Children and Social Work Bill [HL]

Lord Watson of Invergowrie Excerpts

Monday 11th July 2016 Grand Committee

[Baroness Meacher (CB)]

My Lords, I must first apologise that I was unable to be present when my opposition to Clause 11 was debated. Unfortunately, I have a serious family health problem which has prevented me from being present or even doing any work on this Bill until today, I have to confess. I will speak briefly to oppose the proposition that Clauses 12 and 13 should stand part of the Bill. I assure the Minister that the aim here is not to have the clauses struck out but to provide an opportunity to explore the implications of the two clauses as they are worded and to enable noble Lords to raise any general concerns ahead of Report.

I recognise the need to establish a stronger statutory framework that will introduce greater accountability for the three key agencies involved in safeguarding children—local authorities, the local police and the local health service, as proposed by Alan Wood—though I understand that there are concerns that other services should also be incorporated. However, the single purpose of a new framework, as made clear in new Section 16B(2), is absolutely rightly specified as,

“to ascertain what (if any) lessons can be learned from the case about the way in which local authorities or others should work to safeguard children”.

I hope we can explore how, in drawing out and disseminating the lessons from tragic events, we as a society can avoid increasing the blame culture, which has affected social workers and other public servants so severely in recent years. If we do increase the blame culture, the risk is that good social workers and other public servants will walk away from their jobs, as many public servants have done in recent years; others will simply not take up these professions; and the net result will be that the risks to children will increase rather than diminish. I know that that is absolutely not what the Government want to achieve—but there is a very serious point here, which I hope the Government will take on board.

If a social worker working with a family where a child unfortunately dies or is severely injured does fall short in some way, it is surely a matter for that social worker’s managers. It should not be a matter for national politicians and a national panel—whose role, as the Bill makes clear, must be solely to ensure that lessons are learned and disseminated. At a national level, the worst of all this is what happens when the media get involved—and they will get involved: they just do. That can wreck the lives of front-line workers to the point from which, to some degree, they never recover. I really do believe that it is that bad.

The review will of course need to establish whether any failings were a reflection of procedural issues, system failures or a lack of adequate resources. All of that is right and proper, but somehow we need to protect the individuals, not from proper disciplinary action or whatever is appropriate but from this national glare and utter devastation of their lives. If they have made an error, they probably did not intend to. So we have to get this right. It is terribly important that we do and I do not believe that the wording in the Bill achieves that at the moment.

Subsection (4) of new Section 16B inserted into the Children Act 2004 by Clause 12 requires the panel to publish the report on supervised child safeguarding in practice reviews. Alternatively, subsection (5) states:

“If the Panel consider it inappropriate to publish the report, they must publish any information relating to the lessons to be learned from the case”.

Is it really ever necessary or appropriate to publish a whole report on a specific case, which would inevitably involve publishing material about an individual front-line worker? The only national interest is in the lessons to be learned—the material that would be published under subsection (5). So I would welcome the Minister’s view as to whether subsection (4) could be deleted from the Bill. This would focus the minds of members of the panel on their sole role. It would also go some way to reassuring front-line staff that the Government are not aiming to focus national media and political attention on blaming an individual front-line worker. That is the key point that I hope we can think about in relation to these clauses.

My other point is a concern of the Local Government Association that the national panel, as outlined in the Bill, is too closely controlled by the Secretary of State. Again, this risks politicising the serious case review process, and the concern is again for the protection of front-line staff. But it is also very important to ensure that all the lessons are learned from these reviews, so it is absolutely vital that these reviews are seriously and really independent of government control. A review may need to comment on the impact of national policies on safeguarding failures and make recommendations for policy reform as well as procedural changes that are needed.

The Government have tabled Amendment 114, which risks placing too great an emphasis on the actions of individual practitioners in determining the cause of failures. We need to maintain the systems approach that we have had when undertaking these reviews. A focus on an individual’s failure in a particular area will have no relevance to the authorities in other parts of the country. Will the Minister look at the wording of Amendment 114 with this concern in mind?

The NSPCC has questioned whether it is right to limit the role of the national review panel to those cases that involve a death or serious injury, as raised by the noble Baroness, Lady Walmsley. With the focus clearly on lessons to be learned, it may be important to include cases involving near misses or areas where a lot of children have suffered some harm. It may help to clarify that in the Bill.

Finally, it seems important to clarify further the dissemination activities that will be required of the panel. Somehow this business of learning the lessons seems to be somewhat skated over. The Bill needs to make absolutely clear how this country will learn from these serious cases. That is what the panel needs to do.

[Lord Watson of Invergowrie (Lab)]

My Lords, we are content to support the amendments in this group that were ably moved and explained by the noble Lord, Lord Ramsbotham, and the noble Baronesses, Lady Walmsley and Lady Meacher. I wish to comment on Amendments 105 and 107. The noble Lord, Lord Ramsbotham, when discussing the rights of the child in this Committee recently urged the Government to ensure the automatic review of child deaths in institutions. The two amendments in the name of the noble Lord, Lord Ramsbotham, would ensure that that continued to happen.

I am sure all noble Lords will have received a six-page letter from the Minister this morning, looking at what we have done on the Bill so far. The last page of the letter refers to the United Nations Convention on the Rights of the Child, on which he seeks to give reassuring commitments that the Government are indeed moving forward in a number of fields with regard to the rights of children.

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[Noble Lords]

Oh!

[Lord Watson of Invergowrie]

None the less—I understand the laughter from other noble Lords—there are interesting developments on my side of the fence, too. The Committee will forgive me for not commenting on that.

What the Minister said in his letter was reassuring. None the less, the amendments of the noble Lord, Lord Ramsbotham, would ensure an automatic review of child deaths, which obviously is a serious matter that I do not mean to treat lightly at all. Those are the two amendments that I wanted to specify, but all the amendments listed would strengthen the section of the Bill. For that reason, as stated earlier, we are pleased to support them.

As noble Lords will know, my noble friend Lord Hunt is a signatory to the proposal to oppose the question that Clauses 12 and 13 stand part of the Bill, and it is to this that I now wish to speak. We have concerns about the manner in which the functions of the Child Safeguarding Practice Review Panel are to be established. Clause 12(1) states that the Secretary of State shall have power delegated to her to decide what the functions of the panel shall be. The functions are not set out in any detail; the Secretary of State is to be given the right to decide how the functions are to operate. The Delegated Powers and Regulatory Reform Committee stated in its report on the Bill:

“The arrangements made by the Secretary of State will determine more precisely how those functions are to be exercised, and will accordingly play a significant role in shaping what the Panel is required to do and how it is required to do it”.

The committee goes on to say that as a result, it believes that the arrangements made by the Secretary of State should be contained in a statutory instrument subject to the affirmative procedure. So do we, which is why we believe Clause 12 must be strengthened.

We also have objections to the guidance issued by the Secretary of State to the panel, as outlined in new Section 16B(8) in Clause 12. Again, our concerns are shared by the Delegated Powers and Regulatory Reform Committee, which commented that as the guidance clearly must operate hand in glove with the arrangements being made by the Secretary of State in relation to the panel, the guidance, too, should be subject to parliamentary scrutiny, this time by negative resolution.

The same could be said in respect of Clause 13 and the definition of “regulated setting”, relating to the death of a child. “Regulated setting” is not defined in the Bill, which the DPRRC regards as a major failing. The committee says:

“The definition of ‘regulated setting’ is fundamental to determining the scope of a local authority’s duty to provide information about cases”,

within this section of the Bill. That gives the Secretary of State unlimited discretion to determine what falls within the definition, and the committee goes on to say that the delegated power conferred by Section 16C(3) of the Children Act 2004 is inappropriate in providing for the definition of “regulated setting” to be set out in regulation.

More seriously—not least, I suspect, for the Department for Education—the committee proceeds effectively to rubbish the department’s claim that:

“This is a narrow power which will only provide for a list of regulated settings, not raising matters of substance which the House will need to debate”.

The Delegated Powers Committee does not just describe that power as a wide one; it concludes that it is a Henry VIII power, which means that it should be subject to affirmative procedure.

The number of delegated powers contained in the Bill was the subject of some dispute, shall we say, between noble Lords and Ministers at Second Reading. Doubtless we could schedule a separate debate in Committee to resolve just how many there are but, with the exception of the Ministers, every noble Lord who has taken part in debates on the Bill will agree that however many there are, there are too many.

The definition of a Henry VIII clause is of course one that seeks to amend primary legislation by secondary legislation. I cannot resist quoting the comments of the noble and learned Lord, Lord Judge, who spoke strongly against such clauses when he was Lord Chief Justice. He stated:

“You can be sure that when these Henry VIII clauses are introduced they will always be said to be necessary. William Pitt warned us how to treat such a plea with disdain. Necessity is the justification for every infringement of human liberty: it is the argument of tyrants, the creed of slaves”.

That may be just a little strong for this Bill but the message is quite clear. There are more egregious examples elsewhere in the Bill of the abuse of parliamentary procedures through secondary legislation—but, for the reason I have outlined, we believe that the definition of “regulated setting” has to be on the face of the Bill.

As was stated in Committee last week, there are concerns over the establishment of the Child Safeguarding Practice Review Panel, partly because of the fear that it could be used to blame, or perhaps even scapegoat, social workers if a high-profile local case is referred to the new national panel without full knowledge of the local elements of the case. That is why the greatest attention must be given to defining the arrangements and functions of the panel as clearly as possible and, where they cannot be placed on the face of the Bill, to ensuring that there is adequate parliamentary scrutiny of those aspects of the Bill. For these reasons, we do not believe that Clauses 12 and 13 should stand part of the Bill.

[Baroness Pinnock (LD)]

My Lords, I support everything that previous speakers have said about both the amendments and in opposition to Clauses 12 and 13. During our last day in Committee, I made the case that in principle the proposal for the national safeguarding panel failed because it did not take sufficient account of local accountability, local knowledge and local professionals who have a duty to safeguard children in their area. The Wood report, from which a lot of the changes proposed by the Government come, is clear on some of these issues. One factor that it picks out in its analysis of local safeguarding children’s boards is that a review by the Local Government Association found,

“dissonance among the partners between the accountability and the authority of an LSCB”.

The report goes on to say that,

“the duty to cooperate has not been sufficient in ensuring the coherent and unified voice necessary to ensure multi-agency arrangements are consistently effective”.

So from the Wood report we hear that local accountability is one issue that has been raised. The LSCBs are not sufficiently accountable locally, and that has, in part, led to their lack of effectiveness.

The proposals in these clauses move power and accountability, in the most serious cases, from the local to the national level and put it in the hands of the Secretary of State. I think that that places too much power at the national level and not enough locally, and it is also in danger of politicising the whole process, reflecting what the noble Baroness, Lady Meacher, said, with which I totally agree. The lack of elected representation on the current safeguarding boards has resulted in them being ineffective. Currently, the boards consist of professionals and there is no full representation of non-professionals—that is, elected representatives—who are also corporate parents. It seems to me that a lack of challenge from non-professionals, who are corporate parents, has contributed to this lack of effectiveness of the safeguarding boards.

I will make a further comment, which is reflected in the Wood report, about the membership of the local boards and the duty to co-operate. The Government’s proposals in later amendments would remove the requirement for some of the professional organisations to be members of the local panels. One of those, the probation service, has in my council area—I draw the Committee’s attention to my entry in the register of interests as a local councillor in the Borough of Kirklees—since the fundamental changes to the service not attended the local safeguarding children boards. The later government amendments remove that requirement. It is a big mistake not to require the probation service to attend to discuss safeguarding children.

Clause 12, which lays out the functions of the new national panel, falls far short of what is required. Let us consider what has happened with serious case reviews over the past 30 years—probably and sadly—from the Climbié and Baby P reports to the many, many others that we can all draw to memory. They have all issued recommendations to which everybody has agreed but which no one has implemented effectively. Everyone says, “These are good; we must do that”, but they are not implemented.

The big failure in Clause 13, which is why I will oppose it standing part, is that nowhere does it say how learning will be effectively implemented. We can all learn, and social workers across the country will have read the 48—I think—recommendations in the Baby P report, but implementing them is the difficult bit. The Wood report refers to that and makes a powerful case for thinking in much greater detail not about the learning—the learning has been done—but the implementation. In all these cases, similar recommendations are made about the need to co-operate and the lack of collaboration and communication. We have yet to crack how to put that into effect.

If we are serious about child protection and safeguarding children, one element which must feature is how the recommendations are to be put into effect, monitored and reviewed. If we do not do that, we will never move forward. That is my fundamental reason for supporting the proposition that Clauses 12 and 13 should not stand part of the Bill.

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[Lord Nash]

I will reflect and look into that in more detail. Once it is in the public domain that a particular instance is being investigated, knowing the media, however much you try to protect an individual’s identity, I cannot see quite how one can do it—but I will certainly look at it. The noble Baroness raises a very important point which we are aware of.

I should add that the Government have now responded to the Delegated Powers and Regulatory Reform Committee, in answer to some of the points made by the noble Lord, Lord Watson. The response confirmed the Government’s intention to bring forward an amendment at a later stage to modify the provisions to ensure that the arrangements to which the clause refers be subject to affirmative parliamentary scrutiny.

[Lord Watson of Invergowrie]

Has that response been published yet?

[Lord Nash]

Yes is the answer.

Clause 13 requires local authorities to notify the panel of events in their area where a child has died or suffered serious harm and is known or suspected to have suffered abuse or neglect. The clause will place the process of notifying such events to the panel on a statutory footing for the first time, demonstrating the importance that the Government attach to this process and leaving no room for doubt as to whether to report an incident.

If this part of the process is not made a statutory duty on local authorities, there is a risk that some events may not be notified, thereby reducing the likelihood of events being scrutinised and action taken to reduce the likelihood of such an event taking place in future. The DPRRC also commented on this clause in its report. The Government’s response to the report confirms an intention to look again at the definition of regulated setting, as well as agreeing that any future amendments to the definition should be by the affirmative procedure. We intend to return to this matter at a later stage.

The noble Baroness, Lady Pinnock, asked about the importance of taking into account local issues. The panel will make its decision on the basis of information from local areas. It will include the probation service in the list of relevant agencies. We will come shortly to a set of government amendments that respond directly to Alan Wood’s recommendations on local accountability. If I may, I will cover the rest of her points then.

She also asked a very good question, supported by my noble and learned friend Lord Mackay, about how learning will be implemented. Our whole reform to social work and the point of the national panel is to improve implementation. Our new What Works centre for children’s social care will have a key role in disseminating learning and making sure that it is acted upon. As under current arrangements, local safeguarding will be expected to report on practice improvements identified through the reviews and on action taken in response.

My noble and learned friend Lord Mackay commented on the guidance. I will not talk about guidance in general, but we have significantly reduced the statutory guidance on child protection in the past five years, and we keep it constantly under review. I hope that the explanation of Clauses 12 and 13 provides reassurance about the Government’s intentions, and I therefore urge the noble Lord and the noble Baroness not to press their amendments.

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[Lord Nash]

This new clause is purely technical, but fulfils some important functions. Subsection (1) means that the existing provision for LSCBs, as set out in Sections 13 to 16 of the Children Act 2004, will be repealed. Local authorities will no longer be required to establish LSCBs. Instead, they will work with chief constables and clinical commissioning groups to set out Working Together arrangements, as specified in amendments to the Bill that we have previously discussed.

Subsection (2) amends the Local Authority Social Services Act 1970 to redefine social services functions by removing the reference to LSCBs and including provisions in relation to joint working arrangements in child death reviews that are the subject of amendments to the Bill. Where the term “social services functions” is used in legislation in respect of local authorities, the arrangements which these amendments provide for will be included. This is consistent with existing provisions for local authority functions relating to LSCBs.

An example of the importance of this provision is the Secretary of State’s intervention powers where local authorities are failing properly to fulfil any of their social services functions. The amendment means that should local authorities fail to fulfil their functions as set out in Sections 16A to 16Q of the revised Children Act 2004, the Secretary of State will be able to issue a suitable statutory direction. I should stress that this provision relates only to local authority functions. It does not cover any failures by clinical commissioning groups or chief constables in these arrangements. Existing provisions for intervention—sitting elsewhere—already cover other such failures. I beg to move.

[Lord Watson of Invergowrie]

My Lords, the Minister said that this is a technical amendment. Yes, it is, but the introduction of the Child Safeguarding Practice Review Panel will see the disappearance of local accountability for the most serious child abuse. The current process has an independent chair appointed by a national panel of experts, who are themselves independent. That means that local knowledge is retained, because representations can be made by those who are involved with the child and indeed the family, and, importantly, those who have an understanding of local characteristics. If the local safeguarding children boards are scrapped, how can the Minister reassure us that the local input will not be lost?

[Baroness Bakewell of Hardington Mandeville]

I will also speak to Amendment 126. I believe the relationship between what is currently the local safeguarding board and the national one is very clearly understood, with clear roles and responsibilities for each. My county council’s view, from experience, is that safeguarding absolutely must be owned by the local agencies that are responsible on the ground for improving safeguarding. The national safeguarding panel should therefore have a role in understanding local issues. I am concerned that, if the intention is to centralise at the national level, the national panel might not have the capacity or the local knowledge and experience to review and intervene in a timely way. I agree entirely with the comments made by the noble Lord, Lord Watson.

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Moved by

[Lord Watson of Invergowrie]

129: Clause 15, page 13, line 21, after “outcomes” insert “for children and young people”

[Lord Watson of Invergowrie]

My Lords, I shall speak to Amendments 129 and 132 in my name and that of my noble friend Lord Hunt. I am also a signatory to Amendment 131 in the name of my noble friend Lord Wills, but I shall have less to say on that.

As regards the third and fourth subsections in Amendment 131, the huge controversy surrounding Clause 15 and the Government’s intention to enable local authorities to be exempted from providing local child protection and other children’s services requires a firmer base than a local authority simply approaching the Secretary of State to seek permission to do so. Some form of independent oversight is necessary to assuage the widespread concern among charities and other organisations prominent in the sector, not to mention local authorities themselves, as to the possible effects of Clause 15. It is essential that, as advocated in Amendment 132, a local authority is not exempt from corporate parenting principles—a subject on which we talked at length in previous sittings—just because it has been exempted from some of its statutory responsibilities. An assurance from the Minister on this point, even if he does not accept the amendment, would be valuable.

The Government have not made a case as to why Clause 15 is necessary. The Minister needs to explain to noble Lords precisely what problem this proposal is designed to address. As to the underlying premises of Clause 15, frankly, who knows? Suggestions have been put forward by several people and organisations. They vary from requirements in primary and secondary legislation blocking the delivery of effective children’s services to the suggestion that it might make it more attractive for private companies to get involved in the delivery of social work services.

No evidence has been published by the Government to support the notion that legislation is an impediment. Indeed, their Putting Children First strategy published last week, refers to creating,

“a controlled environment in which we could enable local authorities to test deregulatory approaches that are not currently possible, before taking a decision to make substantial changes to existing legislation that would apply across the board.”.

However, the document does not set out the deregulatory approaches, which cannot be tested presently, and a box insert in the report quotes Professor Eileen Munro referring to “unnecessary legal rules”, although, again, they are not specified.

Is it the case that all legislative duties in respect of children’s social care are potentially problematic? I think not, because the Government’s Red Tape Challenge concluded in 2014 that only five regulations needed to be scrapped, three of which were already redundant, and 14 separate regulations were actually improved as a consequence of that consultation. Despite that, the breadth of legislation that can be exempted by Clause 15 is extraordinarily wide. I need do no more than refer noble Lords to Clause 19.

Are the problems in children’s social care so serious that the Secretary of State and her officials require a fast-track process to repeal or change legislation? That is what appears to be the case from the way in which the Bill is framed, because Clause 15 marks a major break with the ordinary legislative process where Ministers publish Green Papers, identify policy problems and potential solutions, expert organisations and individuals respond, White Papers are issued and legislation is then introduced to Parliament. In the Bill, only Ofsted’s chief inspector and the Children’s Commissioner need to be consulted. When legislative changes are proposed by the Minister or by an individual sent into a local authority as part of a ministerial intervention, there is no duty to consult the local authority.

That is relevant because the Government’s ambition was stated in Putting Children First as being that,

“over a third of … local authorities will either be delivering their children’s services through a new model or be actively working towards a different model”,

by 2020. We see the shape that the Government want to achieve in four years’ time, but the route to get there is what concerns many people, not least noble Lords on this side of the Committee.

At Second Reading, the Minister referred to the need for innovation. As I said, we on these Benches are certainly not opposed to that concept. We support innovation if it improves outcomes for children and standards in local authorities, but innovation can and does take place effectively within local authorities. Indeed, several have already developed and successfully piloted innovative approaches within children’s services while meeting their statutory responsibilities.

The Minister will no doubt be aware of this but, while Leeds is probably the most frequently mentioned, I can also cite Cambridgeshire, Durham, Hampshire, Lincolnshire and the London boroughs of Hammersmith and Fulham, Islington, Kensington and Chelsea, Kingston, Richmond, and Westminster. Each of those local authorities already has the necessary freedom to innovate to improve front-line children’s social services by developing new systems of delivering social care and piloting new ways of working with families. They have all been able to do so without the need for new legislation, so again I invite the Minister to demonstrate why, when all the innovation that I have just listed is already possible, the provision is necessary. Indeed, Ofsted’s latest annual report on social care includes several positive case studies and comments. In the best local authorities, leaders have developed ambitious and innovative approaches to practice that are firmly grounded in sound research, confirming again that innovation is possible. I am sure that the Minister will say, “Yes, well, that’s just some local authorities. Some are performing poorly or could even be described as failing”. That could well be the case, but it does not mean that we need a sledgehammer to crack a nut when many local authorities are able to do what the authorities I have mentioned are already doing. There are real concerns about where this could lead.

I shall go into this in a little more detail. At Second Reading the Minister outlined three areas where he foresaw different ways of working. These were: relaxing the assessment process for children’s placements with family and friends; the removal of independent review officers from low-risk children in care; and disbanding adoption and fostering panels. The third of these is by far the most controversial, with noble Lords receiving many emails outlining why it is a foolhardy and potentially even dangerous step. Indeed, statutory guidance on adoption states that adoption and fostering panels,

“play an important quality assurance role, providing objectivity and having the ability to challenge practice which is felt not to be in the interests of children”.

In 2012 the Government consulted on reducing the membership of adoption and fostering panels, claiming that too many members cause delay. However, the proposal was overwhelmingly rejected and in May 2013 the Government concluded:

“We will not introduce a maximum number of adoption or fostering panel members or restrict the number of non-panel members attending an adoption or fostering panel meeting”.

So why the change now? The Minister’s announcement of the removal of the panels altogether goes well beyond even the September 2012 proposals, which, as I said, were strongly rejected. The majority of respondents to that consultation were involved directly in adoption and fostering service, and knew from personal experience the important role that the adoption and fostering panels play. Indeed CoramBAAF, an organisation at the forefront of adoption and fostering, and indeed in training people in those sectors, has said that this is the worst possible move that it could have imagined the Government to have made.

I will not comment at this stage on the other potential areas for exemption, but it is strange that others seem now to be emerging. I quote removing looked-after status from children remanded in custody; removing the duty to review a child’s care when he or she is in a stable placement; and the relaxation of children’s homes’ planning rules. When I say that they have emerged, that is not to say that they were announced by the Government or by anyone on their behalf; they emerged at the recent conference of the Association of Directors of Children’s Services. Those are the sorts of areas where these senior people in the field anticipate that some of those services may be exempted. That is a serious matter. If the Minister is able to respond to that, it would be helpful, although I understand that he has not had much notice.

As was discussed in Committee last week when considering Clause 9, removing the burden of requirements to meet statutory obligations enshrined in children’s social care legislation enables local authorities to incentivise private and not-for-profit providers to bid for parts of the children’s social care pathways. The danger outlined by a number of people, and one that we echo, is that this further threatens the extent to which children’s social care can be fragmented into multiple pathways and perhaps diverse provision, threatening the provision of those services that really are best delivered in a joined-up manner to make them as effective as they can be.

Both at Second Reading and last week in Committee I asked the Minister whether he had made an assessment of the risk to children in allowing local authorities exemptions from some key duties in keeping children safe. I did not get a response. I hope it will be third time lucky and that he will be able to give me an answer to that important question, because I am not the only one who is asking it. It has been widely asked by those who have contacted noble Lords.

As it stands, the Bill’s proposals in Clause 15 are too wide-ranging, without adequate safeguards to protect children and young people if plans to outsource services go wrong. For that reason, it is our intention to return to this issue on Report when the House will have the opportunity to express its opinion if it wishes to do so. It is not appropriate for Clauses 15 and 18 to stand part of the Bill unless and until the Government can offer persuasive evidence of their necessity and significantly improve on their transparency and safeguards. I beg to move.

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[The Earl of Listowel]

My Lords, I am grateful to the Minister for his reply and for the offer of a meeting, which I am sure will be very helpful for me. I should have said in my earlier contribution that I am the patron of the National Association of Independent Reviewing Officers, so I have an interest and some experience there. I hear what he says about independent reviewing officers; in my mind, there is certainly a question about tying up so many experienced social workers in one capacity. But one of the concerns is that when a child is in a long-term placement, it may go very well but things can suddenly go wrong. One of the chief concerns that often come up when children need advocates is that while they are in a long-term stable placement, a local authority may suddenly have decided that it is too expensive so they are moved on. There is particular concern that a child may be in a stable placement for a long time and he or she may suddenly need the expertise and professional capacity of an independent reviewing officer. However, I see that there is another side to that.

[Lord Watson of Invergowrie]

My Lords, I thank the Minister for his response but after almost an hour of debate, we have made little progress. I think it was my noble friend Lord Hunt who said that the Minister does not seem to get the opposition to Clause 15. It is not just from these noble Lords but across different parties and the Cross-Benchers as well, who have expressed very strong views as they did in respect of Clause 9 last week. Many of the same sentiments have been repeated here today. There is deep-seated resentment and opposition to this and it will not go away through the amendments in this group just being withdrawn or not moved today.

A lot of noble Lords asked the Minister to give us some rationale as to what is driving this and the purpose behind it. The only specific thing I was able to note down in what he said was that it was to improve the provision of services to children. I think that everyone in the Room—noble Lords, the officials of the House or the department, and even the visitors in the public seats—would throw their hands up at that suggestion. The noble Lord, Lord Ramsbotham, encapsulated it when he said that introducing best practice is the way to improve things, not regulation. I urge the Minister to bear that fundamental point in mind.

I welcome the fact that we are to have a meeting and that the Minister will also speak to CoramBAAF. That is important but there are a number of organisations, and if he has not already done so, I think that some of the adoption and fostering agencies would like to meet him because, as I said, there is deep-seated opposition to this.

I do not want to rehearse the arguments and will not do so but I need to say to the Minister that, unless something in Clause 15 changes, he will be riding for a fall on Report. I hope that he will bring forward some sort of meaningful amendment that takes the sting out of some of the arguments that have been advanced over the last hour. They are very strongly felt and there is no political point-scoring here at all. If the Minister wants to make progress with this aspect of the Bill, we need to see something different when we discuss these issues in the Chamber in some weeks’ time.

The response to the amendments is nothing other than disappointing but, for now, I beg leave to withdraw the amendment. I mean it when I say that I look forward to returning to this subject on Report.

Amendment 129 withdrawn.

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[Lord Watson of Invergowrie]

My Lords, I will speak to Amendment 133ZA in this group, in my name and that of my noble friend Lord Hunt of Kings Heath. Clause 17 outlines the consultation process that local authorities and the Secretary of State must undertake before an authority makes an application to exempt or modify legislation in order to test a different way of working. This is a probing amendment to explore how a requirement could be placed on a local authority to consider how such an application could affect the needs of children with special educational needs and disabilities, in addition to consulting local safeguarding boards.

There are concerns that legislation meeting the definition of children’s social care legislation in Clause 19 which can be subject to exemption or modification includes any legislation specified in Schedule 1 to the Local Authority Social Services Act 1970 that relates to those under 18. As drafted, this covers more than 40 pieces of legislation mentioned in that schedule. The Bill could therefore allow exemption or modification of a wide range of social care support that children with SEND currently rely on. Indeed, those with SEND constitute the vast majority of children in need as defined under Section 17 of the Children Act. This group is disproportionately likely to be impacted by exemptions or modifications to children’s social care legislation. However, there is no mechanism explicitly to consider the impact on this group of changes to legislation.

Section 3 of the Children and Families Act 2014 will also be impacted by the Bill, with implications for those receiving social care and health provision as part of an education, health and care plan. Much of this impact could be unintended or unforeseen without specific measures being taken to identify them proactively. There is also the issue of a postcode lottery and creating parallel systems by granting some areas exemptions from the general law. So there is a real need for local authorities to conduct a review of the potential effect of different ways of working on the authority’s ability to meet the needs of children with SEND. It would be helpful if the Minister could give an assurance that some groups will not be prioritised over others if a local authority were to be exempted from some elements of the current provision.

[Baroness Evans of Bowes Park]

My Lords, Amendments 132A, 133A, 133B and 133ZA would amend the consultation, application and reporting requirements that already support the proposed power to test new ways of working. I should say from the outset that our response to the Delegated Powers and Regulatory Reform Committee, which was mentioned earlier and which evidently noble Lords have not seen, proposed putting forward a government amendment which provides for the laying of a statement every time the power is used in Parliament, with any regulations made, explaining how any change is expected to meet the purpose of the power—better outcomes for children and young people—and the protection that a local authority making an application to use the power intends to put in place. I hope that this move will address many of the concerns raised by noble Lords. We certainly believe that such statements will help the House if and when it comes to scrutinise any orders under Clause 15. None the less, I will say a few further words on consultation and reporting.

Clause 17 sets out proportionate expectations of consultation for both the local authority and the Secretary of State. For the local authority, this would mean consultation with health agencies, the police and others; for the Secretary of State, it would mean the Children’s Commissioner and Ofsted. The Secretary of State may also consult such others as she considers appropriate in each individual case. I am confident that, according to the freedom requested, the appropriate persons or bodies will be consulted to ensure that the right decision is made and that, where appropriate, the needs of children with special educational needs will of course be taken into account. But each decision needs to be made on a case-by-case basis; we are not persuaded that standardised, formal consultation would be appropriate. However, we would expect the statements that I have already described to deal with the outcomes of consultation. Of course, the reports would be made available to the public, as would the orders made—which I feel addresses the question of making public any changes made under Clause 15.

Finally I will say something about the annual report that is proposed. We entirely agree that tracking and capturing the progress of exemptions should take place. This will be crucial in coming to a view on whether lasting changes should be made to children’s social care legislation. We will be evaluating the use of the power, and noble Lords will note the requirement to report on how far changes have achieved their purpose if the initial testing period is to be extended. If it is not extended then of course things will revert to the previous position. This seems to be a way to achieve the same objectives in a more proportionate way than an annual review.

I also make the point, as highlighted by the noble Baroness, Lady Howe, that Ofsted will inspect and report in the normal way, providing another valuable source of public information. I hope that on the basis of our proposal to bring forward amendments, noble Lords will not press theirs.

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[Lord Watson of Invergowrie]

My Lords, I, too, thank my noble friend Lord Dubs for bringing forward this amendment. The standard of debate has been high and I do not want to add too much more to it. The experience of my noble friend Lord Dubs in this matter—most recently on the Immigration Bill—is well documented and hugely appreciated. When unaccompanied children come to this country, however they arrive here, and try to fend for themselves, it is fraught with all sorts of dangers. The noble Lord, Lord Storey, has just talked about children at school but many of these children never reach school because they are kept in an environment where they are exploited; they are not educated or made into good citizens. The noble Baroness, Lady Pinnock, made a point about a two-tier society, and that should resonate with us.

My noble friend Lord Judd, in talking about the action plan, spoke of setting the tone, but I would put that tone into a wider setting. One or two noble Lords referred to the events of a couple of weeks ago which were described as—it is a description that I would subscribe to—pulling up the drawbridge on the world to some extent, and that is the way it is viewed. Britain’s reputation has plummeted and has been matched only, it would seem, by the value of the pound in the last two or three weeks. We need to look at positive ways of showing that that is not all we are about.

I was profoundly depressed to read a report at lunchtime by a man called Mark Hamilton, who leads for the National Police Chiefs’ Council. He was reporting on an unprecedented spike in hate crime in the country within the last three weeks, directly related to the vote on 23 June. If we have an opportunity to show that we can do different and more positive things and that, despite the impression we have given, we are outward looking and welcoming as a country, then small measures can build into larger things. I think that this amendment is one of those acorns that may grow into something much more substantial.

I wish my noble friend Lord Dubs well in his meeting with Mr Brokenshire. I hope that the Minister will go to that meeting as well so that a way can be found of accommodating this amendment. It is important not just for the framework of this Bill and not just for the individuals concerned but potentially for the way that we are perceived as we approach difficult situations and respond to tragedies in other parts of the world. For that reason, I very much hope that a positive outcome for the amendment will be found, because it certainly deserves it.

[Lord Nash]

My Lords, I am grateful to the noble Lord, Lord Dubs, for his amendment. I recognise that it seeks to safeguard and promote the welfare of this vulnerable group, and I assure him that I appreciate the sentiment and good will behind it. I also appreciate the strength of feeling in this Committee about the plight of unaccompanied minors who seek refuge in the UK, as illustrated by the contributions to the debate by other noble Lords, and I share those feelings.

The amendment seeks to ensure clarity on the action that will be taken and the support that will be offered to local authorities looking after unaccompanied children. Under the Children Act 1989, unaccompanied children become looked-after children once they have been accommodated for 24 hours. They will then have their welfare promoted in the same way as any other looked-after child. I emphasise that their country of origin and the circumstances under which they arrived in the UK will have no bearing on the support that these children are entitled to.

The number of unaccompanied asylum-seeking children has risen significantly in recent years. In 2015 we saw a 56% increase in the number of unaccompanied children claiming asylum in the UK. However, as noble Lords have pointed out, until now the majority of unaccompanied asylum-seeking children have been cared for by a handful of local authorities. This has placed a considerable strain on their children’s social care services, which sometimes has been to the detriment of local children for whom the local authority has corporate parental responsibility. That is why the Government on 1 July launched a new voluntary transfer scheme that encourages all local authorities to participate in the care and support of unaccompanied asylum-seeking children who arrive in the UK.

The National Transfer Scheme was created after extensive consultation with the Local Government Association, the Association of Directors of Children’s Services and individual local authorities. The scheme is based on the principle that no local authority should be expected to care for more unaccompanied children than its services are able to provide for—whether asylum-seeking children, as the majority will be, or unaccompanied refugee children brought to the UK through our resettlement scheme.

The noble Lord, Lord Dubs, raised the point about funding. To support the National Transfer Scheme the Government have increased the amount of funding that they will provide to local authorities caring for unaccompanied asylum-seeking children. Annual support for each child aged under 16 has risen from £35,000 to £42,000, and each unaccompanied asylum-seeking child aged 16 or 17 will attract £33,000 per annum. This represents a 20% and 28% increase in funding respectively.

Because we are increasing the number of local authorities that look after unaccompanied children, these children will be better able to access services such as mental health and other healthcare services, and local authorities will have more capacity to deliver excellent social work support and care. Local authorities will also be able to prepare themselves and commission the new services that are required, such as appropriate accommodation.

The National Transfer Scheme includes a rigorous administrative process by which the Home Office and the local authority in which the child first presents are able to collect information about each child and then ensure that the local authority receiving the child receives all that information. The scheme seeks to build on existing regional structures and use the regional strategic migration partnerships to co-ordinate regional hubs and enable the regional pooling of knowledge and resource.

A central administrative hub based in the Home Office will work with the regional hubs to ensure a nationally co-ordinated but regionally implemented scheme. Funding that might be provided to the regional hubs via the regional strategic migration partnerships is currently under review, while each region is considering its own data, process and resource requirements. The Home Office will consider any proposals for regional structures to underpin the scheme. Service providers are being encouraged to contact the regional hubs to share their expertise. We know that some regions are already discussing how to pool resources and share expertise.

In addition, two training initiatives are under way. I can announce today that the Department for Education will commission an organisation to deliver training for the foster carers and support workers of unaccompanied asylum-seeking children who are at risk of going missing from care due to being onward-trafficked. That is a new provision. In collaboration with the Department for Education, the Home Office has already said that it will commission a training programme for the existing independent advocates, who are provided for in statute. This will improve their awareness and understanding of the specific needs of trafficked children and how to support them.

Noble Lords will appreciate that a great deal is happening in this area to promote better support, and the details are laid out in the scheme. While the support and care of unaccompanied asylum-seeking children is undoubtedly an important issue, I do not believe that a published national action plan for their welfare is required, given all that is happening under the National Transfer Scheme.

The noble Earl, Lord Listowel, asked about the Children’s Champion. The Office of the Children’s Champion will remain in the Home Office to ensure that all children’s safeguarding issues are addressed and attended to. In addition, the Children’s Commissioner in the Department for Education speaks on behalf of this group of children.

The noble Lord, Lord Judd, asked about asylum applications. It is always open to a person to make an application for asylum. There is no age barrier and as soon as an asylum application is lodged, it will always be considered.

The Government remain committed to ensuring that Parliament is kept informed about these issues. No one should be in any doubt of our commitment to bring vulnerable refugee children from Europe to the UK, as underpinned by the Immigration Act 2016. Unaccompanied refugee children with family connections to the UK continue to arrive from France and other European countries. We are also in active discussions with the UNHCR, UNICEF, NGOs and the Italian, Greek and French Governments to strengthen and speed up the mechanisms to identify, assess and transfer to the UK children who meet the criteria where it is in their best interests. This is in addition to the support for unaccompanied asylum-seeking children who arrive from Europe without any assistance. Last year, there were over 3,000 claims for asylum in the UK from unaccompanied children.

I will reflect on the points that noble Lords have made and that will no doubt be discussed in the meetings with Mr Brokenshire. I hope that the noble Lord, Lord Dubs, will feel reassured enough to withdraw the amendment.