Social Workers Regulations 2018

Baroness Tyler of Enfield Excerpts

Tuesday 3rd July 2018 Lords Chamber

[Lord Watson of Invergowrie (Lab)]

My Lords, I thank the Minister for introducing these important regulations. As he mentioned, they stem from the Children and Social Work Act, but he may not be aware, because at the time he was not a Member of your Lordships’ House, that there was considerable resistance from Peers on all sides of the House to the concept of introducing a new regulator separate from the Health and Care Professions Council. Ultimately, although the retention of the social work profession within the HCPC could not be achieved, as a result of pressure by Opposition and Cross-Bench Peers, it was agreed that Social Work England would be a non-departmental public body—as the Minister just stated, a separate legal entity operating at arm’s length from government.

The appointments of the chief executive of Social Work England and of the noble Lord, Lord Patel of Bradford, who I am very pleased to see in his place, as chair of Social Work England is a definite plus as both of them have practised as social workers. It will be of some consolation to social workers who often feel rather embattled despite the great work that they do. It is certainly encouraging that the chair is already out and about talking to those whose confidence he will need to build. It is not yet known who will comprise the board of the new body, but hopefully there will be a reasonable presence of social workers and service users to bring practical experience to the shaping of board decisions.

These regulations are generally non-contentious, and we share the view of the British Association of Social Workers, which is committed to the need for statutory regulation of social workers and social work for public protection and accountability, and to ensuring that the value and importance of the profession is recognised and that high standards are maintained.

During the debates on the Children and Social Work Bill, noble Lords on these Benches argued for effective regulation and an independent regulator. As I have said, to some extent that was achieved, although reintroducing the control of the Secretary of State causes us continuing concerns, particularly in respect of Section 3(4), which effectively provides that if the Secretary of State objects to the rules coming into force, the regulator must modify them in light of the objection. We reiterate the need for the regulator to have maximum independence from the Secretary of State, yet here the control of the Secretary of State over the regulator seems to have been reintroduced through the back door. The Minister may well say that that is not the intention, and he may well be accurate in that assertion, but it leaves open that possibility further down the line when all of us have gone on to pursue other interests.

On the new regulator’s sole control of continuous professional development, we also share the concerns of the British Association of Social Workers that there is apparently no requirement to consult or involve the more than 80 universities which deliver social work pre-qualification and post-qualification education and training. Nor will consultation involve employers, service-user groups or the professional association for social workers. Perhaps the Minister can explain why all that expertise should remain untapped.

When these regulations were considered in another place yesterday, my Front-Bench colleague Tracy Brabin MP, standing in for the shadow Minister for Children and Families, Emma Lewell-Buck MP, who was indisposed, asked the Parliamentary Under-Secretary of State for Children and Families a total of 16 questions. As far as I can ascertain from reading the Minister’s reply in today’s Hansard, no more than one of her questions received an answer. So I shall reiterate those points and request that the Minister arrange to write to me in respect of any that he is unable to answer today.

The regulations lack detail, which makes it difficult to scrutinise some aspects of them effectively. The new regulator is required to make at least 90 rules and there could be extensive debate on the most appropriate rule in each case. Can the Minister tell noble Lords the proposed timescale for framing those new rules? He said that he expects Social Work England to come fully into being in 2019, but that is a pretty wide timescale. Regulation 3(2)(a) states that the regulator needs to carry out a public consultation before making the rules. That is certainly to be welcomed, but it carries a get-out clause, stating that the regulator does not have to carry out a consultation if it,

“considers that the content of the proposed rules is such that it would be inappropriate or disproportionate to do so”.

That sounds entirely subjective, leaving it open to whim at best, or misuse at worst.

A majority of respondents to the Government’s consultation thought that oversight should apply to all the rules. So can the Minister say which of the 90 rules he anticipates the loophole being applied to, and what reassurances can he offer to support the view I am sure he will take that the loophole will not be misused by the regulator? He talked of regulatory failure a few moments ago. I am certain that would be a very rare occurrence, but it would be helpful to have the Minister’s indication of the situations in which it might arise.

Turning to part 2 of the regulations, we also seek clarification on how the representatives referenced in Regulation 3(2)(b) will be chosen. It states that the regulator will choose,

“any group of persons who the regulator considers are likely to be affected by the proposed rules”.

Although the inclusion of social workers is welcome, together with employers of social workers, users of the services of registered social workers and those involved in social work training, we have concerns as to how those individuals will be chosen. Those rules will affect social workers across the UK, so what is the process by which those individuals will be chosen? Will there, for instance, be representations from all the nations and regions? How will the numbers be distributed among various job roles?

We welcome the fact that the Government bowed to pressure and abandoned the idea of making Social Work England an executive agency of the Department for Education, but questions remain about the Secretary of State’s role because control seems to have been reintroduced. Under Regulation 3(4)(b) the Secretary of State has the power to object to rules. It is disappointing that the Secretary of State will be given the final say on all the rules despite the efforts of many in your Lordships’ House to ensure that the regulator is, as far as possible, independent.

In Part 3 of the regulations, on the content of the register of social workers, Regulation 9(3) states:

“The regulator may record any other information in the register it considers appropriate”.


Given that the basic necessary details about social workers will already have been collected, what other information is likely to be necessary?

We also share the concerns of the British Association of Social Workers that there is provision for deregistration on health conditions, which are undefined. Because the regulations are not specific enough, it is not difficult to envisage that provision being misused. In paragraph 7 of the Explanatory Notes, the Secretary of State states that he believes the regulations are compatible with the European Convention on Human Rights, but will the Minister say if either he or the Secretary of State have considered whether Regulation 9(3) is compliant with the Equality Act 2010? What protections can the Minister point to against possible misuse?

With others in the sector, I am pleased that Regulation 20 makes provision for sector-wide professional development. As the Minister himself conceded, there is a need for the transitional arrangements to be put in place to protect both social workers and the public whom they serve. The trade union Unison has a plan for the transition from the Health and Care Professions Council to Social Work England, outlining how a service-level agreement between the HCPC and Social Work England would ensure a smooth transition period in which the HCPC retained responsibility for fitness-to-practise cases for an interim period of two to five years. That would give Social Work England time to establish its own fitness-to-practise process, while allowing for meaningful consultation with trade unions and staff in both organisations to draw up a structured plan to ensure the smoothest possible transition. Pointing to the apparent lack of any such arrangements is not a criticism of Social Work England, but we believe they would provide a safety net for all—most importantly, for the public. Do Ministers plan to consult Unison and take advantage of its experience regarding the transition period? Crucially, what assurances can the Minister give that social workers, employers and the public will be protected in the interim period?

In general, our initial opposition to it notwithstanding, Labour is now in a position to say that we welcome Social Work England coming into being and want it to be as successful as it possibly can. Apart from the relatively minor issues that I have highlighted, we do not have a problem with the majority of the rules that Social Work England is creating. However, like many in the sector, we have concerns that its timescale is overambitious, given that, although the chair and chief executive are in post, the board and executive team are not. Even allowing for the good will that is behind the creation of Social Work England, what confidence can the Minister offer noble Lords that it can be successfully established within such a short timescale?

[Baroness Tyler of Enfield (LD)]

My Lords, I too thank the Minister for introducing the regulations. I draw noble Lords’ attention to my interests in the register, particularly my role until recently as chair of CAFCASS.

I strongly support the creation of Social Work England as a profession-specific regulator with real in-depth understanding of social work and its potential to transform lives, particularly those of the most vulnerable. I very much hope that Social Work England will be able to work as an effective, modern and collaborative regulator, working closely with social work employers, educators and, yes, service users as well, which is important. Statutory regulation of social workers is very important. It is necessary so that the public feel protected. It helps to enhance the status of the profession, to ensure high standards and to ensure that the work that social workers do is truly valued in a way that, I am afraid, too often it is not at the moment.

The devil, as ever, is in the detail, so I want to make a couple of general points and a couple of specific ones. I am aware from talking to colleagues in the sector that a number of concerns have been raised during the consultation process. It must be said that it was not a particularly long consultation, but I know that there were pre-consultation events as well. I want to highlight something that the noble Lord, Lord Watson, mentioned: the role of the Secretary of State. As I am sure that noble Lords who took part in our debates during the passage of the Children and Social Work Act 2017 will remember, they were heated and important debates about what was an appropriate role for the Secretary of State in social work regulation. As has already been alluded to, the upshot of that was the creation of a body separate from government so that the regulator had an appropriate degree of independence from the Secretary of State.