Children and Families Bill

Lord Nash Excerpts

Monday 18th November 2013 Grand Committee

Moved by

[Lord Nash]

241BA: After Clause 78, insert the following new Clause—
“Disqualification from carrying on, or being employed in, a children’s home
(1) Section 65 of the Children Act 1989 (person disqualified from fostering a child privately to be disqualified from carrying on etc children’s home) is amended as follows.
(2) Before subsection (1) insert—
“(A1) A person (“P”) who is disqualified (under section 68) from fostering a child privately must not carry on, or be otherwise concerned in the management of, or have any financial interest in, a children’s home in England unless—
(a) P has, within the period of 28 days beginning with the day on which P became aware of P’s disqualification, disclosed to the appropriate authority the fact that P is so disqualified, and(b) P has obtained the appropriate authority’s written consent.(A2) A person (“E”) must not employ a person (“P”) who is so disqualified in a children’s home in England unless—
(a) E has, within the period of 28 days beginning with the day on which E became aware of P’s disqualification, disclosed to the appropriate authority the fact that P is so disqualified, and(b) E has obtained the appropriate authority’s written consent.”(3) In subsection (1), after “children’s home” insert “in Wales”.
(4) In subsection (2), after “children’s home” insert “in Wales”.
(5) In subsection (4), after “subsection” insert “(A1), (A2),”.
(6) In subsection (5) after “subsection” insert “(A2) or”.”

[Lord Nash (Con)]

My Lords, I will speak to all the amendments in this group: Amendments 241BA, 241C, 241D, 273B and 273C.

Four of these amendments will make small changes to the Care Standards Act 2000. My intention in proposing the amendments is to pave the way for the introduction of a reformed framework for regulating and inspecting children’s homes. Amendment 241BA amends Section 65 of the Children Act 1989, which concerns the disqualification of persons from carrying on working, or being employed in, a children’s home.

In March 2013 there were 4,930 children living in children’s homes, representing just over 7% of all looked-after children. The majority of children living in homes will have been placed there by local authorities because they cannot be cared for in a family setting. They will usually be older; children in homes have an average age of over 14. A recent research study found that 62% of children in children’s homes had clinically significant mental health difficulties, and 74% were reported to have been violent or aggressive in the preceding six months. Few children stay in one children’s home for more than a year; 30% live outside the local authority responsible for their care, often at some considerable distance.

Given these children’s vulnerability, it is particularly worrying that there are significant concerns about the quality of care in some homes. While by 31 March 2013 the majority of homes were judged by Ofsted to be good or outstanding, a significant minority, 28%, were judged only adequate or poor against current minimum standards.

My department has been pushing forward for some time with a programme for reforming the pattern of care in children’s homes. We have recently consulted on some immediate changes to regulations designed to more effectively safeguard children living in children’s homes, especially those in distant, or out-of-authority, places. We have also published a comprehensive data pack, with details of children’s homes’ locations, quality and costs, and of the needs of the children in their care. We are considering ways to enhance the training and skills of the children’s homes workforce, and how to support improved commissioning of homes by local authorities.

As my department worked with Ofsted and others on plans for improving care in children’s homes, we reached a view that the current regulatory framework, established by the Care Standards Act 2000, is having a limiting effect on our ambitions to drive improvements in the quality of care provided by homes. In our view, it should only be acceptable for any children’s home to offer care that is “good”, with all homes having a clear remit to strive for excellence in respect of the children they care for. These amendments put beyond doubt the fact that the Secretary of State can make regulations that are able to define high standards for all children’s homes. Every home must have the capacity to enable all the children it cares for to achieve their full potential. These amendments pave the way for my right honourable friend the Secretary of State for Education to develop new, more stretching, quality objectives and standards for children’s homes.

We intend to support innovation by creating regulations which specify high objectives and standards. Homes should be free to decide how they achieve these standards. We intend to set high standards for homes in a number of areas, such as requirements for effective leadership and management; for the provision of excellent education; and for access to healthcare that meets recognised clinical standards. We will, of course, have to be confident that homes respond effectively to the risks and vulnerabilities faced by the children they care for. We have worked very closely with Ofsted to develop the proposal that I am outlining. As the inspectorate for children’s homes, Ofsted welcomes our aim of taking a decisive step away from a regulatory system based on minimum standards.

Our work with Ofsted also identified a small but potentially significant problem with the process involved when Ofsted has reason to consider whether a person should be disqualified from carrying on working, or being employed, in a children’s home. This power is set out in Section 65 of the Children Act 1989. I am tabling a small amendment to this section to improve the practical workability of this process. The amendment introduces a time limit of 28 days for a person to inform Ofsted that he or she has become disqualified, perhaps as a result of a past offence, in order to seek Ofsted’s consent to be involved in a children’s home. Without this explicit waiver from Ofsted, the person would be committing an offence.

Officials from my department have had the opportunity to share our thinking on all these amendments with representatives of local authorities, of children’s homes providers and of the voluntary sector campaigning for children. These services are united in their broad support for the direction of travel I am signalling today, which marks a decisive step in driving forward our ambitions for reforming the children’s homes sector. We are determined to improve the quality of all children’s homes, so that the only acceptable standard for children’s homes is good care, with all homes having a clear remit to strive for excellence. I hope I have explained the important objectives that these amendments will enable us to achieve, and that noble Lords will support them.

[The Earl of Listowel (CB)]

Perhaps the best way I can thank the Minister is by speaking as briefly as possible. Having worked in residential settings with young people and spent a week in a children’s home, and having been deeply concerned about the quality of the experience for children in children’s homes since I first entered this House, my perception is that the Government have taken a very careful and thoughtful approach to meeting the needs of these very needy young people—albeit that they are few in number. In the past two years or so we have realised that a number of young girls have been sexually exploited, often in children’s homes.

The Government have responded admirably to this challenge. Tim Loughton MP, the former Children’s Minister, has children’s homes in his Hove constituency, so he is aware of the problem. He addressed it carefully by setting up three working groups to look at the issue, which resulted in regulations being laid. The current Children’s Minister, Edward Timpson MP, has pursued that direction of travel with the attention to detail that is familiar to those who have worked with him. I am deeply grateful for that. The Minister is absolutely correct to emphasise the importance of staff training. It is extremely encouraging that the Government are taking this issue so seriously.

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Moved by

[Lord Nash]

241C: After Clause 78, insert the following new Clause—
“Objectives and standards for establishments and agencies in England
(1) In section 22 of the Care Standards Act 2000 (regulation of establishments and agencies), in subsection (1), for the words from “may in particular” to the end substitute “—
(a) regulations made by the Secretary of State may in particular make any provision such as is mentioned in subsection (1A), (2), (7) or (8), and(b) regulations made by the Welsh Ministers may in particular make any provision such as is mentioned in subsection (2), (7) or (8).”(2) In that section, after subsection (1) insert—
“(1A) Regulations made by the Secretary of State may prescribe objectives and standards which must be met in relation to an establishment or agency for which the CIECSS is the registration authority.””

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[Viscount Eccles (Con)]

My Lords, I will be leading on another group of amendments and will try not to duplicate anything, but it is very urgent that the Government clarify what they believe the position of the Children’s Commissioner to have been and what they believe it is going to be. In principle, nothing is changed by the Bill in front of us—there is an extension of words but nothing is changed. The Children’s Commissioner is a corporation sole, which is quite a strange type of institution and not necessarily much beloved by the Treasury, but there you are, that is what the Children’s Commissioner is. The Children’s Commissioner has, I think, 27 staff and a budget of just over £2 million, or under £2.5 million. The office is one-tenth the size of the Equality and Human Rights Commission, which has just been reduced in size by quite a large amount but remains 10 times the size of the Office of the Children’s Commissioner. That is a nationally accredited human rights institution. There is a question as to whether we want two, which I will raise in more detail in the next group of amendments.

The fact of the matter is that the Children’s Commissioner has been really rather successful. It is a thorn in the flesh, to quote the noble and learned Baroness, Lady Butler-Sloss. It has freewheeled pretty well on a very small platform and produced some very interesting work. It can produce only recommendations: it has no power to make anybody do anything except write back to it under the 2004 Act to tell it, “Thank you for telling us what you told us and this is what we are going to do about it”. It has no executive authority at all. Do the Government intend that it should have any executive authority? I cannot see any in the Bill. It seems to me that some of the comment on what might or might not happen has got rather ahead of the Government’s game, and we are looking for clarity from the Government as to what they intend and what they expect.

The noble Baroness, Lady Lister, raised a very interesting point about raising expectations and then disappointing them. That is one of the reasons why the electorate are being turned off election after election: the Westminster system has a brilliant way of raising expectations and then disappointing them. I hope that this will not be another example, because it is not a good idea that it should be. There are some very serious questions here about resources, about what the role is and about what the Government expect of the Children’s Commissioner. I do not think that we have had answers as yet to those questions. I hope to hear them from my noble friend on the Front Bench.

[Lord Nash]

My Lords, Amendments 245, 255A and 257 through to 262 deal with issues related to the Children’s Commissioner’s independence. The independence of the commissioner is an important point of principle—and it is helpful to have this discussion, so that I may provide noble Lords with some assurances. I am grateful to all noble Lords involved in raising these issues, especially the noble Baroness, Lady Massey, my noble friend Lord Lester and the noble Baroness, Lady Lister, for speaking on his behalf—all of whom I know have long been passionate champions in relation to children’s rights.

John Dunford identified that a “perceived” lack of independence from government had affected the Children’s Commissioner’s credibility and, following his review, he made various recommendations to counter those perceptions. The Government have acted on his recommendations in full. We have removed the provisions that allowed the Secretary of State to direct the commissioner and the requirement for the commissioner to consult the Secretary of State. We are changing the terms of appointment to a single, six-year term, to remove the potential for political influence through the reappointment process. We have also made provision for direct contact between the commissioner and Parliament, including the laying of the annual report directly before Parliament and the ability of the commissioner to raise matters directly with Parliament.

I thank noble Lords who have spoken to Amendment 245 and give assurances that the Bill already provides that the commissioner has complete freedom in deciding his or her activities, timetables and priorities; under the primary function, it is made explicit that the commissioner has a free hand to investigate any matter relating to the rights or interests of children. Having carried out an investigation, the commissioner is free to make any recommendation that he or she deems appropriate.

It is true that as a non-departmental public body, the OCC is subject to some controls in relation to its spending. These controls apply to all NDPBs and are designed to ensure value for money for the taxpayer and to avoid unnecessary public spending at a time when the Government are seeking to reduce the budget deficit. Extremely important though the role of Children’s Commissioner is, I do not think that she should be completely exempt from these controls. However, where the commissioner has sought an exemption or relaxation from these arrangements and has demonstrated that they could compromise his or her independence, those requests have been granted. This arrangement seems to be working well and we see no need to change it.

The Government agree that the Children’s Commissioner should be accountable to Parliament through his or her annual report and are therefore grateful that the Joint Committee on Human Rights has made a commitment to hold an annual evidence session to scrutinise the commissioner’s work. I share the noble Lord’s concerns about overburdening the commissioner with reports to parliamentary committees but it is important for his or her independence that the commissioner is not accountable to the Secretary of State or another Minister. That is why we have welcomed the offer from the JCHR to hold an annual debate. This will be an opportunity for Parliament to ask questions and raise issues with the commissioner and, in turn, the committee will be able to raise matters with all the relevant Secretaries of State.

Amendments 257, 258, 259, 260 and 261 in this group concern the appointment of the commissioner, any dismissal of the commissioner and the involvement of Parliament in these processes. The role of the Children’s Commissioner is an important one and I fully accept that the appointment and dismissal procedures need to be fair and transparent. However, I do not think that it is necessary or appropriate to define the conditions for either process further than is already done in the legislation.

We have provided a note in the other place on how the appointment process is expected to work. That note explains that the appointment of the commissioner would be in accordance with the Office of the Commissioner for Public Appointments’ code of practice. This ensures that candidates are appointed on merit, following a fair and open recruitment process.

The note also clarifies that children will be involved in the recruitment process and that we would expect Parliament, through one of its committees, to have a role in agreeing the job description and carrying out a pre-appointment hearing. However, the OCPA code of practice is clear that the parliamentary committee undertaking the pre-appointment hearing should not have a right of veto on the appointment. To pick up the point made by the noble Baroness, Lady Jones, about the Secretary of State explaining publicly if he disagrees with the Select Committee, I do not think it appropriate for such a public debate to take place about the suitability of candidates.

In addition, I do not consider that legislation is the right place to set out the personal qualities needed for the role. These will be determined by the panel that is established to lead the appointment process, which is chaired by an independent assessor appointed by OCPA, and subject to quality assurance by Parliament. I hope that this provides the necessary assurances.

On dismissal, the existing provisions represent a high threshold. A dismissal could potentially be subject to judicial review and overturned if it was found to have been made inappropriately. The courts provide ample protection against the commissioner being dismissed on arbitrary grounds. I would expect the Secretary of State to want to consult the chair of a relevant parliamentary committee before taking such a drastic action. However, there may well be reasons why such matters would need to be treated in confidence. I hope that noble Lords are reassured that both the appointments and dismissal processes currently in place are fair and transparent without the need for further prescription in legislation.

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[Baroness Lister of Burtersett]

I am sorry to interrupt but perhaps the Minister can say what he considers to be the appropriate time. I suggest that it is before Report.

[Lord Nash]

We will provide an update on Report but the appropriate time is after Royal Assent.

[Baroness Lister of Burtersett]

I am sorry but the point is that the devil is in the detail, as I said, and Report, or possibly Third Reading, would be the last opportunity for parliamentarians to comment in a way that might affect the outcome. After Royal Assent seems rather late.

[Lord Nash]

We will take this away and consider it further. As regards the point made by the noble Baroness, Lady Hughes, on accountability and to whom it should be, our view is that the commissioner should be wholly independent as regards his or her views and priorities from both government and Parliament. However, I accept that Parliament should be able to scrutinise what the commissioner does and have an opportunity to debate issues that he has raised.

I hope that my responses on these important points provide assurances to noble Lords and I urge the noble Baroness to withdraw her amendment.

[Baroness Massey of Darwen]

My Lords, I thank the Minister for that response. This has been an incredibly perceptive debate and noble Lords have provided a lot of expertise. My noble friend Lady Hughes said at the beginning of her speech that it is the right time to review the role of the Office of the Children’s Commissioner. I agree with that. We have experience of two commissioners, both of whom have put the voice of the child at the centre of activity and have done significant work with vulnerable children. The Minister listed some things that the Children’s Commissioner could do. However, as many noble Lords have pointed out, funding is an issue, and we need to look at that again.

Others have mentioned the scope of the commissioner’s remit, accountability, quality assurance and the JCHR. For me two key issues have come out of our discussions today to which I certainly want answers before Report. One is that we absolutely need the framework agreement before we get to Report. In fact, we need it some time in advance of getting to Report; otherwise, how can we debate this seriously? How can we put down sensible amendments if we do not have the detail of that framework agreement? Stemming from that, I need to think about—as I am sure others do—what should go in this legislation; obviously not in too much detail but issues have come up today that certainly need more consideration when we think about what goes in the legislation.

I hope that the issue of the framework agreement will be resolved long before Report. That will influence what we think should go in the legislation. In the mean time, I beg leave to withdraw the amendment.

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[Viscount Eccles]

My Lords, I have a third amendment in this group, to Schedule 6 and on a very different subject. It is proposed that the Children’s Rights Director, who is part of Ofsted, is to be transferred to the Office of the Children’s Commissioner, taking the duties and powers of the office with him. Is that already happening? If it is, will the resources that are transferred balance with the duties and the costs of carrying out those duties in such a way as to make no material difference to the Office of the Children’s Commissioner in respect of resources?

[Lord Nash]

My Lords, I shall speak to Amendments 249A to 256, 266A and 266AZZA.

Amendment 249A was tabled by my noble friend Lord Eccles, who asked how we are strengthening the commissioner’s function. We believe that amending the commissioner’s primary function to one of promoting and protecting children’s rights is, as my noble friend Lady Walmsley and the noble Baroness, Lady Lister, said, an important step forward in establishing the OCC as a credible organisation that meets the key requirements expected of human rights institutions. There is much support for our proposals. For example, in its report following pre-legislative scrutiny, the Joint Committee on Human Rights described the proposed new remit of the commissioner as,

“a significant strengthening of the Commissioner’s mandate, and is an important step in the transformation of the office into a fully fledged human rights institution for children”.

The way in which the primary function is described matters. The lack of a statutory rights-based remit is the main reason why the Children’s Commissioner has, to date, only been accepted as an associate, rather than full, member of the European Network of Commissioners.

I turn now to Amendment 250, which was tabled by my noble friend Lady Walmsley, to whom I pay tribute for her effective and long-standing work on children’s rights. I agree with her that part of the commissioner’s role should be to raise awareness of children’s rights. However, in determining what activities to set out in the Bill, our approach has been to avoid including activities that are already implicit within the commissioner’s primary function, and we believe that raising public awareness of children’s rights is an inherent part of the commissioner’s new primary function of promoting and protecting children’s rights.

The commissioner can intervene in legal cases where he or she has a sufficient interest in the matter before the courts. Indeed, the commissioner has used her current powers to intervene in a number of legal cases in the past. However, the effect of the proposed amendment could be to create an expectation that the commissioner would respond to every request to intervene in legal matters that he or she receives. I do not believe that this would be helpful. In his review, John Dunford gave an example of another commissioner who had instigated legal proceedings to take a particular children’s rights issue to the courts which were unsuccessful and costly. This is not something we would want to encourage.

Turning to Amendment 251, I assure noble Lords that there is nothing in the Bill that prevents the commissioner talking to individual children or using evidence drawn from the cases of individual children to inform the primary function. In fact, it is hard to imagine that the commissioner could investigate a matter strategically without using evidence from individual cases to support his or her findings.

As noble Lords will be aware, where the commissioner makes recommendations under the primary function, he or she can require a written response setting out how those recommendations will be addressed. Amendment 253, tabled by the noble Lord, Lord Touhig, seeks to make similar provision in respect of the separate advice and assistance function. This role is currently provided by the Children’s Rights Director to the children within his remit and is intended to be an informal, light-touch service. It may involve as little as a telephone call to the DCS in a local authority, and the amendment therefore runs the risk of overformalising what is working well as an informal process.

I fully recognise that other groups of children are vulnerable and in need of extra support, including those mentioned in Amendment 256. However, I do not believe that this means that we should include them in the definition set out in Clause 86—the purpose of which is to provide a definition of the children who currently fall within the Children’s Rights Director’s remit—so that other provisions in the Bill can be applied specifically to that group of children. Clause 86 is not an attempt to define vulnerable children for the purposes of the commissioner’s primary function and there is therefore no reason to include other groups of vulnerable children within it, as the Bill makes clear through the provision in Clause 79. When determining how best to discharge the primary function, the commissioner must have particular regard to,

“other groups of children who the Commissioner considers to be at particular risk of having their rights infringed”.

I am grateful to the noble Baroness, Lady Lister, for highlighting in Amendment 252 the importance of the UNCRC to the commissioner’s primary function. Our view is that, in exercising his or her primary function, the commissioner would be expected to take account of all children’s rights that are relevant. This would include the UNCRC and its optional protocols that the UK has ratified, rights set out in other international treaties and rights within domestic law. However, we also recognise that the UNCRC is central to the children’s rights arena and so make an explicit reference to the UNCRC in the Bill. We believe that this represents the best formulation.

Turning to Amendment 252A, it is our clear intention that the commissioner’s work should be informed by the views and interests of children. As well as the overarching requirement to involve children as set out in new Section 2B(1) of the Children Act, the Bill includes requirements on the commissioner to: make children aware of his or her role and how they can contact him or her; consult children on the commissioner’s forward plans, before finalising his or her business plan for the year ahead; and to report on the action he or she has taken to involve children in his or her annual report.

In meeting all these requirements, the commissioner will be required to take particular steps to involve children whom he or she considers have fewer opportunities to make their views known. I am sure that noble Lords will therefore agree that the Bill includes ample provision for children to be involved in the commissioner’s activities and to influence his or her agenda. We agree that this should include a wide range of children’s views but we do not think it is feasible to include a requirement to involve all children, which Amendment 252A seeks to do.

With respect to reporting on the extent to which children enjoy the rights set out in the UNCRC, I note that in response to a recommendation by the Joint Committee on Human Rights, we have made it clear that monitoring implementation of the UNCRC is within the scope of the commissioner’s remit. Amendment 254 goes further than this, however, and creates an expectation that the commissioner would conduct an annual review of UNCRC implementation. This would be a significant undertaking and place a burden on the commissioner’s office that would inevitably divert resources away from other priorities. We have no objection to the commissioner carrying out an annual review but do not think that he or she should be required to do so.

I agree it is important that the Children’s Commissioner should not just consult children but take their views into consideration, but I am not persuaded that Amendment 255 is necessary. The commissioner’s primary function includes promoting awareness of the views and interests of children, and it is difficult to imagine how a commissioner could carry out that function without taking account of those views. Reporting on how he or she has done so is a matter of good practice and therefore it is expected that this would happen without having the requirement to that effect in the Bill.

Amendment 266AZZZA relates to provision in the Bill that enables the Secretary of State to make a staff transfer scheme. This will allow staff working for the Office of the Children’s Rights Director, currently located in Ofsted, to transfer to the Office of the Children’s Commissioner and will ensure that those staff are protected in terms of, for example, their continuity of employment and pension entitlements.

I would like to assure my noble friend Lord Eccles that these arrangements are already well in hand and that Roger Morgan, the current Children’s Rights Director, has been closely involved in the design and development of these provisions and continues to be part of the working group which is overseeing the transition to the new arrangements.

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[Lord Mawson (CB)]

My Lords, I have not been able to sit through the passage of this Bill, so I am not in a position to comment on it. However, over the past few months I have been sitting on the draft deregulation Bill which is concerned to reduce red tape and bureaucracy. I have come to the conclusion that the Government have a serious intent to get a grip on red tape and bureaucracy.

Can the Minister help me understand where this Bill and this discussion sit within this wider agenda? Will this Bill increase red tape and bureaucracy? What are its unintended consequences and where does it sit in the one-in-and-two-out agenda? It would be helpful to understand the scale of the red tape that will be generated by this Bill and this discussion. I would find it helpful to have the Minister respond to this further point briefly, if that is possible.

[Lord Nash]

I will write to the noble Lord on this matter.

[Viscount Eccles]

My Lords, I am grateful to all those who took part and to the Minister for his reply. At the risk of repeating myself, you can strengthen a mandate, but that is not the same as strengthening the organisation which has to carry the mandate out. If I remember rightly, John Dunford joined in the disappointment with the way that the Children’s Commissioner operated until 2010. I think that disappointment, if it is shared, will continue because the Government’s answers are that business will continue as usual. I make no negative or positive comment on that. I just wish I knew whether that was the correct interpretation in the view of the Government. In particular, the relationship of the Children’s Commissioner with the Equality and Human Rights Commission is very important. If they are going to co-operate, work together and do things jointly, there is a strong case for leaving the Children’s Commissioner pretty open, pretty freewheeling and able to look at whatever the commissioner thinks should be looked at and to make recommendations as a result of that work, which is what has been happening and, in my view, has happened rather successfully. I do not want to stand in criticism; I just wish I knew what the Government really expect so that we could understand what they expect and out there the public could understand what they could really expect. I beg leave to withdraw the amendment.