Children and Families Bill

Lord Ramsbotham Excerpts

Wednesday 5th February 2014 Lords Chamber

[Baroness Northover]

My Lords, this group of amendments builds upon those that we brought forward on Report and, we hope, address some of the important points raised by noble Lords during that debate. We are grateful to those noble Lords who have continued to raise the important issue of support for young offenders with EHC plans in custody. I particularly thank the noble Lord, Lord Ramsbotham, for his expert and, as ever, very determined contributions throughout and for his continued determination to ensure this small but highly vulnerable group of children and young people get the support that they need.

I am pleased that noble Lords accepted the Government’s amendments on Report. That means that today’s debate is, I hope, starting from a strong position. The Bill already ensures that: young offenders, their parents and professionals working with them can request an assessment for an EHC plan and those assessments can now start in custody; EHC plans will provide up-to-date, current information on entry to custody, owing to the requirement for local authorities to maintain the EHC plans of those under 18 who are not in education, employment or training for any reason; both home local authorities and relevant NHS health service commissioners are under a duty to use their best endeavours to arrange the education and health provision set out in an EHC plan for children and young people in custody; EHC plans must be kept by the home local authority while a young offender is detained and must be reviewed and maintained again immediately on release; and both youth offending teams and relevant custodial institutions are required to co-operate with the local authority.

This is a significant set of improvements over the current system. However, now we want to go even further to address the remaining concerns expressed by noble Lords during our previous debate on this subject—namely, that “best endeavours” seemed, certainly in the mind of the noble Lord, Lord Ramsbotham, not to create a strong enough obligation on local authorities and health commissioners, and that youth custodial institutions should be required to have regard to the code of practice.

Following productive discussions between our officials, the Special Educational Consortium and the Standing Committee for Youth Justice, we are delighted to be able to say that through Amendments 28 and 29 we are strengthening the “best endeavours” duty so that it now says that local authorities and relevant health commissioners must arrange appropriate special educational and appropriate health provision.

Not only that, but Amendments 30 and 31 amend the definition of “appropriate provision” so that it is clear that local authorities and health service commissioners must first seek to arrange the provision that is in an EHC plan. Where that is not practicable, they will arrange provision that corresponds as closely as possible to the EHC plan. Where what is in the EHC plan is no longer appropriate, the local authority or NHS health commissioner must arrange an alternative that is appropriate.

Amendments 22 and 32 also require both relevant youth accommodation and youth offending teams to have regard to the code of practice. This means that we can set out in statutory guidance how we expect them to fulfil their duties to co-operate with the local authority in ensuring that children and young people with EHC plans receive the support they need while in custody.

These changes will be further strengthened in future by commitments in the Ministry of Justice’s response to the Transforming Youth Custody consultation published in January. I know that my noble friend Lady Walmsley—I see that she is not in her place, but I hope she will hear this—will be pleased to hear that, in response to an e-mail from her, this document makes it clear that the arrangements for the new providers of education in young offender institutions, due to be in place by November this year, will require them to co-operate with local authorities in regard to young offenders with EHC plans. They will also retain the existing responsibilities that the current providers have for identifying and supporting young offenders with SEN. The document also makes it clear that identification and support for those with SEN will be part of the new secure colleges that the Government will set up through forthcoming legislation.

Finally, Amendment 34 will remove Clause 76, previously Clause 70. Due to an oversight, the amendment to delete this clause was inadvertently not moved following the debate on Report. I am sure that that was entirely my fault.

Taken together, these amendments will strengthen the changes that noble Lords agreed on Report and will ensure that children and young people with EHC plans in custody will receive the support that they need. I hope that noble Lords will be happy to support them.

[Lord Ramsbotham (CB)]

My Lords, I am extremely grateful to the Minister for what she has just said, and also for the many discussions and debates that we have had with both Ministers and officials during the Bill’s passage. I am extremely grateful for what has been done. Not only is it a great advance on what was there before but it has the benefit of building on the experience of many years ago regarding what could and should be possible in young offender institutions for people with problems that have otherwise gone unaddressed. I am particularly grateful for the movement that has been made since Report and for the strengthening of the requirement on local authorities to make certain that the change has happened.

I am also extremely grateful for two other things. The first was the Minister’s assurance that those of us who are interested in this subject, including people who are far more expert in it than I am, will be involved in the preparation of a code of practice which will be such an extremely important document in the future. The second was her assurance that the Ministry of Justice will be involved in those discussions as well. As I have explained before, there have been many good initiatives around the country but the Ministry of Justice’s response to them has not been all that was desired and they have been dropped.

Finally, I am grateful for the platform that has been provided for youth offending teams. A disturbing fact is that few commissioning groups in the country appear to realise that they have a responsibility for things such as mental health treatment of people who are undergoing community sentences. The fact that that is on the statute book with a clear “must” will provide just the stimulus that is needed to pull people together and make things better. I really am grateful for all the work that Ministers and officials have done on this part of the Bill.

[Baroness Warnock (CB)]

Having put my name to the original amendment to remove the then Clause 70, perhaps I may also add my gratitude. This is a real step forward in the education of young people in custody—not just people with special educational needs, which most of them have in any case. In general, it is a landmark move forward, so I express my appreciation to the Government for that.

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Moved by

[Lord Ramsbotham]

44: After Clause 101, insert the following new Clause—
“Use of the Human Rights Act in legal proceedings
After section 2F of the Children Act 2004 (as inserted by section 101) insert—“2G Use of the Human Rights Act in legal proceedings
The Commissioner may, in the course of legal proceedings for judicial review which it institutes (or in which it intervenes), rely on section 7(1)(b) of the Human Rights Act 1998 (c. 42) (breach of Convention rights); and for that purpose—(a) the Commissioner need not be a victim or potential victim of the unlawful act to which the proceedings relate,(b) the Commissioner may act only if there is or would be one or more victims of the unlawful act,(c) section 7(3) and (4) of that Act shall not apply, and(d) no award of damages may be made to the Commissioner (whether or not the exception in section 8(3) of that Act applies);and an expression used in this subsection and in section 7 of the Human Rights Act 1998 has the same meaning in this subsection as in that section.””

[Lord Ramsbotham]

My Lords, I am conscious that my amendment is something of an oddity today because it is the only non-government amendment on the list. I raise it because I still have hopes that it might become a government amendment. It is an amplification of a point that I raised on Report, and about which I asked a supplementary question of the Minister.

The issue concerns the Children’s Commissioner and the request that he or she would share equal footing with the equality and human rights commissioner in being able to bring cases under the Human Rights Act. On Report, the Minister said that initiating and intervening in legal proceedings was, in the Government’s view, implicit within the commissioner’s primary function; I certainly took that at face value. Following on, he said that the commissioner would have sufficient interest in a case, because of his or her statutory role to promote and protect children’s rights, to satisfy any judge who might question the right of the commissioner to intervene. He emphasised that the Government did not wish to put into the Bill anything to do with such a right, but assured me in answer to a supplementary question that incoming commissioners would be briefed on their powers in bringing cases before courts.

Unfortunately, about half an hour before the Public Bill Office closed for business last night, the Children’s Rights Alliance for England contacted me, having consulted legally—unfortunately, after the good meeting I had earlier had with Ministers about the Bill. The alliance pointed out that, currently, the Children’s Commissioner is actually prohibited from bringing legal proceedings under the Human Rights Act because to do so you have to be a victim. The Children’s Commissioner does not qualify as a victim in a case.

This was got around for the equality and human rights commissioner through a clause in the Equality Act 2006, which made an amendment to Section 7 of the Human Rights Act, allowing the equality and human rights commissioner to bring legal proceedings. All I am seeking, as I did on Report, is to acknowledge the Minister saying that he agreed that the two commissioners should have equal rights; and that amendments, instead of being made to the Equality Act, should be made to this Bill and to the Children Act 2004, to allow the Children’s Commissioner to bring things forward without running into the risk of being prohibited to do so by something which I suspect was not meant by the Government or anyone else. That is why I move the amendment. I apologise for doing so at this late hour, but we have made so much progress in the Bill that I hope that the Minister, in the spirit in which he has tackled everything else, will feel able to reconsider my original request.

[Baroness Howe of Idlicote]

My Lords, I support everything that my noble friend has said. I very much hope that the Minister will find a way to make this a possibility.

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Finally, I pay tribute to the Bill team, brilliantly led by Jenny Preece, and the other officials who have worked on this Bill so hard and with considerable composure and good humour, and who very sensibly have at no stage ever let me out of their sight. The progress we have made in this place is in very large part due to them, and I thank them most deeply. I know that noble Lords—as many of them have already said—appreciate the great work that they have done. It has been a true tribute to the high standards of the Civil Service and I know that all noble Lords have been incredibly impressed by their professionalism and no-stone-unturned approach. There will be an opportunity for noble Lords to express their gratitude to them personally in the not too distant future—as I know many wish to do—and I hope as many noble Lords as can will attend. I thank you.

[Lord Ramsbotham]

My Lords, I thank the Minister for the care and attention he has given to his reply to my amendment. All of us in this House were enlightened by what he had to say and I am gratified to hear his confirmation that the Dunford report’s proposal for close working between the equality and human rights commissioner and the Children’s Commissioner is something that will be encouraged. If that happens, and they work together, the actual office of Children’s Commissioner is bound to be strengthened. I am sure that, when noble Lords look at the Hansard of the debate and see the care and content of the Minister’s summing up, they will reflect that we have indeed been fortunate throughout this Bill in having such care and attention paid to all the points that we have raised. That has been one of the great pleasures of it.

Having already thanked the Minister and the Bill team, I would like to mention something that I forgot: I thank him for the frequent letters and contacts, which were enormously helpful and made the lives of those who had no research support much easier. As the Minister said, there will be a lot of people who will look back on this Bill—particularly children and young people in the future—with greater opportunity than there was previously. That has been due to the work of an awful lot of people. It has been a great pleasure and privilege to be one of those involved. I beg leave to withdraw my amendment.

Amendment 44 withdrawn.