Children and Social Work Bill [HL]

Lord Warner Excerpts

Wednesday 13th July 2016 Grand Committee

Moved by

[Lord Warner]

135B: Clause 20, leave out Clause 20 and insert the following new Clause—
“Regulation of social workers: General Social Work Council
(1) Her Majesty must by Order in Council set up a body to be known as the General Social Work Council, for the purpose of regulating social workers in England.(2) The General Social Work Council is to have responsibility for the following matters—(a) keeping a register of social workers and of people who are undertaking education or training to become social workers;(b) restrictions on practising social work and using titles related to social work;(c) professional standards in relation to social work;(d) education and training for social workers and those training to be social workers;(e) discipline of social workers and fitness of social workers to practise;(f) appointing advisers on the regulation of social workers;(g) the publication and sharing of information relating to the regulation of social workers;(h) cooperation with other bodies in respect of the regulation of social workers;(i) the charging of fees in connection with the regulation of social workers;(j) advising the Secretary of State on the creation of offences related to the regulation of social workers; and(k) consultation about the regulation of social workers.”

[Lord Warner (Non-Afl)]

My Lords, Amendment 135B seeks to replace the existing Clause 20 and much of Part 2 of the Bill with a new clause that establishes a new general social work council as an independent regulator of social workers accountable to Parliament through the Privy Council. This amendment needs to be seen alongside Amendment 135C, which seeks to set up a new social work improvement agency, and will be moved by the noble Lord, Lord Hunt. It is no accident that both these amendments have the same names attached to them. We all start from a totally different position from that of the Government on social work regulation and improvement, as I think was very clear at the briefing meeting on Part 2 held last week. That is why I enlisted the help of the clerks in producing this amendment, and I am very grateful to them for their efforts.

The purpose of Amendment 135B is twofold. First, it would separate the work of regulating social workers from improving their development. Secondly, it would make the regulation of the social work profession independent of Ministers, as is the case with all other health and care professions. Under Part 2, the regulatory and improvement functions are combined. I think this totally misunderstands the function of profession regulators, who are there to protect the public by setting and upholding standards of conduct and competence, controlling entry to the profession and taking action in response to concerns about conduct and competence. Regulators are not there to secure improvement to a profession’s training, practice or continuing development. Those functions are for others. The noble Lord, Lord Hunt, and others will say more about this second role when we come to the next amendment. All I would say now is that muddling these two separate roles is highly likely to produce a muddled and less-effective regulator. The former General Social Care Council, before its abolition by the coalition Government, was criticised for having an unclear remit covering both regulatory and improvement functions. A review of the Nursing and Midwifery Council in 2012 by the Professional Standards Authority criticised that council for increasingly seeing,

“its role as supporting the development of nurses and midwives beyond ‘fitness to practise’ and so had strayed into trying to provide a broader professional leadership role”.

Combining regulatory functions with those of professional development distracts people from the main purpose of a regulator, which is to protect the public by upholding standards. With the Bill in its present form, the Government are doing just that. They are repeating the failings of the General Social Care Council, which they abolished, and are not learning the lessons from the regulator oversight work of the Professional Standards Authority. The likely outcome is muddle and delay in the important fitness-to-practise work of a regulator that protects the public from unsatisfactory professionals.

The other major shortcoming of Part 2 of the Bill, as drafted, is that it could well lead to the Secretary of State exercising direct control over social workers. This can only jeopardise their professional independence and lead to a loss of public and judicial confidence in the independence of social workers. They could quickly be seen as agents of the state. This interpretation can most easily be avoided by the new regulatory body being independent of government but accountable to Parliament through the Privy Council. This amendment does just that, and has the added advantage that it avoids removing social workers’ regulation from the oversight of the Professional Standards Authority and retains the position it shares with other care professions. This will ensure the effectiveness of the regulation of social workers.

I recognise that the same effect could be achieved by keeping the regulation of social workers under the aegis of the Health and Care Professions Council, which would certainly be a little less disruptive and would avoid the cost of change. However, I can see the merits of the Government providing social workers with their own regulator and that that might enhance the standing of social work. The amendment provides for this. I hope the Government can see the force of the arguments for separating the functions of regulation and improvement, and for separating the governance of the regulator from too close a relationship with the Secretary of State. I hope it will be seen by the Government and the Minister as a reasonable compromise. I beg to move.

[The Deputy Chairman of Committees]

My Lords, I have to inform the Committee that if Amendment 135B is agreed to, I cannot put the question that Clause 20 stand part of the Bill by reason of pre-emption.

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[Lord Nash]

I will come to that. In its totality of standards, there is very little which is focused on or particularly salient to social work education. The current regulatory model also does not focus on setting professional standards for post-qualification practice. This sets social work at odds with other professions, such as nursing and midwifery, and the current model sets requirements around continuous professional development which are generic and applicable to all the professions that the HCPC regulates. We believe there is clear scope for improvement, and I am glad that the noble Lord, Lord Hunt, agrees.

[Lord Warner]

Everything that the Minister said seemed to relate to social workers in the services for which his department is responsible. Is he saying that all these same considerations apply to social workers who work with adults? If he is, let us see the evidence. None of us has seen this evidence, and I have certainly not heard that there are these kinds of concerns about social workers who work with adults in a co-operative and increasingly joined-up way with the NHS.

[Lord Nash]

In relation to education and training, we are saying that.

[Lord Warner]

What expertise does the DfE have in relation to the work and performance of social workers working with adults? The Minister has no responsibility for that. His officials have no knowledge or responsibility for this area. Where is the evidence? Does this come from the Department of Health? Where has it come from?

[Baroness Walmsley]

My Lords, I did not get an answer to my question about which Secretary of State it would be. Strangely enough, although Clause 21 refers to “Secretary of State” in the singular, in his response the Minister talked about Secretaries of State. Will he clarify whether we are talking about the Secretary of State for Education and the Secretary of State for Health in agreement? If so, what will happen if they do not agree?

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[Lord Nash]

As I said earlier, the recent report by the DPRRC agreed that it was not inappropriate for the Government to place the regulation of social workers in subordinate legislation, despite the width of powers being conferred. In respect of our ambition to establish a bespoke regulator of social workers, we believe that delegated legislation remains the most appropriate vehicle for a number of reasons. These include the level of operational detail in the establishment and transfer of regulatory arrangements, the need to regularly review matters such as professional standards, and the mechanics of operating a professional register, all of which, in our view, point to the need to make appropriate use of secondary legislation.

In closing, I reiterate that reforms are needed as quickly as possible. I believe that our approach can ensure a new system of regulation for social workers—designed in partnership with the profession—which is transparent and has the flexibility to meet the needs of this vital profession both now and in the future.

I hope that the safeguards and governance arrangements that I have set out, the commitment to wide-ranging consultation with the sector and a clear point of review will provide the necessary reassurance that the proposed model of regulation is fit for purpose. In view of this, I hope that the noble Lord will be able to withdraw his amendment and agree that these clauses should stand part of the Bill.

[Lord Warner]

My Lords, I listened to the Minister with increasing disbelief and I think that many Members sitting on this side of the Room did as well. I do not really know where to start, other than to say that I am totally unconvinced by his arguments. He and his department simply do not understand the difference between improvement and regulation, and I shall take up one or two points.

He said that fitness-to-practise decisions will be taken by experts on behalf of the regulator. That is what he said. But the regulator takes the decisions—that is why the regulator is set up. It is not some other set of experts but the regulator who takes the decision on fitness to practise, which effectively is often a decision to stop someone’s livelihood as a professional. That is why it is very important.

I found some of what the Minister said extraordinarily strange. He is asking us to take it on trust that there will be a set of consultation arrangements with the professions and all these interests if we just give him the powers in the Bill. That is the nub of what he is saying: “It will all be alright on the night because we are good guys and will consult people”. I might be more trusting of that if I had seen some evidence that the Minister and his department had consulted all these interests before coming forward with this Bill. In my view, one of the best predictors of future behaviour is past behaviour, and I do not see much sign that evidence has been put to the profession. There might have been a chat between the chief social worker and a few trustees out there, but to many of us it does not look like much more than that.

I am astonished that the Department for Education, of its own mere motion, is taking responsibility for the regulation and improvement of social workers who work with adults. There is a major machinery-of-government issue and my starting point is to go to the Cabinet Secretary and ask whether proper processes have taken place within government between these two departments. From the evidence I have seen and heard so far, they have not.

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[Lord Hunt of Kings Heath]

My Lords, I do not intend to repeat the arguments of the previous debate, but I will pick up two things that are relevant to improvement. First, on my noble friend’s point about integration, those of us who are mainly health orientated find it quite extraordinary that at a time when health and social care are increasingly being integrated, adult social care regulation is being taken away from a health and care regulatory function and being put under the auspices of the Secretary of State for Education, who clearly has no remit or interest in adult social care.

It is well known that the Department of Health opposed the changes. As happens in the machinery of government, in the end it was forced to give way, but this is clearly a department that knows very little about the world outside education, that makes policy on the hoof and that has made a quick decision to legislate. This is clearly a cut and paste job given to parliamentary counsel at very short notice. We have here the makings of a complete shambles, which we know will end up in tears if allowed to go ahead. Everyone on this side of the House—we have huge experience in this area—knows that this is a shambles, a debacle in the making.

The more I hear the Minister, the more I agree with him on the issue of improving standards. There is no disagreement on the broad principles, it is simply that his department has confused regulation with improvement. It keeps insisting that they can be done together. The noble Lord, Lord Nash, said that the Professional Standards Authority has expertise and experience, and, of course, it does. I take him back to the evidence we received a few days ago about the importance of separating the roles of regulation and improvement. He said that the role of the investigative agency was to set and improve standards. What the PSA says is:

“Regulators are responsible for protecting the public by setting and upholding standards of conduct and competence, controlling entry to the profession and taking action in response to concerns about conduct or competence”.

On professional development and improvement, it says:

“Professional bodies, such as Colleges, are generally responsible for improvements to education, training, professional practice and continuing professional development”.

The Minister is consistently talking about the latter responsibilities, not about regulation. I have a low-cost solution, which is to focus on the improvement agenda, which we are all behind. I take his point about what happened in the past. I understand the tensions there between a statutory improvement agency and the role of BASW.

I thought that the Education Select Committee’s report was helpful in this regard. It set out what it believed should be the functions of a new professional social work body and said that it should:

“Be a ‘broad church’ that represents a diverse workforce of social workers in a range of settings … Provide high profile leadership and a national voice for the profession which explains what social work is and what social workers do … Make the profession an attractive choice by building a professional identity and culture … Defining the continuing professional development and post-qualifying pathway for all social work … Promote practice excellence … Shape and influence national and local policy and … Build good working relationships with the Government”.

It is a remarkably good report and I cannot disagree with it.

The report then says:

“We recommend that the Government facilitate the development of a professional body for social work, working in partnership with … (BASW), other social worker representatives and the wider sector”.

That seems perfectly sensible. Why do the Government not just do that? We would support it. I have no problems with the Secretary of State having oversight of such a body, so all that the Government need to do is to say that they will leave regulation to the HCPC and get on with the vital job of leadership and improvement. The Minister would have our support and he would not disrupt the profession with these really ludicrous proposals to take a low-cost, well-functioning regulatory system away from the HCPC, which his Government and that department put in place only three or four years ago. I beg to move.

[Lord Warner]

My Lords, my name is on this amendment, which is probably bad news for the Minister, and I support what the noble Lord, Lord Hunt, said. I want to add a couple of points on setting up a new unit by coming back to the issue of the Department of Health and adult social workers. It needs to be a unit which would deal with both groups of social workers, which means it needs some machinery that represents the interests of both the Department of Health and the Department for Education. I still see no really convincing evidence that it has been thought through in terms of those departments working together on something to benefit the range of social workers—those who work with children and those who work with adults. If we were to go down this path, there would have to be an agency or unit. I do not think one would mind what it is but it would have to be a convincing agency that looked across the spectrum of social work with children and adults.

I also want to pick up on some of the Minister’s comments in the discussion on my Amendment 135B. At the end of the day, if the Minister has all this money and wants to get on quickly—he said that he had the money and wants to get on speedily with the job of improving social work—then I would say, having been a Minister in government, that the fastest way to do that, as some of us have done, is to set up some kind of grouping across the piece. It would include the types of social workers for adults and children, and all the outside interests. The Minister could almost do that before the autumn and before we come to this on Report. At a later stage, that could be turned into an executive agency if he wanted to do that. There is nothing to prevent the Government putting in place very quickly indeed something of the kind that the noble Lord, Lord Hunt, suggested if they have the money and the capability. If they have those then they should do it; they do not even have to ask Parliament.

If the Government want to improve some of the training requirements for social workers, they could also have a conversation with the HCPC, which will be looking at education in September. It has committed to that as part of its work programme. I am sure that any regulator in this area would always listen to a government department or the Government of the day and consider the evidence for change.

If the Minister is really in a hurry and wants to take people with him, why does he not use what is available now, get on and have a discussion with the HCPC and set up a unit jointly with the Department of Health to do as much improving and make as many changes as he wants? Why are we all being subjected to, and spending some of the best years of our lives discussing, the shambles that is Part 2 of this Bill? It is a sad waste of parliamentary time and I do not think that it is terribly good for the profession, which is being subjected to a lot of uncertainty when it needs more confidence and more certainty. I hope that, even at this late stage, the Minister can see that there are some merits in the approaches of the two amendments.

[Lord Ramsbotham]

My Lords, I was attracted to putting my name to Amendments 135B and 135C because of their cleanliness and simplicity, and the fact that they picked up all the points that had been made in the Government’s policy statement, Regulating Social Workers, which was published last month. There was nothing missing. Furthermore, what the amendments proposed was independent and objective, and therefore they were likely to attract the support of the profession.

I could not help reflecting on two things. One was that when I was Chief Inspector of Prisons, when I inspected a prison that had an under-18 wing the social services were responsible for under-18s at that time, so I took a social services inspector with me. She said that if it had been a secure children’s home, it would have been closed because of the lack of facilities. Those facilities were then under the direction of the Home Office, which claimed to be responsible for young people in custody. That has always suggested to me that government should not get close to the delivery of these things.

The second thing, which I admit struck me as strange, was on page 19 of the Regulating Social Workers report. One paragraph says:

“Ministers will lead on issues such as setting standards and delivery of responsive improvement programmes to raise the calibre and status of the profession”.

The next paragraph says:

“While Ministers retain ultimate responsibility, decisions will be kept at arm’s length”.

How can you lead at arm’s length? It struck me that there was considerable confusion in all this and that therefore the Government can consider the clarity of Amendments 135B and 135C as helping them to deliver what they want. As the noble Lord, Lord Hunt, said, we all want improvement as quickly as possible, and I think that the profession does as well. We appear to be in the mire of confused thinking, which could be avoided by withdrawing from it.

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[Lord Nash]

My Lords, in view of what the noble Lord, Lord Warner, said about how we are apparently wasting everybody’s time, I will try to be brief, but I shall deal with his first point about the involvement of the DoH. The two departments have been working very closely together and will continue to do so. I have two officials from the DoH here today, and both departments will be involved in the governance.

Amendment 135C seeks to establish a new social work improvement agency under the auspices of the Government which will have responsibility for promoting the highest standards of practice, conduct, education and training and professional development. I understand the intention that this new agency would work in partnership with an independent regulator to raise standards across the social work profession.

As noble Lords will be aware, regulators traditionally have three key roles: first, to set and maintain standards; secondly, to control entry to the profession; and, thirdly, to take action in response to concerns raised about registrants. These functions are distinct from the quality improvement activities commonly carried out by a professional body or college. We understand the concerns that have been raised by the sector and the Professional Standards Authority about conflating regulatory and improvement functions in the one organisation. We agree that the blurring of these functions can lead to conflicting and competing priorities, and can leave regulators open to accusations of marking their own homework.

Let me be clear: we do not intend to set up a regulator that also doubles as an improvement agency, nor are we setting up a professional body. The agency, however, will have a remit that goes beyond simply setting minimum standards for public protection. Just as the GMC standards define good medical practice, so the standards of the new regulator will seek to set out what constitutes good social work practice rather than what is just acceptable. Social work requires an approach that goes beyond the traditional safety net role of professional regulation. Social workers take critical and complex decisions in high-risk environments on a daily basis. Therefore, it is only right that regulation is focused on ensuring that all social workers have the knowledge and expertise to not only be fit to practise but to be able to practise well. We make no apologies about this.

Unfortunately, the social work profession has been unable to sustain a professional body to support the work of a regulator in raising standards. Most other healthcare professionals are supported by strong professional bodies which take an active role in quality improvement, supporting and completing the work of the regulator. The Government have invested significantly —over £8 million, to which the noble Baroness, Lady Walmsley, referred—in the College of Social Work to address this gap. However, the College of Social Work was unable to attract the membership required to make it financially sustainable.

The Government understand that the development of a strong professional body is important to raise the status and standing of the profession in the long term. The Government cannot do this alone. An organisation that can articulate the views and interests of social workers and complement the work of the regulator is needed. However, our recent experience with the failed College of Social Work makes clear that this is for the profession to develop, own and maintain. We are not asking the agency to also perform this role. We are happy to continue to talk to the sector about whether it can establish its own body but, as I say, it must be developed and maintained by the sector.

As I set out previously, to bring about the reforms needed the social work profession needs a bespoke regulator with an absolute focus on raising the quality of social work education, training and practice and setting new and more specific standards. Alongside improvements to the regulatory system we will, of course, continue to invest in supporting the profession. The new agency will have a wider regulatory remit than traditional regulators and will go beyond minimum standards. It will do this through the setting of specific and higher standards.

The reforms that are needed to practice standards cannot be addressed through the development of an improvement agency. To allow us to rapidly deliver improvements and to embed the new regulatory system, the regulator will set new tougher standards for initial qualification, focus on professional standards for post-qualification, set new standards for continuous professional development, maintain a single register of social workers and oversee a fitness-to-practise hearing system, to which the noble Baronesses, Lady Pitkeathley and Lady Pinnock, have referred.

I can assure noble Lords that the Government do not intend to set up an agency with dual and conflicting roles. The new regulator will ensure that all social workers have the knowledge and expertise needed not only to be fit to practise but to be able to practise well. I hope the arguments I have set out will give the noble Lord the confidence to withdraw the amendment.

[Lord Warner]

Perhaps I may take the Minister back to his opening remarks, which were meant to reassure me because he had a couple of Department of Health officials behind him. However, the Minister is not taking seriously the machinery of government issue.