[Relevant document: The Eighth Report from the Joint Committee on Human Rights, on Legislative Scrutiny: Children, Schools and Families Bill; Other Bills, HC 369.]
Consideration of Bill, as amended in the Public Bill Committee
New Clause 17
Amendments of provisions about complaints in ASCLA 2009
‘(1) In Part 10 of ASCLA 2009 (schools), Chapter 2 (complaints: England) is amended as follows.
(2) In section 207 (power of Local Commissioner to investigate complaint), in subsection (5)(b) (power not to investigate vexatious complaint), before “vexatious” there is inserted “frivolous or”.
(3) In section 216 (law of defamation)—
(a) in subsection (1)(a), after “a governing body” there is inserted “or head teacher”;
(b) in subsection (2)(a), after “the governing body” there is inserted “or head teacher”.’.—(Mr. Coaker.)
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
With this it will be convenient to discuss Government amendment 67.
I welcome Members across the House back to our deliberations on this important Bill. I hope that Opposition Members will recognise that elements of the amendments are a result of our discussions in Committee, and that I have reflected on the points that were made and come back with what I hope are helpful proposals.
As I have said, the new clause and the amendment arise from the debates in Committee. We have listened carefully to hon. Members, and are therefore proposing these important changes, which are designed to clarify the local government ombudsman’s role as a provider of redress for the pupil and parent guarantees. New clause 17 will amend the parental complaints system that will form part of the redress for parents and pupils alleging a breach of the guarantees.
During our debate in Committee, many Members raised concerns that from time to time, complaints relating to a school that could serve only to absorb unduly the time and attention of a head teacher and governing body, with no real potential for a beneficial outcome, might be made to the local government ombudsman. In Committee, I provided the assurance that section 207(5)(b) of the Apprenticeships, Skills, Children and Learning Act 2009—the ASCL Act—is already framed so that the ombudsman may decide not to investigate a complaint, or to discontinue it, if he believes that the complaint is vexatious. He will have this discretion with any complaint, including those made in relation to the pupil and parent guarantees.
Having listened to the debate, however, I have concluded that it would be appropriate to strengthen this discretion to provide an even stronger safeguard for heads and governors. So subsection (2) of new clause 17 will amend the ASCL Act to allow the ombudsman discretion in cases where the complaint is “frivolous or vexatious”. This will ensure not only that the ombudsman will be able to decide not to pursue complaints that are clearly not in the best interest of parties concerned—vexatious complaints—but also that he has a clearly stated power to decline or discontinue investigation where complaints obviously lack merit or would be disproportionately costly to investigate, given the potential benefits—that is, frivolous complaints. I hope that hon. Members will welcome this change.
Subsection (3) of new clause 17 is a technical amendment extending defamation privilege to head teachers. It amends section 216 of the ASCL Act to ensure that any statement made by a head teacher in correspondence with, or subsequently published by, the ombudsman in a decision does not lead to the ombudsman or head teacher being sued for defamation. This small but important change will enable head teachers to be entirely candid in their views, and permit their evidence to be given and considered more openly, which can only promote the proper investigation of complaints. The amendment merely extends to head teachers the protection that already applies to governing bodies and local authorities under the Local Government Act 1974 or the ASCL Act.
We have made it clear in previous debates on the guarantees that it is not our intention to enable parents and pupils to pursue civil claims through the courts if a local authority, governing body, other proprietor of a school or head teacher does not meet one or more of the guarantees. However, we listened to Members’ concerns in Committee—including points raised by the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb)—and we agree that this could be made more plain. The amendment will ensure that this is clear on the face of the Bill.
The amendment refers to “liability in tort”, which covers, most importantly, both liability in negligence and liability for breach of statutory duty. It will put beyond doubt that parents and pupils will not be able to pursue claims for damages through the county courts based on the individual guarantees in the document. It is, of course, right to say that parents and pupils already have a number of pre-existing rights, which will be unaffected by the changes implemented by the amendment. It will apply solely to the impact of the guarantees themselves. The amendment does not need to seek to prohibit a claim under contract law, as there is no way in which the guarantees can create contractual relations between schools and parents. We consider that any claim for contractual liability would be entirely unsustainable.
I hope that those brief introductory remarks will show that I have listened to the points raised by the hon. Members for Yeovil (Mr. Laws) and for Bognor Regis and Littlehampton, and tried to take them into account and include them in the new clause and the amendment, as I said I would.
I am grateful to the Minister for his courtesy and careful consideration of the deliberations in Committee, but the Government new clause is a frank admission that the pupil and parent guarantees set out in clauses 1 to 3 are likely to lead to a proliferation of complaints. That is likely to happen, however, with or without the new clause, when we have an education system in which 9 per cent. of boys leave primary school without being able to obtain any grade in the key stage 2 English SATs. In other words, they are leaving primary school completely illiterate. Given that we also have an education system in which 40 per cent. leave primary school without having mastered the basics of reading, writing and maths combined, there is plenty of scope for complaints under these guarantees, particularly under guarantee 2.2, on page 24 of the guarantee document, which states that
“the curriculum is tailored to…every child’s needs so that…every…pupil receives the support they need to secure good literacy, numeracy and ICT skills, learn another language and about the humanities, science, technology and the arts”.
The new clause amends the Apprenticeships, Skills, Children and Learning Act 2009, particularly sections 207 and 216, which relate to the complaint procedures that are the mechanism under which the guarantees can be enforced—to the extent that they can be. As the Minister has said, the new clause is designed to change the complaints procedure so that the local government ombudsman does not have to investigate complaints that he considers to be “frivolous”—an addition to the word “vexatious”, which is already in the Act.
This follows concerns expressed by the teacher unions about the pupil and parent guarantees, particularly the concerns of the Association of School and College Leaders, which believes that
“the creation of these guarantees will open the floodgates for increased litigation against schools. The introduction of these guarantees has the potential to create a ‘whingers’ charter’ and bring a proliferation of frivolous complaints by a minority of litigious parents, thereby serving to increase the work load of school leaders and undermine the work that schools have done to create more positive relationships with parents.”
It is obviously right to ensure that the local government ombudsman does not have to investigate frivolous or vexatious complaints, and it is right that head teachers are protected from defamation suits in their communications with the local government ombudsman on these matters. There is absolutely no guarantee, however, that the ombudsman will be able to remedy any of the complaints about the standard of education provided. Tony Redmond, the current local government ombudsman, said in evidence to the Committee:
“I do not think that it is the role or responsibility of local government to change a school”.––[Official Report, Children, Schools and Families Public Bill Committee, 19 January 2010; c. 5, Q11.]
He went on to say that all he could do was make recommendations. He said that
“we are also conscious of the fact that in terms of the curriculum and teaching, some of those things might step outside the jurisdiction of the ombudsman”.––[Official Report, Children, School and Families Public Bill Committee, 19 January 2010; c. 7, Q5.]
In other words, the whole process is a complete waste of time. All it will do is add yet another layer of bureaucracy and waste to an education system already deeply mired in bureaucracy and waste.
Government amendment 67 is, as the Minister has said, a concession to both Opposition parties following our amendment in Committee that sought to make it clear that the pupil and parent guarantee did not create legal obligations under either the law of contract or the law of tort. Our original amendment said:
“A pupil or parent guarantee shall not be capable of creating any obligation in respect of whose breach any liability arises in contract or tort.”
That amendment was lifted almost word for word from section 111(6) of the School Standards and Framework Act 1998, which was introduced to prevent home-school agreements from being enforceable in the courts.
We believe that the Bill as originally drafted would have left open the possibility that the pupil and parent guarantees could be enforced through court action against schools that might breach those guarantees. That also concerned the teaching unions. The Association of School and College Leaders, for instance, said:
“ASCL believes that the creation of these guarantees will open the flood gates for increased litigation against schools.”
In his oral evidence to the Committee, ASCL’s general secretary John Dunford said:
“Our main concerns about the Bill are around the guarantees and potential in an increasingly litigious society for parents to take up an awful lot of head teachers’ time in disputing what are rather uncertain and woolly guarantees.”––[Official Report, Children, Schools and Families Public Bill Committee, 19 January 2010; c. 4.]
The National Union of Teachers said:
“NUT head teachers are concerned that without adequate resources or provision for staff training these proposals may leave schools vulnerable to litigious parents or over-eager lawyers who have misinterpreted the Government’s intentions. The NUT is concerned that any breaches of the guarantees should not be treated as akin to breaches of statutory duty in the health and safety sphere granting persons distinct rights to legal action and monetary compensation.”
In Committee, the Minister said that he agreed with the sentiments expressed in the amendments, and would return to the issue after examining it further. He also said, however—as he said a moment ago—that he did not think it necessary to include the explicit reference to the law of contract. He said:
“The guarantee document does not create a contract between parents or pupils and the school, because it is a public law document.”––[Official Report, Children, Schools and Families Public Bill Committee, 28 January 2010; c. 254.]
It is clear from Government amendment 67 that the Government have only explicitly ruled out tort, and I think that that is a mistake. The creation of guarantees implies, or could imply, a contractual obligation. The only thing missing is a consideration to give rise to a contractual obligation, but surely the consideration in this instance is taxpayers’ money. If the complainant is a taxpayer or council tax payer, surely that might be regarded as the consideration element of a contract, implicit in the pupil and parent guarantees in clause 1.
As for its being a public law document, surely that would apply equally to a home-school agreement, but the drafters of the School Standards and Framework Act 1998 considered that an explicit exclusion of liabilities under contract law as well as tort law was necessary.
The hon. Gentleman is making an interesting point, but does he not agree that there is a difference between this Bill and the 1998 Act? The home-school agreement is obviously a contract—a specific contract between home and school, which people must sign. It is relevant to an individual parent, an individual pupil, an individual school and an individual family. That is why the Act excluded it in terms of contract. The position in the Bill is entirely different. It is not necessary to rule out contracts, because no contractual agreements arise as a result of the guarantees in the Bill.
That says something about the extent to which the Minister feels that the guarantees are worth anything. Normally, if a private sector service provider gives a guarantee for the quality of his or her work, that is regarded as a contractual guarantee, just as the home-school agreement could constitute a guarantee. Although the Minister may well be right, I believe—this was the thinking behind the provision in the 1998 Act—that it is safer to include this provision in the Bill to ensure that that no action can be taken under contract law in future. There is surely no harm in including it.
I am not a lawyer. We have had this discussion before, and the hon. Gentleman has conceded that he is not a lawyer either. I am advised, however, that there is no contractual agreement. I can see that a home-school agreement, involving the signing of a specific document, constitutes an individual contract between the pupil—or parent—and the school, but I see no analogy between that and the guarantees in the Bill.
If the guarantee is a real guarantee, there is a high likelihood that it will give rise to contractual rights. If, however—as is probably the case, which is why I will not be calling for a vote on this issue—the guarantees are not really worth very much and this is merely political posturing, the Minister is right, and it will not be possible to enforce these provisions in the courts, regardless of whether that is explicitly ruled out in the legislation.
The guarantees represent an expensive and bureaucratic approach to trying to raise standards in our schools. They are, in effect, the last refuge of a Government who know that they have not delivered. This new clause and amendment go some way towards mitigating the downside of some of the implications of the pupil and parent guarantees, however. For that reason, we will not oppose them—but they will not create one single thing that will help to raise standards in our schools.
I start by thanking the Minister for Schools and Learners and his team for the generally productive approach they took in Committee, and I also thank him for starting today’s debate with a small olive branch of consensus, before we move on to the dissent that is likely to permeate the rest of our debate. He has listened, to some extent, to the criticisms of clauses 1 to 3, and in response he has offered some small and rather modest gifts to the Committee and the House to try to dispose of a few of the problems that will arise if the guarantees are ever implemented, which we must doubt. We support him in seeking to remove “frivolous” complaints, and we agree with his points about not creating legal rights that could result in legal action, with parents and pupils suing for damages.
However, our main problem with clauses 1 to 3—in this regard I agree with the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb)—is that the Government have drawn up the pupil and parent guarantees in such a vague and unhelpful way. Goodness knows what the ombudsman is going to make of trying to enforce those guarantees, which the Secretary of State and his advisers cobbled together one evening a few months ago. No ombudsman will be able to make a serious job of enforcing the types of obligations and supposed guarantees set out in the White Paper.
The hon. Member for Bognor Regis and Littlehampton cited just one of the flawed pupil guarantees. I have cited in the past, and shall cite again in future, the pupil guarantee that specifies that every 11 to 14-year-old should enjoy
“relevant and challenging learning in all subjects”,
and develop their
“personal, learning and thinking skills so that they have strong foundations to make their 14-19 choices.”
We are told that that will be phased in by September 2010. The Minister is a fair-minded person who must know that our criticisms are entirely right, and I put it to him that it will be impossible for any ombudsman service, regardless of how many staff it has, to make head or tail of most of the pupil and parent guarantees. Indeed, if we read the small print of some of these guarantees, we discover that in the commercial sector people would get into serious trouble for seeking to present them as guarantees.
For example, the guarantees on access to physical education and competitive sport are phrased in such a way that although they give the impression that there is a guarantee of five hours of sport—or culture, or whatever—the truth is that all the Government are talking about is “access” to those things, which could be delivered in a series of very unconvincing ways that would mean that the vast majority of young people would not get five hours of any of them, because they are available in such a way that they cannot be taken for granted. Meanwhile, however, a head teacher—or more likely a Secretary of State—would be able say, “Hurrah, we’ve delivered all these wonderful guarantees, and young people can have access to these things.”
If the Secretary of State had come up with even a couple of sensible guarantees that were outcome focused rather than input focused, and had linked them to giving freedom to schools to make their own decisions about how to deliver them, we might have supported him. He was in the Treasury back in the early days when all those delivery targets were set. They often focused on inputs rather than outputs, and then the Treasury realised that it had got it all wrong. Because he is so experienced and knows all the flaws of setting targets in this way, he should not, as Secretary of State, have come up with such a lot of nonsense: so many guarantees that are unenforceable, or focus on inputs. He must know that he has cobbled these guarantees together on the back of a fag packet. Although he has sought to do that to create some dividing lines for electoral purposes, the guarantees deserve to be put in the waste paper basket before the election, rather than being implemented in such a way that they will be extremely difficult for any parent or pupil to enforce, and will give the ombudsman service an impossible job.
Of course the Liberal Democrats welcome this small olive branch; we do not want to be churlish and we are grateful for all concessions. I hope that I have not struck a note that has implied any lack of charity or enthusiasm—[Interruption]—or, indeed, any churlishness, in response to these small concessions. However, they are very small concessions, they sit on top of a very big problem, and they do not address the flaws in clauses 1 to 3.
I sometimes wonder whether it is worth coming forward with concessions; if those are the reactions that I get for doing so, I will just do full-blown opposition and get on with it. However, I welcome the limited welcome given to these concessions, and just wish to make a couple of points before allowing us to move on. They are important concessions and changes, and they directly relate to some of the problems that the hon. Members for Bognor Regis and Littlehampton (Mr. Gibb) and for Yeovil (Mr. Laws) set out. We have tried to respond to those so that the document becomes more workable and we do not encounter some of the problems that would have arisen had we not amended the Bill.
The document is being consulted on for 12 weeks—I do not recall exactly how far through that process we are, but it is about seven or eight weeks—and people are responding to that consultation exercise. When my right hon. Friend the Secretary of State and I go to meetings, people talk to us about the guarantees and they do not see them as being fit for the waste paper bin. People are engaging with us about the real effort that we have made to lay out, for the first time, what the state’s offer should be to parents and to pupils in terms of state education. This was not a “back of a fag packet” effort; serious discussions took place over a considerable time so that we could put forward a document setting out what a parent and a pupil can expect in terms of education.
Let us go into fantasy land for a moment: if, after an election, we had a Conservative Government or a Liberal Government—[Interruption.] It has come to something when I am barracked by my own side as well. I would have a wager with the hon. Members for Bognor Regis and Littlehampton and for Yeovil that if and when this becomes law, they will not abolish it.
This is an interesting point. I do not believe that they would abolish it, because when it is set out with the guarantees on one-to-one tuition, on sport, on recreation, on culture, on languages, on learning, and on parents being kept informed both online and through proper consultation—through parents evenings and so on—parents, teachers, pupils and the general public will see that, far from being a useless piece of bureaucracy, it is a live document that, for the first time, sets out what the state’s offer is on the educational entitlement of the young people of this country. With those brief comments, and having taken note of the overwhelming gratitude that I have received for introducing these provisions, I commend the measures to the House.
Question put and agreed to.
New clause 17 accordingly read a Second time, and added to the Bill.
New Clause 1
Publication of information by Local Safeguarding Children Boards (LSCBs) in England and Wales
‘(1) When a LSCB deems it necessary to conduct a Serious Case Review (SCR), the LSCB will—
(a) carry out an initial management review to identify any immediate concerns within 72 hours of deciding that a SCR is necessary;
(b) commission an internal investigation if the child or his immediate family has received social care services from the local authority in the past two years;
(c) commission a SCR.
(2) The LSCB will commission the SCR from an author approved by a body established by the Secretary of State by order made by statutory instrument.
(3) The LSCB will publish the SCR in full, excluding only information that may lead to the identification of living parties.’.—(Tim Loughton.)
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
With this it will be convenient to discuss the following: new clause 10—Reasonable punishment—
‘(1) The Children Act 2004 is amended as follows—
(2) In section 58 (reasonable punishment), after subsection (4) there is inserted—
“(4A) Only a person with parental responsibility for a child within the meaning of section 3 of the Children Act 1989 can justify battery of the child on the ground that it constituted reasonable punishment.”’.
New clause 21—Publication of serious case reviews—
‘(1) When Local Safeguarding Children Boards commission serious case reviews these shall be published in full within 60 days of completion, subject only to the redaction and anonymisation which is necessary to protect the welfare and reasonable expectation of privacy of those persons mentioned in the Serious Case Review.
(2) The Local Safeguarding Children Boards must also ensure that within 12 months of the publication of the serious case reviews there is in each case an independent evaluation of the extent to which the conclusions of the review have been acted upon.’.
Amendment 35, in clause 28, page 25, line 26, after ‘with’, insert
‘for the purposes of a serious case review’.
Amendment 36, page 25, line 29, leave out ‘its functions’ and insert ‘a serious case review’.
Amendment 37, page 25, line 33, leave out ‘function’ and insert ‘serious case review’.
Amendment 38, page 26, line 8, leave out ‘its functions’ and insert ‘a serious case review’.
Amendment 39, page 26, line 8, at end insert—
‘(6A) The Board will disclose, on request, the names of the persons and bodies from whom it has requested information except in cases where disclosure would threaten the anonymity of a child or his family.
(6B) Section 28 will apply to LSCBs when commissioning Serious Case Reviews which, unless they can be shown to be harmful to the welfare of the subject of the Serious Case Review or his siblings, should be published in full, subject to appropriate considerations of anonymisation and redaction.
(6C) The Secretary of State shall direct a body to maintain a register of suitable, qualified authors of Serious Case Reviews and to monitor their quality which should be available to LSCBs commissioning Serious Case Reviews.’.
Amendment 40, page 26, line 11, leave out ‘its functions’ and insert ‘a serious case review’.
Amendment 88, page 26, line 11, at end insert—
‘(8) Provision must be made for appeals by those persons who consider it to be unreasonable or improper to supply the specified information to the Local Safeguarding Children Board under this section.’.
Amendment 41, in clause 29, page 26, line 21, after ‘with’, insert
‘for the purposes of a serious case review’.
Amendment 42, page 26, line 24, leave out ‘its functions’ and insert ‘a serious case review’.
Amendment 43, page 26, line 28, leave out ‘function’ and insert ‘serious case review’.
Amendment 44, page 26, line 41, leave out ‘its functions’ and insert ‘a serious case review’.
Amendment 45, page 26, line 44, leave out ‘its functions’ and insert ‘a serious case review’.
Amendment 46, in clause 30, page 27, line 4, leave out ‘may’ and insert ‘will’.
Amendment 47, page 27, line 6, at end insert
‘and of the effectiveness of Local Safeguarding Children Boards in England and Wales.’.
Amendment 90, page 27, line 10, leave out ‘may’ and insert ‘shall’.
Amendment 48, page 27, line 13, at end insert—
‘(c) requiring the naming of partners listed under section 13(3) that are not cooperating appropriately with the Board.’.
This group of amendments concerns a very serious subject: serious case reviews. This is the first opportunity that we have had since the baby Peter tragedy, more than a year ago now, to put forward our proposals, which we have been making for some time, as part of the relevant legislation. It is particularly important that we can do so today because, as you might know, Mr. Speaker, we did not reach this part of the Bill in Committee, so we were not able to have any debate about the operation of local safeguarding children boards or, specifically, our amendments on serious case reviews.
I want to talk about four sets of amendments in this group. The most important is new clause 1, which is complementary to amendment 39. We have tabled a series of similar and technical amendments—amendments 35 to 38 and 40 to 45. Three further amendments—46, 47 and 48—concern the inspection of the operations of local safeguarding children boards.
Let me start by commenting on the operation of serious case reviews and the way in which they are commissioned by local safeguarding children boards. It is fitting that we are having this debate now, because on Thursday it will be the 10th anniversary of the tragic death of Victoria Climbié, whose name resonates hugely with everyone in this country who has any remote interest in the safeguarding of vulnerable children. I am sure that everyone will agree that much more still needs to be done to safeguard our most vulnerable people.
In the past few days, we have heard about a further case involving violence towards a child known only as baby Y in Haringey, following on from the baby Peter case in Haringey and the Victoria Climbié case, which happened in Haringey 10 years ago, as I said. Just last month, we heard the incredible details of the torture of the 10 and 11-year-old boys in Edlington, Doncaster, by two boys of a similar age who were known to children’s services and other agencies. Those two young boys were lucky to escape with their lives and they were the latest tragedies in that part of the United Kingdom after a catalogue of no fewer than seven deaths in Doncaster in a five-year period, five of which merited serious case reviews.
The trouble is that few people in this country are convinced that the lessons of the serious case reviews in Doncaster, in Haringey and in other high-profile areas of this country that have experienced similar tragedies have seriously been learned by those in a position to do something about the situation and to make the safeguarding environment better for vulnerable children and families. Public confidence in child protection in this country has been hugely undermined, particularly after the baby Peter case. Social workers and other professionals involved in child safeguarding feel demoralised and undermined up and down the country. The system simply is not working, which is why we feel that a more drastic overhaul and more drastic and immediate action is required than the Government are prepared to countenance. That is why we have tabled these amendments.
The truth is that the number of children who are dying at the hands of parents and carers has not materially changed since the death of Victoria Climbié, despite significant investment that the Government have made—nobody is denying that—and despite huge structural changes. However, I fear that many of those changes have meant that attention and resources have been diverted to overhauling the system rather than dealing with the problem at the sharp end. That has proved counter-productive in many cases, and that situation remains despite the large amount of legislation that has been introduced, much of which we supported. In too many cases, the outcome of that legislation has been to exacerbate the bureaucracy that now surrounds too much of our child protection system. All that has to change. The first steps needed to bring about such change must be to have greater transparency, greater accountability and genuine learning from mistakes, and the public’s confidence that that learning is taking place must be restored. It is no longer good enough for the Government to say, as I predict the Minister will say in reply, that serious case reviews must remain secret. They cannot trot out the same old excuses about protecting anonymity and then cite the various children’s charities that oppose change for whatever reason.
Back in December, the Government produced, “Working Together to Safeguard Children”, chapter 8 of which dealt specifically with the future construction of serious case reviews. We welcomed many of the proposals in that document, but we think that it did not go far enough. It dealt with time scales—I think everyone agrees that we need to speed things up—and the extent to which we want to gather information. We want it to be as wide and as comprehensive as possible.
We now seem to talk about comprehensive executive summaries, which are just executive summaries, but there is no guarantee that executive summaries will reflect the complete story, chronology and analysis of what went wrong that led to a serious case review. We should all be able to learn from best practice when serious case reviews are carried out, but we do not know where best practice takes place because serious case reviews are not published. I was amazed by one aspect of the baby Peter tragedy that blew up last November, because I had assumed, quite wrongly, that serious case reviews were available in full to a much wider constituency of professionals than they are. I would assume that directors of children’s services and other key professionals would automatically have access to full serious case reviews so that they could read those reports, even confidentially, learn from them and see whether there were potential echoes in their own authority of what went wrong in another authority and do something about that urgently. But, no—a very small constituency of people get to see serious case reviews.
There seems to be very little urgency in some of the reviews. One case review, in Doncaster, of the death in October 2004 of a child who was known very robotically as baby B05, was not produced until 2008—almost five years later. We now know about the underlying structural turmoil that was going on in that authority, despite the fact that the authority was described by Ofsted as “adequate”. At the same time, locally commissioned reports and other front-line reports clearly stated that there were serious problems in that authority. It took almost five years to produce a serious case review. One would hope that someone could learn lessons from that and make improvements, but it took too long to produce.
A few weeks ago, a leaked copy of the full serious case review of the Edlington case was obtained by the BBC, and the BBC “Newsnight” programme read that report in full. Alongside that report, which ran to just over 150 pages, it also read the accompanying executive summary—or comprehensive executive summary—which ran to just 11 pages, including the title page. The BBC could clearly see serious anomalies between the full-blown serious case review and the executive summary. Indeed, they bore little resemblance to each other. The BBC made that patently clear, yet even when the executive summary of the serious case review of Edlington incident was exposed as a sham, the Government and the authorities in Doncaster refused to produce, in any form, a fuller version of the summary or a slimmed down version of the full serious case review. They were completely in denial, and the serious case review of a horrendous case remains suppressed, secret and available to only a few individuals.
It is no wonder, therefore, that confidence in the child protection system in this country is at an all-time low. To this day, I still do not understand why the Government were so steadfast in their refusal to produce anything other than a discredited executive summary of what went on in Doncaster.
Does my hon. Friend share my concern that, if we had seen only the executive summary, we would not have been aware that, on 31 separate occasions, nine agencies were involved that could have intervened, and so possibly have prevented the subsequent events from taking place?
That, of course, is exactly right, and it is why we need much fuller accounts of what goes wrong in tragedies such as the Edlington and baby Peter cases than can be provided in brief serious case reviews, however comprehensive their title calls them.
We definitely need a radical overhaul of how serious case reviews are commissioned, compiled and published, as well as of how they are subsequently learned from and acted on. We need that to restore public confidence in child protection, and morale in the social worker profession. We also need it to ensure that all the agencies involved in safeguarding children can see clearly where mistakes have been made and can work to ensure that they will not be repeated, on their watch and in their patch, in the future.
In the past 18 months, I have travelled widely around children’s services departments. I visit local authorities most weeks to speak to the people in the front line and the ones who manage those departments. Some children’s organisations claim that they do not agree that serious case reviews should be published in full, and I am sure that, as usual, the Minister will give us a litany of them before long. However, despite those claims, the overwhelming view among the child protection social workers at the sharp end whom I meet is that they would be in favour of the full publication of serious case reviews.
Full publication of the reviews would be in their interests. More importantly, it would be in the interests of vulnerable children and families, so I was pleased to see the stance taken by the British Association of Social Workers, which was confirmed in The Times just last week. The association is the professional body for social workers, and it is headed—very skilfully, I might say—by a former colleague of the Minister in this House. He has committed BASW to campaigning for full publication of serious case reviews. The association represents the professionals who have to deal with these problems every day of the week at the sharp end. They now see the merits of exposing the weaknesses in serious case reviews, as opposed to suppressing them and keeping them secret, as has happened for too long.
In The Times of 18 February, Hilton Dawson said:
“It’s vital that these reviews are transparent and can be seen in full, subject only to the need to preserve individual anonymity. These reviews are vital learning tools and it is imperative that they are made widely available.”
There speaks the head of the professional body for social workers in this country. A former social worker himself, he incidentally had experience for a short time as a Labour Member of Parliament in this House.
In addition, Community Care magazine, the bible of social workers—[Interruption.] That name causes some tittering from the Secretary of State, but the magazine is used very widely by the social worker work force. The magazine has also committed itself to the publication of serious case reviews, and has been waging a very forceful campaign to that end.
I quote from a recent copy of Community Care:
“Serious case reviews are usually published only in summary. This limits learning. Community Care recommends that reviews be published in full so that practitioners can use specific details to inform their practice according to their experiences and roles. There is some resistance but it is possible to publish without harming anonymity . . . Names can be removed and reviews could be collated and distributed centrally, thereby disassociating them from specific local authorities, teams and known cases. It would help if reviews focused on learning not recrimination.”
I fully agree with that. The purpose is not a witch hunt or a blame game. It is to find out what went wrong, to learn from it and to make sure that it is less likely to happen in the future.
We will never abolish cruelty to children outright. There are evil individuals in society who will always seek to do evil to vulnerable people, including children—incredibly. What we can do is to make it as difficult as possible for those people to be able to perpetrate their crimes, and to make sure that everybody is working together to ensure that those opportunities are as limited as possible for the perpetrators of such crimes.
It seems to me that the hon. Gentleman should be rather less surprised by the attitude of the British Association of Social Workers. The purpose of serious case reviews is not and should not be to seek individual blame, but unless a fuller account is given than the one that is available in executive summaries prepared by organisations, it may be much harder to see the resource issues and the issues of institutional practice and culture which underpin so many of the meaningful conclusions that should be drawn from such reviews.
I agree. It is not merely a case of identifying certain individuals who did not perform the job to the required standard. It is necessary to find out why. Were there enough staff to cover the cases? Was the case overload too great? That has been the situation in many local authorities. Were resources not available when they were needed? Was all the work going on in the department reactive rather than preventive? Were social workers spending far too much time at their computers, having to fill in assessment forms, as is now the case?
According to Unison, up to 80 per cent. of a social worker’s time in child protection is spent filling in assessment forms, rather than at the sharp end with those children. Surely the most likely way of preventing harm to vulnerable children and families is for a professional, well-trained, well-resourced and well-motivated social worker to knock on a door and spend quality face-to-face time with that vulnerable family and the child. The social worker would then be able to make an informed decision as to whether intervention was required and at what level, rather than trying to second-guess it from a computer screen or from papers a long distance away in an office.
Serious case reviews should consider and analyse such questions in order to draw conclusions and make recommendations. That cannot be properly communicated in the space of an 11-page executive summary, whether or not it is called comprehensive, and that is the sort of thing that we need to know.
Does the hon. Gentleman agree that the absence of more detail in serious case reviews makes it difficult to look for patterns? It is the analysis of patterns that is key in identifying the circumstances where intervention is necessary. He is probably aware of Birmingham’s analysis, from which the council found that judgment was very poor. We need to analyse patterns, and for that we need detailed serious case reviews.
The hon. Gentleman is right. It is no good just looking at a serious case review in isolation, though we need to do that in full. If there are clear systemic weaknesses affecting many children’s services departments, that is a serious job for central Government to undertake, rather than a localised issue for a local authority. One of my amendments, which I shall come to later, deals with analysing the work of local safeguarding children boards, which refers to the hon. Gentleman’s point.
There have been objections to the publication of serious case reviews, along the lines that social workers would be compromised in their work if the reviews were published in full, or that the identity of the children and families involved would be revealed. Clearly, many social workers working at the sharp end do not buy that argument. I do not buy that argument; I never have. Publication is in the best interests of social workers.
Inevitably, when there is a tragedy such as the baby Peter case, the Doncaster case or others, social workers are always panned first. It is always assumed that if a baby or child who was on a local authority’s radar dies in gruesome circumstances, it must be the fault of social workers. In some cases, that is true; in many cases, the system is at fault, as the hon. Member for Newcastle upon Tyne, Central (Jim Cousins) said; and in many other cases, other agencies have not done their bit. In the case of baby Peter, the paediatrician, whom we have heard about in the news this week, potentially had some shortcomings, and the police did not come out of it very well, either. However, social workers are always at the front of the queue to be panned, and they are always at the back of the queue to be congratulated and praised when things go right. They usually do go right, but that does not make for good news on the front page of a tabloid newspaper.
The Select Committee on Children, Schools and Families heard evidence that many children’s social workers are the least experienced in the work force. They are put on the most complicated and difficult cases at the beginning of their career, and they can arrive in post having had placements and training that did not include children’s social work. We need the full picture to ensure that, as my hon. Friend rightly says, social workers are not hung out to dry when there is systemic failure and a lack of support for often young and inexperienced people who are doing their best. We need to ensure that the true picture is seen so that people are not made scapegoats when they are not personally at fault.
My hon. Friend makes a valid point. We know that part of the problem is the huge case load placed on social workers, particularly those in child protection, and the worryingly high vacancy rates, which on average exceed 15 per cent. across various authorities, but in others, particularly those in London, are as high as 40 per cent. Newly qualified social workers, with hardly any on-the-job training in often complex and sensitive child protection work, are thrown in at the deep end with really challenging cases. However, social work is not a science or a clear case of black and white; it involves experience, intuition and sensitivity—qualities that one cannot learn just from a book, but must learn on the job, preferably alongside a mentor who has years of experience to pass on.
The morale of social workers has been so undermined, partly because of those high-profile tragic cases, that there is a serious problem with people going into social work. We have expressed serious reservations about the standard of training that many social workers receive; about the entry qualifications, which need to be higher, for a social work degree; about the low pass mark required to obtain that degree; and about the lack of on-the-job training for social work graduates.
That is why back in 2007, in the report that the Conservative party commissioned on the role of children’s social workers, we made specific recommendations about newly qualified social workers and raising the standard of training. I am pleased to say that at long last Moira Gibb’s social worker task force has taken on board many of those recommendations, but they should have been taken on a long time before we reached this desperate impasse.
There is a further question. Why would social workers not want to co-operate with a serious case review that was going to be published in full? Why would they not want to co-operate with an investigation, when their profession may or may not be at fault in the tragic death of a vulnerable child? However anonymous and unpublicised serious case reviews are at the moment, that did not stop the names of key players in the baby Peter case and other tragic cases being splashed all over the front pages of certain newspapers. It did not stop the identity of culprits and, indeed, of children and siblings being exposed and made available in a matter of seconds on the internet.
Clearly, it should be possible to publish a full serious case review without compromising the identity of the key players involved. That is why our amendments are heavily subjected to key caveats: first, that serious case reviews should be published in full only where such publication did not compromise the welfare of surviving children or siblings, and it would have to be shown that that was the case; secondly, that those serious case reviews would be duly anonymised; and thirdly, that they would be appropriately redacted where that was necessary, say, to protect the identity and sensitivities of surviving children and families.
We have researched widely how we think that the new system should be structured. After deliberations with social workers, directors of children’s services, departments of social work, academics and others, we think that a practical and suitable way ahead is to base the model of publication of serious case reviews on the practice that has existed for many years in mental health homicide reviews. Mental health homicide reviews are published in full, with various names of individuals anonymised—they may refer to “Dr. A” or “Nurse B”—and they are made widely available. It is generally agreed that they are good, thorough learning tools from which a much wider constituency of professionals can learn from the mistakes that have been made and determine what changes to the system, locally or nationally, need to be made to try to avoid their happening in future.
The mental health homicide review into the tragic killing of Jonathan Zito ran to 177 pages. It was a tragic, but thorough and worthwhile report. One could contrast that with the 16-page executive summary on the death of baby Peter, which was found not to be worth the paper it was written on and had to be rewritten after the whole case came to light back in November. Why cannot we use a model, if not based on, then certainly much closer to, that which already exists and has worked perfectly well for many years for mental health homicides? The practice in those cases is that following a murder involving a patient who has recently been treated by the local mental health service, there must be an immediate investigation to identify what urgent action needs to be taken within 72 hours—a succinct internal investigation that is urgently done and urgently acted on. That is followed up by a much longer—in the Zito case, 177 pages—in-depth review, which is then published, subject to the various caveats about protecting anonymity, and so on.
In new clause 1, we suggest that following the death of a child in connection with local children’s services, there should be an initial review within 72 hours, and then a full-blown serious case review commissioned by an author approved by a body established by the Secretary of State under an order made by statutory instrument. It would then be incumbent on the local safeguarding children board to publish the serious case review in full, excluding any information that might lead to the identification of living parties.
Subsection (2) refers to the authorship of such serious case reviews, because another issue comes up when we look at how they are commissioned. At the moment, it is up to the local safeguarding children board to find an author for a serious case review and commission him or her to produce the report, which is then written and submitted to the board.
We need to ensure that the professionalism, probity and independence of serious case reviews are protected if they are to be meaningful, credible and effective documents. The trouble is that after the baby Peter case, Ofsted produced a report revealing that, at that stage, no fewer than 41 per cent. of the serious case reviews that were being produced on behalf of local safeguarding children boards were unsatisfactory. The quality of the reviews was seriously called into question.
I have spoken to a number of authors of serious case reviews—professionals and academics who are regularly called on to write them. There is at least anecdotal evidence that in some cases vested interests can operate in the preparation of reviews. The LSCB appoints a familiar author to produce a serious case review, in the hope that they will not condemn too heavily the local authority in the care of which a child has been killed. The author of the review wants repeat business from the local authority, and so may go light on their criticism of it. I am not saying that that practice is widespread—I certainly hope not—but there is clear potential for a conflict of interest. Given the depths to which confidence in the whole system has sunk, we need to do more to safeguard the credibility and probity of serious case reviews.
That is why we suggest in our new clauses and amendments that when a serious case review is required, the LSCB should request an author from a centrally held register of professional SCR authors. The Secretary of State should appoint a body to hold that register of authors—a similar but rather beefed-up version of a system of expert witnesses who can be called upon to appear in court. That body would be responsible for ensuring that the authors on its register came up to scratch, that they had the necessary qualifications, and that they were monitored on an ongoing basis to ensure that the quality of their work was up to scratch.
I do not really mind what that body is. It might be a children’s charity such as Barnardo’s, or it might be the Local Government Association, for example. Indeed, the various local authorities across London have already been using a pool system of serious case review authors to call upon. If we had such a system, the reports that were produced would be much more likely to be above reproach. We desperately need such a change to restore confidence in the whole system. If the reports were then put in the public domain, so that all interested parties could see the full chronology of events, the full cast of characters involved, duly anonymised, and where the lines of weakness lay and action was specifically required, we could be confident that they were objective, thorough and professional.
I have some sympathy with proposals that an action plan should be included with a serious case review, requiring a subsequent audit of measures taken that were recommended in the review. That is proposed in new clause 21, tabled by the Liberal Democrats, with which I have a good deal of sympathy. It is no good just producing a serious case review, published or not, if it does not result in action. There is no formal checking mechanism at the moment, and there will not be one even if the changes that were discussed in the Government’s December document about having some sort of subsequent audit are put in place.
Does the hon. Gentleman agree with the point made in new clause 21 that the assessment of compliance should be independent?
Absolutely. That is entirely in harmony with the approach in our proposals. We need a very clear wall between the commissioners and the authors of reports. For the same reason, we need to ensure that whoever comes in subsequently to conduct an audit has no agenda of their own or conflict of interest. However, that could still mean someone whose name is held on the register that we are proposing. Someone with the professionalism, background and training to carry out initial SCRs could also carry out the audit to find out whether a review had been acted upon. The answer to the hon. Lady is yes—her proposal is very much along the same lines as ours.
Amendments 35 to 38 and 40 to 45 have the support of a number of outside organisations, notably the General Medical Council, the British Medical Association and the Children’s Rights Alliance for England. Clauses 28 and 29, to which the amendments would apply, are very widely drawn in that they establish a statutory obligation to provide information to LSCBs for any or all of their functions. That could include the release of confidential information about children, parents, siblings or, in a clinical context, patients. I have a deal of sympathy with the GMC and the BMA, which are concerned that if people are statutorily obliged to provide information to an LSCB, when the purpose for which that information is required is not made clear, there is a serious risk to patient confidentiality. In addition, the CRAE has expressed fears about the breaching of child confidentiality, particularly regarding information given by one child about another. The requirement included in clauses 28 and 29 is very wide ranging, and we therefore think it should be modified. Our amendments would specify that such information could be required only in so far as it can be shown to be necessary for the compilation of an SCR, and on an anonymised basis.
I have some questions for the Minister. I would be grateful if he could say why the clauses are so widely drafted. Is that a further response to the Laming review, because the measures seem to go well beyond the scope envisaged in his second review of last year? Will the Minister define more closely the circumstances in which such information will be required? There is also a question regarding the Data Protection Act 1998, which specifically requires that information is collected for a specified purpose, because under the clauses, nothing will be specified. May we have more detail about specified purposes? On what grounds, for example, could an agency withhold information? Could it withhold information if it believed that there was a risk of breaking the confidentiality of a child, a pupil or a patient? The CRAE has further said that any sharing of information by public bodies must be necessary, proportionate and in the pursuit of a legitimate aim in order to comply with human rights law. The question of whether the clauses as they are structured comply with that is a serious one.
The final tranche of proposals in this group is made up of amendments 46, 47 and 48. Amendment 46 would require the Secretary of State, by regulations, to make provisions for Ofsted to conduct reviews of LSCBs’ performance of their specified functions. Clause 30 provides that the Secretary of State
“may by regulations make provision”.
This is an old favourite in Committees—although we did not have the opportunity to make the argument there this time—because we think that “may” should become “will”. Questions have been raised about the way in which local safeguarding children boards operate. For example, there is confusion about the boards’ exact role and purpose vis-à-vis children’s trusts. After the baby Peter affair, the Secretary of State made changes to the composition of LSCBs which amounted to adding two lay members, but I am not sure how that improved their quality other than by increasing the size of the tables around which the boards sit. I worry that any decisions that LSCBs make will always be subject to the lowest common denominator.
I have serious qualms about Ofsted’s ability to inspect children’s social care departments, because there is a severe shortage of children’s social care experts working for, or on the board of, Ofsted, but the operation of LSCBs needs to be examined on a better defined and more regimented basis. If it is to be the inspecting body, Ofsted should also review the effectiveness of LSCBs as a whole. Are they working properly and how do they interact with other agencies? That is the purpose of amendment 48. We suggest that LSCBs should be able to name and shame those agencies that, for example, have not co-operated with them in the compilation of serious case reviews. That is the flipside to the earlier amendments that we tabled about the supply of information for serious case reviews.
The amendment also has another purpose. As matters stand, Ofsted does not inspect the way in which agencies work with each other in child protection. Clearly, a common feature of the failings that lead to serious case reviews is the weaknesses in inter-agency working. We think that Ofsted needs to look at that area of child protection and the operation of LSCBs much more carefully. Joined-up working is always an important part of the process and too often it is one of the failings that contribute to the tragedies that we see.
Those are the four sets of amendments within this group. I have some sympathy with the new clause tabled by the Liberal Democrats about serious case reviews, but they have also tabled new clause 10 on the definition of reasonable punishment. Children’s Bills, in my experience in the last nine years in which I have been dealing with them, would not be complete without somebody trying to hijack them by imposing anti-smacking provisions, and this Bill is no different. True to form, that is what new clause 10 seeks to do. I make no comment on the suitability of the new clause, other than to say that I am aware of the technical problem about the operation of certain religious organisations that have genuine concerns about whether corporal punishment may be used. However, I am also aware that the Secretary of State requested, in his letter on 28 January, that Sir Roger Singleton look into that matter in more detail. Given that we are awaiting the outcome of his deliberations, there is even more reason why, in this case—
Will the hon. Gentleman give way?
I think that the hon. Gentleman is saying—although he might be hiding behind the Secretary of State—that the Conservative party supports looking at the anomaly of Sunday schools and madrassahs. Is that what he is saying?
I said it quite clearly: I said that the Government have already asked Sir Roger Singleton to look into the matter, because there are genuine concerns that need to be looked at. However, I do not know whether those genuine concerns will turn out to be real or whether they will require action and the sort of new clause that has been put forward. I would like to wait for the evidence, which I think is the Government’s position. When we have the report, which is due by the end of March—I think that is the time scale—we can make an informed decision about whether any action is required. My response to the Liberal Democrat new clause, therefore, is that it is premature—to put it kindly—because none of us really knows at this stage whether it is required. I would prefer to wait for the evidence before making a judgment.
I realise that I have spoken for some time, Mr. Deputy Speaker. I very much commend the new clauses in the name of my hon. Friends and myself. In particular, I commend the key new clause—new clause 1—which would offer a fundamentally different approach to how we produce, publish and learn from serious case reviews in the future. Quite frankly, after the high-profile tragedies that we have had, nothing less will do if we are remotely serious about restoring confidence in the child protection system in this country.
I, too, shall commence my remarks by talking about serious case reviews. The hon. Member for East Worthing and Shoreham (Tim Loughton) reminds us that we are approaching the 10th anniversary of Victoria Climbié’s death. It is a time to reflect on how much has been learned. If we look at the history of serious case reviews, we will see that Ofsted has judged that the quality of a very large proportion has been unsatisfactory. In many cases, the summaries have been criticised for not reflecting the issues behind the cases, and their timeliness has been incredibly suspect, with many occasions on which one has waited for years after a shocking event. There are also doubts about Ofsted and its inspections within the children’s services framework.
Some time ago, we had a briefing from the National Society for the Prevention of Cruelty to Children, which remains concerned about the full publication of serious case reviews. However, it made several proposals that it thought would improve the process, including working on the summaries, improving the quality of the serious case reviews and putting in a compliance or audit check so that an arm’s length body can pick up on recommendations and check up on subsequent action 12 months after publication.
Just before we came into the Chamber today, my hon. Friend the Member for Yeovil (Mr. Laws) picked up a letter that we had been sent. The letter is from the Secretary of State to the NSPCC. No doubt, in due course we will hear on the Floor of the House exactly how the Government propose to improve serious case reviews. The letter says that the Government will try to improve confidence in the quality of serious case reviews. Ofsted seems to have been put in charge of that, even though we are not yet that confident of its operation in the realm of children’s services.
Compliance reports should be made publicly available, setting out the actions to be taken in response to serious case reviews, but there is no indication that anyone will take an independent look at compliance. The reason why I want to emphasise that point is that subsection (2) of new clause 21, standing in my name and that of my hon. Friend the Member for Yeovil, highlights the need for independence in checking the responses to a serious case review. The letter to the NSPCC also refers to the NSPCC’s desire that executive summaries should be improved. It is therefore interesting that even now the Government are not going the whole way and are not even responding to the NSPCC’s concerns about putting that independence into the equation.
I thank the Secretary of State for allowing me to read the serious case review on the Edlington boys. I read it on behalf of my hon. Friend, and I have to say that I was genuinely surprised at how I felt after reading it. Members who are present are well aware that I work closely with the NSPCC and that I am really concerned about child protection. However, I can put my hand on my heart and say that I came out of the room—my locked room—after reading the review and I thought that pages and pages of it should become compulsory reading for anybody working in the children’s work force, including teachers and children’s social workers. I was surprised at my reaction.
The review was leaked, of course, to the BBC and the press. I will quote from them, rather than from my recollection, so that I do not reveal anything. There were 31 occasions on which nine different agencies failed to act on the two brothers, aged 10 and 11, who were convicted of torturing and leaving two boys for dead. That is 31 occasions on which there were communication problems, and there are other examples—Pearl Harbour is a classic example—of where all the signals were there but nobody put them together. In order to learn something we have to go through the communication failures. Trainee workers need to read all the points that were missed.
Of course it is easy to be clever in hindsight—I am not making judgments about the people involved—but the lessons were there for training the work force. I say that with some passion, because I am surprised that I now feel even more strongly that we should start from the premise that we publish as much of the serious case review as we can without harming members of the family or other individuals who might be involved. I, too, picked up the points about the fuller publication of serious case reviews, which the British Association of Social Workers is supporting.
I ask the Government today to reconsider the issue. I am not here to make political points: when I read that serious case review, I was staggered by the things in it that should be revealed to people already in the work force and those entering it. We cannot move on unless we learn those lessons. We on the Liberal Democrat Benches will therefore support the Conservatives’ new clause 1. We would have liked to combine it with our proposals, but the point will be made that if we are to learn the lessons, there is a strong case for making more information public.
I understand from reading the serious case review from Edlington that it was the eighth such review that Doncaster had carried out in recent years. This leads me to ask what lessons have been learned from the previous cases, given that they have not been published. Not very many, it seems. Of course I take on board the enormous pressures on social workers, the lack of training and the high case loads, but if we picked up all those elements with total transparency, it would lead to a bigger commitment from society to addressing the deficiencies in the system rather than the people. We are therefore absolutely convinced that we need to move in completely the opposite direction. We cannot improve matters by a drip, drip, drip method of doing a bit more here and there. We need to start from the other end. Let us publish as much as we can without risking injury to anyone and without damaging reputations, perhaps of members of the wider family.
I should like to touch on the Conservatives’ amendments 35 to 45. I, too, looked at the representations from the British Medical Association and the General Medical Council; what sensible representations they were. In clause 28, proposed new section 14B(2) states:
“The first condition is that the request is made for the purpose of enabling or assisting the Board to perform its functions.”
That seems a very wide request. I looked at the Bill’s explanatory notes on the clause, but they left me none the wiser—[Interruption.] I am relieved that I am not the only one who thought that they confused the issue, rather than clarifying it.
Although I quite understand the point that members of the medical profession are making—and I agree that the Government need to look again at this part of the Bill as it makes its progress through the other place—I am concerned that the Conservative amendments would narrow the options down too much. I believe that local safeguarding children boards will need to share information on issues other than just the serious case reviews. Those reviews might well be the most important aspect of the work, but they take place after something has gone wrong, and LSCBs should also be involved in prevention. Information should be shared, for example, in cases of child abuse and the sexual exploitation of children. A serious case review might have been undertaken on one member of a family, but information about another member of that family—baby P’s sister, for example—might also need to be shared.
I acknowledge what the Conservative amendments are trying to do, but they have been drafted too narrowly to achieve the necessary improvements in information sharing. Also, they do not take on board the fact that, if other functions are to be carried out properly, they will require the information to be shared fully.
In what cases does the hon. Lady think it would be legitimate to place a statutory responsibility on various agencies to provide information to an LSCB? How would she address a situation in which a doctor chose not to co-operate with an LSCB—under their Hippocratic oath, or whatever—because they felt that there would otherwise be a breach of patient confidentiality? What penalty would she apply in such a situation, and how on earth would she impose it?
I thank the hon. Gentleman for his intervention, because it takes me on to amendment 88, which was tabled by the Liberal Democrats. In it, we try to tackle that issue in a slightly different way. It proposes:
“Provision must be made for appeals by those persons who consider it to be unreasonable or improper to supply the specified information to the Local Safeguarding Children Board under this section.”
That seems to cover the point that was just raised. My request is for the Government to take this back and have another long look at it. The Bill is drafted too widely at the moment, and it is going to need quite a lot of work—and, I suggest, consultation—to get this right. We offer one solution through an appeals process.
Briefly, amendment 90 is designed to strengthen the inspectorate process by changing the “may” to “shall”. I want to move on to new clause 10, which hon. Members will not be surprised to hear that I want to discuss.
Before the hon. Lady does so, I wish to point out that we seem to have a huge difference in our amendments, as we have changed “may” to “will”, while she has changed “may” to “shall”—but I suspect that we are on the same side. Will the hon. Lady elaborate a little more on amendment 88, as I asked her about what would happen if someone refused to co-operate, and I am not quite sure how her appeals system will work or who will police it?
I thought that I had answered the hon. Gentleman by suggesting that there could be an appeal mechanism. [Interruption.] I am quite comfortable with the need to amend the Bill, and I hope the Government will take the lead on it, but we will need consultation on the details of how it will work. It cannot be right to share information only in respect of serious case reviews, as the Conservatives suggest, because there are many other instances where it will be necessary, as I am sure that the Secretary of State will tell us. Equally, I cannot believe that every single function of the safeguarding children board will require such sharing of information.
I share the concerns already expressed by the Children’s Rights Alliance about how children themselves will feel about the sharing of information. It is always one of my great concerns whether children and young people will seek help from organisations if they feel that information about them is going to be shared. Doctors sometimes work confidentially in the best interests of the child, but the child might not seek help if they felt that the information was going to be shared.
I am listening carefully to the concerns raised by the hon. Lady—and, indeed, the hon. Member for East Worthing and Shoreham (Tim Loughton)—that some practitioners, such as GPs, might not be willing to share information, because of the potential breach of parent confidentiality. Does she not think, however, that GPs might be more reluctant to share information in the compilation of a serious case review if they thought that it was going to be made public? Would that not make it less likely that GPs would co-operate with the process for the very reasons put forward by both Opposition Front-Bench teams, which seem wholly to contradict the argument that they made about the publication of serious case reviews?
It is extremely important to change the culture when it comes to co-operation on serious case reviews. I find astounding the suggestion that professionals will hold back, as it is part of their job or their oath to their profession not to do so. As to the confidential aspects, we are talking about redacting and anonymising where appropriate. We are talking about two different cases here, and I question whether we really need to share information about all the functions. It is for the Secretary of State to respond to that point in due course.
Let me move on to new clause 10. If it had not been tabled in the first place, we would not be where we are now. Tabling it was therefore an extremely important step. It had already been tabled when, on Second Reading, the Secretary of State said:
“The use of physical punishment against any child is wrong; it is outside the law and is not fair to children. I do not think that we should tolerate any use of physical punishment in any school or learning setting in which trusted adults are supposed to be looking after children”.—[Official Report, 11 January 2010; Vol. 503, c. 434.]
That resulted in the contact with Sir Roger Singleton, who said in a letter dated 27 January 2010:
“I have given this matter some urgent thought and I do think there are issues that warrant further exploration.”
If the new clause had not been tabled, we would not have reached our present position.
I am very pleased that the Government have asked Sir Roger Singleton to review the use of physical punishment in part-time education and learning settings, but I am worried about the time frame. I accept that it will take some time to view the issue thoroughly, but, not surprisingly, those of us who are concerned about the issue fear that if Sir Roger’s response arrives at the end of March, it will not be possible to make much progress. Can the Secretary of State outline a projected timetable?
We should bear in mind that teachers are an example of adults in loco parentis. Most teachers are prohibited by law from using corporal punishment, but there appears to be a gap, in that the prohibition does not apply to teachers providing less than 12.5 hours of education a week. Sports coaches, Sunday school teachers, madrassah teachers, youth workers, private foster carers, babysitters, nannies and unmarried partners are also in loco parentis when they have care and control of children.
We should bear in mind that physical punishment has already been banned in other voluntary provision, such as early years centres, child-minding, private education and part-time education of 12.5 hours or more a week. Surely there is no justification for failing to protect children in the remaining voluntary settings. Professionals and concerned Muslims, for example, have found it difficult to persuade parents or children to make complaints about the use of physical punishment. As long ago as 2006, the leader of the Muslim Parliament of Great Britain said the Muslim community was in a state of denial over child mistreatment in madrassahs, and that it was an unacceptable dereliction of duty not to protect those children for fear of being accused of cultural insensitivity. The issue has arisen because the concern was expressed by the Muslim Parliament. Madrassahs are estimated to run nearly 1,600 part-time, weekend or evening Islamic schools, teaching as many as 200,000 children overall.
New clause 10 states:
“Only a person with parental responsibility for a child within the meaning of section 3 of the Children Act 1989 can justify battery of the child on the ground that it constituted reasonable punishment.”
I may have missed something that the hon. Lady has just said, but I understood her to say that all the people whom she listed should be totally prohibited from carrying out any kind of physical punishment. Surely
“Only a person with parental responsibility”
means that those with parental responsibility would indeed be able to carry out such actions. I think that the hon. Lady is faced with a slight dilemma, or contradiction. Perhaps she could explain her position.
It is true that many people think smacking should be banned across the board, but that view has been tested in this House. More recently, however, a gap in the current legislation has been identified. This new clause is not an attempt to rehearse the old arguments; rather, it is intended to be a positive contribution to achieving the ambition of ensuring that our children are protected. Many people would like it to go further, of course, but the framework here is fairly narrow, and I think there will be evidence that this is necessary—certainly, such evidence has already been provided to us.
The hon. Lady’s new clause states that persons
“with parental responsibility for a child within the meaning of…the Children Act 1989 can justify battery of the child on the ground that it constituted reasonable punishment.”
Is she saying nobody should be able to give any reasonable physical punishment to a child? What I want to understand is whether this is absolute or qualified.
I thought that I had made it clear that this new clause tackles a particular area that we think has been overlooked and has not been addressed by previous amendments. This new clause builds, however, on a Government amendment from the last time we debated this, which spoke about a justification in terms of reasonable punishment, and I am sure the hon. Gentleman will recall that there was a great deal of discussion about that.
We have moved the agenda forward, but there is still a general issue about whether physical punishment should be allowed. More specifically, we currently have a situation in which one group of teachers is banned from using physical punishment while another group of teachers is not, and that should be addressed.
I should also point out that there may be physical punishment in some Christian Sunday schools. Also, of course, beliefs that children can be witches or be possessed by evil spirits and need to be physically punished are prevalent in certain African Christian churches in the UK—the Victoria Climbié case falls into that category. In respect of part-time teachers, concerns have been raised about children being abused by sports trainers. I am sure such cases are rare exceptions, but we should have consistency.
Will the hon. Lady give way?
I think that I have given way enough.
We believe the most practical reform in this context is to amend section 58 of the Children Act 2004. The Government introduced that measure the last time we discussed this, and it was a compromise. We want the defence of reasonable punishment to be available only to those with parental responsibility.
Will the hon. Lady give way?
I am about to conclude, but I shall give way once more.
I am very grateful to the hon. Lady for giving way. Where a child is in the care of a local authority and it shares parental responsibility with the parents, who within the local authority would be categorised as the person with parental responsibility for the child who can therefore justify battery? Also, a child might be in the care of a local authority, and there might be court proceedings that will inevitably result in the parental responsibility of the parents being taken away, yet there might still be some contact between child and parents. How would that anomaly be addressed?
I thank the hon. Gentleman for his intervention and see the point that he is getting at. I can clarify part of it by saying that foster carers who are employed by the state are not allowed to administer physical punishment—there is an anomaly there in respect of private foster carers. I think that that partially answers his point. Obviously there is a concern, which he has justifiably raised, about situations involving a degree of parental responsibility, and I accept that I would need to seek further clarification on that specific point.
I tabled this new clause to keep the matter in front of the Government’s eyes. There is an anomaly, the Government have not been able to introduce a better form of words and the organisation that suggested the new clause took pretty senior legal advice on the phrasing—the new clause received serious consideration at that level. The point of proposing the new clause is to ensure that this important issue stays in the public eye, as we do not want it to disappear during an election campaign. The reason why I am speaking at length today is because I want this Government to promise to address this serious issue.
I do not intend to detain the House for long, and I wish to address my remarks entirely to new clause 1 and related issues. As a result of my experience of serious case reviews in my city, I am extremely sympathetic to the case made by the hon. Member for East Worthing and Shoreham (Tim Loughton) and the contents of new clause 1. However, I acknowledge that the recent changes made to the workings of serious case reviews and local safeguarding children boards by my right hon. Friend the Secretary of State are also important and ought to be mentioned. I am talking about the fact that the boards should have an independent chair—that is one deficiency that I can see in the matters to which I wish to refer—and that two lay people should be members of these boards. I have met people from my local board to discuss the matters to which I wish to refer, so I am able to say that those lay people might find themselves in a difficult position. If they are to be effective, they will require a great deal of support, back-up and extra bureaucratic and research capacity in order to have the confidence to raise issues as the only lay members in a body that is otherwise dominated by professionals. My Front-Bench colleagues may wish to refer to that later.
I have had the unfortunate experience of dealing with two serious case reviews into the deaths of children. One related to a constituency case where a baby burned to death in a property. The baby’s mother had a history of mental illness and other difficulties. At first she said that people from the neighbourhood had come into the house and burned it down—hon. Members will appreciate how damaging that was to the local community—but subsequently it became clear that she was responsible for the death of the child, which triggered the serious case review.
The executive summary of the serious case review, which is all that we now know about the case, rehearses the connections that this young woman had with a number of agencies. It also makes it clear that at the birth of her baby, her attitude changed and she was a devoted and careful mother. Research carried out later, which came to my attention and was brought about by the Department for Children, Schools and Families, leads me to think that this is a classic case of what is known in the research field as “start again syndrome”. I am grateful to the research commissioned by my right hon. Friend the Secretary of State for that discovery.
The executive summary of the case review concludes:
“Despite the indications of risk to”
“which are evident with the benefit of hindsight, it should be acknowledged that he had been a wanted and well cared for baby. His mother was selective in deciding which information she divulged to each agency and in deciding which help she would accept…The events which led to”
“death were unpredictable and, as such, could not have been prevented.”
When I came to read that some months later, I was deeply troubled by the idea that events that are unpredictable cannot be prevented. That is a leap of logic no one concerned with risk assessment procedures could very easily accept.
When I looked further into the matter, I discovered that at the very moment that the executive summary was released, the local authority issued a press release, embargoed to the time of the release of the executive summary, which began in this fashion:
“A review following the unlawful killing of baby”
“by his mother has found that his death could not have been prevented.”
That is, in itself, an extraordinary interpretation of the remarks in the executive summary. The press release, in turn, was accompanied by a statement issued by the author of the serious case review, the first sentence of which read:
“The events which led to”
“death were unpredictable and, as such, could not have been prevented.”
I find the fact that the three documents were issued within the same time frame quite disturbing as an account of that set of circumstances. I was even more concerned when I discovered the same phrases—expressing the idea that things that could not be predicted could not be prevented—being mentioned in other serious case reviews in other parts of the country, almost as though there was a culture of offering up such phraseology as a justification for the events that had taken place. I am extremely concerned by that.
I looked further into the case and discovered that both serious case reviews carried out within a year concerning the death of children were carried out by the same person, who was the regional chair of a charity that received grant aid from the local authority that was running the local safeguarding children board. I am troubled by that. Let me make it clear that the lady who authored the two serious case reviews did not receive any benefit as a result of the grant aid. I make no suggestion of anything like that, but none the less I am troubled by the idea that two serious case reviews in the same time frame can be carried out by the same person who is also acting in a lay and voluntary capacity and receiving a grant from the local authority that supports the local safeguarding children board. I do not think that that survives any valid test of proper independence.
I am troubled by these matters, as well as by the phrases that express the idea that things that were not predictable could not have been prevented—if we applied them to other matters with which this House deals, we would all be very troubled by them. I am concerned about these matters, which lead me to the conclusion that new clause 1 points us in the right direction, and so I am inclined to support it. I hope that what my right hon. Friend the Secretary of State says in his speech will lead me to a different conclusion, but that is where matters stand.
I want to confine my remarks to new clause 10, and the issue of reasonable punishment. With respect to the hon. Member for Mid-Dorset and North Poole (Annette Brooke), I have to say that I found her explanation somewhat confusing. She started out by invoking the Secretary of State and his statements in the context of a letter from Sir Roger Singleton, which will be followed up by a review, saying that the Secretary of State—he is sitting on the Front Bench now, so he can correct me, and the hon. Lady, if he was misrepresented—said that the use of physical punishment was wrong, and that there should be none in schools at all. I do not know whether he wants to take the opportunity to confirm whether that is the correct analysis of what he has in mind. He is sitting there, but he is not listening—
He is listening. Good. Is that what he said?
The hon. Gentleman has just set out the current legal position with 100 per cent. accuracy.
That, if I may say so, is something that we need to discuss. The Liberal Democrat proposal in new clause 10 would amend the Children Act 2004, and presumably the Government have a view on that—[Interruption.] The Liberal Democrats’ chief spokesman, the hon. Member for Yeovil (Mr. Laws), indicates that he is not at all sure that the Government have a view on this, but we shall see in due course whether they do. The Government introduced the Children Act 2004, and the Liberal Democrats propose to amend section 58 of it, which deals with the question of reasonable punishment and represents the Government’s position in law at the moment.
It might help the hon. Gentleman to know, as he might not have been aware of the context earlier, that when my hon. Friend the Member for Mid-Dorset and North Poole (Annette Brooke) was referring to the Secretary of State, it was in the context of his response to the hon. Member for Keighley (Mrs. Cryer), and a question about whether the specific loophole concerning educational settings should be closed.
I understand that but, as I may be able to explain as I move into the argument, the law on this subject is perhaps a little more complex than the hon. Member for Mid-Dorset and North Poole suggested.
Let me go back to what I was saying. The Liberal Democrats propose to insert a new provision in section 58 of the Children Act 2004. For the purposes of the amendment, it may be described as subsection (4A). After subsection (4), the following words would appear:
“Only a person with parental responsibility for a child”—
I emphasise the phrase “parental responsibility”—
“within the meaning of section 3 of the Children Act 1989 can justify battery of the child on the ground that it constituted reasonable punishment.”
The Secretary of State nods his head—that is the statement contained in the new clause proposed by the Liberal Democrats. It clearly infers—I want to get this out of the way—that those with parental responsibility for a child, within that meaning, could justify the battery of a child on the ground that it constituted reasonable punishment. The question that we must address is whether those in the list that the hon. Member for Mid-Dorset and North Poole read out—sports coaches, madrassahs, nannies and certain people in loco parentis—would fall within that category.
The Secretary of State indicates that they would not fall within that category. For the purposes of what I understand to have been an exchange of letters followed by a review by Sir Roger Singleton, the question would turn on whether teachers would be prohibited from taking certain actions.
Perhaps the Secretary of State would be kind enough to explain the situation.
This is a rather frustrating exchange, Mr. Deputy Speaker. When the hon. Gentleman has finished speaking I will explain the position. I cannot do that at sufficient length in an intervention, but I shall be happy to clarify the position for him as soon as he allows me to.
I am grateful to the Secretary of State for his comments, and I shall listen to what he has to say in due course. The argument of the hon. Member for Mid-Dorset and North Poole struck me as being somewhat confusing, but no doubt we will find out from the Secretary of State what he intends to lay down, although the amendment is not his. This is where the confusion arises: unfortunately, the Government have not made a proposal, and things seem to be being done vicariously through the Liberal Democrats’ amendment. [Interruption.] I can see the Secretary of State’s frustration, so I shall give him another opportunity to speak. [Interruption.] He says that he does not need it—fine.
The legal effect of section 58 of the 2004 Act—it might be helpful for the Secretary of State to listen to this—is to remove the defence of reasonable punishment in any charge of assault occasioning actual bodily harm, or of wounding and causing grievous bodily harm, under the Offences against the Person Act 1861, or in any charge of cruelty to a child under the Children and Young Persons Act 1933. I think that we all want to avoid any disproportionate treatment, chastisement or punishment of a child that falls within the category of a charge of cruelty, wounding or grievous bodily harm. The problem arises in the context of case law and the interaction between that case law, the Human Rights Act 1998 and the European convention on human rights, which I shall discuss in a moment.
The defence of reasonable punishment dates back to 1860, when the characteristics were spelt out by the judiciary because there were no relevant statutes at that time. In one case, Chief Justice Cockburn said:
“By the law of England, a parent...may for the purpose of correcting what is evil in the child, inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable.”
The legal position was that it was then left to the courts, or to juries, to decide what was moderate and reasonable in the view of an ordinary person in any particular case. Of course, people’s views on such matters alter and evolve over time.
I suspect that the Secretary of State well knows that between 1860 and 2004, a parent who was charged with a crime relating to an assault on their child was able to raise the defence of reasonable punishment. However, since the enactment of section 58 of the 2004 Act, that defence cannot be used unless the defendant is charged only with common assault, the victim is a child, and the defendant is the parent of that child or is a person acting in loco parentis.
I am glad to see that we are now in agreement.
The issue is whether a teacher in a Sunday school or a madrassah should be able to claim the reasonable punishment defence for the use of physical punishment on the grounds that they are acting in loco parentis. That is our concern, and that is what the amendment seeks to address. I was nodding only because I think that we agree on the problem. Obviously, we are anxious to get on to discussing solutions.
That is where I am about to move to, but we needed to identify the parameters before moving to questions of substance and merit. It is arguable that there are circumstances in which people in loco parentis—that includes not just parents, but people with parental responsibility, so it is a reasonably wide category—should be able to take certain actions. The question is whether teachers and those in similar positions of responsibility should have the right in certain circumstances to take such action as would be available to a person in loco parentis, and whether they could therefore be justified in taking action that would amount to what one might call, in round language, reasonable chastisement.
I am sure that the Secretary of State knows that there are problems in schools. Evidence has recently been presented to me of teachers being subjected to extremely difficult circumstances, including violent behaviour. We must ask whether there should be a blanket prohibition on certain actions, without regard to the circumstances of the parent or other person in loco parentis. The definition of children includes not only five, six and seven-year-olds, but older children who might be described as youths. That applies not only to boys; I regret to say that these days it might also apply to girls. In some cases a school, or another establishment of the kind to which the Secretary of State and I agree that the rule might apply, might be in such a state that the person who is charged with maintaining discipline might not be able to run things. I have heard from supply teachers, fairly recently, that they have found it absolutely impossible to conduct any teaching in certain classrooms because of the degree of bad behaviour and violence exhibited.
Is the hon. Gentleman arguing for the reintroduction of corporal punishment in schools? Is he saying that the problems he is discussing would be solved if teachers could hit those kids?
I do not put it in quite such precise terms as the hon. Lady would like to draw me into doing. I am deeply concerned about the shift, since 1998, when the new standards were introduced. I suspect, but I am not absolutely certain, that it was connected with the introduction of the Human Rights Act 1998, which I shall discuss later.
I am very sorry to disappoint the hon. Gentleman, but it was the Education Act 1996 that banned the use of corporal punishment in full-time maintained schools and full-time independent schools, not any 1998 Act. It was not to do with human rights; it was to do with the Conservative Government of 1996 doing the right thing—perhaps with, or perhaps without, his support.
The short answer to that question is that, as I said earlier, all such matters are subject to review in the light of the circumstances of the time. On the whole, one would rather not have corporal punishment in schools, but teachers and those who observe these matters have wondered whether the prohibition against such punishment is justified. That is an important question, as circumstances evolve.
I hesitate to ask, but does the hon. Gentleman recall whether he voted for or against the 1996 Act? Will he take this opportunity to withdraw the charge that the current provision was driven by a human rights agenda—or does he believe that that agenda had already gripped the Conservative Government back in 1996?
The fact that the Human Rights Act was not passed until 1998 would not have prevented somebody from making a judgment based on the European convention on human rights in a case of the sort that I shall describe, because such a case could have gone to the Strasbourg Court. The fact that the Education Act was passed in 1996 not in 1998 does not matter that much, as the ECHR is the essence of the 1998 Act and the rule of incompatibility means that our legislation can be overridden.
This debate goes back to a very important case in the Isle of Man that involved the use of the birch. I am not in favour of that by any means, as I regard the birch as completely unacceptable. What I seek is to determine is whether there is any kind of reasonable physical punishment that falls short of what we would all regard as unacceptable, or whether there is an absolute and total bar on any form of punishment that is physical, as opposed to one that revolves around the writing of lines, exclusion and so on.
I am asking these questions more to invite discussion than to seek a decision. The Singleton review has been referred to, and I hope that it will throw more light on the matter. However, we are in Committee and we have a responsibility to consider—
Order. May I remind the hon. Gentleman that we are not in Committee but on Report?
I understand that entirely, Madam Deputy Speaker. However, the right hon. Gentleman is the Secretary of State with responsibility for education, and it is essential that we have proper discipline in schools. From the remarks that he has made from the Front Bench, and from the vicarious comments, it is clear that he would rule out any kind of physical punishment, under any circumstances whatsoever.
My own Front-Bench spokesmen might disagree with me on this matter—if so, it would not be for the first time—but I am inviting the Secretary of State to consider, in his reply, whether there is an absolute ban on physical punishment in schools. For example, if a school was under siege by very violent pupils, is there absolutely no question about the fact that no form of physical punishment could be used by teachers? My question has to do not with the ECHR, but with what is needed in the interests of school discipline.
It has become extremely unfashionable to suggest that there should be some form of physical retribution, and no one discusses whether that might be necessary. By the sound of it, the matter is an absolute for the Secretary of State, as it is for those who subscribe to the ECHR. In my view, however, it is important to have a proper and rational discussion of the question.
The legal analysis to which I referred earlier also says that
“any injury sustained by a child which is serious enough to warrant a charge of assault occasioning actual bodily harm cannot be considered to be as the result of reasonable punishment. Section 58 and the amended Charging Standard mean that for any injury to a child caused by a parent or person acting in loco parentis which amounts to more than a temporary reddening of the skin, and where the injury is more that transient and trifling, the defence of reasonable punishment is not available.”
In other words, reasonable punishment is permitted under the law and the prohibition against it is not absolute. That is strange, as I had rather gathered from the Secretary of State’s remarks that there was an absolute prohibition, yet the analysis that I have just referred to makes it clear that there are circumstances in which the law allows those in loco parentis to use reasonable punishment.
The question then arises: should that legal principle be applied in schools? That is the issue. I should be very interested to know whether the Secretary of State is prepared to go down that route, and whether he has any idea of what the Singleton report will propose.
Does my hon. Friend acknowledge that school teachers are sometimes in loco parentis? For example, when a pupil is violent towards a teacher, that teacher must defend himself or herself, and restrain the pupil, without using any physical admonishment at all. That is a very difficult line to tread.
That is exactly my point. I entirely agree that teachers are in a difficult position, and that it is easy to have a knee-jerk reaction either way. On the one hand, we can say that there must be absolutely no physical punishment of any description; on the other, however, we have to accept that there can be circumstances when it is impossible for a specific child in a specific classroom to be treated in that way.
The hon. Gentleman is clearly very knowledgeable on this subject. Has he done a great deal of research? Is so, will he tell the House how often the defence of reasonable punishment has been used in court?
It has been used in a great number of cases. As I said earlier, many of them turned on the application of the European convention on human rights through the European Court of Human Rights. One interesting case involved a person accused of engaging in unreasonable behaviour vis-à-vis a child. The jury acquitted the person in question, but the case was then overridden by the European Court on the grounds of human rights.
I find this a very difficult issue. A jury in a criminal case might conclude, on the basis of the evidence given, that the accused should be acquitted. However, when the case is referred to the European Court, that Court can say that it does not care about a decision made under English or UK law. The European Court can say, “We have our principles and we’re going to apply them, irrespective of other law.” In effect, it can override our criminal law, and I find that very difficult to accept.
What has happened since—this is obviously part and parcel of the proposed amendments to the Children Act 2004 as well—is that the Government have made an assessment of the extent to which, as an absolute rule, there must be no infliction of any physical punishment at all, whether reasonable or not. It appears that that prohibition applies even when the punishment causes a mere reddening of the skin and is permissible according to the legal analysis to which I referred earlier.
Against that background, therefore, I am interested in whether there is an absolute prohibition simply because it is prescribed under the arrangements for the European convention on human rights, which has effectively created a complete prohibition, overriding jury decisions in criminal trials, for example; whether it is—to use an expression that comes up in this context—a matter of philosophical attitude, which is another thing and is discussed at some length in the research materials that have been provided; or whether it is just a knee-jerk reaction, without reference to the impact on the class, the other pupils in the school or the teachers, and without reference to whether there is violence against the teacher or against other children in the class.
In other words, what is the principle that determines whether a perfectly reasonable form of punishment, which is allowed in loco parentis, should be denied in the classroom? That is the question that needs to be properly discussed. I have a feeling, although I might be wrong, that the Secretary of State has taken an absolutist position based on the research materials, which refer to philosophical attitudes and so on. That may be unrealistic.
So we—I and those who think along similar lines—are not anxious to permit any unreasonable punishment, but where it is a legitimate course of action in loco parentis, I am searching for an answer to the question why it is allowed in those circumstances, but not allowed in circumstances where there is violence in the classroom, even against the teacher himself or herself. Why should teachers be denied the opportunity to carry out reasonable punishment of the same kind as a person in loco parentis? That is what I think is important.
New clause 10 proposes as a criterion:
“Only a person with parental responsibility for a child within the meaning of section 3 of the Children Act 1989 can justify battery of the child on the ground that it constituted reasonable punishment.”
Ironically, although the hon. Member for Mid-Dorset and North Poole seemed to be arguing the contrary, the fact is that her own new clause, within the framework of section 58 of the Children Act 2004, admits that a person with parental responsibility for a child can justify battery on the ground that it constituted reasonable punishment. I invite the Secretary of State to respond. He has his own version of events, but the Singleton review will be definitive.
I refer to the exchange between my hon. Friend and the Secretary of State on the 1996 Act. That was predated by the United Nations convention on the rights of the child, which was signed, I believe, by Lynda Chalker on behalf of a Conservative Government. The convention imposes severe constraints on the punishment of children, and from that flowed the consequences that the Secretary of State mentioned in the Act that followed. The concept of reasonable chastisement has been in our common law and understood in our legislation for a long time, and the European Court of Human Rights can and does apply United Nations treaties on these matters when developing its own case law. That is where the confusion, if there were any confusion between the Secretary of State and my hon. Friend, might have arisen.
That was a very helpful intervention.
I hope there is no confusion. If the hon. Gentleman could clarify that there is no confusion, we would not be confused.
The Secretary of State is adopting the role of Confused.com and trying to arbitrate in the matter. The question boils down to this: the European convention on human rights and the United Nations convention on the rights of the child both contain, in effect, an evolving prohibition on any kind of physical punishment at all. That is the bottom line. I think I am right in saying that the hon. Member for Keighley (Mrs. Cryer) would agree with that. That is what she would want.
There are those who believe that in a school it is necessary sometimes, in certain circumstances, for some degree of physical punishment to be available but not necessarily used, and perhaps then only as a last resort—I would say definitely as a last resort—to enable the balance of discipline within that school to be maintained. Certain children are so unruly and so violent in their behaviour towards the teachers and others in the classroom that some form of physical punishment may be necessary.
I appreciate that this is a very difficult subject. It will be carefully observed that I am not making a categorical statement, because I have great sympathy with those who would want to keep punishment under severe control, but I pose the question. I hope that when the Bill gets to the House of Lords, if it ever does, it will be considered against the background of the Singleton letter plus the review, and in the light of the sort of considerations that I have raised.
The situation is nothing like as black and white as the Secretary of State or, if I may say so, the hon. Members for Keighley and for Mid-Dorset and North Poole may have thought. There are important questions of balance to be resolved in the interests of the child. Some children need boundaries. That is part of the problem. If they have boundaries, they know where they are.
It is interesting to note that one of the most distinguished judges who has adjudicated on these questions—I think it was Sir Gerald Fitzmaurice—explained with great candour, from his own experience in a court case, why he believed that it was important to strike the balance properly: that there is not an absolute, that children are different, and that some children need different boundaries. Those of us who abhor the idea of inhumane or degrading treatment in the common-sense understanding of that expression might also take the view that there is a balance to be struck.
Yes, boundaries have to be established with children, but does not the hon. Gentleman understand that those boundaries must be established by parents, not teachers?
The problem that the hon. Lady poses is that there are circumstances in the real world where there is a difference in the meaning of the words “in loco parentis” in the home environment or in an environment outside school. For the purposes of society in general, and also for the conduct of the school and the discipline within it, it is not a distinction that can easily be made. If the object of the exercise is to ensure that there is a proper balance of behaviour in the interests of society as a whole, including in schools, one cannot simply say that because it is a school, there can be no reasonable physical punishment whatever, but there can be in loco parentis. I could spend some time, although I shall not, on the very wide definition of “in loco parentis”. There are many people who would fall into categories not very different from schools. That may be the loophole to which the hon. Member for Mid-Dorset and North Poole was referring.
Further to the comments of the hon. Member for Keighley (Mrs. Cryer), is it not a sad fact that the children who are most likely to exhibit extreme antisocial and unco-operative behaviour in school are those who have not had the benefit of good parenting at home and not been set good examples or taught how to behave in a socially acceptable way? It is extremely challenging for teachers to contain such children so that they do not interrupt the education of others.
I agree. I concede that this is a difficult area, but it is important that we do not lock ourselves into a situation whereby we apply an absolute principle based on the so-called philosophical attitude. There are moral questions that depend on the manner in which, for example, a school can and should be run in the interests of all the people in that school, including all the children in a class and the teachers themselves. There is a balance to be struck. That is what I am arguing for, and part of the purpose of our debates in the House is to try to draw attention to the fact that balances need to be struck.
I have sympathy with and great respect for the hon. Member for Keighley, but I rather get the impression that she takes an absolute position. I do not, and I am searching for, and believe that there should be, a reasonable parameter. We should bear in mind that from 1860 to 2004 the situation was, subject to evolving circumstances, much less difficult than it is now. New clause 10 would make the situation more confusing, and I hope that the Secretary of State’s response will be a revelation. However, I do not think that it will avoid the existing problem with getting the balance right between violent children on the one hand and the need for discipline in schools on the other.
Violent children use very harsh physical punishment on teachers and on other children in school, and the question remains to be resolved of whether in the interests of discipline it is necessary to apply, in the last resort, a degree of physical punishment in certain circumstances to such violent children in school. In the interests of discipline in schools and good order in society, I am interested in, and shall listen carefully to, what the Secretary of State has to say. There is nothing absolute about our position; I wait to see whether there is anything absolute about his.
You will be pleased to know, Madam Deputy Speaker, that I shall not detain the House for long with the few comments that I wish to make. This far-reaching debate has come a long way from its starting point, when the hon. Member for East Worthing and Shoreham (Tim Loughton) seemed to tell us that we should substitute our discussion about the functions of the local safeguarding children boards with the concern that they should concentrate only on serious case reviews.
I want to flag up to my right hon. Friend the Secretary of State the importance that I attach to the many functions of the local safeguarding children boards, to the need to have proper resources to train the people who are affected by those boards and, particularly, to the need to have resources in schools to ensure that all teaching staff are properly inducted. I include temporary agency staff in that, because there is a lot of reliance in schools on such teachers, and I urge my right hon. Friend to comment on the national talks that he is conducting with the NASUWT.
There are also employment and disclosure of information issues. The Independent Safeguarding Authority, with its new remit, must make its decisions in close consultation with the teaching unions, and we must ensure that temporary supply teachers are properly and thoroughly inducted into the way in which schools go about their responsibilities to implement the functions that we are discussing under this group of proposed changes.
This has been a full and substantive debate, covering a wide range of issues. On the spirit of the debate, may I say that the contributions of all speakers have been thorough, measured and important? Over the past year there have been times when I have regretted the partisan and political tone that has crept into the issue of safeguarding, but it has not done so today, so I shall respond fully to all the points that have been made. If this is what the Public Bill Committee was like, it must have been most enjoyable to be a member. The Schools Minister has told me many times that he would have liked to have spent more days in Committee, but, sadly, that opportunity has passed him by.
I shall try to respond as quickly as I can, because we want to discuss family courts and transparency and, in the time that is available, we hope to address important issues, such as home education, too. With your permission, Madam Deputy Speaker, let me briefly address the issue of smacking and new clause 10 before moving on to the safeguarding issues that have been raised today.
The hon. Member for East Worthing and Shoreham (Tim Loughton) said that debates about a children’s Bill are almost always hijacked. Until about 40 minutes ago, we thought that we had avoided that fate, but no: there has been a hijacking by the hon. Member for Stone (Mr. Cash), although it felt like he was hijacking his Front Benchers, rather than ours. I am happy to give the hon. Member for East Worthing and Shoreham the opportunity to clarify that Conservative Front Benchers do not propose to repeal the Education Act 1996 and re-introduce corporal punishment in schools. To be honest, I do not need to ask, because no one takes that position. However, in response to the hon. Member for Stone, I shall clarify the situation and then respond to the hon. Member for Mid-Dorset and North Poole (Annette Brooke) and my hon. Friend the Member for Keighley (Mrs. Cryer).
The position in law is that a teacher in a maintained school can use reasonable force to protect their own safety or that of a child or young person in order to separate a fight. There is no prohibition on the use of force in those particular and prescribed circumstances, but the 1996 Act is clear that the use of force for punishment in full-time maintained schools and full-time independent schools is prohibited in law. Soon, part-time independent schools will be covered, too. It is illegal to use force for punishment, as opposed to protection.
Under the 2004 Act and section 58, in particular, it is allowable, as the hon. Member for Stone said it has been for many decades, for a parent or someone in loco parentis to use the reasonable punishment defence for the use of force, but not for causing harm such as actual or grievous bodily harm. The provision in section 58 applies only to common assault. As I said to my hon. Friend the Member for Keighley, it became clear when the issue was raised some weeks ago that there is a grey area within the definition of in loco parentis. Some individuals can be described as acting in loco parentis, and they could therefore use reasonable punishment outside of a full-time maintained school—where they cannot use that defence. To us, such individuals might look more like teachers than parents. An example would be the madrassah teacher, the Sunday school teacher or the sports club coach, and the question arises: can they use the reasonable punishment defence as a reason to strike a child legally?
Will the right hon. Gentleman give way?
I have been really indulgent. If I could just set out the current position, I shall absolutely take an intervention.
As I understand it, there are two different forces at work here. The hon. Member for Stone wondered whether we should extend the in loco parentis option for using force into full-time maintained schools, and argued that there may be—he did not say this absolutely—circumstances when a teacher should have the right to use the reasonable punishment defence to strike a child. That means that he wants to move from the grey area by making it possible to use that defence in schools. As I understand my hon. Friend the Member for Keighley, new clause 10 tries to go in precisely the opposite direction by defining someone acting in loco parentis only as someone who is genuinely the parent with parental responsibilities.
In replying to earlier debates, I said that as far as I was concerned, a teacher should not be striking a child whatever setting they are working in, but there is clearly a grey area in law. I then wrote to our adviser, Sir Roger Singleton, to set out my concerns about that grey area following discussions with the hon. Member for Mid-Dorset and North Poole, and particularly my hon. Friend the Member for Keighley, and I asked Sir Roger to look into the issue and report back to me. He wrote to me on 27 January. In that letter, he said that he, too, was worried that there was the potential for people who were acting in loco parentis by teaching a child at arm’s length from the role of parent being able to use the reasonable punishment defence. He referred to Saturday and Sunday school teachers, youth workers, music teachers or home tutors, and went on to say:
“There is another group—those carers without parental responsibility to whom parents may entrust their children, such as step-parents and grandparents, or…friends and babysitters—who may also”
be in the “in loco parentis” category. They would not be the parent under the definition referred to in the Bill, but might be seen by us as somebody who was acting in a parental way. If I, as a parent, sent my child to a Sunday school, I would not expect the Sunday school teacher to strike my child, but if I had entrusted them to a grandparent or a step-parent, the question would be whether I thought that that situation was more like that of the Sunday school teacher or someone acting with parental responsibility.
Sir Roger said that we needed to think harder about this before we reached a conclusion. New clause 10 would mean that only a parent or guardian would be able to use a reasonable punishment defence, so it would exclude not only the Sunday school teacher or madrassah teacher but the step-parent, grandparent, friend or babysitter. Many of us would think that that went too far, and that is why we are worried that the definitions in the new clause are too restrictive. That was certainly Sir Roger’s concern when he wrote to me in January. He also wanted to know how this would operate in practice and how we would ensure that it was properly monitored.
Sir Roger told me that he needed more time to produce his report. To be honest, he asked, as independent experts always do, for more time than I wanted to give. I asked him whether he could come back to us by the end of March, and he said that he would. I guarantee to the House that I will respond to his report on the day that he makes it. The hon. Member for Mid-Dorset and North Poole spoke of wanting things done before we go into purdah. I do not know what timetables we are going to have— Lord Mandelson has not yet told me of his plans, nor of the Prime Minister’s—but when the report comes out at the end of March, I will respond immediately. My expectation, and my personal view, is that the right thing for us to do is to tighten up the law. I would rather move more in the direction of a tighter definition than of a wider definition. I am sympathetic to the views of my hon. Friend the Member for Keighley and the hon. Member for Mid-Dorset and North Poole, but at the moment we do not know quite how to define this, and that is why Sir Roger needs to finish his work. We will have that report, with a response from us, in the public domain at the end of March.
I am grateful to the Secretary of State for his clear exposition of where he stands. However, this question still remains: would he prefer simply to use the term “parent/step-parent”, for example, or perhaps include “grandparent”, and leave it at that? It may be that he and I would not agree even on that, but at least it would remove a lot of the problems relating to the expressions “in loco parentis” or “parental responsibility”, which the courts have extended in a whole variety of ways. From my point of view, I would want this to be less restrictive, but would the Secretary of State—
Order. I hope that the hon. Gentleman is going to conclude, as he knows that interventions should be brief.
The answer is set out in Sir Roger Singleton’s letter to me of 27 January, in which he says:
“We need to consider very carefully the appropriateness of Government regulating arrangements that parents or carers make with others for the care and instruction of their children voluntarily and for relatively short periods, outside of mainstream education or other settings already covered by a ban on corporal punishment. Any regulation must be proportionate and involve the minimum possible interference in family life.”
He then talks about different considerations in different kinds of settings and for different groups of parents, and says:
“In arriving at a way forward, whether…legislative or not, I do think it will be important to give careful consideration to the…evidence and to consult…stakeholders”
to ensure that we get this right. My view is that there is a grey area—a loophole. I personally would favour a tightening-up of the position. I do not want to pre-empt Sir Roger’s work, but I think that his direction of thinking will be towards a tighter definition of “in loco parentis”, but perhaps not one that goes as far as the particularly tight definition in new clause 10. I am not ruling out the possibility that we might end up with a similar definition to that in the new clause, but I would rather wait for Sir Roger to report before reaching a view.
I thank the Secretary of State for the assurances that he has given. As I said repeatedly, I wanted to keep this issue on the agenda and to stay focused about it. His responses to us today have been very satisfactory, and we await the next responses.
The hon. Lady is right. It was because people in this House, and people with expertise and direct personal experience, including my hon. Friend the Member for Keighley, raised particular issues, that the matter is on the agenda. I fear that the hon. Member for Stone may want to broaden the agenda further than I, and probably those on both Front Benches, would seek to do. I am happy to consider a further amendment at any point, but I hope that we now have enough clarity to move forward.
Let me turn to the safeguarding issues that were raised—some hours ago, as it now seems—by the hon. Members for East Worthing and Shoreham and for Mid-Dorset and North Poole, and then by my hon. Friends the Member for Newcastle upon Tyne, Central (Jim Cousins) and for Stoke-on-Trent, North (Joan Walley). The hon. Member for East Worthing and Shoreham contextualised this by looking back over the past year. He pointed to the fact that we have just passed the anniversary of the tragedy of the death of baby Peter and that we have had, since then, other individual acts of cruelty and suffering that are very distressing. He referred to our frustration and upset that this should have happened in Haringey after the death of Victoria Climbié, which was now 10 years ago, pretty much to the day.
I think that the hon. Gentleman gave credit to some of the progress that has been made in the past year, although probably insufficiently so. We have had today the publication of Ofsted’s second inspection report, following the first joint area review inspection a year ago, which gives a good report on Haringey children’s services and the progress that has been made in the past year. I would like to put on record in the House my appreciation to the leader of the council, the director of children’s services and the chief executive for the progress that they have made, which Ofsted has recognised today, while not for a minute suggesting that we are out of the woods. There is still more to do to ensure that children are fully and properly safe in Haringey, but there has been real progress there. There is also the work of the social work taskforce, which the hon. Gentleman mentioned, under the chairmanship of Moira Gibb. This has been seen, by the taskforce itself, and by the wider social work world, as a real watershed moment—that was the language that it used to describe the extra investment, support, challenge and training that are now going into the social work profession.
The hon. Gentleman talked about a collapse in morale, but in the past few months more people have come forward in response to our advertising and said that they wanted to be considered for training as social workers than at any time for many years. That shows that out of a tragic situation and tragic circumstances, there is a fuller understanding of the role that social workers play.
I was particularly heartened when The Sun, not a supporter of the Government these days, ran an editorial in September praising the work of social workers. That was one reflection of the changing mood over the past year. It is not right to say this is a time of only bad news for social work. In fact, out of a tragedy a year ago, and, I would like to think, through cross-party effort—at times it has not felt as cross-party as one might have thought it would be on such a sensitive issue as child protection, but let us put that to one side—we are in a stronger position than we were then. That is not least because of the work of the social work taskforce following Lord Laming’s excellent report published almost a year ago.
I genuinely hope that we do get more people coming forward to be social workers who are of sufficient calibre and are trained to a sufficient standard to do the job that we desperately need them to. However, will the Secretary of State not admit that back in 2002, when there was a recruiting exercise for more social workers, a lot of people came forward but very few stayed the course and went on to be the child protection social workers of the great calibre that we need? We are in danger of the same thing happening now.
As the social work taskforce has stated, initial training, training within the profession, pay and progression and the supervision of social workers at the front line by management have all been inadequate for years. They are now being addressed, because of the taskforce’s work, Lord Laming’s impetus and the tragedy of baby Peter a year ago, in a way that is revolutionary and quite different from anything that we have seen in recent years. That is why I am cautiously confident that we will be able to look back on last year and say that 2009 was the year when, for the first time, we properly recognised, financed, resourced and supported the role that social workers play, particularly in the difficult area of child protection.
Does the Secretary of State share my concern at the fact that the number of serious incident notifications to Ofsted in 2009 was substantially more than in 2008?
The rise in referrals, which means that harm is coming to the attention of the authorities, has been a real challenge for children’s social services departments around the country. It has been the result of the heightened awareness of child protection issues among not just social workers but other individuals and professionals who work with children. The hon. Gentleman is right that there has been more awareness, which has led to more pressure on the system.
I apologise to the Secretary of State for not having been very clear. By “serious incident notifications” I meant the notifications to Ofsted that are the formal process by which most serious case reviews are kicked off following the death of a child. The increase in serious incident notifications in 2009 compared with 2008 refers to those following the death of a child.
As the hon. Gentleman knows, there has been a downward trend over recent years, but if there was a greater rise in notifications last year, we will need to examine and understand it. I am aware of that matter, but I do not believe one can say that it is a consequence of the events that happened a year ago.
I turn to particular issues raised by the new clauses and amendments. As I have said, Lord Laming reported last spring and talked about our having
“a sound framework for professionals to protect children and promote their welfare”,
but stated that we needed a step change in how it was applied consistently across the country, particularly to
“ensure that leaders of local services accept their responsibility to translate policy, legislation and guidance into day-to-day practice on the frontline of every service.”
He stated that that was the only way to ensure that children were safe. The measures that we have debated today will take forward Lord Laming’s recommendation in two areas—further strengthening the serious case review process and improving the working of local safeguarding children boards. We also debated those matters in relation to new clauses 1 and 21.
The statutory guidance “Working together to safeguard children”, which we have updated in recent months in line with Lord Laming’s recommendations, is an important step forward. We have already strengthened the requirements in that document to have thorough, comprehensive serious case reviews whenever a child is seriously harmed and to ensure that immediate lessons are learned and implemented before the publication of the executive summary and the completion of the full review.
I know that there is debate in the House about the publication of full serious case reviews, and it has arisen again in recent weeks because of the executive summary of the Edlington review following the tragic events in Doncaster last year. It is important to say that the executive summary of that serious case review, which Ofsted rated as a good summary, was drawn up under the old, more restricted guidelines for the preparation of executive summaries. It would not be state-of-the-art today. The hon. Member for Mid-Dorset and North Poole made powerful points about her reaction having read the serious case review, and I had the same reaction. I was shocked and surprised by the extent of multiple engagement of children’s services in Doncaster with the child in question. Under the new guidelines, that would be more fully set out in the executive summary than it was under the one drawn up on the old basis.
I say to the hon. Member for Stone that it was clear in that case that the children who had perpetrated the crime, for whom there can be no excuse, had themselves been subjected to either witnessing the physical harming and abuse of the parent in their household, or to physical harm and abuse themselves from the adults there, over a number of years. It is important to say that in the context of the remarks that we heard earlier about the importance or otherwise of children learning boundaries through punishment and physical harm. Those boys did not learn boundaries, and they lost any moral sense because they grew up in a family in which there was none. That was part of the problem.
The hon. Member for Mid-Dorset and North Poole has read the serious case review, but it would have been impossible to publish it even in redacted form without putting into the public domain the details of the harm suffered not just by those boys but by other siblings in the household. Those details could then have been seen by other children, young people and adults in the same part of Doncaster. That would have been the wrong thing to do not only for the boys who perpetrated the crime but for the victims of the crime, whose suffering is there for us to see in the serious case review, and for the other siblings, who were not named in the court case but are named in the review. The harm that they suffered, which is material to the case, would have been there to see. I defy the hon. Lady to say to me that the serious case review could be published in a redacted form without putting those children in jeopardy.
I make that argument about publishing serious case reviews on the basis not of my judgment but of advice that I receive. I cite my usual sources—Lord Laming, the child protection expert; Sir Roger Singleton, our child protection adviser; the Association of Directors of Children’s Services; the Association of Chief Police Officers; and the NSPCC. They all agree that publishing full serious case reviews would be wrong, because it would put children at risk and make it very difficult for professionals to co-operate in what is not an independent inquiry into who did things wrong but a process to ensure that lessons are learned.
The hon. Member for East Worthing and Shoreham said, “This will not be good enough. What we are going to hear is the same old excuses trotted out by children’s charities for whatever reasons.” I have to say that he does the NSPCC a disservice when he belittles its view on the publication of full serious case reviews.
The NSPCC wrote to me at the beginning of February—in the public domain—after those issues were raised in the House, to say that it does not agree with the publication of full SCRs. In the letter, the NSPCC states that it believes
“that the proposal does not take into account two important consequences: the possibility of further harm to surviving and subsequent children of the family; and the hesitancy of children, young people and their families to cooperate with the review process.”
The NSPCC is right on that point. I urge the hon. Member for Mid-Dorset and North Poole, who is an expert in these matters, to think hard again about the proposal to publish the full SCR in the face of all the advice of all the experts, including the NSPCC, which thinks it would be the wrong thing to do in the interests of the safety of children.
I absolutely agree with the Secretary of State that sections of the review would have needed to be redacted, particularly to protect the children who were attacked and their families, and the family of the attackers. However, I repeat to him we are proposing a change in the thought process, so that we start by deciding what can be published. There were pages detailing miscommunication in the review that I believe should be in the public view.
I completely agree with the hon. Lady that we need a change of thought process. The NSPCC laid down a challenge to us in its 2 February letter to begin that change. I believe that the NSPCC would agree that we did so with Lord Laming’s report a year ago, when we started to change “Working Together”. All I would say is that the NSPCC is clear that even in redacted form, publishing the full SCR would put children at risk and stop them, young people and their families from co-operating with the full SCR process. That is why it is against publishing the full SCR.
I am grateful to the Secretary of State for being true to form by trooping out the usual suspects, including the NSPCC. I have some questions for him. First, why was the letter that he sent to the NSPCC, which contains information that is very germane to today’s debate, released to my hon. Friend the Member for Surrey Heath (Michael Gove) at only 3.12 pm this afternoon, just before we started the debate, and why was it not made available to other Members of the House? Secondly, on the NSPCC, how many times has the NSPCC been mentioned in executive summaries of SCRs? Would the NSPCC have been mentioned in the executive summary of an SCR into the Victoria Climbié case, because it was certainly implicated in the full Laming report? It is most likely that that would not have come out in an executive summary.
I hear the hon. Gentleman’s point, but I do not agree with it. I do not agree that the NSPCC is a “usual suspect”, and I do not believe that it makes its arguments for self-interested motives as a way of trying to cover up its role in any cases. The NSPCC is an upstanding, highly respected, very professional organisation. To talk down its contribution to the debate by suggesting that it is trying to cover up its complicity in past failures is actually wrong and completely unfair. I do not know how many times the NSPCC has been in executive summaries—I have not checked.
If the hon. Member for Surrey Heath (Michael Gove) had been in the Chamber before now—he has only just arrived—he might have made the point about the letter himself. I wrote to the NSPCC today, because I wanted to be able to refer to its letter in the debate. In my letter to the NSPCC, I stated that it has raised serious issues regarding the monitoring of SCRs and the implementation of its recommendations one year on. We will ensure that when we publish our progress report one year on from the Laming review in the next few weeks, we will incorporate the NSPCC’s views following our discussions and meetings.
It is important to ensure that the SCR and the executive summary is a strong and good document. Independent assurance and compliance are very important, and we will ensure that we respond on those matters in the next few weeks. However, publishing SCRs and ignoring the NSPCC would be quite the wrong thing to do. That is why I urge hon. Members to reject new clause 1.
Will the Secretary of State address the proposal in new clause 1 on the appointment of the author of SCRs? Is he satisfied with the current process for doing that in the light of the extremely enlightening examples given to us by the hon. Member for Newcastle upon Tyne, Central (Jim Cousins)?
I was coming to that issue. My hon. Friend the Member for Newcastle upon Tyne, Central made important points. He has raised questions in the past as to whether the authors of SCRs are properly independent. As he knows, one reason why the first SCR into baby Peter was rejected and redone was precisely that it was not seen to be drawn up independently. Following Lord Laming’s report this spring, we have now changed our statutory guidance to reflect the view that the SCR must now be independently chaired. That is a requirement in law. We also now have a training package for SCR chairs and overview authors to ensure that they are properly prepared for that work. Lord Laming’s work addressed exactly the issue that my hon. Friend has raised. It is true that some SCRs were not independently drawn up—
Order. I apologise for interrupting the Secretary of State, but it is difficult for Hansard writers to hear him when his back is to the Chair.
I apologise, Madam Deputy Speaker—I was addressing my hon. Friend the Member for Newcastle upon Tyne, Central. His points are important, and they have been addressed by Lord Laming’s recommendations.
Amendments 35 to 40 are on whether we should list agencies that contribute to SCRs. We are clear that the executive summary needs to have a much clearer time line of what has happened in cases. I do not think that that happened fully in the Doncaster-Edlington SCR, but it will under the new guidelines.
Practitioners must be confident that they can disclose relevant information in co-operating fully with SCRs. I do not believe that any steps should be taken that would reduce the willingness of individuals to contribute to SCRs. That is not the right way to go. However, it is important—Lord Laming highlighted this in his report—to ensure that all information can be given in the SCR process. The measure clarifies that position.
The amendments would mean that such information is provided only to SCRs. However, there will be occasions on which LSCBs have an obligation to collect information for reports that are not SCRs. For example, following the death of a child, the LSCB must ask professionals to provide information, so that it can produce the child death review, which it must now provide after the death of every child. That can go widely to involve, for example, deaths from road traffic accidents or sudden infant death syndrome, when it is important to get information from general or hospital practitioners.
It is also important for the LSCB to know—this relates to the point made by my hon. Friend the Member for Stoke-on-Trent, North—that adequate safeguarding procedures training is being done in our schools for full-time and temporary staff. Again, that is a matter for the LSCB. To restrict the collection of information only to SCRs would undermine child death reviews and that important staff training function. Again, I therefore urge hon. Members not to press their proposals to a Division.
On amendment 88, which is on requests for information related to an SCR, it is important to ensure that the LSCB has proper information-sharing arrangements and protocols, and that they are properly kept under review. We are speaking to the agencies on those matters, and we will clarify the situation and revise statutory guidance to ensure that that is done properly. Again, we can do that without the amendment.
Amendment 48 and consequent amendments are, in our view, unnecessarily restrictive on Ofsted’s role. It is clear what the role of Ofsted is in inspecting the effectiveness of LSCBs. We will ensure that that happens through the regular area-wide reviews. We can also ensure that Ofsted looks at the compliance report that we will produce one year on after every SCR. However, in our judgment, we do not need to place the restrictions on Ofsted that are proposed in amendments 48 and 90.
In a few weeks’ time, we will publish our progress report, a year on from Lord Laming’s report. We now have the national safeguarding delivery unit up and running, which is a step forward. We have already revised “Working Together”, and will do so further following the input of the NSPCC and other organisations, to ensure that we have full, state-of-the-art executive summaries for serious case reviews, and that actions are properly implemented and monitored. We think that the restrictions in the amendments are unnecessary, and in particular we believe that to publish the full serious case review as a matter of policy—in the face of all the expert advice from all those people working in child protection—would be a backward step for children. It would put their safety at risk and mean that they, their families and other professionals would be less likely to co-operate. That would mean that we would be less likely to learn the lessons of terrible incidents in the future. It would be a retrograde step for child protection, and I urge the House to reject new clause 1.
I concur with the Secretary of State that we have had a good debate. It was a debate that we needed to have, because we missed having it in Committee. It has been constructive and measured, and almost non-partisan. But it ended with the Secretary of State not really giving us any assurance that we have moved on. He said that clauses 28 to 30 took the strengthening of serious case reviews forward. How? Serious case reviews are not even mentioned on the face of the Bill. We are only debating serious case reviews today because of our amendments and new clauses. Everything that the Secretary of State talked about has not happened, and the public do not have confidence that it will happen to the extent necessary for people to feel again that children and vulnerable families are being properly safeguarded.
We had an interesting, if confusing, debate on new clause 10; at one stage it entered a parallel universe. I was very interested in the comments by my hon. Friend the Member for Stone (Mr. Cash), and it was very useful that the Secretary of State cleared up the confusion by saying that there is no confusion, and that we are not confused about what we are not confused about—and that what we are not confused about we do not know we are not confused about. That made everything very clear. I was disappointed with my hon. Friend the Member for Stone because it took him 11 minutes before he gave the issue of reasonable chastisement a European dimension. Clearly he is slow off the mark after the half-term recess.
The hon. Member for Mid-Dorset and North Poole (Annette Brooke) spoke to the new clause, and I concur with the Secretary of State that there is a grey area that may need to be addressed in legislation. The hon. Lady was right to say that the only reason why we are debating this issue today is that amendments were tabled in Committee that we were not able to debate. The result is that Sir Roger Singleton has been engaged to look into those grey areas and report what action, if any, is required. So the job has been done. We now await empirical evidence of whether changes need to be made. By the hon. Lady’s own logic, I would have thought that she would not press the new clause to a Division. We need to hear the evidence, not to prejudge it. In any case, smacking has always been an issue for a free vote on this side of the House.
The hon. Member for Newcastle upon Tyne, Central (Jim Cousins) made some pertinent points from real experience of horrific deaths in his constituency involving serious case reviews that had not passed muster—contemporary serious case reviews that were not complementary, and which raised serious questions about the independence of their authorship. One phrase he used that struck me in particular was “the culture of justification” of what had taken place. That is why we need a radical change. We cannot go on producing the same old serious case reviews with assurances that we now have comprehensive executive summaries and everything has been done under the new system. We are still not entitled to see the evidence. We still cannot see the proof that what went wrong has been properly laid bare, or that what needs to go right in the future will do, because the lessons have been learned. They will continue to be kept secret, and that is not acceptable. If we are to restore any confidence in the system of safeguarding children, transparency and accountability have to underlie everything to do with serious case reviews and learning the lessons.
The hon. Member for Stoke-on-Trent, North (Joan Walley) slightly confused the points that I made about our amendments and the functions of LSCBs. The clauses in the Bill refer only to the supply of information. The hon. Lady rightly said that LSCBs conduct a range of other useful functions, including training. It is right that they should do so, and our amendments would affect none of that. The amendments refer only to the supply of information, so she need have no anxieties on that score.
The executive summary of the horrific case in Edlington, and the disparity with the full 150-page serious case review, blew the whole scam sky high. It has been clearly shown that there was no resemblance between the full serious case review—which was to be kept secret, available only to a small select body of people—and the 11 pages of comprehensive executive summary. There is no excuse for officials and councillors in Doncaster, either of their own volition or under instruction from the Secretary of State, not to publish if not the full serious case review, a much bigger version of it. A system in which the public are denied the full story—or, as in the Doncaster case, are actually misled about what really happened—can have no credibility. Without that information we cannot learn the lessons, rectify the mistakes, or move on.
The Edlington serious case review may not have been suitable to publish in full; I do not know. That is why the amendments contain serious caveats about publication not being detrimental to the welfare of surviving children or their siblings, and about anonymity. The families of the people involved in the Edlington case are sure that they want to know the full story. They want to see the full serious case review published. Everybody in Edlington knows who all the characters are—if they do not, they can find all the names on the internet—and there is no excuse for not publishing that serious case review.
The Secretary of State made play of my comments about the NSPCC. It does much good work, but it has been changing its position on serious case reviews. Recently, in the letter to which he replied—although he did not give us sight of it until 20 minutes before the start of the debate this afternoon—it has come forward with further suggestions. If we have further serious case reviews that reveal further tragic events such as those in Edlington and Haringey in a year or two’s time, the NSPCC might be brought round to our way of thinking—that the only solution is a full publication of serious case reviews.
The Secretary of State did not once mention the British Association of Social Workers and the practitioners at the sharp end, day in, day out, dealing with horrific cases, including cases such as those that made the headlines in Doncaster, Edlington, Haringey, Birmingham and other places. They deal with that every day of their professional existence, and that organisation, which represents the very best of many of our social workers, agrees that the only solution is a full publication of serious case reviews.
I want to remind the Secretary of State of the words of a former colleague of his—the former Member for Lancaster and Wyre, a fully qualified social worker, who is now the head of the BASW. Hilton Dawson said:
“It’s vital that these reviews are transparent and can be seen in full, subject only to the need to preserve individual anonymity…These reviews are vital learning tools and it is imperative that they are made widely available.”
The Secretary of State chose selectively to pray in aid certain organisations that share his view, but chose to ignore completely the 12,000 members of the professional body of social workers in this country, who now agree with a growing number of people that we desperately need full publication.
We need a fundamental change in the culture of how we approach child protection. That is what the new clause and the amendments are all about. Only if we have full transparency and accountability, subject to the caveats that I have given, will we start to bring about that fundamental change; to restore public confidence in child protection, which has suffered such enormous knocks in recent years; to restore morale within the social work profession, which has taken a huge knock, particularly since the baby Peter scandal; and to ensure that all agencies involved in safeguarding can see clearly where mistakes have been made and work together to ensure, wherever possible, that they are not repeated on their watch or in their patch. That is why, I am afraid, no amount of praying in aid by the Secretary of State of the same suspects will give the assurances that the public need and are entitled to. That is why the time has come to have that fundamental culture change—and that is what our amendments and new clause offer: that is why it is so important to put new clause 1 to the vote tonight.
Question put, That the clause be read a Second time.
The House proceeded to a Division.
I ask the Serjeant at Arms to investigate the delay in the No Lobby.
23 February 2010
The House having divided:
Question accordingly negatived.View Details
New Clause 2
‘(1) The Lord Chancellor may not bring into effect the provisions set out in Schedule 2 of this Act, unless—
(a) the Lord Chancellor has commissioned a full independent review and evaluation of—
(i) the operation of Part 2 of this Act, and
(ii) the impact of the new guidelines on reporting restrictions introduced on 27 April 2009,
(b) the conclusions of the independent review have been set out in a report which has been laid before Parliament.
(2) No review for the purposes of subsection (1) may be commenced before the end of the period of 18 months beginning with the time section 32 comes into force and a full review has been completed of the findings from the pilot allowing for the publication of anonymised judgments alone.’.—(Mr. Bellingham.)
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
With this it will be convenient to discuss the following: new clause 6—Amendment of definitions—
‘(1) The Lord Chancellor may not amend—
(a) the definition of “relevant family proceedings” in section 32(5);
(b) the definition of “professional witness” in section 41(1);
(c) Schedule 3 (list of sensitive personal information) by order made by statutory instrument unless—
(i) the Lord Chancellor has commissioned an independent review of the existing definitions, and
(ii) the conclusions of the independent review have been set out in a report which has been laid before Parliament.
(2) No review for the purposes of subsection (1) may be commenced before the end of the period of 18 months beginning with the time section 32 comes into force and the independent review has been completed.’.
New clause 7—Limitations on publication of information—
‘The court shall only permit publication of information relating to a case in family proceedings for the purposes of this Act upon the availability of the relevant judgment to that particular case and not before.’.
New clause 8—Uncontested adoption proceedings—
‘Part 2 of this Bill shall not apply to uncontested adoption proceedings under the Adoption and Children Act 2002.’.
New clause 9—Identification information—
‘For the purposes of this Act, an account of proceedings, or of any part of proceedings, shall be taken to identify a person (“identification information”) if—
(a) it contains any particulars of—
(i) the name, title, pseudonym or alias of the person;
(ii) the address or description (physical or by value) of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii) the physical description or the style of dress of the person;
(iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii) any real or personal property in which the person has an interest or with which the person is otherwise associated; being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the accounts disseminated, as the case requires;
(b) in the case of a written or televised account or an account by other electronic means - it is accompanied by a picture of the person; or
(c) in the case of a broadcast or televised account or an account by other electronic means - it is spoken in whole or in part by the person and the person’s voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.’.
New clause 19—Review of family proceeding provisions—
‘(1) The Lord Chancellor must commission an independent review of the operation of Part 2 of this Act and set out the conclusions of the review in a report to be laid before Parliament and considered by the Justice Committee of the House of Commons.
(2) The review for the purposes of subsection (1) must not be commenced before completion of the evaluation of the family courts information pilot or the end of the period of 18 months beginning with the time section 32 comes into force, whichever is the later.’.
Amendment 4, in clause 32, page 28, line 8, after ‘publisher’, insert ‘or author’.
Amendment 5, page 28, line 8, at end insert—
‘(a) published only after the judgement is available and is’.
Amendment 6, page 28, line 9, after first ‘the’, insert ‘anonymised’.
Amendment 7, page 28, line 12, leave out ‘or’.
Government amendment 111.
Amendment 8, page 28, line 13, at end insert ‘or,
‘(d) limited disclosure at the request of the parties involved, or upon the Court’s own motion in circumstances not covered by the Family Proceedings Rules part XI, as authorised by the powers of Court.’.
Amendment 9, page 28, line 33, at end insert—
‘(h) applications under Part II of the Matrimonial Causes Act 1973 (financial relief for parties to a marriage and children of family);
(i) applications under Schedule 1 of the Children Act 1989 (financial provision for children).’.
Amendment 10, page 28, line 34, leave out subsection 6 and insert—
‘(6) The Lord Chancellor may not amend the definition of “relevant family proceedings” in subsection (5) by order made by statutory instrument unless—
(a) the Lord Chancellor has commissioned an independent review of the existing definition, and
(b) the conclusions of the independent review have been set out in a report which has been laid before Parliament.
(6A) No review for the purposes of subsection 6 may be commenced before the end of the period of 18 months beginning with the time section 32 comes into force.’.
Amendment 11, page 28, line 34, leave out subsections (6) to (8).
Government amendments 112 to 115.
Amendment 12, in clause 33, page 29, line 12, at end insert
‘with agreement of other interested parties related to the case.’.
Amendment 13, page 29, line 13, leave out ‘may permit’ and insert
‘will always make it clear that’.
Amendment 14, page 29, line 13, after ‘section’, insert ‘can be’.
Amendment 15, in clause 34, page 29, line 26, after ‘representative’, insert
‘or other member of any news gathering or reporting organisation or any freelance journalist’.
Amendment 16, page 29, line 30, after ‘representative’, insert
‘or other member of any news gathering or reporting organisation or any freelance journalist’.
Government amendment 116.
Amendment 17, page 29, line 41, leave out ‘or’.
Amendment 18, page 29, line 43, at end insert ‘or
(v) sensitive or personal financial information’.
Amendment 19, page 30, line 10, after ‘court’, insert
‘and in accordance with the limitations imposed by the Act’.
Amendment 20, page 30, line 13, at end insert—
‘(6A) Condition 6 is that the information is not recorded by an accredited news representative or other member of any news gathering and/or reporting organisation or any freelance journalist other than through hand-written or hand-typed notes, and is not recorded visually or audibly.
(6B) Condition 7 is that the publication shall not contain details of any written or oral disclosure by a child or any medical details of a child.’.
Amendment 21, in clause 35, page 30, line 25, after first ‘the’, insert ‘wider’.
Amendment 22, page 30, line 26, leave out ‘a person’ and insert ‘any of the parties’.
Amendment 23, page 30, line 37, leave out ‘involved in, referred to in or otherwise’ and insert ‘directly.’.
Government amendment 117.
Amendment 24, in clause 37, page 32, line 19, leave out ‘or’.
Amendment 25, page 32, line 19, at end insert—
‘(ba) the information is also sensitive or personal financial information relating to the proceedings, or’.
Government amendments 118 and 119.
Amendment 26, in clause 38, page 32, line 29, leave out ‘reason’ and insert ‘reasonable cause’.
Government amendment 120.
Amendment 27, page 32, line 35, leave out ‘reason’ and insert ‘reasonable cause’.
Government amendment 121.
Amendment 30, in page 33, line 12, leave out clause 40.
Government amendment 122.
Amendment 28, in clause 40, page 33, line 19, leave out paragraphs (a) and (b) and insert—
‘(a) the Lord Chancellor has commissioned an independent review of the operation of Part 2 of this Act, and
(b) the conclusions of the independent review have been set out in a report which has been laid before Parliament’.
Government amendment 123.
Amendment 29, page 33, line 23, leave out subsection (4) and insert—
‘No review for the purposes of subsection (3)(a) may be commenced before—
(a) the end of the period of 18 months beginning with the time section 32 comes into force, and
(b) a full review has been completed of the findings from the pilot allowing publication of anonymised judgments alone.’.
Amendment 31, in clause 41, page 33, leave out from beginning of line 42 to end of line 2 on page 34 and insert—
‘An account of proceedings, or of any part of proceedings, shall be taken to identify a person if—
(a) it contains any particulars of—
(i) the name, title, pseudonym or alias of the person;
(ii) the address or description (physical or by value) of any premises at which the person resides or works, or the locality in which any such premises are situated;
(iii) the physical description or the style of dress of the person;
(iv) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(v) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(vi) the recreational interests, or the political, philosophical or religious beliefs or interests, of the person; or
(vii) any real or personal property in which the person has an interest or with which the person is otherwise associated; being particulars that are sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires;
(b) in the case of a written or televised account or an account by other electronic means, it is accompanied by a picture of the person; or
(c) in the case of a broadcast or televised account or an account by other electronic means, it is spoken in whole or in part by the person and the person’s voice is sufficient to identify that person to a member of the public, or to a member of the section of the public to which the account is disseminated, as the case requires.’.
Government amendments 124 to 132.
Amendment 32, page 34, line 49, at end insert—
‘(c) is a person who has provided a sworn statement to the court within the relevant proceedings.’.
Amendment 33, page 34, line 50, leave out subsection (3) and insert—
‘(3) The Lord Chancellor may not amend—
(a) the definition of “professional witness” in subsection (1);
(b) Schedule 3 (list of sensitive personal information) by order made by statutory instrument unless—
(i) the Lord Chancellor has commissioned an independent review of the existing definition, and
(ii) the conclusions of the independent review have been set out in a report which has been laid before Parliament.’.
Amendment 34, page 34, line 50, leave out subsections (3) to (5).
Amendment 91, in page 46, line 10, leave out schedule 2.
I should declare my interest as a barrister, albeit one who has not practised for quite a long time.
Part 2 of the Bill was not debated in Committee. Unfortunately—indeed, scandalously—it is not going to be debated this evening either. That is a great pity, because it contains significant changes. In our view, those changes should have formed a separate Bill in its own right, rather than being tacked on to this important Children, Schools and Families Bill. This is a shabby way in which to treat those involved in the family courts, from the judges through to all the other professionals, including those who work for the Children and Family Court Advisory and Support Service and the expert witnesses who appear in the family courts day in and day out, as well as the families and children themselves.
The Opposition have consistently argued for more openness and transparency in the family courts. We have also regularly emphasised the need for greater consistency between the courts. The press have been allowed into the youth justice courts for the past 70 years, and Judge Nicholas Crichton pointed out to the Public Bill Committee that they have always been allowed into the family proceedings courts, which are of course magistrates courts. Furthermore, the press are allowed into the Court of Appeal when family cases end up there on appeal. Where the problem lay was in the county courts and the family division of the High Court.
Our family courts play a vital role in our justice system, but confidence and trust in them is eroded if their work is constantly shrouded in secrecy. That is exactly what has happened in the past. That is why we pressed the Secretary of State hard to take action, and we warmly welcomed his announcement in December 2008 of the new rules that were to come into force in April 2009. The rules of court were then changed to allow media attendance in all family courts, subject to reporting restrictions and to the court having the power to exclude completely, where appropriate. That was a significant step forward.
We are, however, in the very early days of the new regime. It was combined with the piloting of written judgments. The pilots commenced in November last year, so they have been running for only a short time. They are being undertaken in the magistrates courts in Leeds, and in the magistrates and county courts in Cardiff. There were originally plans to have a third pilot in the magistrates and county courts in Wolverhampton. I hope that the Minister will be able to explain what has happened to that third pilot, as it has not yet started.
The whole idea behind the pilots was for anonymised judgments and reasons to be placed in the public domain. The benefits of that would be assessed, as would the resource implications of the measures. This was also discussed in the evidence-gathering sessions of the Public Bill Committee, in which Sir Mark Potter, the president of the family division, pointed out that the annual costs would be about £2 million. We are talking about a significant, although not huge, amount of money, at a time when the courts’ budgets are under a lot of pressure. On the other hand, it is important that we get this right, as it represents another far-reaching step. Our view is that these measures require a full, thorough evaluation. What is the point of running a pilot if it is not studied and evaluated?
We always assumed that the Government would allow the new arrangements to settle in before moving on to the next stage, which would be to amend the primary legislation on reporting restrictions and look into media attendance at placement and adoption proceedings. However, that is the essence of the provisions in part 2. We never dreamt that the Ministry of Justice would amend primary legislation by tacking on various clauses to another Bill, right at the fag-end of this Parliament, when the Government knew that there would be no time to debate these important proposals properly.
The Public Bill Committee took evidence on part 2 from a number of experts who work in the family courts on a regular basis. The list was impressive. The president of the family division, Sir Mark Potter, gave evidence, as did Judge Nicholas Crichton, a well-known judge from the inner London family proceedings court, as well as Barbara Esam from the National Society for the Prevention of Cruelty to Children and a number of other experts. A key point is that, although they supported in principle much of what is in part 2, they all agreed that it was hideously complicated and that not enough thought had been put into it.
If we look at what the Government and those of us who want to see more transparency in the family courts are trying to achieve, we see that three key questions are involved: when can the press attend; what can they report; and what documents can they see? The answers are, in some ways, quite simple. I entirely accept that there are additional questions to be asked in relation to the third point about documents, because affidavits and skeleton arguments are increasingly relevant, and we must ask whether the press should have copies of them.
It is also worth pointing out that insufficient attention has been paid to ancillary relief in the debate on transparency. This raises a specific issue, because financial information, some of which is highly confidential, is provided under compulsory disclosure. The Government should certainly look into that more carefully as the debate moves forward.
On the question of how complicated the provisions are, I was struck by something that Sir Mark Potter said in his written note. He reinforced his point in his oral evidence as well, but in his written note, he stated:
“The Bill is very complex. The technical and interlocking nature of its provisions places the judges, the parties and the media in an unsatisfactory position likely to lead to a number of practical difficulties concerning Judges’ decisions to impose, or refuse to lift, restrictions in individual cases. In cases of high interest, parties and the media are likely to raise substantial queries and argue individual points in relation to the reporting of evidence which will necessitate the expenditure of precious judicial time in resolving them rather than getting on with the case.”
He also went on to explain that part 2 was needlessly complicated. Her Majesty’s Government have achieved something that I thought was virtually impossible—namely, they have united everyone from one end of the spectrum to the other on this matter. That is certainly an achievement.
As I said, it would have been better to give these early reforms a chance to work and to get bedded down. Then, we could have taken a step back to see exactly when it would be necessary to amend the primary legislation. It would have been far better to do that by means of a separate family proceedings Bill. Given that the Government have already announced that they are going to carry out a major review of the family justice system, would it not have been better to allow that review to complete its work? A new family proceedings Bill will undoubtedly come out of that process, and these provisions could have formed an important part of it.
We did not debate part 2 in Committee, yet the Government have already come up with a number of complicated amendments to it. They are completely rewriting their original part 2. Perhaps the Minister will think I am churlish to say that, however, because many of their amendments are ones that we asked for and that we support. Nevertheless, this is a chaotic situation, and it is causing a great deal of concern.
We are where we are, however, which is why we have tabled a number of new clauses and amendments. I want to speak first to new clause 2. Clause 40 currently introduces phase 2 of part 2—that is, schedule 2. Schedule 2 contains various amendments that alter the treatment of sensitive personal information. Under clause 40 as it stands now, however, the Lord Chancellor cannot make an order to commence schedule 2—or, indeed, schedule 5—unless he or she has carried out a review of this part of the Bill and set out its conclusions in a report to Parliament. That cannot take place for 18 months and it has to be done through an affirmative resolution on a statutory instrument.
There are various flaws in the procedure. That is why we tabled our own new clause, which builds on clause 40 by requiring the Lord Chancellor to commission a fully independent review of the operation of part 2 and of the impact of the new changes of April 2009 that allowed the media access to the courts. Furthermore, there is a third safeguard, because no review can take place until a full and separate review and an evaluation of the pilots has taken place.
New clause 2 is similar to the Lib-Dem new clause 19. In fact, original amendments 28 and 29 have been migrated into new clause 2. The Government’s solution in amendment 123 goes some of the way, but it is simply not adequate because it talks only about an independent person carrying out the review and consulting the public. In our opinion, that is just not good enough. Our new clause 2 is logical; it is in no way bureaucratic, and it contains sensible additional safeguards. I urge all hon. Members to support it.
We have tabled other new clauses and amendments. If we debated them all tonight in an open-ended way, I would still be speaking in two and a half hours’ time, which I have no intention of doing, as I want to hear what the Minister has to say about the Government amendments and many of my hon. Friends want to speak. This shows what a ridiculous situation we are in. It would do us all a disservice if this Bill got on to the statute book without proper debate in at least one of the Houses. I suggest that the chance of getting the proper debate it needs in Parliament is now very slim indeed.
New clause 7 states that the court will
“only permit publication of information relating to a case in family proceedings”
after a judgment has been made. To some extent, this is the Sir Mark Potter amendment, as he felt very strongly about the issue, as he explained to the Committee in some detail when he gave oral evidence on 21 January. Let me quote what he said in response to a question asked by my hon. Friend the Member for Crewe and Nantwich (Mr. Timpson), who is an expert on the subject and may speak later if he is able to catch your eye, Madam Deputy Speaker. Mark Potter said that
“one of the judiciary’s concerns is the fact that it is the habit…of the press to drop in on the first day and see what the case is about. In so far as they will report that case, they will do so in terms of what is open. Whether it is public or private law proceedings, an applicant may open a case high, as we put it, make a number of often quite important and unpleasant allegations relating to parties in the case, or make exaggerated claims about the child. Those will get reported. Then time passes. Perhaps the judgment is given and publicised in anonymous terms two or three weeks later. There is no obligation on the press to report that. It might be that quite a different situation is found to have existed as a result of what happened, but because we are in a situation of a first-day attendance, and what is news today has passed tomorrow, an unfair and difficult position is left—quite apart from the welfare of the child concerned.”––[Official Report, Children, Schools and Families Public Bill Committee, 21 January 2010; c. 126, Q206.]
He went on to say:
“It is indeed only by being there all the time, seeing the whole shape and knowing what is at the end that you achieve anything.”––[Official Report, Children, Schools and Families Public Bill Committee, 21 January 2010; c. 130, Q210.]
Interestingly enough, that particular view was echoed by Bob Satchwell. He is the director of the Society of Editors, who was at completely the opposite end of the spectrum and has consistently argued for and lobbied in favour of even more transparency and openness—issues encapsulated in part 2. He said on the same day:
“However, unless you hear the whole detail of the case, and unless you are able to put those sides of the case, you lose the point of fairness of a report. So you must have some basic information in there, which is not available at the moment.”––[Official Report, Children, Schools and Families Public Bill Committee, 21 January 2010; c. 130, Q210.]
Another who reinforced the point about getting the judgment of a case before there is any reporting by the media was Dr. Julia Brophy, the director of the centre for family law and policy at Oxford university. A number of my hon. Friends met her and were very impressed. She said:
“Unless the media are simply in at the end of a case, at the final hearing, and can look at the case in its entirety, they will not be able to present a balanced picture.”––[Official Report, Children, Schools and Families Public Bill Committee, 21 January 2010; c. 135, Q217.]
That is exactly what we are trying to do.
The answer to these concerns—they are very real concerns indeed—is very simple: it is our new clause 7. We feel strongly that it satisfies the point, but the Government have unfortunately completely failed to look at and address the concerns put forward by Sir Mark Potter and these other experts. I urge the Government to recognise that there is still time to address those concerns. They should accept our new clause 7. It deserves support because it is extremely simple and straightforward; there is no reason why it would not work very neatly and very well. I ask the Minister to accept it, because it would go a long way to satisfying and answering the fears expressed very eloquently by all the witnesses when they gave evidence to the Public Bill Committee on 21 January. I think that the Minister herself was present at the Committee; she asked some questions at the end of it. I am sure that she will agree with me that these real concerns need addressing.
Let me move on to new clause 8. It is very simple, modest and sensible and is designed to ensure that part 2
“shall not apply to uncontested adoption proceedings”.
I should declare an interest because my wife and I have an adopted child. We understand very well the sensitivities involved in adoption, which were summed up very well by the president of the family division when he said:
“In private adoption proceedings which are not contested and do not involve abuse, the unanimous decision of judges and absolutely everyone is that there is no legitimate reason for the press to be present. So many sensitivities are involved, largely for parents, as well as the child, and it is simply not a matter the public deserve to know about, so far as the intimate details are concerned.”––[Official Report, Children, Schools and Families Public Bill Committee, 21 January 2010; c. 139, Q232.]
I certainly endorse that 100 per cent.
Quite why the Government have not addressed those points, I do not know. I am afraid that it is probably a function of the Government coming to this issue with a whole lot of amendments at a very late stage. As I have said, they have completely rewritten part 2 and missed out a number of points. We are here to help them. New clause 8 would certainly answer this particular concern. If the Government are in a charitable mood tonight, they will certainly accept this simple and straightforward new clause. It is perfectly harmless and it does exactly what those experts want to see built expressly into the Bill.
Our new clause 9 expands on the short interpretation description contained in clause 41(1). It is also sensible and pragmatic, and the good news is that the Government have looked at our earlier amendment, which migrated into new clause 9, and have now come up with their own amendment. They copied our provision almost word for word in their amendment 130. I would like to say a big thank you to the Minister. She said a while ago that the Government were here to help and they have certainly been helpful in this particular case. We must not do anything other than give praise where praise is due.
I must also not sound churlish when I say that our new clause is slightly better and superior to the Government’s amendment because our provision contains two additional safeguards in (a) and (b), which cover identification possibilities by way of pictures in the media and by way of recording people’s voices. I urge the Minister to change the Government amendment or at least urge the other place to have a close look at what we would achieve by our new clause. We are almost at one on this, but not quite, so going that extra little distance would be a great relief to Conservative Members.
As to the other Government amendments, I accept that the Government have listened to a number of legitimate concerns. On the other hand, as I mentioned a moment ago, they have completely rewritten this part of the Bill with no debate in Committee whatever—not a single minute was spent debating it in Committee.
We support most of the Government amendments. Some cover points that we raised in correspondence with the Minister, some pick up on points put during the evidence-gathering session, while others pick up points made in various written statements and documents made available to the Committee. The Minister has considered some of those points and come up with various amendments. However, some of the amendments are pretty weighty, and I find it worrying that they were introduced so suddenly, given that all the issues could have been thought through carefully at an earlier stage. Amendment 111—the “Nelson”—deals with fairly wide-ranging contempt-of-court criteria, amendment 126 adds another defence to contempt of court, and amendment 131 concerns the definition of how a person is involved in proceedings. It is ridiculous that such weighty matters should be put before the House at this late hour.
I hope that the Minister will explain exactly what the amendments will do. We have given our pledge that we will not vote against them, because they are broadly in line with what we have asked for, but there is extra detail that is very substantial and complicated. I hope that she will explain exactly how the amendments will improve the Bill in the way that the Government have claimed they will, and how they will make it more acceptable to the various groups involved.
We have pressed the Government for a long time to address the whole issue of transparency and openness in the family courts. We agreed that the April 2009 changes were excellent, but suggested that it would have been better had we paused at that stage. What is the point of pilots unless they really are pilots, and are assessed properly? At the time, we told the Government “Take a step back. Look at stage one. Look at the excellent announcements that you made about the changes in April 2009, and assess the way in which they are working on the ground. Talk to everyone involved in the family courts. The pilots only started in November; evaluate them, perhaps a year later, and consider the resource implications in a professional and focused way.”
If the Minister had listened to us at the time, we would not be in this muddle, but would be moving forward at a sensible, constructive and decent pace. However, the Government have panicked for some reason. They have tacked these clauses on to a Bill that is not theirs, and have managed to unite everyone against what are, in many respects, quite reasonable proposals because they are so complicated.
We are trying to make the Bill much less complicated. We are trying to make part 2 more effective and acceptable. There are strong arguments for dropping it completely, but if the Government will not do that, I implore them to accept our amendments—particularly amendment 2, on which I hope the House will vote, but also amendments 7, 8 and 9. I hope that Members on both sides of the House will support us in the vote on new clause 2, which would go some way towards making this part of the Bill more effective and acceptable.
I agree with much of what the hon. Member for North-West Norfolk (Mr. Bellingham) said. I do not intend to detain the House for long, not because the amendments and new clauses do not deserve extensive debate but precisely because they do, and because today’s debate—which has been necessarily brief because of the time restrictions—has only confirmed a view that I have held for some time. I believe that we would be foolish to rush consideration of what is, in fact, a highly complex and sensitive area with no proper scrutiny in this place, and that we would risk drawing the wrong conclusions and making decisions of which we would repent at leisure. After all, we are being expected, in a debate lasting only an hour, to scrutinise nearly 20 per cent. of the Bill, including an entire set of clauses and two schedules—clauses 32 to 41 and schedules 2 and 3—that we did not even touch on in Committee, although they deserved serious scrutiny.
We know that this is one of the most controversial parts of a Bill which itself hardly lacks controversial content—including some of the other elements relating to home education, which we may touch on if we have time today and to which we also failed to give adequate time in Committee. We know that a long list of organisations have expressed concerns, and that, as the hon. Member for North-West Norfolk said, they represent a broad spectrum, from children’s organisations at one end to legal and other organisations in the middle or at the other end.
We have received representations from a variety of organisations, from the Children’s Society and the National Society for the Prevention of Cruelty to Children to legal groups specialising in family law, but they have sent us a universal message. They believe that there is a real risk of our legislating in haste, and that the issues are too important to be rushed through Parliament with a minimum of debate and the risk that we will end up with ill-thought-out provisions. They have told us clearly that they think that the changes envisaged in schedule 2 should result from a proper process of consultation and dialogue, and proper scrutiny in Parliament. Although I accept that the Minister has made an attempt today to respond to some of the concerns that have been expressed over the last few weeks and months and that she has talked to many of the organisations involved, I have no doubt that many of those concerns remain.
As the hon. Member for North-West Norfolk said earlier, the fact that the Minister has found it necessary to bring to the House with very little notice—her letter is dated 19 February—a series of important amendments to clauses 32, 33, 34, 37, 38, 40 and 41 is the clearest possible indication that the groups that have made representations to us are right, and that we should not rush such complex and sensitive legislation in the limited time that we have before a general election. That is particularly true given that many of the concerns expressed by groups such as the NSPCC seem to be precisely the opposite of the concerns expressed about serious case reviews that we have just discussed. While the Government claim to be taking the side of groups such as the NSPCC on the protection of sensitive information from serious case reviews, they appear to be taking the opposite side on many of the arguments.
I genuinely feel that it would be extremely unwise of Members of this and another place to seek to make such important judgments in the absurdly short time that is available to us. I will confine myself to saying that Members of both Houses will do all we can to ensure that the proposals are not enacted, so that we can consider them in the detail that they deserve.
I rise relatively early in this fairly short debate, partly to respond to the amendments tabled by the Opposition but partly to agree with both Opposition spokesmen that it is a matter of regret to us all that these matters were not debated in Committee. I sat through every Committee sitting, including the public evidence sessions, and I assure Members that it is pretty frustrating to sit there and be unable to make at least some comment on a part of a Bill for which one has some responsibility.
I also rise to speak at this point in the debate because in the course of the public evidence sittings and throughout the period when this part of the Bill was being discussed outwith this House, including by the many organisations that have contributed to it, we listened to what people had to say, which is why we have tabled our amendments in this group. I hope that my comments will lead the hon. Member for North-West Norfolk (Mr. Bellingham) to appreciate that I am doing all I can to try to be helpful and to assuage some of the concerns people have raised, even though they were not debated in Committee.
I want to begin by considering why we have come to our current situation. I acknowledge that the hon. Gentleman said at the beginning of his speech that he and the Opposition agree that transparency in the family courts is an important issue, and that they support that and find it unacceptable that the family courts differ so much from the rest of the Courts Service. For a number of years—in fact, since Lord Justice Munby’s Re B judgment in 2004—we have been consulting on, and slowly changing, the extent to which individuals can share information from the family courts, and we have been able to move from a system that, for example, did not even allow a man or wife to disclose to their new partner the fact that they were involved in Children Act proceedings for contact arrangements for their child from a previous relationship. They were not allowed to talk to their MP about such issues either, and given that over the past year we have, for a variety of reasons, been very concerned about the relationship between the MP and their constituents, that is a pretty large hole in the system.
Those aspects of the system were clearly unhelpful for the people involved, and unhealthy for democracy and justice. We therefore changed the rules so that the situation is now more open and transparent, but always with checks and balances to make sure that the publishing of information, for example, is permissible only within a very specific framework. Those changes have proved to be relatively successful.
The hon. Member for North-West Norfolk has mentioned that last year we introduced the family court information pilots, which are looking at the impact on the judiciary and the court system of publishing anonymised judgments online. Anonymised judgments were established not for the benefit of the media, but, rather, to see how the system impacts on the judiciary. They also protect the identity of those involved, which is a key factor in their success. Again, checks and balances are in place. The hon. Gentleman asked about Wolverhampton. Its pilot started in January, so it has been running for only two months so far.
In April last year, we made a very important change to the rules of court, so that the media now have the right to attend most family proceedings. The hon. Gentleman rightly pointed out that they could attend the top and bottom ends, so to speak, of the family proceedings, but not some of the more central areas, such as the High Court. Again, we have put in place sufficient checks and balances to ensure that the courts can choose to exclude them, where appropriate.
The recent evaluation showed that the changes have presented few problems, and that the major block to their achieving their objectives is that the media are not attending family proceedings to the extent that we had expected, largely because they can report so little of the information that they might learn from the proceedings. Whereas the other measures that we have introduced have made a positive contribution to making the family courts more open and transparent, allowing the media to attend has not as yet added to that. The limits on what can and cannot be reported are such that the media do not, on the whole, bother to attend. Because the media are not allowed to report anything of substance, the public are not able to grasp how the family courts work, or how the courts reach very difficult decisions every day about children and families. The concept of open justice is all the poorer for that.
That is why we have introduced these provisions. Their aims are to allow the media to report on the family courts more fully, to allow the public to be more aware of the work of these courts and the decisions they make, and to afford family courts the openness and transparency other parts of the judicial system have had for many years. We do not and would not tolerate such restrictions in other parts of the justice system, so these changes are long overdue, but I seek to persuade Members that while the changes we have made so far have been relatively successful, and while I hope those I propose in today’s amendments will also be successful, they are all proposed with the privacy and safety of children in mind, and with checks and balances to ensure that that is achieved.
Even though the details were not discussed in Committee, I am aware that a number of concerns have been raised since the original clauses were introduced. I hope Members will agree to the amendments tabled today or late last week—I am sorry it took so long for that to happen, but that was entirely outwith my control. I say to the hon. Member for North-West Norfolk that I would never dream of describing him as churlish, and I hope that, like me, he has come to this debate in a spirit of openness and with the aim of trying to take this matter forward and of putting measures in place that will be better for the justice system and all those involved in it. We have considered the concerns raised, such as protecting privacy, while also ensuring the system can be as open as possible, and I hope these amendments will allay some of those concerns. We also want to ensure the integrity of the process in making a considered transition to a second, more open, phase.
First, let me address the amendments dealing with the issues of privacy and identification. Government amendments 113, 114 and 115 all deal with the publication of information contained within court orders. Taken together, these amendments will make it clear that, while the default position is that court orders in relevant family proceedings will remain publishable without the court’s permission being required, the publisher will need to remove any identification information from the text or summary of the order before publishing. The publication of an order complete with any identification information that the order contains will require the court’s permission. These amendments are offered in response to concerns raised about the important question of how best to ensure that orders in family proceedings may be made public without an excessive risk of identification of those involved. By placing the responsibility for redaction on the publisher, the Government are ensuring that no undue burden is placed on busy family court judges to have to check every family court order in order to make sure that identification information has been removed.
May I draw attention to the extra safeguards in our new clause 9, which differentiate it slightly from Government amendment 130?
I hope that, as I go into the detail of our amendment, that differentiation will become clear. However, let me say to the hon. Gentleman, as I have said before, that I am happy to look at some of these issues further to see if changes need to be made in the other place. I hope that he will forgive me if, for the moment, I stick to arguing my case as I have it before me. Those amendments seek to assist the operation of the legislation. I hope that they will satisfy some of the calls for additional clarity, because I accept that originally the provisions were rather opaque.
Amendments 131 and 132 would plug the gap in ensuring that a person who has provided a statement to the court within the relevant proceedings would count, along with witnesses actually called to give evidence, as being “involved in” proceedings for the purpose of the Bill. On amendment 130, I accept that, as has been mentioned by the hon. Members for North-West Norfolk and for Yeovil (Mr. Laws), the addition of a list similar to that in section 121(3) of the Australian Family Law Act 1975 was strongly advocated by a wide variety of stakeholders. We have therefore accepted that it is appropriate to include in the Bill a list of what constitutes “identification information”. Having said that, I believe that the Bill, as introduced, was fit for purpose and that provisions on what constitutes information “likely to identify” are equally so.
I am aware of the need for as much clarity as possible if the Bill is to work as intended, so the amendment builds on the Australian model and provides additional guidance for both parties and the media as to what constitutes “identification information”, highlighting the sorts of information that are most likely to be “identifying” and in respect of which particular care should accordingly be taken. In addition, amendment 117 adds a provision that mirrors section 97(2)(b) of the Children Act 1989 in prohibiting publication of information likely to identify the home address or the school of a child involved in proceedings. That would remove any scope for arguments as to whether such information might identify the child.
The hon. Member for North-West Norfolk made a number of points that have been raised by the judiciary and, in particular, by Sir Mark Potter, and I hope that he will accept that although amendments 115, 118 and 119 are technical, they address the points made by the senior judiciary. Amendments 118 and 119 would remove the additional explanations of what amounts to
“information relating to the proceedings”.
That term will continue to have the meaning established by the case law on the identical wording in section 12 of the Administration of Justice Act 1960.
Amendment 115 mirrors section 97(2) of the 1989 Act—and the Australian legislation—in referring to identification by members of the public, rather than by “one or more persons”, which might have had the unintended effect of preventing publication in almost every case however little information might be made available. Within those provisions, however, not only do we wish to ensure privacy where required, but we wish to make reporting as open as it can be. We have, thus, responded to concerns in that regard too.
Amendments 116, 117, 118, 121, 124 and 126 would remove references to persons “referred to in” proceedings from clauses 34, 37, 38 and 41. That would mean that the publication of identification information relating to persons referred to in proceedings but with no direct link to them—I call this the David Beckham amendment, because it deals with cases where a child’s favourite footballer or pop star is mentioned—would not be prohibited, as clearly that is not what is intended. Having said that, there may occasionally be exceptional cases where the court would need to protect a person who is “referred to” in proceedings, as opposed to more actively involved. Such a person might be, for example, a neighbour who has reported domestic violence to the police. The Government feel that the court’s discretionary power to restrict publication in clause 37(2) will cover such situations.
These amendments do not cover references to a person “referred to in” proceedings in clauses 35 and 36, because they serve a different purpose. In clause 35, the avoiding of an injustice to a person referred to in the proceedings, or the protection of the welfare of a child or vulnerable adult referred to in the proceedings, may well be a reason for permitting the publication of information. The court will decide this, and in so deciding whether to permit that publication, it will have to take into account the risk that would be posed to the safety or welfare of a person “referred to”.
A number of concerns have been raised about the contempt provisions for circumstances where the reporting restrictions are breached. Amendments 119 and 120 deal specifically with defences to contempt of court. The amendments provide those republishing information from another publication with a defence if they did not know, and had no reason to suspect at the time of publication, that the information already published was in breach of any of the requirements for an authorised news publication. Without the amendments, there would be a risk that someone republishing information already in the public domain could find themselves charged with contempt for publishing information that they could not have known was in breach of reporting restrictions. Although it is right and proper that the courts pursue those who knowingly publish information that is in breach of reporting restrictions governing family proceedings, it is also right and proper that those who seek only to inform the public in good faith are provided with a defence against being held in contempt of court.
So that the courts can continue to authorise publication in individual cases, amendment 111 responds to judicial concerns raised in the evidence of the president of the family division, Sir Mark Potter, and is intended to make it clear that courts may continue in the exercise of their inherent jurisdiction to authorise disclosure of information in limited circumstances not covered by rules of court, at the request of the parties or upon the court’s own motion.
Finally, we have considered the concerns about the review process that will be required prior to moving to a more open second phase. I understand that the hon. Member for Yeovil has particular concerns about this area, and I hope that amendments 122 and 123 will allay some of them. Our amendments would require that the Lord Chancellor commissions an independent review of part 2 of the Bill before the amendments concerning sensitive personal information in schedule 2 may be commenced. We recognise that it is in everyone’s interest, particularly that of children, that we get the review process right and ensure that the initial set of changes are subject to a considered and robust examination—it would be in nobody’s interest to do anything less.
Will the Minister explain why she does not see the pilot that is under way and an evaluation of the changes that were introduced in April 2009 as an integral part of that review? Should we not be able to see the outcome and evaluation of those two aspects before we look towards having an independent review of part 2 of the Bill?
To some extent, I would say that they will be an integral part of that review. I shall go on to explain in more detail about how I think that that review might work, and I would expect it to take those pilots into consideration. It would consider the whole procedure of openness and transparency in the family courts, and the pilots would be included. We will review the pilots before then anyway, as part of their timetable. There seems to me no reason why the review, when it comes about, could not also take them into consideration.
The hon. Gentleman is right to say that the benefits of an independent review are significant, not least because it will be crucial for its report to be accepted as a fair and accurate account of how those initial changes have operated. It is also important, therefore, for the independent reviewer to consult publicly on that. If the review is to have the respect that we want it to command, it needs to be set up on the right footing. That is why we are also giving a commitment that its terms of reference will be agreed by the Justice Committee. The Chair of that Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), was here during the earlier part of the debate and I am sure that he will be looking at the details later. As I have said, if the Justice Committee were to include the pilots as part of the review procedure, I see no reason why that would not be perfectly acceptable. It might give the reviewer more credibility when the review takes place.
In that case, what is the Minister’s objection to our new clause 2?
On one level, I have no objection to it in principle. There is much to be said for some of the things in it. However, I do not think that it is appropriate at this stage. I shall come to that point in a moment, but I want to finish talking about the review first.
The review will not start until at least 18 months after the commencement of this legislation, to give the first set of changes time to bed in. It will be something between 18 and 24 months, I would envisage, before the review will take place. That will give considerable time for the production of evidence for it to consider.
New clause 2 is unnecessary at this stage, because the amendments that we have tabled make it clear that the move to the new regime will not happen automatically. The review is therefore not a rubber-stamping exercise.
I am grateful to the Minister for giving way. Will she explain why, if she has no objection in principle to new clause 2, it would be inappropriate to accept it tonight?
I am not prepared to accept it tonight because I think that our amendments satisfy the concerns that people have raised. I said to the hon. Member for North-West Norfolk that after this debate I would look further, if necessary, at whether other tweaks might be necessary in another place. At the moment I am not absolutely convinced that they are, but I am happy to consider the matter further later. At the moment, I think that the amendments that we have tabled instead of new clause 2 are sufficient.
I am grateful to the Minister for giving way; I wanted to help her a bit on the subject of the pilots, following the point raised by my hon. Friend the Member for Crewe and Nantwich (Mr. Timpson). Would it not be better to put the requirement for a review of those pilots and an evaluation in the Bill? It would be easy to do that. Surely she can accept that point, as we move forward to make part 2 work through this process, which is phase 2 overall—well, perhaps phase 3, because phase 1 involved the changes that the Government brought in a year or so ago. The pilots were part of that, and obviously they need to be properly evaluated. To have such a provision in the Bill would, I am sure, satisfy the concerns of many of those who attended the Public Bill Committee hearing.
The hon. Gentleman makes a fair point, which is why I hesitate as I reply to him. I want to consider further whether the proposal should be in the Bill. I do not object to it in principle, but I want to think about whether it needs to be on the face of the Bill, or whether it would be more appropriate to leave it to take effect through other procedures. I appreciate what the hon. Gentleman is saying, and I want to go as far as I can to allay concerns about what the review can and cannot do. That is partly why we suggest that the Justice Committee would play such an important role in setting out what the review can cover. It is important that the review should be seen by all concerned as entirely independent and robustly conducted. If it were to conclude that the second part should not go forward in its present form, that view would be taken very seriously. I hope that that gives the hon. Gentleman some comfort.
Government amendment 112 does not need a great deal of explanation. It subjects the Lord Chancellor’s power to amend the definition of “relevant family proceedings” to the affirmative resolution procedure, so that the amending instrument may not be made without the prior approval of both Houses of Parliament. I hope that that allays some of hon. Members’ concerns in that regard. The purpose of that power is to ensure that we can respond flexibly and promptly should there be any subsequent legislative changes in the way that court proceedings are classified, so that the appropriate range of proceedings will continue to be covered. For example, “family proceedings” can be proceedings under part 5 of the Children Act 1989 dealing with child minding and nursery care regulations.
Let me explain why I cannot accept the amendments tabled by the hon. Member for North-West Norfolk. It is partly because our amendments already address the concerns that have been raised—certainly those about the nature of the review, the move to phase 2, the Lord Chancellor’s power to amend the definition of “family proceedings” and the clarity of identifying information. We have covered all those issues fairly comprehensively. I will start by making a more negative point: I have concerns about his call for a limit on the publication of financial information, which I think is misplaced. I do not believe that he or other Members on the Opposition Front Bench suggest that the need to protect information about a parent’s finances is of greater consequence than the need to protect information about the children involved, but there are sufficient safeguards in place already, as the courts can decide whether it is appropriate to protect such information.
Amendments 30 and 91 would derail the provisions that will introduce phase 2 of the Bill. I have already explained that the move to phase 2 is not a given, because the independent review, the parliamentary scrutiny that will follow, including the affirmative resolution procedure, are robust enough to ensure that whether phase 2 becomes a reality will be entirely dependent on independent scrutiny.
Let me address the point that the hon. Gentleman made about uncontested adoption proceedings. They are not covered in the Bill, but I accept the tenor of his comments about such proceedings. I think that new clause 8 would backfire, because it would remove the Bill’s protection from some of the proceedings that will be protected, and would not cover some of the things that he wants it to cover, but I would like to look at it again to make sure. I have some sympathy with him regarding the necessity of media scrutiny of entirely uncontested adoption proceedings. However, we do not, in the Bill, allow the media in to the final part of adoption proceedings.
The changes are important to the families who use the courts, and particularly to the children who rely on them. They are important to those who take the decisions that will keep children safe and also to the public, who have had doubts about some of the courts’ actions and have called into question the effectiveness of the family justice system as a whole. That is why the changes are overdue. Clearly, we all agree that the family justice system should be more transparent and open.
I believe that the amendments that the Government have now tabled offer the best way forward. They offer a balanced approach to change and safeguards for the families involved, and give family courts a chance to shake off the allegations of secrecy. They mean that justice has a chance to be done and—it may be a cliché, but in this case it is an important principle—to be seen to be done.
I therefore ask the House to support the Government amendments. I hope that the other amendments will be withdrawn; otherwise, I will have to ask the House to reject them.
At the outset I must declare an interest, in that I have been a family law barrister for 12 years, although I have not practised for several years.
It has taken me even longer than the Minister to speak on this part of the Bill, and I suspect that my experience is unusual, as I have had more influence by not saying anything than would have been the case if I had spoken. I appreciate and acknowledge what the Minister has done in trying to address some of our amendments, and we welcome the concessions that the Government have made. I am glad that our amendments have been taken seriously and given the attention and respect that they deserve. Nevertheless, it is clear even from this short debate that this part of the Bill is beginning to unravel even further from its initial presentation.
I want to make it clear that Opposition Members are in exactly the same position as the Government—and I am sure other parties—when it comes to considering the family court system. The Justice Secretary said that his objective in going through this exercise was
“to build a transparent, accountable family justice system which inspires the confidence of the people it serves, while continuing to protect the privacy of the parties and children involved.”
I do not think that any of us could argue against that as a starting position for thinking about how we can give the public more confidence in the family justice system, which is so important to so many people. From that starting premise, the Government have made a number of welcome moves over several years.
However, I was not sure whether the Minister thought that the new rules introduced in April 2009 were a success or not, given that, after an initial burst of activity, no one from the media seems to have shown much interest in the family courts. What we do know is that the major reform in the Bill should be given proper and careful consideration, rather than being rushed through.
I agree with the pithy but important contribution from the hon. Member for Yeovil (Mr. Laws), who speaks for the Liberal Democrats. He said that we could not discuss such a fundamental sea change to family justice in such a short debate, lasting just an hour and a half on the Floor of the House, and still be confident that it would play out on the ground and in the courts as we intend. As my hon. Friend the Member for North-West Norfolk (Mr. Bellingham) said at the beginning of his speech, it is perhaps even more illuminating that we have managed to find ourselves in an unenviable position today, with even those who advocate full transparency for family courts saying that the legislation could end up doing more harm than good.
I am not here to defend the family courts. I recognise that many people who have been exposed to the system come away from it extremely disappointed and frustrated by what they have had to go through. However, when we think about opening up the family courts, we cannot and must not put the interests and welfare of children anywhere but at the top of the list.
The Government’s hope and expectation is that the interests and welfare of children who, through no fault of their own, find themselves in the family courts system will remain at the heart of this part of the Bill. However, voices from all sides are telling the Government that there is still great concern that the involvement of the media in their cases will make children less, rather than more, willing to disclose problems and talk to professionals. The danger is that judges will have to make decisions in cases without having the full facts and evidence before them. I am sure that that is not what the Minister, or anyone else in the House, would want to happen.
Will the Minister spend a little more time considering our new clause 7? When the Government sent round the letter telling us what their amendments would be, they prayed in aid the fact that many of the amendments were being introduced because members of the judiciary and other bodies, and particularly the president of the family division, had expressed concerns about aspects of the Bill, and that the Minister had, rightly, listened carefully to what he had to say.
We know from his oral evidence and his written evidence to the Public Bill Committee that Sir Mark Potter has grave concerns that unless there is a provision such as we set out in new clause 7, whereby the publication of any case through the media could not take place until the judgment, a case may be reported in a local or national newspaper in a way that gives a completely different version of events from what has been played out across the whole case from start to finish. The media could give a skewed account that did not reflect the facts of the case as they played out. I ask the Minister to look at that aspect again. She clearly believes that the views of the president of the family division are worth listening to.
The Opposition have tried to be constructive. I am delighted that the Government have taken on board a number of the amendments that we tabled—for example, on how involvement in the relevant proceedings are defined in clause 41. In some instances the Government could have agreed to our amendments as drafted, but they felt it necessary to rewrite them in almost exactly the same way, with the same meaning. Perhaps I should take that as a compliment.
Why can the Minister not accept new clause 2? In the debate this evening we learned far more about the Government’s position and the thinking behind the independent review. It appears that all the elements that we included in new clause 2—the anonymised judgments and the assessment and evaluation of the new rules introduced in April 2009—are very much in her mind as well. I ask her to be brave, to listen—as she has done, to her enormous credit—to the information that we have been giving her about our concerns, and to think carefully about why we should wait any longer for new clause 2 to become part of her Bill, as well as of our Bill.
One of the reasons why I am hesitant about the Opposition’s new clause 2 is that part of it is superfluous. The pilots will have been completed long before the review takes place, so that evidence will already be in the public domain. I do not know whether that helps the hon. Gentleman.
In that case, what is the concern? Where is the guarantee in the Bill as drafted that those pilots will be completed before the independent review takes place? If the Minister is giving me that guarantee, I see no reason why it cannot be written into the Bill. We want the Bill to be transparent, just as we want the courts to be transparent, so we should practise what we preach.
I am conscious that we are coming to the end of our time and that other Members wish to speak, so I shall conclude by saying that the Opposition want the family courts to gain public confidence by being more transparent and accountable, but we need to make sure that all the people who work in those courts, who have to go to those courts and who report those courts have confidence in the Bill, and that it will work. I am sad to say that in its current form, despite our best efforts to help the Government produce a workable Bill, it will not do what it is intended to do. Even those on the edges of the spectrum of interest in the Bill share that concern. I hope the Minister will continue to take those comments on board as the Bill continues its passage through the House.
The hon. Member for North-West Norfolk (Mr. Bellingham) wants to speak for a minute just before 9 pm. I hope to finish in sufficient time for that.
Sadly, the Government have gone about this whole process in completely the wrong way, and as such they have created a monstrous mess. It is overly complex, reverses Clayton v. Clayton, makes secret documents of court orders that are currently public and achieves very little. I should like to cite an example that demonstrates the problems with secrecy in the system by referring to two babies who were born in Spain last week to families that emigrated rapidly from Suffolk because they faced the removal of their babies at birth, with the police in the delivery suite and social workers in attendance to take the children immediately into care. As everybody knows from the statistics, the vast majority of babies who are taken into care at birth end up being adopted.
One baby was born to Sam Hallimond and his fiancée Vanessa. They went through the family courts, and the press could in fact have named them because Clayton v. Clayton allows them to be identified. The Bill, however, aims to gag Sam and Vanessa: it aims to stop the press reporting their names. They are in Spain, the baby is all right, everyone is okay, the authorities are quite happy with them and there is no difficulty.
The members of the other family are Dale and Lorraine Coote and their daughter Megan, who are constituents of Mr. Deputy Speaker, the hon. Member for Central Suffolk and North Ipswich (Sir Michael Lord), and very pleased to have his support. They have not touched the family courts, so all the documentation on and discussion of their case can be made public; there is absolutely no difficulty whatever. The Bill will have no effect on them, because their case has never been to the family courts.
On the merits of the argument, Spain, according to UNICEF’s report card No. 3, has one of the best records in the world for protecting children from death from abuse and neglect. The authorities have been around, seen the Cootes and said, “You’re all right. Just stay in touch with us. We do not have a problem with you looking after your own child.” The authorities here wanted to remove the child at birth, with a police officer in the delivery room—straight into care, feed the adoption machine.
There is a key point about the accountability in and transparency of the process. With the Cootes’ case, all the documentation is public and not constrained in any way whatever. The fact that they are abroad means that, to a certain extent, they can do what they want anyway, because the court order stops at the border. The Hallimond case is much harder, because the press in this country cannot report the documentation. The press abroad can, however, so there is no difficulty there.
In care proceedings, the family courts are in essence the quality control system for a complex judgment. In social work, decisions about when and when not to intervene are critical judgments, and one needs to maintain an open mind and review the judgment. One can criticise the Department for making the whole system worse, but, crucially, the role of the family courts is to bring in that quality control.
Birmingham city council reviewed the practices of its own children’s services department and identified that, in about 50 per cent. of cases, the judgment was poor: the practitioners were incapable of judging when a child was and was not at risk. The quality control for that judgment is the family courts, but the problem is that it often fails. It does not always fail, because there are some very good judges, but other judges basically accept any old rubbish that is put up by the local council, and the judgment goes through. The Court of Appeal subsequently says, “Oh, that’s all judicial discretion,” so it does not correct the judgment.
As a backstop for that process, we need transparency: we need to be able to look at what has happened. The Government’s strategy has been to assume that a journalist will be sitting in the family courts all the time. A national newspaper reporter might go to the court in London once or twice, but they will not know in advance about a miscarriage of justice; they will know only in arrears. The process fails because it does not look at the situation from the point of view of the parties. It is the parties who know when a miscarriage of justice has occurred, so it is the parties who should be able to take that issue—yes, perhaps with certain constraints—and have a discussion about the merits of the case.
I have a constituency case in which a mother was put in the Appledore centre and her parenting ability assessed, and it was decided that because she breastfed her baby on demand—she did not follow Gina Ford’s instructions, in other words—she failed her parenting assessment. One would think that such an assessment, which I have in writing, would be rejected by the family court, but sadly it was not. The problem that we have with the appeal in that case is that the judge has not issued a written judgment, so the appeal will go in on the basis of no judgment being provided. Those sorts of things simply should not happen.
I should have declared right at the start—I think everybody knows—that I co-ordinate the Justice for Families campaign, which is why I am contacted by people from all over the country, including children in their late teens who are forced into care unnecessarily by the family courts system. It is those children, too, who are being gagged by the process. It would be a criminal offence for a newspaper to report the name of a child who is 17 and is wrongly subject to a care order. That would not have been the case prior to this Bill, because under Clayton v. Clayton the parties following the judgment can be reported.
There is only area where I would have some agreement with the proposed constraints on information. Obviously, it is at the judgment stage that information should be talked about, but the Government’s big mistake is that they are going about this in completely the wrong way. What is important about the whole process is being able to look at the experts’ reports, all the evidence and the transcript of the hearing, and ask, “Is it reasonable for the state to intervene in the way in which it is intervening in this situation?” These are very traumatic processes. The two families who are in Spain at the moment faced the real prospect of a police officer in the delivery room to take the baby at birth under a police protection order. That is massively traumatic, so it is not surprising that they, like several other families, have decided to emigrate.
Looking at the telegraphing that is going on between the Minister and the Conservative spokesman, it is probably fair to say that they could do with a little bit more than the minute that they asked for, so I will finish on this point. The Government have gone about this in completely the wrong way. The April 2009 stuff was really quite good, although it needed to go further in certain ways, but what needs to happen now is that we stop gagging the parties who are subject to miscarriages of justice.
We have had an interesting debate. Conservative Members are very keen to make this part of the Bill work. Our position is straightforward. We would rather that the Government put this part of the Bill on hold and waited until after the election, when the Government of the day could bring in a matrimonial family Bill of which this could be a part, so that rather than its being tacked on to a Bill that is being promoted by another Department, it would be a vital part of a free-standing justice Bill. I think that that is what people who work in the family courts—the judges, expert witnesses, solicitors and lawyers who are in those courts on a day-to-day basis—would expect.
I echo what my hon. Friend the Member for Crewe and Nantwich (Mr. Timpson) said. I am afraid that while the Government have had the right intent, this part of the Bill is falling into a state of some chaos. If they insist on going ahead, it is important that we have new clause 2. The Minister said a moment ago that she was almost with us on new clause 2, so can we go the whole way? Will the Government accept it, because if not, we will have to force it to a vote?
I am with the hon. Gentleman—I accept new clause 2.
I am very grateful to the Minister for that. As I am on a roll, is she prepared to accept new clause 7? [Interruption.] Perhaps I am pushing my luck a bit too far, but I believe that we have put a convincing, compelling case for new clause 7 as well. It supports what Sir Mark Potter, the president of the family division, has urged us to do. I do not want to be unkind to the Minister, because I am very grateful to her, but on that basis I intend to press new clause 7 to a vote.
Question put and agreed to.
New clause 2 accordingly read a Second time, and added to the Bill.
Proceedings interrupted (Programme Order, 11 January).
The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).
New Clause 7
Limitations on publication of information
‘The court shall only permit publication of information relating to a case in family proceedings for the purposes of this Act upon the availability of the relevant judgment to that particular case and not before.’.—(Mr. Bellingham.)
Question put, That the clause be added to the Bill.
The House proceeded to a Division.
I ask the Serjeant at Arms to investigate the delay in the No Lobby.
23 February 2010
The House having divided:
Question accordingly negatived.View Details
Pupil and parent guarantees
Amendment proposed: 67, page 2, line 35, at end insert—
‘( ) No liability in tort can arise on the basis of the inclusion of any matter in the pupil guarantee or the parent guarantee.’.
Exceptional provision of education in short stay schools or elsewhere
Amendments proposed: 68, page 11, line 40, leave out from ‘(3AA),’ to end of line 41 and insert
‘education on such part-time basis as the authority consider to be in the child’s best interests’.
Amendment 69, page 12, line 3, leave out ‘be impracticable or otherwise inappropriate’ and insert
‘not be in the child’s best interests’.
PSHE in maintained schools
Amendments proposed: 70, page 14, line 6, at end insert—
‘(7A) Subsections (4) to (7) are not to be read as preventing the governing body or head teacher of a school within subsection (7B) from causing or allowing PSHE to be taught in a way that reflects the school’s religious character.
(7B) A school is within this subsection if it is designated as a school having a religious character by an order made by the Secretary of State under section 69(3) of the School Standards and Framework Act 1998.’.
Amendment 3, page 14, line 10, leave out from ‘State’ to end of line 11.
Sex and relationships educations: manner of provision
Amendments proposed: 93, page 14, line 39, leave out ‘(5)’ and insert ‘(5A)’.
Amendment 94, page 15, line 1, after ‘education’ insert ‘or (in Wales) sex education’.
Amendment 95, page 15, line 12, leave out subsection (4) and insert—
‘( ) After subsection (1ZA) (inserted by subsection (3) above) there is inserted—
“(1ZB) The Secretary of State must issue guidance designed to secure that where sex and relationships education is given to registered pupils at schools in England to which this section applies, they learn—
(a) the nature of marriage and its importance for family life and the bringing up of children,
(b) the nature of civil partnership, and
(c) the importance of strong and stable relationships.”
( ) In subsection (1A)—
(a) for “The Secretary of State” there is substituted “The Welsh Ministers”;
(b) after “maintained schools” there is inserted “in Wales”.
( ) In subsection (1B), for “the Secretary of State’s guidance” there is substituted “the guidance under subsection (1ZB) or, in the case of schools in Wales, subsection (1A)”.’.
Amendment 96, page 15, line 19, leave out subsection (5) and insert—
‘(5) In subsection (1C)—
(a) for “subsection (1A)” there is substituted “subsection (1ZB) or (1A)”;
(b) for “sex education” there is substituted “sex and relationships education, or (in Wales) sex education,”.
(5A) In subsection (1D), for “subsection (1A)” there is substituted “subsection (1ZB), and the Welsh Ministers may at any time revise their guidance under subsection (1A)”.’
Amendment 97, page 15, line 21, leave out from ‘interpretation),’ to ‘does’ in line 26 and insert
‘in subsection (1), before the definition of “sex education” there is inserted—
“sex and relationships education” includes education about—
(a) Acquired Immune Deficiency Syndrome and Human Immunodeficiency Virus, and
(b) any other sexually transmitted disease,
Exemption from sex and relationships education
Amendment proposed: 98, page 15, leave out lines 29 to 36 and insert
‘In section 405 of EA 1996 (exemption from sex education), for “If the parent of any pupil in attendance at a maintained school requests” there is substituted—
“(1) If the parent of a pupil under the age of 15 in attendance at a school in England to which section 403 applies requests that the pupil may be wholly or partly excused from receiving sex and relationships education at the school, the pupil shall be so excused accordingly until—
(a) the request is withdrawn, or
(b) the pupil attains the age of 15.
(2) If the parent of any pupil in attendance at a maintained school in Wales requests”.’.
restriction on publication of information relating to family proceedings
Amendments proposed: 111, page 28, line 13, at end insert—
‘( ) Nothing in this section makes it a contempt of court to publish information with the permission of the court.’.
Amendment 112, page 28, line 37, leave out from ‘subsection (6)’ to ‘House’ in line 38 and insert
‘may not be made unless a draft of the instrument containing the order has been laid before, and approved by a resolution of, each’.
Authorised publication of court orders and judgments
Amendments proposed: 113, page 29, line 1, leave out ‘the case of’ and insert ‘a case where the proceedings are’.
Amendment 114, in page 29, line 1, after second ‘proceedings’, insert
‘or a case where the publication of the text or summary contains identification information relating to an individual involved in the proceedings’.
Amendment 115, page 29, line 4, leave out ‘the case of any other proceedings’ and insert ‘any other case’.
Authorised news publications
Amendment proposed: 116, page 29, line 39, leave out sub-paragraph (ii).
Prohibiting or restricting publication for purposes of section 34
Amendments proposed: 117, page 32, line 16, leave out sub-paragraph (ii).
Amendment 118, page 32, line 21, leave out ‘referred to in’.
Defences to contempt of court
Amendments proposed: 119, page 32, line 27, after ‘(2)’, insert ‘, (2A)’.
Amendment 120, page 32, line 30, at end insert—
‘(2A) This subsection applies if the person proves that—
(a) the person obtained the information from a previous publication, and
(b) at the time of the person’s publication the person did not know and had no reason to suspect that the previous publication was not an authorised news publication.’.
Amendment 121, page 32, line 37, leave out ‘or referred to in’.
Power to alter treatment of snesitive personal information
Amendments proposed: 122, page 33, line 19, at beginning insert ‘an independent person appointed by’.
Amendment 123, page 33, line 20, after ‘Part,’, insert—
‘( ) in carrying out the review the independent person consulted the public about the operation of this Part,’.
Interpretation of Part 2, etc
Amendments proposed: 124, page 33, line 42, leave out ‘, referred to in’.
Amendment 125, page 33, line 44, leave out from ‘information’ to ‘to’ in line 1 of page 34 and insert
‘, including in particular information as to any of the matters set out in subsection (1A), the publication of which is likely to lead members of the public’.
Amendment 126, page 34, line 2, leave out ‘, referred to in’.
Amendment 127, page 34, line 2, at end insert ‘, and
( ) in a case where the individual is a child, information the publication of which is likely to lead members of the public to identify the address or school of the individual as being that of an individual who is or has been involved in or otherwise connected with the proceedings.’.
Amendment 128, page 34, leave out line 3.
Amendment 129, page 34, leave out lines 4 to 13.
Amendment 130, page 34, line 44, at end insert—
‘(1A) The matters referred to in the definition of “identification information” in subsection (1) are—
(a) the name of the individual or any title, pseudonym or alias of the individual;
(b) the address or locality of any place where the individual lives or works or is educated or taken care of;
(c) the individual’s appearance or style of dress;
(d) any employment or other occupation of, or position held by, the individual;
(e) the individual’s relationship to particular relatives, or association with particular friends or acquaintances, of the individual;
(f) the individual’s recreational interests;
(g) the individual’s political, philosophical or religious beliefs or interests;
(h) any property (whether real or personal) in which the individual has an interest or with which the individual is otherwise associated.’.
Amendment 131, page 34, line 47, leave out ‘or’.
Amendment 132, page 34, line 49, at end insert ‘, or
( ) is a person who has given written evidence in connection with the proceedings.’.
Minor and consequential amendments
Amendments proposed: 99, page 47, line 34, after second ‘education’ insert ‘etc.’.
Amendment 100, page 47, line 37, after ‘education’ insert ‘etc.’.
Amendment 101, page 48, line 2, after ‘education’ insert ‘or (in Wales) sex education’.
Amendment 102, page 48, leave out line 9 and insert—
‘( ) Before the entry for “sex education” there is inserted—’.
Amendment 103, page 48, line 10, at end insert—
‘( ) In the entry for “sex education”, for “section 352(3)” there is substituted “section 579(1)”.’.
Amendment 104, page 48, line 12, after ‘education’ insert ‘etc.’.
Amendment 105, page 48, line 13, after ‘education’ insert ‘or (in Wales) sex education’.
Amendment 106, page 49, line 19, at end insert—
‘(b) for “section 403(1A)” there is substituted “section 403(1ZB)”.’.
Amendment proposed: 107, page 52, leave out line 20.
Question put (single Question on amendments moved by a Minister of the Crown), That amendments 67 to 70, 3, 93 to 98, 111 to 132 and 99 to 107 be made.—(Mr. Coaker.)
23 February 2010
The House divided:
Question accordingly agreed to.View Details
Amendments 67 to 70, 3, 93 to 98, 111 to 132 and 99 to 107 agreed to.
I beg to move, That the Bill be now read the Third time.
I hope to leave time for other hon. Members to say a few words, so I shall be brief. I would like to thank members of the Public Bill Committee. We did not always agree, but we had interesting and thorough debates on a number of issues. I would particularly like to thank the hon. Members for Bognor Regis and Littlehampton (Mr. Gibb) and for East Worthing and Shoreham (Tim Loughton) for their constructive approach in Committee. They will know from some of the amendments that we took note of some of their comments. I would also like to thank the hon. Members for Yeovil (Mr. Laws) and for Mid-Dorset and North Poole (Annette Brooke) for all their work in Committee. I thank everyone else, including my ministerial colleagues, for their support in helping me to reach this point.
The Children, Schools and Families Bill is one for the future of our country. It is possible only because of the improvements made over the last 13 years which have been underpinned by record levels of funding in our schools and children’s services, as well as the reforms passed by this House. It builds on a decade of ever-increasing standards of pupil achievement, investment in buildings and the work force and the development of one of the most robust children’s safeguarding systems in the world.
The Bill contains numerous reforms for the future, which I would like to highlight briefly. We make a great step forward with PSHE—personal, health, social and economic education—as we make it compulsory from September 2011. One or two Members may wish to intervene on this issue, so let me make it very clear that faith schools will not be able to opt out of any elements of statutory PSHE, including sex and relationships education, and they will have to deliver the programme of study for this subject like every other school. Schools with a religious character will still be required to cover in their teaching of PSHE the full range of the content prescribed. Similarly, such schools will, like all others, be under a duty to deliver PSHE in a way that is compliant with the principles set out in the Bill.
I will give way to the hon. Gentleman and probably to some of my hon. Friends in a few moments, but I want to finish my statement on PSHE. There is nothing in the Bill that diminishes these principles or lessens their impact on faith schools. Although faith schools will, as now, be able to teach their faith’s views on issues that arise within the teaching of PSHE, what they will not be able to do is suggest that their views are the only valid ones, and they must make it clear that there are a wide range of divergent views. For example, a Catholic school will be required to teach about contraception. In doing so, it will have to be accurate in the sense of providing the facts about contraception. It will have to be balanced in the sense of indicating that there are different views about contraception, but it would also be able to reflect the views of the Catholic Church about the use of contraception.
Will the Minister clarify, in the light of amendment 70, which has been passed today, whether it will be possible for faith schools to teach that homosexuality is wrong?
Such schools could say that that is the view of their particular religion, but what they will not be able to do is to state that that is the only view that exists. They will not be able to say that other religions do not have different views or that people of no faith do not have different views.
The hon. Gentleman will know—he looks at these issues in great detail—that various principles are set out in clause 11. The first principle is that the information should be “accurate and balanced”. The second is that it should be
“appropriate to the ages of the pupils”.
The third is that
“PSHE should be taught in a way that… endeavours to promote equality… encourages acceptance of diversity”.
The hon. Gentleman will know that clause 11(8) provides that
“In the exercise of their functions”,
those responsible must
“have regard to any guidance issued… by the Secretary of State”.
He will also know that one of the amendments that we have just passed takes account of circumstances that have been raised in which that guidance could be issued by people other than the Secretary of State, and provides that the Secretary of State will be the only person who can issue that guidance, which will be statutory.
I will give way to the hon. Gentleman briefly, but for the last time, because I want some of my hon. Friends to be able to intervene.
Can the Minister tell us why the amendment was necessary, and when it was agreed with people outside the House?
We always have discussions with people outside the House, as do our officials. My right hon. Friend the Secretary of State and I had discussions with a wide range of organisations before and during the introduction of the Bill. We want to deliver a Bill that will work and that will lead to radical reform. Doing that in government sometimes means balancing competing priorities, but we are trying to deliver, and will deliver, really fundamental and radical reform.
Promoting the principles of equality, tolerance and diversity is essential to a child’s development and the prevention of bullying. How can my hon. Friend reassure me about the methods that we use to ensure that allowing a school to promote its faith will not contradict those principles, and will he agree to meet me and other concerned Members to discuss the Bill’s implementation after it has been passed?
At present, faith schools can teach about homosexuality, but they are not required to do so in an accurate and balanced way. The principles in the Bill will ensure that that happens. Ofsted will be required to ensure that they are complied with, and we will look carefully at its reports.
Of course I will meet my hon. Friend to discuss the Bill. As she will know, clause 11(8) refers to statutory guidance, and that guidance will go out for consultation. I should welcome a meeting with her—and any other hon. Friends—to discuss what should be included in the guidance, and to try to deal with some of her fears and concerns.
As a gay man representing a constituency with a large Catholic population and a majority of faith schools, I recognise that faith schools should be able to explain to their pupils what their faith position is on many of these issues. Will my hon. Friend reassure me, however, that when the guidance is published, it will be framed in such a way that schools will not be able in any way to foster hatred, discrimination or any hostility towards same-sex couples or gay people within that educational framework? I should like an opportunity to meet my hon. Friend when these matters are discussed further, in order to ensure that the framework allows us all to be satisfied that both parties are happy with the outcome.
I entirely agree with my hon. Friend. No school will be allowed to foster homophobic or any other sort of hatred. If my hon. Friend wants to join me in developing the guidance, along with our hon. Friend the Member for Amber Valley (Judy Mallaber), I should be happy to meet him.
Will my hon. Friend assure me that no faith school teacher will be allowed to spread long-term fear among children by telling them that if they subsequently have an abortion or partake in homosexuality they will end up going to hell?
Of course I can give my hon. Friend that assurance. What we are trying to do is reassure faith schools that they will be able to teach PSHE in a way that is consistent with their religious characteristic and ethos. That is what the amendment does; that is the reassurance we seek to give. The amendment has to be read alongside the other parts of the clause, which describe certain principles that will also have to be upheld. We should pay tribute to the faith schools: for the first time they are saying that when PSHE becomes compulsory, not only will they need it to be consistent with their religious ethos, but they will accept that these other principles are also important.
In order to allow other Members to say a few words, let me conclude. Alongside PSHE, there are radical changes to the primary school curriculum, which will make a huge difference. We also discussed the guarantees, which are the state’s offer on education for the future of this country. Report cards will result in a significant change in the accountability of schools. The licence to practice, with a guaranteed curriculum of continuing professional development, is also a huge step forward. I might also mention special needs and the inspection of schools by Ofsted to see how well they meet the needs of children, and the right of parents to appeal where local authorities do not amend a statement. There is to be alternative provision as well. For the first time, there will be mandatory full-time provision for those who are out of school but who have not been permanently excluded.
On home education, which the Minister has not mentioned and which was not debated on Report because of lack of time, will we in Wales be able to determine our viewpoint independently of what is decided here, and does England have any recourse to revisit that as well?
When, or if, the Bill is passed shortly, that will be the case.
On the provisions for health and well-being, will the Minister give the House a commitment that he will look at the possibility of regulating to provide for healthy eating and nutritious food in nurseries? That is not included in the Bill?
I can give that assurance. As part of the changes being made to school improvement partners, there will be a requirement to look not only at educational achievement, but well-being.
This is a radical, reforming Bill, and it was opposed by the Opposition parties at all stages. It takes forward our desire to make further improvements and to raise the attainment of pupils across the country, and I therefore commend it to the House.
I thank the Minister for the courteous way in which he conducted the Committee proceedings, and for the three or four concessions he made to the Opposition. However, this Bill will not go down in history as one of the great education Bills of our time. It will not tackle the deep-seated problems in our education system that have resulted in 16 per cent. of 11-year-olds leaving primary school still struggling with reading, in 40 per cent. leaving primary school still struggling with reading, writing and arithmetic, and in 9 per cent. of boys leaving primary school completely illiterate.
Harriet Sergeant has encapsulated the severity of the problem in her brilliant report, “Wasted”. She interviewed hundreds of people in the most deprived parts of Britain, and she writes:
“White working class boys are most at risk of under-performing with 63 per cent. unable to read and write properly at 14…Black working class boys do not do much better. Just over half of them, 54 per cent., can not read or write properly at 14.”
So what does this Bill do to begin the enormous task of remedying these serious problems? It introduces a pupil and parent guarantee, and it pushes the primary curriculum even further along the ideological path that led to these problems in the first place.
The pupil and parent guarantees are set out in a 79-page document with 407 numbered paragraphs. Guarantee 2.2 on page 24 states:
“The curriculum is tailored to every child’s needs so that every pupil receives the support they need to secure good literacy”.
Last year, however, more than 40 per cent. of children qualifying for free school meals failed to achieve a single GCSE above grade D. That is 30,000 young people who have the right to take action under guarantee 2.2. They have the right to make a complaint to the local government ombudsman about the quality of their education. The problem is that the local government ombudsman, Tony Redmond, said in his evidence to the Committee:
“I do not think that it is the role or responsibility of local government to change a school”.––[Official Report, Children, Schools and Families Public Bill Committee, 19 January 2010; c. 5, Q11.]
He went on to say that all he could do was make recommendations. He said that
“we are…conscious of the fact that in terms of curriculum and teaching, some of those things might step outside the jurisdiction of the ombudsman”.––[Official Report, Children, Schools and Families Public Bill Committee, 19 January 2010; c. 7, Q5.]
In other words, the whole process of the pupil and parent guarantees is a complete waste of time. All it will do is add yet another layer of bureaucracy and waste to an education system already deeply mired in bureaucracy and waste.
To compound matters, clause 10 tries to put on to the statute book the recommendations of the Rose review into the primary curriculum—the highly prescriptive six areas of learning, each with a multitude of objectives. The English programme of study alone contains 84 objectives, such as
“to recognise how authors of moving-image and multimodal texts use different combinations of words, images and sounds to create effects and make meaning”.
That textual analysis approach to English in primary schools is killing the love of reading. What we need to do is to make sure that every child can decode and read. We must ensure that they have acquired the basic skills of reading by the age of six or seven at the latest and then encourage them to read as many books as possible just for the enjoyment of it. We must make sure that they understand what they are reading but not kill that joy with 84 deadening objectives that have very little to do with reading.
The same bureaucratic approach to policy has led to the absurd “Licence to practise” provision in clause 23. That has received universal opposition from not only the teacher unions, but the General Teaching Council, which is the body charged in the Bill with delivering the licence. The National Union of Teachers has said that it
“can see no argument advanced by Government which justifies the introduction of the licence to practise for teachers.”
John Dunford of the Association of School and College Leaders has said:
“what value does a licence to practise add, over and above performance management, CPD and capability proceedings”.––[Official Report, Children, Schools and Families Public Bill Committee, 19 January 2010; c. 18, Q26.]
Keith Bartley, the chief executive of the GTC questioned, in his evidence to the Committee, whether the measure would have any value in improving teaching. He told The Times Educational Supplement that he was concerned that it would be “unduly burdensome” for teachers. He said:
“We need assurances that it won’t be another layer of accountability in the system”.
It is difficult to find measures in this Bill that have not been the recipient of deep criticism. The provisions in clauses 4 and 5 to create bespoke home-school agreements for each child in the school have been widely ridiculed. ASCL has said that
“it is unrealistic to require Home School Agreements to be personalised for each pupil.”
It has gone on to say:
“Such a proposal will be wholly impractical in secondary schools, which may have over 1,000 pupils, and will consume a great deal of school resource.”
John Dunford said the following to us:
“Surely a home-school agreement sets out the ethos of the school to parents, and to which parents should sign up. It is not a matter of negotiation between the school and the parent or the school and the pupil.”––[Official Report, Children, Schools and Families Public Bill Committee, 19 January 2010; c. 17, Q25.]
Policies such as this make one wonder where these ideas are coming from and who is advising the Government.
One of those advisers is, of course, Graham Badman, whose report has infuriated tens of thousands of parents who have made huge sacrifices to educate their children at home, because they are not happy with the quality of education available at the local school, because they are concerned about behaviour or because they have a particular view about how their child’s education should be delivered that is not available in the state sector.
Those parents are right to be furious, and my hon. Friend the Member for Surrey Heath (Michael Gove) pointed out why on Second Reading:
“It is a basic right of parents to be able to educate their children in accordance with their own wishes, and to educate them at home if they so wish.”—[Official Report, 11 January 2010; Vol. 503, c. 456.]
The provisions in schedule 1 undermine that basic right. At the heart of the provisions lies a deep confusion as to the problems Badman was seeking to address—are they safeguarding issues or are they about the quality of education? The terms of reference and the letter from Graham Badman to the Secretary of State appear to focus on the issue of safeguarding and whether home education is being used by some as a cover for abuse. But Badman himself seemed in his evidence to the Committee to be more concerned about the type of education being provided by home educators. The conflation of those two matters has resulted in home educators being subject to annual visits that appear to constitute an implicit suspicion that abuse may be occurring in the homes of the 50,000 families who educate their children at home. That is the cause of the anger. May I pay tribute to my hon. Friend the Member for Beverley and Holderness (Mr. Stuart) for the highly effective parliamentary and national campaign that he has organised on behalf of all our constituents who home educate their children?
What Badman did identify correctly was the need for support for home-educating families. There is no support; local authorities are not providing it. Ministers have moved on from the welfare issue that they started with and have tried to deny that they ever focused on it. They then said, “This is all about support,” but there is nothing in schedule 1 about support and everything about a licensing system for parents who do their own thing. We need to put support in place and to work co-operatively and voluntarily with parents. We can then transform support for home education, build relationships between local authorities and not have this draconian piece of regulation, which, I am glad to say, will never become law.
My hon. Friend is absolutely right. The antipathy that the Government have created between local authorities and home educators has worsened as a consequence of these proposals. Chloe Watson from my constituency, who chairs the Home Educated Youth Council, has said that she has noted around the country a breakdown in the relationship between local authorities and home educators since the Badman report was published.
We support some of the measures in this Bill, such as clauses 7 and 8, which give new rights to the parents of children with special educational needs. We support the new powers to intervene when youth offending teams fail, and we support the provisions to enable school governing bodies to establish academies.
We also supported clause 42 in the original Bill, which gave automatic charitable status to academies. In the words of the Secretary of State on Second Reading:
“by making the process of establishing an academy easier, by reducing bureaucracy so that, like colleges, universities and voluntary aided schools, all academies are guaranteed charitable status...this legislation represents a sensible piece of deregulation and a reduction in bureaucracy.”—[Official Report, 11 January 2010; Vol. 503, c. 439.]
Now, alas, the Government—caving in to the anti-academy views in their party—have withdrawn the clause, so we will now have more regulation and an increase in bureaucracy.
This is not a good Bill. It is hugely bureaucratic, hugely expensive and will do little to raise the standard of education in this country. It is an unpopular Bill with all those whom it affects—from the teacher unions to the General Teaching Council to the tens of thousands of parents who choose to educate their children at home. I urge the House, therefore, to put the Bill out of its misery and vote against it on Third Reading.
I, too, want to thank all those who have supported the Bill on its progress through the House so far, including the officials and the Clerk. I also want to put on record our thanks to the Front Benchers from both other parties, who have behaved in a constructive and amiable way throughout the proceedings in Committee, which has made the job that we have had to do in scrutinising this Bill more tolerable.
I also want to thank my hon. Friend the Member for Mid-Dorset and North Poole (Annette Brooke), who always seems to get the concessions on these occasions and who secured a couple of concessions from the Minister for Schools and Learners earlier in the debate. She has now even tempted the Secretary of State into a pledge on new clause 10, which we hope to see delivered before Lord Mandelson announces the date of the next general election. It was very interesting to hear recognition from the Secretary of State that his old friend is now effectively running the Government—
His new friend.
His new friend, yes.
In spite of these small bright points in the Bill, we will also be voting against it this evening with some relish. There is a tremendous amount to vote against with relish. The longer I sat in Committee and the more I looked at the faces of some Labour Members who, Ministers will be pleased to see, are not here today, the more convinced I was that this is a Bill that the House should reject.
The House should reject the Bill for two main reasons. First, it is a typical Brown-Balls Bill, if I may say so. It is bureaucratic, centralising and based on the view that the man in the Ministry—the man in Westminster and Whitehall—knows best. It is typical of this Government that the only single, tiny element of the Bill that was deregulatory, and which the Secretary of State championed as deregulatory on Second Reading, is the one bit of the Bill that they have dumped—clause 42, which was referred to a moment ago. It was the only thing that would have reduced regulatory burdens.
Instead, we have got the guarantees and the poor ombudsman who is going to have to police these things. We have also had the bizarre parental satisfaction surveys. I hope that the Secretary of State has read the transcript of the debate and that he knows how ludicrous the Government’s position is on these things and how uninterested parents seem to be in the trivial consultation that the Government are entering into.
Then we had the terrifically illiberal proposals on home education. The more we have seen of the Government’s proposals, the more we recognise why home educators feel genuinely threatened by the proposals, which will turn what is currently a right to home educate into something that citizens will have to apply for by filling in paperwork to spell out and account for their educational philosophy.
It is no use the Secretary of State shaking his head, because that is what the Government are saying in the Bill. The home education proposals should be chucked out of the Bill, and I hope that very little of the Bill will ultimately make it on to the statute book. I hope that in another place there will be a coalition of views, perhaps across parties on many issues, that a large component of the legislation should not reach the statute book.
The Minister for Schools and Learners said in his opening comments that we have had an interesting and thorough debate, but many of us would question his use of the word “thorough”. After all, we managed to scrutinise only 26 or 27 clauses of this 50-clause Bill in Committee, so 23 clauses received no scrutiny at all. Some clauses have received only superficial scrutiny today, and four out of the five schedules to the Bill have not been debated at all. One lesson that Labour Governments ought to have learned in the past 13 years is that legislating in haste, sticking legislation on to the statute book at the last minute and making concessions that we can barely understand to Conservative Members with 30 seconds to go before the end of a one-hour debate on 10 clauses is not the way that we should be legislating. I sincerely hope, for reasons not only of ideology but of good practical politics and administration, that many of the measures in the Bill that are ill-thought-out and that have not been debated properly, including the controversial measures on family courts, will not go through.
Finally, I am very sad about the change that the Government have made regarding sex and relationship education, which did not come out of any pressure in Committee. I do not believe that even the Conservative party, which has traditionally been cautious about such issues, proposed to amend the legislation in that way. Now, we have this amendment that we have not had the opportunity to debate today and that cuts directly across the commitment in the Bill to promote equality and diversity.
Does my hon. Friend share my fear that the amendment will trump the very good bits in the Bill on personal, social, health and economic education?
Indeed, it will. In spite of what the Secretary of State and the Minister have told us, the sad risk is that we will have sex and relationship education that will mean that, however objective some of the information being delivered is, young people in some schools with some faiths will be told that they are less worthy and less equal and that they are participating in less legitimate forms of activity in their lives, because the Government’s good intentions in this area have been stymied by this late amendment that we have not had an opportunity to consider. That makes me genuinely sad, because the Government, who might be just a few weeks away from the end of their period in office, have had a genuinely good record and reputation on challenging prejudice and inequality of opportunity. The Secretary of State and the Minister have let themselves down by allowing through, in the dying days of this Parliament, an amendment that will compromise what would otherwise have been some good proposals in this section of the Bill. That merely gives us greater confidence that we should do all we can to get rid of the bulk of the Bill and prevent it from reaching the statute book.
I shall be very brief as I hope, Mr. Speaker, that you will call the hon. Member for Beverley and Holderness (Mr. Stuart). I just want to put on record my dismay at the introduction of what I see as a steamroller to crack the nut of home education.
I may have disagreements with some of the home educators in my constituency, but I would like to feel that they have had the opportunity to put across their points of view, not just in petitions organised by the hon. Member for Beverley and Holderness but in a proper debate in this place. We have not had the opportunity to have that debate. That is why I voted against the Bill on Second Reading, and why I will vote against it on Third Reading.
It is a fundamental—
Debate interrupted (Programme Order, this day).
Mr. Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the Bill be now read the Third time.
23 February 2010
The House divided:
Question accordingly agreed to.View Details
Bill read the Third time and passed.