Children and Social Work Bill [HL]

Baroness Pinnock Excerpts

Monday 11th July 2016 Grand Committee

[Lord Watson of Invergowrie]

None the less—I understand the laughter from other noble Lords—there are interesting developments on my side of the fence, too. The Committee will forgive me for not commenting on that.

What the Minister said in his letter was reassuring. None the less, the amendments of the noble Lord, Lord Ramsbotham, would ensure an automatic review of child deaths, which obviously is a serious matter that I do not mean to treat lightly at all. Those are the two amendments that I wanted to specify, but all the amendments listed would strengthen the section of the Bill. For that reason, as stated earlier, we are pleased to support them.

As noble Lords will know, my noble friend Lord Hunt is a signatory to the proposal to oppose the question that Clauses 12 and 13 stand part of the Bill, and it is to this that I now wish to speak. We have concerns about the manner in which the functions of the Child Safeguarding Practice Review Panel are to be established. Clause 12(1) states that the Secretary of State shall have power delegated to her to decide what the functions of the panel shall be. The functions are not set out in any detail; the Secretary of State is to be given the right to decide how the functions are to operate. The Delegated Powers and Regulatory Reform Committee stated in its report on the Bill:

“The arrangements made by the Secretary of State will determine more precisely how those functions are to be exercised, and will accordingly play a significant role in shaping what the Panel is required to do and how it is required to do it”.

The committee goes on to say that as a result, it believes that the arrangements made by the Secretary of State should be contained in a statutory instrument subject to the affirmative procedure. So do we, which is why we believe Clause 12 must be strengthened.

We also have objections to the guidance issued by the Secretary of State to the panel, as outlined in new Section 16B(8) in Clause 12. Again, our concerns are shared by the Delegated Powers and Regulatory Reform Committee, which commented that as the guidance clearly must operate hand in glove with the arrangements being made by the Secretary of State in relation to the panel, the guidance, too, should be subject to parliamentary scrutiny, this time by negative resolution.

The same could be said in respect of Clause 13 and the definition of “regulated setting”, relating to the death of a child. “Regulated setting” is not defined in the Bill, which the DPRRC regards as a major failing. The committee says:

“The definition of ‘regulated setting’ is fundamental to determining the scope of a local authority’s duty to provide information about cases”,

within this section of the Bill. That gives the Secretary of State unlimited discretion to determine what falls within the definition, and the committee goes on to say that the delegated power conferred by Section 16C(3) of the Children Act 2004 is inappropriate in providing for the definition of “regulated setting” to be set out in regulation.

More seriously—not least, I suspect, for the Department for Education—the committee proceeds effectively to rubbish the department’s claim that:

“This is a narrow power which will only provide for a list of regulated settings, not raising matters of substance which the House will need to debate”.

The Delegated Powers Committee does not just describe that power as a wide one; it concludes that it is a Henry VIII power, which means that it should be subject to affirmative procedure.

The number of delegated powers contained in the Bill was the subject of some dispute, shall we say, between noble Lords and Ministers at Second Reading. Doubtless we could schedule a separate debate in Committee to resolve just how many there are but, with the exception of the Ministers, every noble Lord who has taken part in debates on the Bill will agree that however many there are, there are too many.

The definition of a Henry VIII clause is of course one that seeks to amend primary legislation by secondary legislation. I cannot resist quoting the comments of the noble and learned Lord, Lord Judge, who spoke strongly against such clauses when he was Lord Chief Justice. He stated:

“You can be sure that when these Henry VIII clauses are introduced they will always be said to be necessary. William Pitt warned us how to treat such a plea with disdain. Necessity is the justification for every infringement of human liberty: it is the argument of tyrants, the creed of slaves”.

That may be just a little strong for this Bill but the message is quite clear. There are more egregious examples elsewhere in the Bill of the abuse of parliamentary procedures through secondary legislation—but, for the reason I have outlined, we believe that the definition of “regulated setting” has to be on the face of the Bill.

As was stated in Committee last week, there are concerns over the establishment of the Child Safeguarding Practice Review Panel, partly because of the fear that it could be used to blame, or perhaps even scapegoat, social workers if a high-profile local case is referred to the new national panel without full knowledge of the local elements of the case. That is why the greatest attention must be given to defining the arrangements and functions of the panel as clearly as possible and, where they cannot be placed on the face of the Bill, to ensuring that there is adequate parliamentary scrutiny of those aspects of the Bill. For these reasons, we do not believe that Clauses 12 and 13 should stand part of the Bill.

[Baroness Pinnock (LD)]

My Lords, I support everything that previous speakers have said about both the amendments and in opposition to Clauses 12 and 13. During our last day in Committee, I made the case that in principle the proposal for the national safeguarding panel failed because it did not take sufficient account of local accountability, local knowledge and local professionals who have a duty to safeguard children in their area. The Wood report, from which a lot of the changes proposed by the Government come, is clear on some of these issues. One factor that it picks out in its analysis of local safeguarding children’s boards is that a review by the Local Government Association found,

“dissonance among the partners between the accountability and the authority of an LSCB”.

The report goes on to say that,

“the duty to cooperate has not been sufficient in ensuring the coherent and unified voice necessary to ensure multi-agency arrangements are consistently effective”.

So from the Wood report we hear that local accountability is one issue that has been raised. The LSCBs are not sufficiently accountable locally, and that has, in part, led to their lack of effectiveness.

The proposals in these clauses move power and accountability, in the most serious cases, from the local to the national level and put it in the hands of the Secretary of State. I think that that places too much power at the national level and not enough locally, and it is also in danger of politicising the whole process, reflecting what the noble Baroness, Lady Meacher, said, with which I totally agree. The lack of elected representation on the current safeguarding boards has resulted in them being ineffective. Currently, the boards consist of professionals and there is no full representation of non-professionals—that is, elected representatives—who are also corporate parents. It seems to me that a lack of challenge from non-professionals, who are corporate parents, has contributed to this lack of effectiveness of the safeguarding boards.

I will make a further comment, which is reflected in the Wood report, about the membership of the local boards and the duty to co-operate. The Government’s proposals in later amendments would remove the requirement for some of the professional organisations to be members of the local panels. One of those, the probation service, has in my council area—I draw the Committee’s attention to my entry in the register of interests as a local councillor in the Borough of Kirklees—since the fundamental changes to the service not attended the local safeguarding children boards. The later government amendments remove that requirement. It is a big mistake not to require the probation service to attend to discuss safeguarding children.

Clause 12, which lays out the functions of the new national panel, falls far short of what is required. Let us consider what has happened with serious case reviews over the past 30 years—probably and sadly—from the Climbié and Baby P reports to the many, many others that we can all draw to memory. They have all issued recommendations to which everybody has agreed but which no one has implemented effectively. Everyone says, “These are good; we must do that”, but they are not implemented.

The big failure in Clause 13, which is why I will oppose it standing part, is that nowhere does it say how learning will be effectively implemented. We can all learn, and social workers across the country will have read the 48—I think—recommendations in the Baby P report, but implementing them is the difficult bit. The Wood report refers to that and makes a powerful case for thinking in much greater detail not about the learning—the learning has been done—but the implementation. In all these cases, similar recommendations are made about the need to co-operate and the lack of collaboration and communication. We have yet to crack how to put that into effect.

If we are serious about child protection and safeguarding children, one element which must feature is how the recommendations are to be put into effect, monitored and reviewed. If we do not do that, we will never move forward. That is my fundamental reason for supporting the proposition that Clauses 12 and 13 should not stand part of the Bill.

[Lord Mackay of Clashfern (Con)]

My Lords, I strongly support what has just been said. Over the years—it goes back quite a long way—there have been very serious cases of child injury and, sadly, in most of the cases, child deaths. There has been no shortage of inquiries. All sorts of very distinguished people have been asked to inquire into the situation. As the noble Baroness, Lady Meacher, said, there is always a focus on the individual social worker. Managers somehow stand a little back from the situation to let the light shine on the individual. That is a natural protection that management is apt to have and one that we must think about.

I strongly support the view that any number of lessons have been learned, in the sense that reports have told us what was wrong and what should be different. But I know of absolutely no mechanism to make sure that these recommendations are acted on and that something actually happens. We have only to look at some of the earliest reports in relation to this to see that very clear recommendations were made. The report is published, the public and the press comment on it—and then it is forgotten until the next one. Surely if we are to set up a national body of this sort, we should incorporate within it a clear mechanism for bringing the recommendations forward for implementation.

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Amendment 120 is purely technical and sets out the interpretation of key terms. Amendments 133 and 134 are also purely technical and are required for the purposes of updating the relevant clauses to reflect the abolition of LSCBs in relation to the power to innovate in Clauses 15 to 19. Specifically, whereas a local authority had been required to consult its LSCB partners before requesting a power to innovate, it is now required to consult its safeguarding partners and the relevant agencies. I beg to move.

[Baroness Pinnock]

I thank the Minister for his very detailed explanation of these amendments, which are aimed at putting in place new arrangements for local safeguarding children boards. I have a number of questions and would be grateful if the Minister could respond to them so that I can fully understand and appreciate the implications of what is being proposed.

First, I thank him for his assurance about local accountability. However, one element is not specifically referred to in the detail that he gave about the composition of the new panels, and that is whether the panel could include local elected representatives. I referred to this in a previous discussion and raise it again because the safeguarding boards currently consist of professionals—for example, social workers, the police, health service workers and members of the probation service—but no non-professional, on the basis of local knowledge, can challenge what goes on. Such a challenge from a non-professional standing up for local people is very important in terms of safeguarding, even more so as local elected representatives have a duty as corporate parents and they are judged on how they fulfil that role. I think that the addition of non-professionals would enhance the status of the panel. It would be not just a collection of professionals taking responsibility but a collection of professionals plus some local representation saying, “This is not good enough. What are you going to do?”. They could do that if they were effective local representatives, and I would like to hear what the Minister has to say on that.

I turn to my second query. I totally understand the proposals for greater flexibility in composition and geographic areas, and so on. In principle I do not have a problem with that because the Wood report says, and my own experience tells me, that the current arrangements can become a bit bureaucratic—a case of going through the motions, rather than dealing with the issues. For me that is not an issue but, from what I heard the Minister say, under the new arrangements there will be three statutory representatives—from the police, the health service and local authorities—and they will consult on what other representation there should be, which is welcome. My query concerns whether any additional members from those organisations would be required to attend or whether they would just be asked to attend.

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[Lord Nash]

We are considering that report and we will respond in due course. On the point made by the noble Baroness, Lady Tyler, about national government departments modelling effective collaboration, we are indeed taking considerable steps to work together effectively, in particular with the Home Office and the Department of Health. In view of what I have said, I hope noble Lords will support the amendment.

[Baroness Pinnock]

In response to my question about local elected representation, the Minister said that that ability was currently there. Yes it is, but as observer status. If there is to be an opportunity to challenge it, the membership of that board needs to be on the same level. An observer status puts the individual in a much lesser category of importance on that body. In order to have elected challenge on the panel, they ought to be full members of the board.

[Lord Nash]

I am sure the noble Baroness will be delighted to hear that whereas at the moment they have observer status on LSCBs, under the new arrangements they can be full members.

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[Baroness Pinnock]

I totally welcome that and thank the Minister for his response.

Amendment 113 agreed.

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[Baroness Wheeler (Lab)]

My Lords, we are very pleased to support this group of amendments, to which my noble friend Lord Watson has added his name. My noble friend Lord Wills has made a strong case for seizing the opportunity under the Bill of extending the whistleblowing arrangements and protections currently applicable in the NHS to those working in public bodies providing social services and children’s services, and local authorities, in respect of looked-after children and children at risk of harm, and well as to social workers. The Francis report into the Mid Staffordshire NHS Trust was the trigger for enhancing important whistleblowing protections in the NHS, and it is right that we now have similar effective arrangements covering the provision of vital social services.

Under Amendments 127 and 137, which would bring in new clauses after Clauses 14 and 26, the Secretary of State would be required to issue a code of practice on whistleblowing arrangements that could be taken into account by courts and tribunals when whistleblowing arises in public bodies providing social services and employing registered social workers. My noble friend rightly refers to the whistleblowing commission’s code of practice for employers, workers and trade unions, published by the charity Public Concern at Work, which could provide the model or framework for the proposed code. It would also underline that protection for whistleblowers is a statutory requirement with parliamentary enforcement. The commission’s recommendation was that the code should be “rooted in statute”, and we support that.

Current protections offered to staff who challenge poor standards of care, both those covering widespread systemic failure and those involving day-to-day concerns about unsafe or poor practice, are certainly inadequate for those making disclosures in the public interest. The joint Community Care/UNISON workplace zone on whistleblowing underlines that many social workers and care professionals are too afraid to blow the whistle on poor practice. Their regular surveys of social workers give detailed accounts of staff trying to report their concerns, only to come up against bullying colleagues, managers with what they refer to as “selective hearing” and processes that protect the organisation over its staff—the pervasive and powerful organisational culture that my noble friend has identified as operating in workplaces, particularly in large-scale institutions where you have to be very brave and persistent to raise concerns.

The CQC’s quick guide to whistleblowing and the Ofsted reports on whistleblowing about safeguarding in local authority children’s services would give little comfort and reassurances to potential whistleblowers regarding their future security and career. Ofsted has no regulatory powers to investigate whistleblowing complaints but can use them as a trigger to bring forward inspections of council services. The CQC guide outlines clearly the procedures to take but its preface stresses to the staff member raising the issue:

“We don’t have any powers to protect you from action taken against you by your employer”.

The proposed code of practice on whistleblowing arrangements, with the enforcement of the Secretary of State providing guidance that can be taken into account by courts and tribunals, would help to provide reassurance to potential whistleblowers and provide practical guidance to both employers and staff.

Amendments 128 and 138 specifically address the discrimination that whistleblowers who have made a protected disclosure under the Employment Rights Act 1996 in their previous employment can face when applying for a job. The current exclusion of job applicants not considered workers under the Public Interest Disclosure Act can result in whistleblowers being blacklisted and finding it virtually impossible ever to get work again. As noble Lords have stressed, this situation should not be allowed to continue.

One of the key provisions of whistleblowing policies is the requirement for employers to provide assurance to the worker that he or she will not suffer detriment for having raised a concern—in other words, to make every effort to provide protection to whistleblowers who feel they may be vulnerable. These amendments would help to address the current gaps in providing the protection that whistleblowers urgently need and deserve.

[Baroness Pinnock]

My Lords, I shall not repeat what many other noble Lords have said about whistleblowing, but confirm that we on this side totally support what has been said and the amendments that have been tabled.

[Baroness Evans of Bowes Park]

I am grateful to the noble Lord, Lord Wills, for these amendments and to noble Lords for their contributions. I assure noble Lords that whistleblowing is an important issue and one that we are taking very seriously. Every child deserves to be safe, and those organisations entrusted to protect our children must work as effectively as possible to achieve that.

Registered social workers work with some of the most vulnerable people in our society, supporting children, adults and their families, often at the most difficult times in their lives. It is important that registered social workers and other employees work in a culture of openness, where they feel confident to speak out when they are concerned about the practices of their employing organisation. They should be able to raise concerns free from fear and victimisation, as the noble Baroness said, with processes and procedures that encourage, support and protect employees when they do so. Disclosures can help to improve the services provided to children, adults and families and safeguard the vulnerable from abuse and neglect.

With regard to Amendments 127 and 137, I agree with the principle that there are clear expectations on local authorities and other public bodies on whistleblowing issues related to child protection and social work. We have a framework of employment protections for whistleblowers and I agree that it is important that employers should act in accordance with that. The coalition Government reviewed the statutory framework in relation to whistleblowing in 2014, following the report of the whistleblowing commission, as the noble Lord said, and the Government’s call for evidence on the matter. The Government concluded that the right balance was to be struck by guidance and a non-statutory code of practice, rather than a statutory code of practice recommended by the commission. The Government published that guidance and statutory code in March 2015.

I am afraid to say to the noble Lord that we are not persuaded of the need to reopen this question in the context of the Bill. If the noble Lord has concerns about the practices specifically of local authorities and public bodies that provide children’s services and employ social workers, we would be happy to consider them. There may be more that we can do, for example, to draw our guidance to the attention of those bodies and ensure their compliance with it.

In relation to the question asked by the noble Earl, Lord Listowel, we confirm that whistleblowing protections in the Employment Rights Act apply to all employers, both private and public.

On Amendments 128 and 138, I share the noble Lord’s concern that those who make a protected disclosure under the Employment Rights Act should not suffer adverse treatment in their current employment or their future career. I understand that some workers have been concerned that whistleblowing may lead to them being placed on some form of informal blacklist that will prevent them getting other employment in the sector. We would be extremely interested in any evidence of that happening and would be very concerned if it was found to be the case.

As the noble Lord and the noble Baroness, Lady Wheeler, mentioned, provision has already been made to protect job seekers in the National Health Service from such discrimination, following the report into whistleblowing in the NHS undertaken by Sir Robert Francis QC, Freedom to Speak Up.

I believe that the Department of Health will shortly be consulting on the necessary secondary legislation. We will be interested to see the issues raised during that consultation. Together with any examples of whistleblowers who have suffered in this way in children’s services, this will inform our consideration of any case for future change. I have asked Department for Education officials to work with colleagues from the Department for Business, Innovation and Skills and the Department of Health, and to contact the noble Lord to discuss further the issues arising from these four amendments.

Although I understand that some of my response will not be welcomed by the noble Lord, Lord Wills, I hope he sees that we are taking action and will take further action, and therefore feels able to withdraw his amendment.

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[Lord Mackay of Clashfern]

My Lords, I want to ask a very specific question. Could an exemption of the kind envisaged in the amendment of the noble Earl, Lord Listowel, occur under Clause 15?

[Baroness Pinnock]

My Lords, I concur with all the concerns that have been expressed so far about Clause 15. It is not that any of us are against innovation per se, but we are concerned about the proposed non-limits to the innovation.

At the heart of this clause is a dichotomy. On the one hand, children’s social work is probably the most regulated of all public services and has the most legislation surrounding its practice. On the other hand, if we take the clause at face value, it appears to allow any innovation within those regulations to be set aside. I asked civil servants what the criteria are for innovative practice, what the boundaries for it are and whether anything is off the table. The answer was that there are to be no limits. I found that quite disturbing. It is not as though we are dealing with anything mechanical here; we are dealing with the most troubled and vulnerable children in our society, who deserve our protection. What we need to try to achieve is set out in the Putting Children First report, which offers a blend of innovation and protection that works.

I have not yet understood how, on the one hand, Leeds City Council, which has been referred to in earlier debate on the Bill, has been enabled to innovate without difficulty—I know that it has been allowed to set aside some regulations, without the need for this clause, and has been successful in doing so—yet on the other, Doncaster Council, which sadly have a long history of inadequate children’s services, has not achieved much improvement despite all the efforts that have been put into it. The answer is that it is not so much legislation and regulation that is the problem, but having the support of key professionals—making sure that we have highly trained, effective and good leaders in social care, who can make a difference. That is what the report, on which I guess that many of the clauses in the Bill are based, says. Can the Minister tell us: is anything off the table as regards innovation, or is protection of children coming first?

[Lord Nash]

My Lords, I will speak to Amendments 129, 130, 131, 131A, 131B and 132, in this group regarding the power to test new ways of working. I thank noble Lords for tabling these amendments to the clause, providing me with an opportunity to explain its purpose and operation in more detail. In short, this is purely to improve the provision of services to children.

Before I go into detail, I would like to return quickly to our discussion about profit of last week. I could not help reflecting that I might be the only noble Lord present who has spent most of his life, until recently, proudly in pursuit of profit. That fact may itself raise wider issues, but I say again that we have no intention of revisiting the settled position on profit-making in children’s social care or of using Clause 15 to circumvent that position. I gave that assurance at Second Reading and do so again now. The policy paper Putting Children First, published last week, makes the same commitment and the Minister for Children and Families reiterated the point in his speech to the Association of Directors of Children’s Services last week. I hope that that makes things absolutely clear.

At the heart of this power to test new ways of working is the intention to achieve better outcomes for children and young people. This unwavering focus is at the very core of the department’s agenda to drive innovation and improvement. More significantly, the push to remove procedural barriers to better ways of working is in direct response to what local authorities are telling us young people are saying to them. They want things done differently.

The Government’s £200 million children’s social care innovation programme has enabled local authorities to develop and test new ways of working, but in some aspects of provision this has reached the limits of what is possible under current children’s social care legislation. This power responds to the sector’s appetite to go further by allowing it greater flexibility to support young people in the most effective way. A number of noble Lords referred to examples of good innovation, some of which have been pointed out by Ofsted. They referred particularly to Leeds, one of our partner in practice local authorities, which has told us that it is proud of the innovation it has achieved so far within the current framework—but it is also keen to go further for children and families in its area. It cannot do that without this provision.

This power is about creating a safe mechanism to test new ways of working to improve outcomes for children.

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[Baroness Pinnock]

I am very pleased that the noble Lord, Lord Dubs, has tabled the amendment and again raised the issue that the noble Lord, Lord Ramsbotham, and I referred to at Second Reading. At that time I referred to the investigation by the EU Sub-Committee on Home Affairs into unaccompanied migrant children. It raises some important issues that reflect on what the noble Lord, Lord Dubs, has tabled in his amendment. One or two examples from the report expand on the issues raised. Evidence from Kent social services states:

“There have been issues in respect of the apparently competing demands of the immigration legislation and the childcare legislation in respect of over-18’s”.

That was the fundamental issue that I raised at Second Reading. We are in danger of creating a two-tier approach to care leavers. We quite rightly say that care leavers who are born in this country will receive support until the age of 21 or 25, but unaccompanied minors who have been through the most awful and traumatic experiences are suddenly deemed at 18 to be able to act as adults. Further evidence summarises the problem facing unaccompanied migrant children approaching 18. The report states:

“Those children who are given temporary leave on the basis that they are children are suffering terribly in their protection needs and, as has been identified for many years, their leaving care provisions. We recognise how much children need help in that transition to adulthood. For most of us in this country, we do not suddenly feel and behave like adults when we turn 18”.

We had evidence of the potential consequences of unaccompanied minors, as they approach 18, not given leave to remain but not wishing to return to the troubled area of the world from which they came. One of the consequences is:

“The severe delays experienced by some unaccompanied migrant children in their asylum claims and in accessing services may compound their lack of trust of state authorities. In such circumstances, smugglers and traffickers may come to be regarded by children in some cases as a preferable source of support—‘by choice, through desperation, or through exploitation and abuse’”.

That is the evidence that I have referred to. I do not think anyone in the Committee, which has now spent 20 hours or more considering how we can improve care for the most vulnerable children in our society, would want this particular group of young people to be affected in this way. As we approach Report, I hope that the Government can bring forward their own amendments to help to address the issues of unaccompanied minors as they approach care-leaving at 18, to provide them with the support they desperately need and confidence that they are not going to continue to be returned to the war-troubled areas of the world whence they came.

[Baroness Howarth of Breckland (CB)]

My Lords, I apologise for not being here sooner, but I was the last person standing to chair the All-Party Parliamentary Group for Children this afternoon. That is where I have been, and it is always revealing. I support the amendment because I have raised this issue on a number of occasions. I hope the Minister will look at this, though he knows well that I do not like long amendments; lists in Bills are not helpful.

I cannot understand why, from the moment when the child is identified as an unaccompanied minor in a school, we do not start not only to stabilise the child’s status but to look at their mental health issues. We know of the trauma they have been through. I know that mental health services are poor across the country—we have heard that repeatedly—but these children have very particular needs. I am appalled when I learn that often schools do not even know the status of these children. I have met a number of youngsters who realise their immigration status only when they are about to go to university and discover that they cannot. Instead, they spend a year on appeal, appealing being deported to countries about which they know nothing. One young man I met had been here from the age of six. He had been in a foster home and suddenly discovered that this was his status.

I am sure that that is not the way this Government wish to treat children. These children happen to be in this situation only by chance. There might be another child next door who happened to have come in to the country, or be part of a family, on a very different basis. We must treat these children equally.

I am not against returning children home when that is the appropriate answer. We know that there have been very successful programmes of returning children to their country of origin with the right support and understanding; but we have to start sooner than we are starting now, get the position of the child right, make continuous assessment and not leave it until their 18th birthday, when it becomes a crisis.