Children and Families Bill

Lord Storey Excerpts

Monday 9th December 2013 Lords Chamber

I ask myself which of the two alternatives available to us—statutory guidance or something in primary legislation—will most strongly give the message about where this House wants to have the legislation. It has to be in the Bill; that is my non-expert interpretation. It would be unwise not to take the advice of the noble and learned Baroness, Lady Butler-Sloss, who is paramount in her expertise in this area. If I have to come down on one side or the other, I will go for that of the noble and learned Baroness, not the Minister. In the run-up to the Bill, the spin that the Government gave was that they were moving away from taking into account a child’s ethnic, cultural and linguistic background. That is where people in the wider world think they are. To get the pendulum back to the middle, we clearly need something in the Bill, and so far I have heard nothing that argues against that. To give that message and to get this new legislation to have a fair and good start is better served by putting it in the Bill. I support Amendment 2.

[Lord Storey (LD)]

My Lords, I rise to speak with no real expertise on this matter, although, as it happens, my father was an adopted child. It is interesting that there has been a 20% increase in the number of looked-after children since 2009. I suspect that there is a perception that if you do not ethnically match, children will be hanging around waiting for a loving, caring family. I am not sure that that is the case. We all want the same thing, do we not? We all want to make sure that children are adopted by the right families, in all sorts of ways. I rarely disagree with my noble friend Lady Eaton, but if there is statutory guidance—and there will be—it is hugely important that the religious, heritage, cultural and ethnic issues are clearly spelt out. Presumably it is called “statutory” because it is backed by the full weight of the law. When the Minister replies, I hope that he will spell out how important that statutory guidance is.

I suspect that, for all sorts of reasons, we are at a bit of an impasse because of views shared by other people who are not in this Chamber. I understand that. Clearly, however, there has been real movement by the Government to have statutory guidance. I do not think that I would ever dare to disagree with the noble and learned Baroness, Lady Butler-Sloss. However, I think that social workers do take note, and will have to take note, of that statutory guidance, given that it is enshrined in law. They will know clearly what the thinking is. When the statutory guidance is put together, organisations such as the NSPCC will play a prominent part in making sure that it is fit for purpose and delivers what we all want.

[Lord Elton (Con)]

My Lords, I learnt one lesson at the Home Office where I legislated for some years. When you make a list, the longer it is the more that considerations which are not on the list are excluded. Expressio unius est exclusio alterius: if you have a list of what must be done, the inference is that the rest does not have to be done. Therefore, if you are going to have a list, let it be complete.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I have Amendments 4A, 4B, 4C, 4D and 6A in this group. They have already been trailed. When I first became aware of a proposal for the Secretary of State to issue directions about local authority adoption functions, I shared the alarm which was expressed, because I am pretty unreconstructed when it comes to local authority powers. On the other hand, having heard some of the issues which seem to lie behind problems with recruiting adopters, during the debates that took place during the work of the Select Committee, at one point I wondered whether adoption services should be nationalised. My pendulum has swung back to the middle.

I am reassured from what the Minister has said that the clause is not about failure or the underperformance by individual local authorities; it comes about because of concerns about the system, and systemic underlying problems. The amendments in my name and those of the noble Baroness, Lady Eaton, the noble Viscount, Lord Eccles—also members of the Select Committee—and my noble friend Lord Storey, flow from that. They are aimed at building on and improving what we are presented with in the Bill. It has been voiced again today. What has very much exercised noble Lords is ensuring that Parliament is not sidelined. I realise that a direction under paragraph (c) would be very different from directions under paragraphs (a) and (b) of new subsection (3), and I will come back to that in a moment.

Our amendments would turn directions relating to all local authorities into an order requiring the agreement of both Houses through the affirmative procedure. That would mean the Minister explaining the position, and both Houses debating it with an order not to be made before March 2015. The parliamentary timetable suggests to me that it is very unlikely an order would be made two months before a general election. So I was glad to see the Government Amendment 6 and even more pleased when the Minister told me that he wanted to add his name to our amendments but was too late for the print of the Marshalled List.

The Select Committee said that local authorities should have the time,

“to develop viable and achievable alternative proposals.”

We see that they are already doing so. We heard in the Committee of successful structures in the “tri-borough arrangement” as it is called in London—the three boroughs—and with three local authorities in the north-west. I understand that there are now probably five groupings involving 12 local authorities, which return their data together and are coming together in new structures.

The noble Baroness talks about the levers for change, whether what we may have will be enough, and whether it needs a heavy hand. I do not think that this is proposing a heavy hand. But if an order is proposed by the Secretary of State, as I see it—and I hope that the Minister can confirm this—it would not be a lid, perhaps here a portcullis, coming down. It would be a point in a sequence development of work, a transitional point which could be, and I hope if necessary would be, tailored as to which of the functions in new subsection (2) was brought into play. It would not be necessary to make an order dealing with all the functions in new subsection (2). So it is not the nuclear option, which I at first understood it potentially to be, or as it has been described.

A direction under new subsection (3)(b)—I confess that I had not initially appreciated how this might differ from an order under a statutory instrument—would allow for a lot more continuing work, after as well as before a direction with the local authorities concerned, which is a much more flexible way of working. It has been described to me as a quality improvement measure, with the possibility of collaborative development of the detail of the direction before it is given. Thinking about how that has worked on other subject areas within child protection and children services work, I can see that would work well. That leaves me unable to support Amendment 4.

The Government have already given commitment to giving notice to a local authority before using the powers in new subsections (3)(a) and (3)(b). So there would be an opportunity for that way of—I am sorry, I hate the word—iterative working, a development and refinement process. The steps which have already been taken since this debate started earlier in the year, or at the end of last year, when the Government made their announcement, have been constructive and productive, with the adoption form grant, the adoption register, the adoption leadership board and the equalisation of fees between local authorities and voluntary agencies. I mention voluntary agencies because it will be essential to work with the voluntary sector. Capacity and culture issues are both important. They are not going to change overnight. But the clause, as it would be amended by our amendments, allows more than adequately for this.

I hope that the directions in new paragraphs (b) and (c) will never be used, because it will not be necessary. I hope, too, that the Minister can confirm that over-enthusiasm, as the noble and learned Baroness has called it, would not mean that the paragraph (b) direction would be applied to all local authorities. That seems to me to be something that would be very open to challenge, given the rest of the structure of the clause.

I see why the Government feel that they need to have reserved powers, operated as I described, and that means that I cannot support Amendment 6. I hope that the House will feel that Amendments 4A to 4D and 6A are the way forward. I am comfortable with the logic of this, and I am usually over-logical about things. It is not heavy handed. It might almost be delicate—I will not go quite as far as to claim that—but it is a way forward.

[Lord Storey]

My Lords, I cannot keep using the expression that I am a new person to your Lordships’ House, but I am still on a big learning curve, and I like to put into simple terms some of the language that is used.

When I saw this clause, I remembered that something like 84% of adoptions last year were carried out by local authorities and that, as we have heard, the majority of them do a fantastic job. That is recognised by the voluntary sector and, equally, the local authorities realise how important the voluntary sector is. When the Bill first came to your Lordships’ House, the voluntary sector, quite rightly, said, “Look, we could not cope if you took it all away from local authorities. We would not be able to do that”.

At the time, it seemed right that the Government pointed to the fact that some local authorities had an appalling track record. As I have said, it is a very small number, but some had an appalling track record. Indeed, the Local Government Association would be the first to recognise that. So it seemed absolutely crucial that the Secretary of State should have the power, if local authorities were underperforming and were not prepared to work together and co-operate, to take that responsibility away from them. I see the logic and the importance of that because, at the end of the day, we are talking about the children. However, I did not see the logic of having the power to take the responsibility away from every local authority—that seemed plain daft to me—given the expertise and commitment that local authorities have and the amount of work that they do. I was therefore delighted when the Minister tabled an amendment which ensured that nothing could happen before March 2015. But that still means, unless I have misunderstood it, that the Secretary of State could say in March 2015—although, as my noble friend Lady Hamwee said, it would be two months off a general election—“We are going to do this, and that is what we are doing”. That would not be in the best interests of adoption and children.

If in the mean time the Government work with local authorities and the voluntary sector and different structures come together with different ways of operating—and if it is decided that tri or quad groups working together is the structure that we want—that is great. Whatever structure is arrived at, the Secretary of State should come to Parliament and both Houses should be able to say yes to it. I was not used to the phrase “affirmative procedure” in the amendment. If the Minister feels able to support Amendments 4A to 4C, as his comments suggest, that would be a result with which we could all be happy.

I do not share the concern that the Secretary of State might use Amendment 4B to take away the responsibility from boroughs and metropolitan bodies. That would not happen in the timescale because, as we have heard, 84% of authorities carry out adoption. However, if some local authorities are letting down children or the adoption service, in extreme cases the Secretary of State would have that power. If these clauses and amendments are accepted, it will mean that local authorities have come to the table and discussed these matters even more rapidly with the voluntary sector. I welcome the work that the Minister has done in bringing those people together.