Children and Social Work Bill [HL]

Baroness Wheeler Excerpts

Report: 2nd sitting (Hansard): House of Lords
Tuesday 8th November 2016 Lords Chamber

Moved by

[Baroness Wheeler]

52: After Clause 28, insert the following new Clause—
“Whistleblowing arrangement in relation to looked after children and children at risk
The Secretary of State shall issue a code of practice on whistleblowing arrangements which can be taken into account by courts and tribunals when the issue of whistleblowing arises in public bodies providing social services and children’s services, and local authorities, in relation to looked after children and children at risk.”

[Baroness Wheeler (Lab)]

My Lords, I will speak also to the rest of the amendments in this group on behalf of my noble friend Lord Wills, who is unfortunately unwell and not able to be here.

These amendments all aim to increase the protection for whistleblowers. These issues were discussed extensively at both Second Reading and in Committee, so I hope that we will not need to rehearse the arguments again today at length. On my noble friend’s behalf I thank the Minister and his ministerial colleague in the House of Commons, Margot James MP, and their officials for the way in which they have engaged with the issues. They devoted a great deal of time and attention to the dialogue with my noble friend, and he has underlined that they have been fair and open-minded throughout. As a result, he commented that this has been a model of how public policy should be developed in legislation and that it does the Government credit.

The importance of whistleblowing in exposing malpractice and wrongdoing and improving the delivery of public services is widely accepted. Whistleblowers have some protections but they need more. These amendments seek to provide extra protection for those working in organisations covered by the Bill.

Amendments 52 and 72 require the Secretary of State to issue in relation to the organisations covered by the Bill a code of practice on whistleblowing arrangements which can be taken into account by courts and tribunals when the issue of whistleblowing arises. Such a statutory code of conduct sends out to all organisations a powerful signal about the importance that Parliament attaches to providing adequate protection for whistleblowers to help drive necessary cultural change within organisations to encourage whistleblowing. As such, it is a more powerful protection for whistleblowers and acts more effectively in promoting a culture of transparency than the voluntary code of conduct promoted by the Government.

Amendments 53 and 73 provide improved protections for whistleblowers who are job applicants in the organisations covered by the Bill. As we discussed in Committee, this is a critical gap in protections for whistleblowers as job applicants are not considered workers and so do not receive the protections afforded under the Public Interest Disclosure Act. If an individual is labelled a whistleblower, it can be difficult for them to get work because they can find themselves blacklisted— not through a formal, centralised database but informally. The excellent Public Concern at Work campaign has cited a number of such cases where an informal and insidious blacklisting of former whistleblowers has taken place in the recruitment and selection process.

The Government have recognised this anomaly and, following the Francis report into the Mid Staffordshire NHS trust, introduced new protections for whistleblowing job applicants, but only for those working in the NHS. There is no logical reason why such protections should be so restricted, and Amendment 53 addresses this anomaly for those working in organisations covered by the Bill.

As noble Lords will know, my noble friend Lord Wills has moved a similar amendment on several occasions in the past and it has been resisted by Ministers on the grounds that they require more evidence that it is needed—so this time, the amendment recognises those concerns by seeking to give the Secretary of State a power to introduce such protections. This is on the assumption that, if and when such evidence is produced, the Secretary of State will issue the appropriate regulations. There is no provision for what sort of evidence will be required to persuade the Secretary of State to act in this way, but all recent experience in the organisations covered by the Bill suggests that it will be forthcoming.

The amendment seeks to take advantage of a relatively rare legislative opportunity to ensure that, as soon as it becomes even clearer that these protections are needed, the Government can act rapidly to implement them. Amendment 53B seeks to achieve the same effect as Amendment 53, but restricts its scope to children’s social care in an effort to meet any concerns about the scope of the Bill. I beg to move.

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I therefore hope the noble Baroness has been reassured by our engagement on this important matter and the action we are prepared to take, and will be happy not to press the amendments in this group.

[Baroness Wheeler]

My Lords, on behalf of my noble friend—and on my behalf—I am very grateful for the support we have received on all sides of the House from your Lordships on this issue and for the Minister’s response. Obviously, we are disappointed that he did not feel able to accept Amendments 52, 53, 72 and 73. On the issue of the need for a statutory code of practice, my noble friend made a strong case for this; indeed, the Public Concern at Work commission underlined that the code should be “rooted in statute”, thereby underlining that protection for whistleblowers is a statutory requirement with parliamentary enforcement. We agree with that. However, we welcome the Government’s commitment for a review of the working of the current non-statutory guidance next year and I hope the Minister will be able to provide the House with more information on this in due course, including reassurance that any review will be independent and will fully utilise the expertise available from leading organisations in this field.

However, I am delighted that the Minister has felt able to accept Amendment 53B. It is a real step forward —perhaps not as far as we would have wished, but it is progress nevertheless. Again, I thank the Minister and his colleagues in the other place on my noble friend’s behalf. There is still much more work to be done and there is a need for a continuing dialogue about when this power will now be added to the Bill and when it will be exercised. The Minister will be in no doubt that my noble friend means business in pursuing this important issue. I beg leave to withdraw the amendment.

Amendment 52 withdrawn.

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Moved by

[Baroness Wheeler]

53B: After Clause 28, insert the following new Clause—
“Children’s social care: pre-employment protection of whistle-blowers
(1) Part 5A of the Employment Rights Act 1996 is amended as follows.(2) In the Part heading omit “in the Health Service”.(3) In section 49B, in the heading, at the beginning insert “The health service:”.(4) After section 49B insert—“49C Children’s social care: regulations prohibiting discrimination because of protected disclosure(1) The Secretary of State may make regulations prohibiting a relevant employer from discriminating against a person who applies for a children’s social care position (an “applicant”) because it appears to the employer that the applicant has made a protected disclosure.(2) A “position” means a position in which a person works under—(a) a contract of employment, (b) a contract to do work personally, or(c) the terms of an appointment to an office or post.(3) A position is a “children’s social care position” if the work done in it relates to the children’s social care functions of a relevant employer.(4) For the purposes of subsection (1), a relevant employer discriminates against an applicant if the employer refuses the applicant’s application or in some other way treats the applicant less favourably than it treats or would treat other applicants for the same position.(5) Regulations under this section may, in particular—(a) make provision as to circumstances in which discrimination by a worker or agent of a relevant employer is to be treated, for the purposes of the regulations, as discrimination by the employer;(b) confer jurisdiction (including exclusive jurisdiction) on employment tribunals or the Employment Appeal Tribunal;(c) make provision for or about the grant or enforcement of specified remedies by a court or tribunal;(d) make provision for the making of awards of compensation calculated in accordance with the regulations;(e) make different provision for different cases or circumstances;(f) make incidental or consequential provision, including incidental or consequential provision amending—(i) an Act of Parliament (including this Act),(ii) an Act of the Scottish Parliament,(iii) a Measure or Act of the National Assembly for Wales, or(iv) an instrument made under an Act or Measure within any of sub-paragraphs (i) to (iii).(6) Subsection (5)(f) does not affect the application of section 236(5) to the power conferred by this section.(7) “Relevant employer” means any of the following that are prescribed by regulations under this section—(a) a local authority in England;(b) a body corporate that, under arrangements made by a local authority in England under section 1 of the Children and Young Persons Act 2008, exercises children’s social care functions;(c) a person who, as a result of a direction under section 497A(4) or (4A) of the Education Act 1996 as applied by section 50 of the Children Act 2004 (local authorities in England: intervention by Secretary of State) exercises children’s social care functions;(d) the council of a county or county borough in Wales;(e) a person who, as a result of a direction under any of sections 153 to 157 of the Social Services and Well-being (Wales) Act 2014, exercises children’s social care functions;(f) a council constituted under section 2 of the Local Government etc (Scotland) Act 1994.(8) A “local authority in England” means—(a) a county council in England;(b) a district council;(c) a London borough council;(d) the Common Council of the City of London (in their capacity as a local authority);(e) the Council of the Isles of Scilly;(f) a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009.(9) “Children’s social care functions”— (a) in relation to a relevant employer referred to in subsection (7)(a) to (c), means functions of a local authority in England under—(i) any legislation specified in Schedule 1 to the Local Authority Social Services Act 1970 so far as relating to those under the age of 18;(ii) sections 23C to 24D of the Children Act 1989, so far as not within sub-paragraph (i);(iii) the Children Act 2004;(iv) any subordinate legislation (within the meaning given by section 21(1) of the Interpretation Act 1978) under the legislation mentioned in sub-paragraphs (i) to (iii);(b) in relation to a relevant employer referred to in subsection (7)(d) or (e), means any functions relating to the social care of children in Wales that are prescribed by regulations under this section;(c) in relation to a relevant employer referred to in subsection (7)(f), means any functions relating to the social care of children in Scotland that are prescribed by regulations under this section.(10) The Secretary of State must consult the Welsh Ministers before making regulations under this section in reliance on subsection (7)(d) or (e) or (9)(b).(11) The Secretary of State must consult the Scottish Ministers before making regulations under this section in reliance on subsection (7)(f) or (9)(c).(12) For the purposes of subsection (5)(a)—(a) “worker” has the extended meaning given by section 43K, and(b) a person is a worker of a relevant employer if the relevant employer is an employer in relation to the person within the extended meaning given by that section.”(5) In section 230(6) (interpretation of references to employees, workers etc) for “and 49B(10)” substitute “, 49B(10) and 49C(12)”.(6) In section 236(3) (orders and regulations subject to affirmative procedure) after “49B,” insert “49C,”.”

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[Baroness Wheeler]

My Lords, I again offer the support of these Benches for Amendments 69 and 71, the case for which has been comprehensively set out and argued today by the noble Baroness, Lady Walmsley, and other noble Lords, and in the debate in Committee. Like other noble Lords, I am grateful for the excellent briefings and guidance from the Children’s Rights Alliance for England, the Equality and Human Rights Commission and the Joint Committee on Human Rights. All three bodies underlined the key opportunity presented by the Bill to promote the rights and well-being of children in care and care leavers by placing a statutory duty on public authorities to have due regard to the UN convention.

Like other noble Lords, I hope that the Minister has reflected on his assertion in Committee that a statutory UNCRC duty would not have any real impact on children’s lives. He knows that the 2010 ministerial commitment to give due consideration to the CRC in all new legislation and policy has not led to the widespread change in mindset and culture across government departments that he acknowledges is vitally needed. Implementation of the Written Ministerial Statement has been both piecemeal and ad hoc, as we have heard.

The CRAE freedom of information discovery, and the single Department for Education example across government of any detailed analysis of the CRC and children’s rights being undertaken—and then only on one Bill—show just how far away we are from children’s rights routinely informing the development of law, policy and everyday practice nationally and locally. Indeed, the EHRC has pointed out that the DfE did not go into the level of detail that would have been expected had the statutory obligation been in force. For example, it did not look at the numbers of children affected or of those disproportionately affected, or provide a sufficient level of evidence to explain how conclusions on projected impacts had been reached. I look forward to hearing the Minister’s view of the experience of embedding children’s rights in law in Scotland and Wales, because there is strong evidence, as noble Lords have underlined, that the measures taken in both countries are starting to have the meaningful and practical effect he seeks.

Under Amendment 71, a children’s rights framework would embed the CRC within children’s services and public authorities working with children and families in England. Although many local authorities make reference to the CRC, few have an explicit child rights plan or strategy in place, and there is limited knowledge and understanding of the value of the child rights impact assessment as a key tool. A consistent approach to policy and practice is needed, using the CRC as a framework with nationally available guidance and support.

In a period of unprecedented cuts to public and local authority services, using the CRC to help safeguard children’s rights and ensure a rights-based approach to services is more important than ever. The CRAE has emphasised that too many children continue to experience daily systematic violations of their rights. Just last week we saw Shelter’s shocking report estimating that at least 121,000 homeless children in England, Scotland and Wales face Christmas in stopgap lodgings—the highest figure since 2007.

As the noble Lord, Lord Ramsbotham, underlined, this year’s report from the UN Committee on the Rights of the Child expressed serious concern at the impact of the Government’s recent fiscal policies and allocation of resources, and the disproportionate effect on disadvantaged children. I hope the Government will seize the opportunity presented by these amendments to address these very worrying concerns.

[Lord Nash]

My Lords, I am grateful to noble Lords for their amendments and for raising the important matter of the United Nations Convention on the Rights of the Child. This Government recognise the importance of the UNCRC and are fully committed to giving due consideration to the articles when making new policies and legislation. I also reassure noble Lords that one of the top priorities for this Government is the safety and well-being of children. In July, the Department for Education set out its vision of how reform of the children’s social care system will bring about improved outcomes for all children, particularly the most vulnerable.

At a local and national level, listening to the voices of children when determining what policies to develop, how those polices should be implemented and what services should be developed, should be second nature to us. Indeed, the Children Act 1989 requires that the local authority shall give due consideration to the child or young person’s wishes and feelings, having regard to their age and understanding, when taking decisions about them. We believe that the way to promote children’s rights is for strong practitioners locally to listen to children and to act in ways which best meet their needs. A duty alone will not do that, and risks practitioners focusing on the wording of the legislation rather than on practice. The Government will consider how best to strengthen compliance with the convention in a way which promotes better practice and a culture of focusing on children’s rights. In doing so, we will pay close attention to what is happening in Scotland and Wales.

Noble Lords will know that earlier this year in Geneva, the UK was commended for great strides made in legislation and in guidance to ensure that all children are protected from harm. Since the summer, the Government have reaffirmed their commitment to the UNCRC through a Written Ministerial Statement from the Minister for Vulnerable Children and Families. This reinforced our view that to achieve implementation of the UNCRC, every department across Westminster must be proactive in considering children’s rights in policy-making. This was followed up with a letter from the DfE Permanent Secretary, Jonathan Slater, to his counterparts across government, challenging them and all their officials to keep the principles and conventions of the UNCRC at the centre of their policy-making and implementation, and to engage children and young people in the process. We are talking to the Children’s Commissioner about how she might hold the Government to account in this respect. It is important that officials are equipped with the right knowledge and skills to make sure they can reflect children’s rights within a policy framework, and we are looking at how to introduce a cross-Whitehall learning and development programme to help officials develop the best policies that take account of children’s rights and work effectively for children.

Noble Lords who have tabled these amendments clearly have considerable expertise and experience in this area, and they raise a very important point about whether more can be done in England to ensure that children’s rights are reflected adequately in our policy-making and implementation. I am grateful to noble Lords for tabling these amendments. I emphasise, however, that introducing new duties is not a step to be taken lightly. There are a number of additional steps we could consider, and we are keen to explore the benefits of the different potential approaches before deciding what further action might be taken. We therefore intend to revisit the significant action already taken to embed the UNCRC across Whitehall and beyond, and consider where there are opportunities to go further to better achieve the outcome we all want: for the rights of children to inform our policy thinking and service delivery.

Children and Social Work Bill [HL]

Baroness Wheeler Excerpts

3rd reading (Hansard): House of Lords
Wednesday 23rd November 2016 Lords Chamber

[The Earl of Listowel]

My Lords, the noble Baroness cited articles from the United Nations Convention on the Rights of the Child. One article which is very important to me is Article 39, which sets out the right for children who have suffered trauma, whether through war or through family abuse, to receive therapy and all the support needed to recover from such trauma. That article speaks directly to the amendment tabled earlier by the noble Baroness, Lady Tyler. If this amendment had been incorporated into legislation 10 years ago, perhaps we would not now be discussing how we have ignored the mental health of looked-after children during the past 10 years. We would have respected the UNCRC and already delivered the services. I am grateful for the sympathetic message that the Minister of State for Children, Edward Timpson, has given the noble Baroness, Lady Walmsley.

[Baroness Wheeler (Lab)]

My Lords, as the House will know, we on these Benches have given our support on this important issue both in Committee and on Report. We strongly agree with the principle that the UN Convention on the Rights of the Child should be incorporated into statute. We support the call for this from the Joint Committee on Human Rights, the Equality and Human Rights Commission and the Children’s Rights Alliance for England, and agree with the strong case put forward by the noble and learned Lord, Lord Woolf, and other noble Lords today and at previous stages. We fully understand why the amendment has been put forward today.

However, we do not support the case for incorporating the amendment at this late stage in the Bill. Instead, we would prefer discussions and work to continue through to the Commons stages. Noble Lords have heard from Ministers during debate on the Bill that the Government are committed to the UNCRC and are working on their response to last year’s UN committee report on the rights of the child and on addressing the serious concerns raised by it.

We understand that they have also said that they are “sympathetic” to the Scottish model of legislation, placing a duty on Ministers to report on impact and improvements to children’s rights, and have begun discussions with both the Scottish and Wales devolved Governments on their experience of how the different models of legislation recently adopted in their respective countries are operating. They are also having discussions with the Children’s Commissioner and have underlined to government departments across Whitehall and to local authorities and other public bodies that consideration of children’s rights should be at the centre of policy-making and implementation.

However, we do not have from the Government a comprehensive and clear plan and programme of how this work is being brought together into a coherent, proactive strategy for addressing the UN committee report’s concerns and for taking this work forward. The Government urgently need to commit to this, with clear proposals and timescales, particularly for evaluating how the Scottish and Wales models are working and for full consultation with local authorities and other public bodies on how they might implement the “have regard” or the “reporting” duties. Obviously, ongoing dialogue with UNICEF and CRAE is vital, as is discussion on the legal issues and implications underlined by the noble and learned Lord, Lord Woolf.

The Government cannot just keep referring to the need to avoid bureaucracy and tick-box assessments—we all want to do that, and we do want that sort of approach from the Government in how they respond to the UN committee. What we need instead is a strategy that will achieve consistency and action across government and local authorities and address the huge variation across the country in how outcomes and impact on children’s rights are currently assessed.

There is already strong evidence that the measures taken in both Scotland and Wales are having a meaningful and practical effect on children’s lives. We know that this is how the change in mindsets and culture that we all want can be brought about. I look forward to hearing from the Minister how the Government plan to take this work forward in the light of today’s discussion on the amendment so that progress can be made before the Bill commences its Commons stages.