Children and Social Work Bill [HL]

Baroness Walmsley Excerpts

Wednesday 13th July 2016 Grand Committee

[Lord Ramsbotham (CB)]

My Lords, I added my name to this amendment because I was moved to do so, particularly by the British Association of Social Workers, which wrote saying that:

“We are not opposed to exploring new social work regulation options. We support steps to improve accountability of social workers, enabling them to show increasing specialism and skill. But we are opposed to these proposals that concentrate government control and that contain no incentive for the profession to lead in setting standards and developing its self-governance”.

In other words, it is not averse to regulation and it is all in favour of maintaining the independence of that regulator and separating him or her from the governance that is proposed in the Bill.

This is the second time in my life that I have supported an initiative in which my noble friend Lord Warner was involved. When I took over as Chief Inspector of Prisons in 1995, the control of young offenders was entirely in the hands of the Home Office, and it was an absolute disaster. They were treated badly, their conditions were appalling and nobody was taking an interest in the conditions and treatment that they received in the various establishments. Then came the Youth Justice Board—proposed and led by my noble friend—and there was immediate transformation. The merit of this amendment is not only that it has come from someone who clearly knows the profession because of his past experience; it also reflects both the practicalities of regulation that is required and has the support of the whole profession, which the Bill clearly does not.

[Baroness Walmsley (LD)]

My Lords, I have also added my name to this amendment, and to Amendment 135C in the next group, which we will come to in a moment.

I really think the Government have some questions to answer. Why is this new regulator needed? The Minister might answer by saying that having its own regulator would add to the status of social work. That is a perfectly decent answer, but not one that is totally under the thumb of the Secretary of State. Perhaps the Minister could tell us what the cost of creating this new regulator would be. The NSPCC is concerned about the danger of it creating a two-tier system of statutory and non-statutory social workers. I wonder if the noble Lord can answer that. What is the justification for putting regulation and improvement together? That question was very ably outlined by the noble Lord, Lord Warner. Why does this health and care profession have to be under the skirts of the Secretary of State? While I am about it, which Secretary of State are we talking about? The Bill does not say. Perhaps I should ask which woman it will be.

Many of us feel that if social workers were to become directly regulated by the Government, that would further weaken the trust—which is already fragile—between them and Whitehall. As the BASW said in the briefings we have all received, the Bill does nothing to address some of the real problems that affect social workers.

There is a real issue here because we have a significant shift of significant powers. It is a matter of principle. Why should social workers be the only profession in the health and care sector to be regulated by government? Nursing and medicine are not. They are public service professionals using their professional skills and judgment to make vital decisions about vulnerable members of the public. Bringing regulation under government control risks sending a demoralising set of signals to the sector. Loss of independence is likely to be seen as evidence that social work is really not up to it and needs a very close eye kept on it. That seems odd because it is at odds with what Ministers have been saying recently. They have been saying that social workers have been disempowered by command-and-control-type initiatives from central government and should be trusted to exercise their professional judgment and respected as professionals who undertake very complex work. Hear, hear! I agree with that. Why seek this government stranglehold now?

[Baroness Pitkeathley (Lab)]

My Lords, I remind the Committee that I have form in this area as the person who chaired the committee that set up the General Social Care Council, as the first chair of the General Social Care Council and as the chair of the Professional Standards Authority which oversaw the demise of the GSCC and the transfer of regulation to the HCPC. There are, as we know, terrible problems facing social work and social workers at the moment, so to be discussing these structural changes now is rather like rearranging the deckchairs on the “Titanic”. That said, I support the idea of getting very much more independence for the regulator of social work. The separation between regulation and improving standards is important. That is a very well-established principle. The Department of Health is promoting that principle as we speak, building on the Professional Standards Authority’s paper Rethinking Regulation. All this applies to other health regulators, as Ministers well know.

Independence is extremely important. The oversight of the current regulator, the HCPC, by the Professional Standards Authority—I am no longer its chair, but I still declare an interest—is a vital part of assuring not only its independence but its performance by scrutinising its fitness-to-practise cases and referring them to the High Court where it has failed to protect the public. I remind the Committee that the purpose of regulation is to protect the public.

I wonder whether the Minister has considered the disruption element of the Government’s proposals. The HCPC has only just finished, this month, dealing with the legacy fitness-to-practise cases it inherited from the General Social Care Council. If a new regulator is set up, it will have to deal with the legacy cases of the HCPC, which will mean two different systems with two different sets of staff and consequent expense. Cost is another area that we all have to be very concerned about with these issues, and I raised it at Second Reading.

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[Lord Warner]

What expertise does the DfE have in relation to the work and performance of social workers working with adults? The Minister has no responsibility for that. His officials have no knowledge or responsibility for this area. Where is the evidence? Does this come from the Department of Health? Where has it come from?

[Baroness Walmsley]

My Lords, I did not get an answer to my question about which Secretary of State it would be. Strangely enough, although Clause 21 refers to “Secretary of State” in the singular, in his response the Minister talked about Secretaries of State. Will he clarify whether we are talking about the Secretary of State for Education and the Secretary of State for Health in agreement? If so, what will happen if they do not agree?

[Lord Watson of Invergowrie (Lab)]

Today’s edition of Written Statements and Answers contains an Answer to a Question that I put down on social work training. It is from the noble Lord, Lord Prior of Brampton. Why is that?

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[Lord Ramsbotham]

My Lords, I was attracted to putting my name to Amendments 135B and 135C because of their cleanliness and simplicity, and the fact that they picked up all the points that had been made in the Government’s policy statement, Regulating Social Workers, which was published last month. There was nothing missing. Furthermore, what the amendments proposed was independent and objective, and therefore they were likely to attract the support of the profession.

I could not help reflecting on two things. One was that when I was Chief Inspector of Prisons, when I inspected a prison that had an under-18 wing the social services were responsible for under-18s at that time, so I took a social services inspector with me. She said that if it had been a secure children’s home, it would have been closed because of the lack of facilities. Those facilities were then under the direction of the Home Office, which claimed to be responsible for young people in custody. That has always suggested to me that government should not get close to the delivery of these things.

The second thing, which I admit struck me as strange, was on page 19 of the Regulating Social Workers report. One paragraph says:

“Ministers will lead on issues such as setting standards and delivery of responsive improvement programmes to raise the calibre and status of the profession”.

The next paragraph says:

“While Ministers retain ultimate responsibility, decisions will be kept at arm’s length”.

How can you lead at arm’s length? It struck me that there was considerable confusion in all this and that therefore the Government can consider the clarity of Amendments 135B and 135C as helping them to deliver what they want. As the noble Lord, Lord Hunt, said, we all want improvement as quickly as possible, and I think that the profession does as well. We appear to be in the mire of confused thinking, which could be avoided by withdrawing from it.

[Baroness Walmsley]

My Lords, I hope that the Minister sees Amendments 135B and 135C as a helpful attempt to get over problems with the way that the Bill is currently worded. There are two clear issues: one is the muddling together of regulation and improvement and the other is independence.

The Minister made a very decent argument for a new regulator focused solely on social work. Many social workers agree with that. Indeed, that is exactly what Amendment 135B would do, but it would not muddle it with improvement and, of course, the regulator would be independent. I was a little confused by some of the things that the Minister said about independence in the debate on the previous group. He talked about moving the whole thing closer to government but he also talked about operational independence. Those sound like two conflicting things to me. Given that the HCPC is both financially and operationally independent, what it is about the way it has operated its independence that make the Government think that the new body should not be independent?

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[Lord Hunt of Kings Heath]

My Lords, noble Lords will be reassured to hear that I do not intend to speak to every clause; I just want to raise points on three of them.

The first concerns Clause 22 and the question of fees, and I do not want to repeat what has been said. Obviously, setting up a separate regulator will be more expensive than regulation continuing under the HCPC. I think that the implication of what the noble Lord, Lord Nash, said was that it will be done without increasing fees for social workers. However, is there not a general rule in government about regulators having to be self-financing? We have dealt with various orders on increased fees in relation to health regulators because of the requirement on those regulatory bodies to break even, so is the Minister right in saying that fees will not have to increase? There may be some legislative provision to cover this. Is there not a requirement that a regulator can start with a subsidy from a central government department but, in the end, it has to consume its own smoke? I suspect that the noble Lord will not be able to respond immediately but, on Report, we would like a much more explicit statement about what will happen to fees in the future.

My second point relates to a question about offences raised by the Constitution Committee in relation to Clause 34. The committee says:

“The Clauses to which the offences will relate—Clauses 22 and 23—contain little detail on the face of the Bill but will themselves need to be defined and implemented by regulations … From a constitutional point of view, the creation of criminal offences, whether or not punishable by imprisonment, should be subject to proper and full parliamentary scrutiny. The House may wish carefully to consider how it can appropriately scrutinise the creation of criminal offences which are not only themselves undefined but which will relate to other legislative provisions that are also still to be delineated”.

I can imagine that if this Bill ever got to the attention of our legal experts in the House, they would express very great concern about the use of what are basically Henry VIII powers to create new offences. I do not think that it is good enough for this change to be brought about just through regulations.

Thirdly, I want to refer to the Delegated Powers and Regulatory Reform Committee, which says:

“Clause 35(3) allows social worker regulations to include provisions which themselves would confer a further power to make, confirm or approve subordinate legislation. It says nothing explicitly about the person or persons on whom subordinate legislation making powers may be conferred, or about the matters to which the subordinate legislation might relate. We assume the intention is that the subordinate legislation making powers may be conferred on the regulator or a Minister of the Crown, and that they can relate to any matter dealt with in Chapter 1 of Part 2”.

It goes on to say:

“We were disappointed”—

House of Lords committees express angst by expressing disappointment—

“that the Department failed to provide any explanation for including the subordinate legislation making power in clause 35(3), particularly given its breadth, the lack of any explicit constraints on how it might be used and the absence of any requirement for Parliamentary scrutiny”.

I know that the Government have now responded to the Delegated Powers Select Committee but can the noble Lord place on the record their response to this? Obviously, it raises a question about whether this is an appropriate use of secondary legislation.

[Baroness Walmsley]

I share the concerns of the noble Lord, Lord Hunt, particularly his first point about the fees from social workers. Those of us who speak to the health portfolio will know well that we have had concerns expressed to us, particularly by people who run small care homes, about the CQC fees being increased very considerably recently. The reason for that is the Government’s policy that regulators should be self-funding, which is an example of exactly the policy that the noble Lord has just queried. The question that he asked is: does this apply to the new regulator proposed by the Government for social work? If it does, then reassurances that fees will not rise are perhaps a little disingenuous.

[Lord Nash]

My Lords, perhaps I can respond first to the point made by the noble Lord, Lord Hunt, and the noble Baroness, Lady Walmsley, about fees and self-financing. I will look at that and respond in due course. Secondly, the noble Lord, Lord Hunt, raised a point about offences, while his third point was about Clause 35 and what it is proposed to cover.

So far as offences are concerned, Clause 34 contains a power to create offences covering a number of specified areas. I have been clear throughout the passage of the Bill that any system of regulating professionals must focus on public protection. In order for this to be effective it is essential that the register is accurate, that it is based on current information and that people co-operate with regulatory processes. This clause contains powers to create offences that directly address these issues.

The indicative regulations make provision for three categories of offences that are, of course, subject to consultation. They include offences that relate to: registration and restrictions on practice and protected titles; the provision of evidence; and in connection with providing false or misleading information. These are all important safeguards for public safety that will benefit individuals, employers and the profession as a whole. The indicative regulations provide for offences in relation to matters including: using the title of social worker with intent to deceive when a person is not registered; falsely claiming to be registered with intent to deceive; making a false representation as to qualifications, education or training or anything included or not included in their entry in the register, with intent to deceive; failing to comply with requirements to provide documents or other information to the regulator, or to attend to give evidence when required to do so; or fraudulently procuring or attempting to fraudulently procure the making, amendment, removal or restoration of an entry in the register by providing information or failing to provide information in breach of requirements under the regulations.

The purpose of creating offences under these powers is not to prosecute large numbers of people. I think that is clear from the offences, which set a fairly high bar. Rather, it is to provide for an effective deterrent that helps ensure people co-operate with the regulator and with the processes of regulation.

The noble Lord, Lord Hunt, referred to Clause 35, which provides that the regulations may be used to confer functions on either the regulator or a Minister of the Crown. They could also provide for those responsible to delegate the exercise of functions and decision-making to others, where this is appropriate. The regulations may be used to confer powers to make, confirm or approve subordinate legislation. The intention is that rules will provide for the detail about how the regulator will discharge relevant functions. The indicative regulations provide an illustration of this approach by setting out, for example, that rules will be made regarding the procedural and administrative arrangements for registration and for the operation of the accreditation scheme. I remind the Committee that there are similar powers under the current regime. That is all I propose to say at this stage and I therefore move that these clauses stand part of the Bill.