Education and Adoption Bill (Third sitting)

Kevin Brennan Excerpts

Thursday 2nd July 2015 Public Bill Committees

[Steve McCabe]

Yes, the Minister certainly has foiled them again—that is good. I wish him well and hope that he will continue in his post for quite some time. As we all know, reshuffles are fickle affairs, a bit like a Boris bus—one can never be too sure when the next one will turn up.

I tabled the amendment for two reasons. First, it provides me with the opportunity to query whether it is right that the Minister should have such unconstrained power as back-up, after setting out to convince us that it is not necessary and that he hopes never to use it. Mr Chope, in another parliamentary guise you are only too aware of the dangers of too much unnecessary legislation. Many is the Friday I have listened to you wax lyrical on such dangers, warning us that we have far too much legislation and should only legislate when it is absolutely necessary. That is the situation today with clause 13 and the power that would be afforded to the Minister to give directions under proposed new section 3ZA(1).

If the situation changed and if the Minister’s optimism and persuasive charm relating to achieving consensus evaporated, and he or a successor found himself or herself driven to use coercive powers to make changes in our adoption system, those powers should have been acquired by parliamentary order, subject to parliamentary scrutiny.

[Kevin Brennan (Cardiff West) (Lab)]

My hon. Friend is reaching the nub of the argument and the essence of the amendment. Unless the amendment is agreed to, we will be legislating and putting this measure into the Bill—not writing an instruction for the Minister for his term of office—where it will remain unaltered unless altered by further legislation. Should not we always bear in mind at all times that it is not a matter of good will towards a particular Minister, but about legislation that will sit there unaltered unless we amend it?

[Steve McCabe]

My hon. Friend is right. This is a decision for the foreseeable future and once put in place it will not be subject to parliamentary scrutiny, which is the whole purpose of our being here today. Since the Minister and his officials and advisers believe that such an order, or powers of direction, would be used very sparingly indeed, altering it would hardly be likely to take up a great deal of parliamentary time. We have to assume, judging by the Minister’s reasoning, that any orders to be decided on in the House would be remarkably sparse. In fact, it is fair to say that it would be merely a guarantee or a backstop for Parliament, and a chance for Parliament, rather than a Minister or his officials, to have the final say on changes that were about to be imposed. Such changes could not possibly be consensual: indeed, they would be controversial and objected to in some quarters; otherwise, the Minister clearly would not have resorted to parliamentary powers to impose them. Is not that, as my hon. Friend the Member for Cardiff West says, the very reason we are here? We are here to scrutinise legislation, safeguard against excesses on the part of the Executive and ensure that Parliament, not Ministers, provides the checks and balances on excessive use of power.

Secondly, discussing the amendment provides the Minister with the opportunity to explain the manner and circumstances in which he might the use the powers he is seeking. During the witness session, I drew his attention to a remarkably similar situation in the other place during discussion of clause 3 of the Children and Families Act 2014. On that occasion, his noble Friend Lord Nash accepted that a power to require all local authorities to undertake joint arrangements would need to be subject to “full and rigorous scrutiny” by Parliament.

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When I raised that with the Minister during the evidence session, he was unable to indicate whether he intended to follow the same procedure, should Parliament grant him those powers of direction.

[Kevin Brennan]

Is not the point that—[Interruption.] I am sorry, I cannot take an intervention from the Minister for Schools during an intervention. Is not the point that the Minister using the orders in this way might be subject to judicial review, which would delay matters even further, at great expense and time? If there were a parliamentary process by which such rare decisions could be scrutinised, it would be much more efficient.

[Steve McCabe]

I cannot believe that any of us would want unreasonable delay or the incurring of unreasonable expense. We want to be sure that the powers secured by the Minister are fair, reasonable and adequate for the required purpose, but also subject to sufficient scrutiny, so that they are not open to misuse or abuse.

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[Kevin Brennan]

I hope that the Minister will accept the amendment, because it is sensible, but if he does not, should he not at the very least be prepared to replicate in his response Lord Nash’s remarks in the other place, which my hon. Friend the Member for Birmingham, Selly Oak quoted? Should he ensure that there has been proper information, consultation and so on before he issues such draconian orders?

[Bill Esterson]

My hon. Friend is right. Every effort should be made to ensure that existing good arrangements are kept in place and are not disturbed, that any changes are an improvement on existing arrangements and in particular that good practice—there is much good practice around the country and internationally—is shared so far as is possible. Through that, we can keep in mind what I am sure everyone on the Committee and in the sector is committed to: doing the right thing for the children who come into the care system, whether that is adoption or other forms of permanence.

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[Edward Timpson]

This is not the forum for naming individual local authorities that wish to co-operate or otherwise. To do so would damage the negotiations that are taking place. It is clear that where arrangements have been made to bring together local authorities’ adoption services and voluntary adoption agencies, there have been different levels of interest, intent and commitment. That is why we cannot be totally sure, despite the strong, positive signals from the sector and the work of the Adoption Leadership Board, that every one of the 152 local authorities will be involved in some way, shape or form within our timeframe for regional adoption agencies to be up and running across the country.

I can see what Opposition Members are driving at with their amendments, and I sympathise with their desire to ensure that decisions, particularly ones of this importance, are transparent and scrutinised properly. However, I am concerned about the suggestion that all proposals for joint arrangements should be approved by both Houses of Parliament. Before I explain why, I assure hon. Members that our decision making on this matter will be open, the process will be fair and we will involve all interested parties in the right way. The hon. Members for Birmingham, Selly Oak and for Cardiff West both made a challenge about transparency and scrutiny.

The Secretary of State’s decision to use the power will be made following extensive discussions with all the agencies involved, and it will be proportionate and reasonable. Agencies will have ample opportunity to design their own arrangements before any directions are considered. That is one of the reasons why we made it clear in the clause that local authorities could, through a direction, determine the shape of their regional adoption agency.

The Secretary of State does not need the permission of Parliament when she exercises her powers of intervention in respect of failure in local authorities’ children’s social care services. When the Doncaster trust and the Slough trust were created recently, the whole of those authorities’ children’s services were moved to a trust model without the permission of Parliament being sought in the way that the amendments set out. Those powers would sit legally uncomfortably with the group of amendments, should they be accepted.

A more appropriate and proportionate approach than returning to Parliament is to work closely with all those involved—the individual local authority and voluntary agencies, the Adoption Leadership Board and the regional adoption boards. This collaborative way of doing things is crucial, and it is a core tenet of our approach. The sector has the expertise and the local knowledge required to inform the decision.

I will reflect on the suggestion made by the hon. Member for Birmingham, Selly Oak that we should be required to send a letter to any local authorities we are minded to direct with an invitation to respond. I will come back to him on Report with my decision.

[Kevin Brennan]

I am grateful for the Minister’s remarks, and I am sure that my hon. Friend the Member for Birmingham, Selly Oak is, too. A letter would be a useful addition to what is on offer. The Minister said that our proposal would sit legally uncomfortably, but is it not different to the Secretary of State’s other powers, to which the Minister referred? Those powers are used where children are genuinely at risk. Does he envisage that he will introduce such arrangements because children are at risk, and therefore, in an emergency situation, or because it would be a better administrative arrangement? That would make a difference to the way in which the power could be exercised by the Secretary of State.

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[Kevin Brennan]

On a point of order, Mr Chope, it is quite hard to follow proceedings when the Minister for Schools and the Whip are having a private conversation. If it is necessary, could they do it outside the Committee room?

[The Chair]

That is a good point. Committee proceedings should not be disturbed by people being noisy. We are not prohibiting people from having discussions but I would prefer long discussions to take place outside of the Committee Room.