
Debate between Viscount Eccles and Lord Nash(11 years, 1 month ago)
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Viscount Eccles (Con)
My Lords, there are fundamental problems with this clause. As has been said, there is no appeal against directions; the recipient must comply, and promptly. There is no parliamentary scrutiny of directions, and for these reasons directions are usually confined to failures in administration, a point made by the noble Baroness, Lady Hughes. I think we all understand that the Treasury is very good at setting out directions about how you should write your accounts. There is not much point in arguing with the Treasury about that matter of administration, but in my view directions are not suitable to implement a change in policy of this type. That is exactly what this clause empowers the Executive to do—change policy. The point has already been made that there is therefore a point of principle here, and I would be grateful for the Minister’s response. Given everything that has gone on, the dissatisfactions or doubts that might emerge between central government and local government could and should perfectly well be settled in the normal course of business. As has been said, Clause 3 goes one step too far, and I could not support it.
Lord Nash
I begin with the proposal to remove the clause, but most of what I will say is also relevant to all the amendments. I think that we would all agree that we have an undoubted problem in the narrow but important function of recruiting, assessing and approving a sufficient number of prospective adopters. The statistics are stark. As I have already said, the average length of time that it takes for a child to be adopted from entering the care system is two years and seven months, and of course this conceals many children who do not get adopted.
My noble friend Lord Storey said that there is poor performance by local authorities in only a minority of cases, but I respectfully suggest that the figure of two years and seven months denies that. However, I agree with him that there is good practice: in West Berkshire, for instance, the figure is a year and a month. I question why many if not all local authorities cannot do the same.
At the end of March this year, there were 6,000 children with placement orders waiting to move in with a permanent family. This is 15% higher than a year previously. When compared with the 3,980 children adopted from care last year, one can see that this is a very significant backlog. Indeed, one cannot conclude from this backlog anything other than that the system is broken and we are facing a real crisis.
In order to find families for all the children waiting to be adopted, we have estimated that we would need around 2,000 more adopters than are currently approved and waiting to be matched. We would then need at least a further 700 additional adopters each year to meet the growing demand from children waiting. Ofsted data tell us that in the year ending March 2012 just over 25,000 enquiries about becoming an adopter were received, but these resulted in only around 4,000 applications to become an adopter—a 16% conversion rate, which I suggest is very low.
The size of the recruitment gap requires us to take radical and immediate action to resolve the underlying problems within the system. These were set out in our January publication, Further Action on Adoption. We currently have around 175 adoption agencies, many operating at too small a scale to be efficient, yet they have no incentive to expand and meet the needs of children outside their local area. Even worse, some local authorities turn away prospective adopters because they do not need them themselves.
A further problem is that, while some local authorities work in constructive partnerships with voluntary adoption agencies, too many commission from them only as a last resort. In large part, this is a consequence of local authorities acting as both a provider and commissioner of adoption services. By this, I mean that they are trying to find or commission adoptive parents on behalf of the child while simultaneously trying to recruit or provide those same parents. There are also issues around the level of fees that are paid to voluntary adoption agencies.
These underlying problems have resulted in a system that fails us in national terms; a system that is unable to make best use of the national supply of potential adopters or respond effectively to the needs of vulnerable children waiting for a loving home and a system that provides no incentives to individual organisations to address a national shortage of adopters. These problems are not the fault of the individual adoption agencies concerned. Indeed, many are doing their best to rise to the challenge and we know that there are some good examples of partnership working between different agencies:
Harrow, Kent and Cambridgeshire, for example, have all contracted elements of their adoption service to the voluntary adoption agency Coram. Oxfordshire has brought in the Core Assets Group to run its adopter assessment process. Three boroughs in London—Kensington and Chelsea, Westminster and Hammersmith and Fulham—and three unitary authorities in the north-west, Warrington, Wigan and St Helens, have merged their adoption services in order to save money while improving quality.
The problems result from the flawed way in which the current system is structured and operates. We therefore require a structural solution that tackles these systemic problems; a solution that incentivises and enables the recruitment of a far greater number of adoptive parents. Clause 3 provides for such a solution.