Children and Social Work Bill [HL]

Lord Wills Excerpts

Monday 11th July 2016 Grand Committee

Moved by

[Lord Wills]

127: After Clause 14, insert the following new Clause—
“Whistleblowing arrangement in relation to looked after children and children at risk
The Secretary of State shall issue a code of practice on whistleblowing arrangements which can be taken into account by courts and tribunals when the issue of whistleblowing arises in public bodies providing social services and children’s services, and local authorities, in relation to looked after children and children at risk.”

[Lord Wills]

My Lords, as I said at Second Reading, the Bill is missing a crucial opportunity to introduce protections for the young people whom it is designed to support. These amendments would provide that opportunity. The importance of whistleblowing in exposing malpractice and wrongdoing and in improving the delivery of public services has been recognised by successive Governments for the past 20 years or so. The previous Labour Government brought in the Public Interest Disclosure Act and this Government have done more, insisting that they want to protect whistleblowers further. The current Prime Minister, for example, said:

“We will always back whistleblowers when they challenge poor standards, particularly in large organisations”.—[Official Report, Commons, 26/2/14; col. 257.]

When he announced new plans for the takeover of poorly performing children’s services last year, he highlighted that one of the “sharper triggers” for this,

“could include complaints from whistle-blowers”.

But whistleblowers in local authorities still lack some crucial protections that will encourage them to make such disclosures in the public interest. These gaps in protection not only discourage individual cases of whistleblowing and damage individual whistleblowers, they inhibit the creation of an effective culture in organisations that encourages transparency. Over and over again we have seen the consequences—repeated failures in the National Health Service, police wrongdoing after the Hillsborough disaster, and the scandal of MPs’ expenses when the fees office was well aware of the scams that went on but never blew the whistle.

Large organisations that serve the public in both the public and private sectors are powerful institutions, often driven by a potent internal culture. Every case of whistleblowing challenges the powerful vested interests which so often run such organisations. As I have often said in debates on these issues, too often after a scandal has been revealed, abuses have been tackled and the guilty punished, and after all the fine words about whistleblowing have been spoken, it is all too easy for those dominant interests to revert to carrying on much as they did before. The powerful never like being challenged.

These amendments would provide extra protection for those working in public bodies providing social services or children’s services, and local authorities, in relation to looked-after children, children at risk and social workers in two ways. First, they would require the Secretary of State to issue a code of practice on whistleblowing arrangements that can be taken into account by courts and tribunals when the issue of whistleblowing arises. Secondly, they would provide protection against employment blacklisting of whistleblowers.

Amendments 127 and 137 would embed a code of practice into statute so that it would be taken into account by courts and tribunals. This was a key recommendation of the whistleblowing commission set up by the whistleblowing charity Public Concern at Work, chaired by the former Appeal Court judge Sir Anthony Hooper and whose members included the noble Lord, Lord Burns. The commission drafted a 15-point code of practice providing practical guidance to employers, workers and their representatives, and set out guidance for raising, handling, training and reviewing whistleblowing in the workplace. This could act as a model for these amendments. A statutory code of conduct sends out to all organisations a powerful signal about the importance that Parliament attaches to providing adequate protections for whistleblowers to help drive necessary cultural change within organisations to encourage responsible whistleblowing.

Amendments 128 and 138 would provide improved protection for whistleblowers who are job applicants. This is a critical gap in protection for whistleblowers. Unlike in other areas of discrimination law, job applicants are not considered workers under the Public Interest Disclosure Act, which provides protection where a worker secures a position and is then victimised, forced out or dismissed if the employer becomes aware of an instance of whistleblowing in a previous job role. If an individual is labelled a whistleblower, it can be very difficult for them to get work because they can find themselves blacklisted—not through a formal, centralised database but informally. The amendment would plug the loophole identified in the case of BP plc v Elstone where the Court of Appeal stated that the situation was created because the drafting of the Public Interest Disclosure Act had not considered the situation of a job applicant being victimised by raising concerns in a previous job.

Following the Francis report into the Mid Staffordshire NHS Trust, the Government finally recognised this anomaly and introduced new protections for whistleblowing job applicants—but they covered only the NHS. There is no logical reason why such protections should be so restricted. Actionable offences of sex and race discrimination are not restricted to the NHS, so why should discrimination against whistleblowers be?

The amendment addresses this anomaly for those working in public bodies, providing social services and children’s services, and local authorities, in relation to look-after children, children at risk and social workers. If the Bill is to realise its welcome objectives, it needs to encourage a culture of transparency among all those charged with delivering them. The amendments would help to do so, and I hope that the Minister will feel able to accept them.

[The Earl of Listowel (CB)]

My Lords, this of course brings back memories of the home for adults with learning disabilities that was so well documented on the “Panorama” programme a while ago. While I support the principles that the noble Lord has just laid out, I would point out that many people working in this area nowadays will be working for private businesses. Most children’s homes are in private hands and many foster care agencies are now private, so in that sector there may be well laid-out regulations regarding whistleblowers. Perhaps the Minister could write to us, or have further conversations, to reassure me, at least, that there are whistleblowing protections for those working in the private sector with vulnerable children.

--- Later in debate ---

[Lord Wills]

My Lords, I am very grateful to everyone who has taken part in this short debate and for the support I have had from all sides of the Committee. I am also very grateful to the noble Baroness. As she suspected, I am not particularly happy with the response; nevertheless, there were a few little glimmers of light, for which I am truly grateful.

I am baffled by the Government’s continued resistance to these points. I understand that it is not just a matter for the Department for Education; I have raised this issue on other occasions in relation to other departments. For some reason, the Government are digging in on this matter and I really do not understand why. I do not understand their resistance to a statutory code of conduct. As I said, it is important that it is placed in the Bill because that would send a very powerful signal to all these organisations that Parliament takes this issue very seriously. Guidance is all very well but, as we know, all too often in many spheres of public life it goes by the wayside in the face of all the other pressures on public organisations. A statutory code of conduct is qualitatively different and, frankly, I do not understand why the Government continue to resist it.

Nor do I understand why they are taking so long to rectify the anomaly in protecting job applicants. This was raised in previous debates and the Government dug in very resolutely, in the way that the noble Baroness has done, until the Francis report arrived. When that report said that many of the tragedies that took place in Mid Staffordshire NHS Trust could have been prevented if there had been a proper culture of whistleblowing, the Government immediately switched round and provided protection for NHS workers. I know that the noble Baroness is doing her best with the briefing that she has been given; nevertheless, she has still not produced any good reason why workers in the NHS should be protected, yet workers in equally sensitive and equally important areas of public service—all the areas covered by the Bill—are not. The signal that the Government are sending out, and I cannot understand why they want to go on doing so, is that somehow these matters are less important than the matters covered by the NHS. Clearly, that is not the case.

When the noble Baroness calls for evidence, almost by definition it will come only after a tragedy such as happened in Mid Staffordshire has occurred. I ask the question that I have asked other Ministers: do they really want to be on the record as denying an opportunity to put right this anomaly, only for some distinguished person at a public inquiry following a terrible tragedy—sadly, there almost certainly will be such a tragedy at some point in the future—to look at it all and say, “If only there had been a culture to encourage whistleblowing and transparency, we might have prevented some of these terrible circumstances”? Why do Ministers still resolutely turn their face against this?

The glimmers of light that the noble Baroness has produced today are a tiny, tiny step forward from the previous response that I have had from Ministers, so I am grateful for her commitment to continue to look at this issue. However, I urge her and all Ministers to take this more seriously and not to wait for another disaster and then to be forced into taking action, just as the Francis report forced the Government to take action after the Mid Staffordshire incident. Having said all that, I may try again in the future but, in the meantime, I beg leave to withdraw the amendment.

Amendment 127 withdrawn.

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[Baroness Bakewell of Hardington Mandeville]

My Lords, I shall speak against Clause 15 and support the arguments of the noble Lords, Lord Watson, Lord Warner and Lord Ramsbotham. Clause 15 allows local authorities to be exempted from certain legal requirements and regulations and to test different ways of working. It is important, however, that they do not dilute accountabilities, fragment responsibilities and create a two-tier system of quality and standards. All vulnerable children deserve the same level of care.

Clause 15(3) says:

“The Secretary of State may make regulations under this section relating to a local authority in England only if asked to do so by that authority”.

My view is that it should not simply be at the whim of a local authority and that certain tests should need to be fulfilled to justify it, not least that the exemption should promote better outcomes and more efficient working. It should be clear that inadequate local authorities cannot be exempted from regulations that are crucial for upholding quality standards across the country. Clause 15(4) says:

“Regulations under this section may be made in relation to one or more local authorities in England”.

I seek assurance that the Secretary of State will not use the power under this clause to apply a request from one local authority seeking freedom under subsection (3) to apply it to more than one local authority under subsection (4).

In addition, I believe that statutory social work is best placed within local government, where there are established frameworks for oversight and monitoring. These clauses should not challenge the ultimate legal responsibility of local authorities to safeguard children. We need to avoid greater fragmentation of provision, any blurring and dilution of accountabilities, and any increased risk arising from more multiple hand-offs between disparate organisations. The experience of the NHS is salutary in this context: it is now imposing middle-tier planning arrangements to secure more effective joint working in a fragmented sector.

I am concerned that this clause could create an inconsistent national arena for the delivery of statutory social work duties, which could lead to confusion and a greater divide of practice. For children’s social work to run well, it has to uphold partnerships with a broad range of agencies: schools, police, health services—commissioners and providers—and the local voluntary sector. Local councils are best placed to perform that function.

I note that Scotland has required independent fostering arrangements to be not for profit; that approach could be explored in England. Recent research from Corporate Watch shows that in 2014-15, eight commercial fostering agencies made around £41 million profit between them from providing fostering placements to local authorities, at a time when local authorities have had to make significant budget reductions. Surely that profit could have been used to protect looked-after children.

[Lord Wills]

My Lords, I will not delay the Minister’s response very long. I want to say a few words in support of Amendment 131, to which I have added my name.

I recognise that there is widespread unease about Clause 15. All the noble Lords who have spoken so far have reflected that. The Minister will be aware that there is unease outside your Lordships’ House as well. I recognise that innovation can be crucial to the improvement of public services and I suspect, although I hope to be proved wrong, that the Government will not be unduly swayed by all the compelling arguments that we have heard against the clause. That is why Amendment 131 is important. Innovation, as other noble Lords have said, should not be at the expense of appropriate safeguards for those whom it is designed to help. Although I understand the Government’s intention—to promote new ways of working—as we have heard over and over again, as currently drafted the Bill does not offer adequate protections for those young people against failures in innovation. Amendment 131 aims to help to do so by placing a duty on the Secretary of State to,

“consult children in care, those representing children in care, and care leavers in their area before making a decision to grant an exemption or make modifications under subsection (2)”.

Innovation may be positive from the perspective of the local authority but it will not necessarily be positive from that of the young people affected by it. Children in care and care leavers have been let down by the system for so long that they have earned the right to have their views heard about changes to it. If any changes are to be successful, it is crucial that they are heard. These young people know better than anyone how the system works for them. That is one good reason why Article 12 of the UN Convention on the Rights of the Child stipulates that, when adults make decisions affecting children, children have the right for their opinions to be taken into account.

The amendment also provides for new, independent scrutiny arrangements and a duty on both the local authority and the Secretary of State to consult children in care and care leavers when a local authority applies for an exemption from the requirements of social care legislation. At Second Reading, the Minister was reassuring about scrutiny arrangements, but I ask him to consider carefully the merits of a new, independent body. Existing organisations all come with their existing viewpoints, cultures and histories—in other words, they come with baggage. The proposed change in Clause 15 is potentially so radical and could have such a dramatic effect on the lives of young people, who already face such huge challenges, that I believe it is important that any organisation scrutinising such arrangements should be dedicated to doing so. It should be able to adopt fresh perspectives and develop specific expertise, which a new scrutiny organisation will be able to do in a way that existing organisations may well not. From his response at Second Reading, I suspect that the Minister is not minded to do this but I hope that he is open to persuasion on that point.

[Lord Mackay of Clashfern]

My Lords, I want to ask a very specific question. Could an exemption of the kind envisaged in the amendment of the noble Earl, Lord Listowel, occur under Clause 15?