House of Lords
Monday, 18 February 2008.
The House met at half-past two: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Liverpool.
My Lords, High Hedges Complaints: Prevention and Cure provides advice on administering complaints about high hedges under Part 8 of the Anti-social Behaviour Act 2003. It is not statutory guidance and, as such, the Government cannot require local authorities to follow it. To assist local authorities to act in accordance with the legislation, we encourage them to follow the good practice that the guidance contains.
Baroness Gardner of Parkes: My Lords, I thank the Minister for that Answer, but why do the remedial notices required under the Act to progress resolution of these hedge problems seem to cause so much difficulty for both the complainants and the councils?
My Lords, we have no evidence that the Act is not working as it should. The evidence of a declining number of complaints and appeals suggests that, as we hoped, more people are finding ways in which to resolve their complaints informally. However, I know that Hedgeline has some concerns about some very complex cases and we think that there are aspects of the process that could be clarified. Therefore, I intend to write to local authorities to encourage their compliance with the guidance and to highlight the important steps in the process to clarify matters in relation to the Local Government Ombudsman, for example.
My Lords, I cannot tell the noble Lord how many remedial notices there have been; we do not collect that information as it is too detailed. However, I can tell him that there were 619 appeals up to 23 January this year, of which 479 have been determined, 57 per cent have been dismissed, 19 per cent have been allowed in full and 24 per cent allowed in part. There is a balance of the appeals going to the hedge owner and to the aggrieved neighbour.
My Lords, when this part of the Act was conceived, the noble Baroness will know that we were thinking in particular of Leylandii because they pose a particular problem. As she says, they grow at phenomenal rates—at a metre a year—which is why a remedial notice can allow for regrowth. You can cut the hedge down beyond the required limit to allow for that excessive growth and allow, in the remedial notice, for coming back to cut it down again or to require the hedge owner to cut it again to keep the height down.
My Lords, why is it that, having decided that a high hedge can be a nuisance under some circumstances, complainants have to pay between £400 and £500 to have their concerns looked at but that people who complain about other issues, such as noise, simply have the problem dealt with?
My Lords, the thing is that it is not an offence to grow a high hedge. It is an offence to fail to comply with a remedial notice that requires you to cut it down. As a neighbour, you are asking the local authority for a service. There was a lot of debate during the consultation period about who should pay and it was thought that it was fairer for the complainant to do so. Fees vary—they can be £650 but usually are about £300. We have not found that the fee makes any difference to the number of complaints.
My Lords, is not the success of this measure the fact that many people nationally now know not to abuse the law and simply do not grow their hedges so high? Is it not true that this issue has been the subject of many complaints to Members of Parliament in the other House?
Yes, my Lords, that is absolutely right. One of the Act’s ambitions was precisely that: to encourage people to settle their disputes—perhaps not amicably but as best they could—over the hedge, literally; and that is what has happened. Very few people go to the fuss and bother of taking the issue to local authorities.
My Lords, is there not in fact a major loophole in the Act, in that a council can issue a remedial notice but can, quite legally, ignore what takes place after that? Is there any way of reviewing this situation now rather than waiting until 2010?
My Lords, we intended that the legislation would achieve a balance between the rights of each party concerned. We also decided against statutory guidance because that simply would not have allowed flexibility. There is no requirement on the local authority to intervene when works have not been carried out but there is a range of things that it can do. Had we allowed for intervention at every stage, we would have ended up with very disproportionate and heavy-handed legislation. In fact, there are very few instances in which a remedial notice has not been enforced by a local authority.
My Lords, as local authorities are responsible for collecting illegally dumped rubbish on the side of the highway, does the remedial notice also contain a section that stipulates that the owner of the hedge must ensure that the hedge clippings that result from a requirement are disposed of legally?
My Lords, is the Minister aware that there is great dissatisfaction about the Local Government Ombudsman’s role in this? He seems to think that this is purely an optional matter for councils, that it is unimportant if they make wrong decisions so long as they follow correct procedures and that that does not come under his jurisdiction. Is it not important also to clarify that?
Yes, my Lords, I think that it is. Rights of appeal follow from the decision but the ombudsman cannot interfere in that because there is due process. He can pick up on instances where the administrative process has been at fault. Sometimes there is confusion about where those things overlap. I propose to talk to local government offices to see whether we can get greater clarity, and I shall take that into account when I write to local authorities.
Prisons: Carter Review
My Lords, we have undertaken to consult in April on Titan prisons and their place in the wider strategy for the prison estate. Views will be sought from a wide range of interested parties.
My Lords, I thank the Minister for that not terribly informative reply. Is he aware that the Justice Select Committee in the other place has launched an inquiry into the effectiveness of criminal justice spending and that it intends to look at what the Carter report recommendations will really cost, what the implementation of the report will mean for the provision of probation services and how reliable the evidence is on which these policies are based? In light of that, could the Minister assure the House that no land will be purchased and no building contract signed for Titan prisons until the Justice Select Committee has published its report and the Government have had time to consider it?
My Lords, I am sorry that the noble Baroness thought my reply was unhelpful. All I was saying was that we would develop an estate strategy in the light of the Carter proposals. It will be subject to consultation and will be published in April. We shall be happy to consider any reports from the Select Committee.
My Lords, has the Minister read the annual report of the Chief Inspector of Prisons, Anne Owers, who says that the 2,500-strong Titan prison complexes loom on the horizon, flying in the face of our and other evidence that smaller prisons work better than large ones, which may be more efficient but bear the cost of being less effective? Do the Government plan to consider the evidence collected by Anne Owers?
My Lords, I have read those remarks and we shall give them due and weighty consideration. However, I should point out to the noble Lord that the concept of the Titan prison, as recommended by my noble friend Lord Carter, was that within a Titan estate there might be five units of 500 places each, thus getting not only the advantage of large-scale investment in good design and infrastructure but the benefits of the smaller units. I should have thought that that is a very sensible way to go forward.
My Lords, what evidence does the Minister have that housing prisoners further away from home, away from their families, does not defeat the purpose of rehabilitation? Only a few days ago he confirmed that women prisoners are now being housed almost 60 miles away from their communities. On what basis are these prisons being proposed other than one visit by the noble Lord, Lord Carter, to somewhere in Paris?
My Lords, the whole purpose of increasing capacity in our prisons is to deal with the very problem which the noble Baroness raises. We have already indicated that our preferred sitings for the three Titan prisons proposed by my noble friend Lord Carter are in those parts of the country where there are issues about the distances that prisoners’ families have to travel. The increase in capacity can answer many of those problems.
My Lords, the noble Baroness raises a very important question about prisoners with severe mental health problems. As she will know, my noble friend Lord Bradley is conducting a review into those very issues. I am sure that it will provide a great deal of help to the Ministry of Justice in taking forward our overall policy.
My Lords, does the noble Lord recognise that at the moment 45 per cent of prisoners lose contact with their families? Has he taken evidence from organisations representing prisoners’ families and, if not, will he undertake to consult them before this plan goes forward?
My Lords, I am very happy to take that suggestion on board in relation to the estate strategy. I am fully aware of the problems caused by crowding in our prisons and the problems for families who are trying to keep in contact. That is why one of the Carter proposals is to increase capacity—to reduce some of the pressure on the system and, we hope, to make it easier for families to visit their loved ones in prison.
My Lords, the Minister points to what he calls a “dramatic reduction” in offending and to a dramatic rise in the need for prison places. If the dramatic fall is to be increased so that it is really dramatic and the need for prison places reduced, there must be a considerable role for the Probation Service both inside prisons and in the prisoners’ home towns. Now that we have an offender management system that is supposed, in part of the prison estate, to see people through from start to finish, how is the Probation Service being organised to make that a coherent policy between the prison and the prisoner’s home town?
My Lords, we have announced changes to the organisation of the Ministry of Justice and the National Offender Management Service to provide greater focus on and integration between the roles of probation officers and prison officers, to ensure that there is indeed an integrated approach. That is the whole purpose of the offender management programme. We are very committed to that and to the importance of probation officers working closely with prison services and ensuring that there is an integrated approach so that accommodation provision and all the other resettlement services are available for prisoners when they leave prison.
My Lords, does the Minister recollect the sombre words of the noble Lord, Lord Carter, on page 27 of his report, where he states:
“Owing to the length of the planning process and the time taken to construct and operationalise a new prison, there is no scope to build substantial additional, permanent and cost-effective capacity before 2010 at the earliest”.
In the circumstances, will the Minister take the one path of salvation that seems practicable—to exhort sentencers at every level to send fewer people to prison?
My Lords, I certainly agree that we wish to see a policy where prison is reserved only for offenders who ought to be in prison and that the way forward is to have a much stronger focus on tough community sentencing for other prisoners. I believe that we have the right policy, but in the interim we will have to increase prison capacity as well. Although the noble Lord, Lord Carter, has pointed out some of the difficulties in infrastructure planning and getting planning permission, the fact is that we have provided an increase of over 3,000 places over the past two years. We will see another increase this year, in the interim period before we can get the major increase that the noble Lord, Lord Carter, proposed.
My Lords, before I ask my Question, I want to make it absolutely crystal clear beyond all peradventure that this Question does not in any way imply anything incorrect on the part of the noble Lord, Lord Lester of Herne Hill. I have said that to him privately, and I would like to say it on the Floor of the House.
The Question was as follows:
To ask Her Majesty’s Government whether they will review the appropriateness of appointing advisers to the Government who are members of Select Committees of the House of Lords.
My Lords, advisers to the Government are appointed on the basis of their expertise and experience. Membership of Select Committees is a matter for your Lordships’ House.
My Lords, what I find difficult is that a member of a Select Committee can say that he cannot participate in certain sections of the work of that Select Committee because he is an adviser to the Government on that section. How can one make sure that the Select Committee is fully manned and that the people concerned have the amount of input that they deserve?
My Lords, without getting into the detail of the specifics of the individual concerned—the noble Earl has rightly made it plain that he sees no fault on the part of the noble Lord, Lord Lester, who sits on the committee with him—the way that this functions is very straightforward. The noble Lord, Lord Lester, has agreed with the Justice Secretary to avoid working on issues that would give rise to conflicts of interest or to perceived conflicts of interest. The membership of the Select Committee is a matter for your Lordships’ House, the Committee of Selection and the nominations that come from individual political parties. We see no reason why it would be anything other than completely possible to continue to work on a Select Committee, bearing in mind of course the work that one is doing as an adviser. It appears from what the noble Earl is saying that the noble Lord, Lord Lester, has behaved completely properly in all circumstances.
My Lords, is it not unsurprising that some members of Select Committees whose principal purpose is to offer collective advice to government should be considered individually suitable for that role? Is it not safeguard enough to allow such individuals to form their judgment and the committee to form its judgment as to the appropriateness of their participation in particular work?
Indeed, my Lords—I have no difficulty in taking the point made by the noble Lord, Lord Maclennan. It is obvious to me that Select Committees of your Lordships’ House and Joint Select Committees are perfectly capable of working effectively while taking on board the background, the interests and the work that individuals are doing. In this context, I would have thought that having someone with the human rights expertise of the noble Lord, Lord Lester, was of enormous benefit, not only to the Select Committee but to your Lordships’ House.
My Lords, I do not believe that that is true. My right honourable friend the Prime Minister made it clear on becoming Prime Minister that he was very keen to involve appropriately those who have real experience and expertise to enhance the opportunities for our nation. It is clear to me that those who serve as advisers to the Government, whether on my own Benches, the Benches opposite and the Cross Benches, provide huge expertise and experience that can only be to the benefit of the Government and the nation.
My Lords, does the Minister not agree that there is some long-standing wisdom in the distinction between gamekeepers and poachers and between hares and hounds? Surely even she would agree that a Select Committee should not be composed entirely of advisers to Her Majesty's Government. If she does, she must have some doubts about whether a Select Committee should contain even one adviser to Her Majesty's Government.
My Lords, even “she” understands the point of the noble Lord’s question. But “she” would say to the noble Lord that, first, it is incredibly important to bring in abilities, expertise and experience. I think the noble Lord agrees that that is appropriate. Secondly, one of the functions of Select Committees, particularly the Joint Committee on Human Rights—and I speak as a former human rights Minister—has been to give advice to the Government, which is not always welcome, but is none the less important. It is important to make sure that we have that mix of experience and expertise within a committee. It is almost a false distinction to try to say that that is appropriate in some circumstances and not in others. Even “she” gets the point.
My Lords, will my noble friend assist the noble Earl, Lord Onslow, who is clearly struggling with an issue of principle? To make sure that he does not have to struggle with that at a personal level, can she give me an assurance that she would resist any temptation to appoint him as a government adviser?
My Lords, I never say “never” in any circumstances. The Public Administration Select Committee made an important point on skills and government. It said:
“No organisation should be closed—outsiders can bring different skills and perspectives which should be welcomed. Every organisation can benefit from some degree of ‘ventilation’”.
Perhaps on that basis the noble Earl might indeed consider becoming an adviser.
Employment: Long-term Unemployed
My Lords, since 1997 the number of people claiming jobseeker’s allowance for more than one year has fallen by almost 75 per cent and for more than two years by nearly 90 per cent. The New Deal for Young People and New Deal 25 plus have helped over 1 million people into work. However, we recognise that there is more to do, which is why we are introducing the flexible New Deal to build on our success and to help even more people into work in the future.
My Lords, I thank the Minister for his reply. Does he accept the figures recently released by the Department for Work and Pensions that show that 800,000 people have been through the New Deal at least twice and that in some parts of the country half the participants have never been found employment? Does he agree that for some the New Deal is not a suitable vehicle and that intensive, basic education and family support are needed to get the hardest to help out of the deprivation of benefit dependency?
My Lords, I would like to answer the question against the backdrop of employment being up by nearly 3 million since 1997, with 1 million fewer people on key out-of-work benefits. However, in a dynamic labour market, it is inevitable that people move in and out of employment. It is right that the latest available figures on the New Deal for Young People show that the number of customers who have started the programme twice or more is just over a quarter of the total. That is why we are designing changes to the jobseeker’s allowance regime from 2009. The revised regime will introduce a flexible New Deal and will increase support to and expectation of customers the longer they are unemployed. None of that negates the support that we should give everyone, particularly young people, with regard to education, training and support in the community and in the family.
My Lords, having served on the National Employment Panel for many years, I have seen the Government’s efforts in getting people from welfare to work, including the several New Deal initiatives. However, the sad reality is that there are many areas of the country where generations of people have never worked. One of the main reasons is that they are scared of losing their benefits. What are the Government’s plans for removing the benefits trap that continues to persist?
My Lords, the benefits trap is, in fact, illusory in pretty much every circumstance—although not in absolutely every circumstance. There are misunderstandings and misconceptions. Work certainly needs to be done to show people who wish to move into employment that they will be better off in employment. That is why we are trialling a new in-work credit, which will demonstrate to people that they will be better off when they move into work. It is an important point.
My Lords, is the Minister concerned that some people pay effective marginal rates of tax of 90 per cent and more because of the withdrawal of benefit? If people have to pay very high effective marginal rates of tax, that will encourage them not to take up employment. Will he say by how much the number of people who are economically inactive has grown under this Administration?
My Lords, on the first point, yes, it is true that there are high withdrawal rates from benefits, but in aggregate they are less severe than they were under the Government in which the noble Lord served. On inactivity levels, the absolute numbers have increased since 1997 but the percentage rate of inactivity has fallen since 1997. If you extract from those numbers the number of students—we should be pleased that there are more students in our country—who feature in the inactivity levels, you see that the absolute numbers and the percentage rate have declined under this Government.
My Lords, the Liberals have not had a turn on this Question and the other three sides of the House have. I suggest that there is time for both speakers if we get on with it.
My Lords, the fall in long-term unemployment over the past 10 years is genuinely welcome, but there has been failure in dealing with the problem of young people, to which the Minister alluded. That situation has barely changed at all over the 10 years, while unemployment generally has halved. Why does the Minister think that that is so? What will he do to stop the New Deal being a revolving door for young people?
My Lords, there are issues for 16 and 17 year-olds, because most people do not come on to jobseeker’s allowance until the age of 18. Certainly, DCSF is revitalising its programme to look at the so-called NEETs. On the interface with New Deal, we will fast-track people under the new flexible arrangements so that those who have been unemployed for a period at the ages of 16 or 17 will no longer have to wait six months while they go through the first gateway into New Deal but can go on to that programme immediately. That will begin to make a significant difference. We should also recognise that, within the 16 to 24 year-old cohort, there are 693,000 more young people in full-time education. We should celebrate that.
My Lords, I have no specific statistics on that, but we and Jobcentre Plus have a good deal of engagement with employers to ensure that those most historically disadvantaged in the job market are able to access it. That has been done through, for example, the local employment partnerships, the city strategies and other local initiatives. A good deal of work is being done, but I have no overall statistics. If they exist, I will happily write to my noble friend.
My Lords, what is the Minister’s reaction to Oxford Economic Forecasting’s paper of October 2005, “Transforming Employment Related Services”? It says:
“Operating experience and international evidence on this particular problem”—
getting the long-term unemployed back into work—
“shows that the mixed procurement and provider role played by Jobcentre Plus inhibits best practice”.
While I am on my feet, let me just add that the figures that the Minister gave were of course for unemployment benefit. The figures for long-term incapacity benefit have actually risen under this Government by 270,000.
My Lords, on that last point, the number of incapacity benefit claimants has not risen by 270,000 under this Government. Since 1997, there has been an increase of, I think, 27,000. The number of people on incapacity benefit rose inexorably for two decades but has now started to fall; indeed, it has now fallen for 17 successive quarters and is at an eight-year low. On procurement, the department constantly focuses on the most effective way of procuring services to help people back into employment. The mixed model is the right one: Jobcentre Plus doing its job, the third sector doing its job and the private sector being engaged as well. Part of the new commissioning strategy on which we are consulting will make significant improvements in the job outcomes for long-term unemployed people.
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That Lord Grocott be appointed a member of the Select Committee in place of Baroness Thornton, resigned.—(The Chairman of Committees.)
On Question, Motion agreed to.
My Lords, it may be helpful if I explain what is planned for today’s business. We had intended to take the Report stage of the Children and Young Persons Bill. However, shortly before the Recess, the Government tabled a set of amendments to the Bill, chiefly to respond to concerns raised by parliamentarians and others since the Bill was introduced. I do not think that the amendments will prove to be highly controversial, but they run to around 19 pages of changes to a fairly small Bill. Just before the House rose for the half-term Recess, the usual channels therefore agreed to recommit the Bill to permit further consideration. Today, the intention is to consider the government amendments and some of the non-government amendments to areas that have not been touched by the government amendments. A separate Report stage will follow in the normal way at a later date.
I take this opportunity to say that, with the permission of the House, my noble friend Lord Davies of Oldham will repeat a Statement entitled “Northern Rock” at a suitable time after 3.30 pm.
Children and Young Persons Bill [HL]
My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Bill be recommitted to a Committee of the Whole House.—(Lord Adonis.)
On Question, Motion agreed to.
Climate Change Bill [HL]
My Lords, I beg to move the Motion standing in the name of my noble friend Lord Rooker on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:
Clauses 1 to 26
Clauses 27 to 38
Clauses 39 to 41
Clauses 43 to 60
Clauses 61 to 64
Clauses 65 to 82.—(Baroness Royall of Blaisdon.)
On Question, Motion agreed to.
European Communities (Finance) Bill
Read a third time, and passed.
Children and Young Persons Bill [HL]
My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee (on Recommitment) accordingly.
[The LORD SPEAKER in the Chair.]
Clause 1 agreed to.
Before Amendment No. 1 is moved, I should like to make a wider point about the Bill and pre-legislative scrutiny. This is a classic case of a Bill which, even more than previous Bills, was not well considered before it came into this House, where it has been substantially rewritten. The broader issue that the House needs to consider—perhaps the usual channels will take it on board—is that this is an exceptional circumstance for a Bill. The number of amendments is by a degree larger than the number of government amendments we have had to other Bills in previous years, and it should not become the norm.
As my noble friend the Chief Whip made clear, there were exceptional circumstances with regard to the Bill. We were exceptionally attentive to the wishes of the House and have tabled these amendments to respond to the debates in Grand Committee. I suggest that on that basis we move on to the amendments.
It is normal practice for the recommitment of the Bill to follow Questions. The Statement will be taken as soon as it has been taken in the House of Commons. That is the normal procedure.
Clause 2 [Restrictions on arrangements under section 1]:
[Amendment No. 1 not moved.]
Clause 2 agreed to.
Clause 3 agreed to.
Clause 4 [Regulation of providers of social work services]:
2: Clause 4, page 4, line 5, leave out “(4)” and insert “(9)”
The noble Lord said: These are minor and technical amendments necessary to ensure that, if the social work practice model is made available following the pilot phase, providers of social work services will be subject to registration and regulation under the Care Standards Act 2000 and inspection by the chief inspector, and to provide for amendments to Section 5 of the Care Standards Act to be made by the Health and Social Care Bill. These are straightforward, non-controversial amendments. I beg to move.
On Question, amendment agreed to.
3: Clause 4, page 4, leave out lines 6 to 9 and insert—
““(10) This Act applies to a provider of social work services as it applies to an agency, except in so far as the undertaking of that provider consists of or includes the carrying on of an establishment; and “provider of social work services” has the same meaning as in Part 1 of the Children and Young Persons Act 2008.””
4: Clause 4, page 4, line 10, leave out subsection (2) and insert—
“( ) In section 5 of that Act (registration authorities)—
(a) if when this section comes into force the amendment made by paragraph 6(3) of Schedule 5 to the Health and Social Care Act 2008 has not come into force, in subsection (1)(a)(iii), for “and adoption support agencies” substitute “, adoption support agencies and providers of social work services”; and(b) if that amendment has come into force at that time or subsequently comes into force, in subsection (1A) after paragraph (e) insert “and,(f) providers of social work services in England or, where the activities of a provider of social work services are carried on from two or more branches, the branches in England.””
On Question, amendments agreed to.
Clause 4, as amended, agreed to.
Clauses 5 and 6 agreed to.
[Amendment No. 7 not moved.]
8: Before Clause 7, insert the following new Clause—
“Well-being of children and young persons
(1) It is the general duty of the Secretary of State to promote the well-being of children in England.
(2) The general duty imposed by subsection (1) has effect subject to any specific duties imposed on the Secretary of State.
(3) The activities which may be undertaken or supported in the discharge of the general duty imposed by subsection (1) include activities in connection with parenting.
(4) The Secretary of State may take such action as the Secretary of State considers appropriate to promote the well-being of—
(a) persons who are receiving services under sections 23C to 24D of the 1989 Act; and(b) persons under the age of 25 of a prescribed description.(5) The Secretary of State, in discharging functions under this section, must have regard to the aspects of well-being mentioned in section 10(2)(a) to (e) of the Children Act 2004 (c.31).
(6) In this section—
“children” means persons under the age of 18; and
“prescribed” means prescribed in regulations made by the Secretary of State.”
The noble Lord said: The Government are moving this amendment to reflect properly in statute the Secretary of State’s policy responsibilities for the well-being of children. Our intention is to demonstrate the Government’s long-term commitment to improving the lives of children and young people and in doing so to secure financial propriety for the Secretary of State to form relationships with partners effectively to deliver these improvements.
The extensive consultation that informed the recent publication of the first ever national Children’s Plan set out the value that children, young people and families place on a positive experience of childhood. The concept of well-being runs through the Children’s Plan and builds on the changes implemented through the Every Child Matters reforms. A strengthened focus on play, social and emotional skills and talent, for example, will all be important in enhancing opportunities for children and young people to enjoy a happy and healthy childhood.
The Secretary of State has for many years carried out activities for the benefit of children. In particular, he is already required by Section 10 of the Education Act 1996 to promote the education of the people of England and Wales. The significant developments in government policy over recent years through the Every Child Matters agenda have seen the Secretary of State recognise the need to look more closely at the holistic needs of children and the wide range of matters affecting a child’s life, happiness and prospects other than just his or her education.
We believe that the time is now right to recognise in statute the broader responsibilities of the Secretary of State for the well-being of children. This duty is in line with current duties on local authorities and schools to promote the well-being of children. It also reflects the Secretary of State’s general policy responsibilities in a manner that complements the operational responsibilities of local children’s services and brings a consistent focus on children’s outcomes at every level of the system.
In addition to the well-being duty for all children, this amendment gives the Secretary of State a power to promote the well-being of care leavers over the age of 18 and others under the age of 25 as provided for in regulations, to recognise the importance of supporting vulnerable groups of young people through their transition into adulthood at a national level as well as through the existing corporate parenting responsibilities of local authorities.
I commend the amendment to the House. I beg to move.
As we are discussing the first of the Government's significant changes to the Bill, I thank the Minister for listening carefully to all that was said at Second Reading and during our deliberations in Grand Committee. We have before your Lordships' House today a much improved Bill. I also thank the noble Lord, Lord Adonis, for the extraordinary care and attention that he pays to answering our concerns at length and in much detail in his letters. We are very lucky to have a Minister of his integrity and ability dealing with issues that involve some of our most vulnerable and challenging children and young people.
I also take this opportunity to place on record our thanks to Jake Vaughan in the Government Whips’ Office. I sometimes think that his job is almost impossible. It is daunting to be faced with a much altered Bill just a few days before Report. To be faced with it when the House is going into recess tests even the best humour. We were therefore most grateful for the concession to recommit the whole Bill to Committee—a rare happening—so that we had the opportunity to listen to the Minister and to reflect on what he has to say and on the implications of the changes before Report.
We warmly welcome the addition to the Bill of the Secretary of State’s general duty to promote the well-being of children in England in line with his current duty to promote the education of the people of England and Wales. Given the responsibilities of the new department, it makes good sense. We are particularly pleased that the new clause gives the Secretary of State a power to promote the well-being of care leavers. Will the Minister clarify the practical ramifications of such a general duty? As much of the Bill is concerned with placements and with decisions about a child’s welfare taken at local level, how much of an impact will this general duty have on those decisions? Will he also say whether the Secretary of State’s duty to promote the well-being of children will apply to children in the asylum and immigration system?
I echo the noble Baroness’s thanks to the Minister for his very careful response to all the points that we made in Committee; we are very grateful for the lengthy and detailed letters that we have been receiving. I also echo the noble Baroness’s thanks to Jake Vaughan in the Government Whips’ Office for being very patient about what has been going on in the past week or so.
We also welcome the Government’s amendments, which bring the Secretary of State’s functions in relation to well-being into line with those of local authorities and governing boards—functions that were set out in the Education and Inspections Act that was passed not very long ago in 2006. Given the importance of the role played by the Secretary of State and his department in dictating the terms according to which education, training and care are delivered in this country, it is appropriate that the Secretary of State should be subject to the same objectives and constraints as those who are on the front-line of delivering those services.
We are also very pleased that well-being is being extended to parenting. This recognises the very important role of parents and parenting in the well-being of children. I do not know whether the noble Lord, Lord Northbourne, is in his place today—I think not; he is still on holiday—but we have all played a substantial part in this issue. Perhaps I should declare an interest here as vice-chairman of the All-Party Group on Parents and Families. We are also delighted to see included in the amendment care leavers over 18 years of age, who are particularly vulnerable. Again, this is very appropriate.
We do, however, have a number of queries and questions for the Minister about the amendments. First, does the duty of well-being also apply to the Secretaries of State for Justice and for Home Affairs in relation to the children of illegal immigrants, of asylum seekers, of those held in detention centres and of those held in custody? Secondly, are there no equivalent provisions for Wales? Thirdly, does not proposed new subsection (4)(a) on the well-being of care leavers receiving services also apply to care leavers not receiving services? Does it apply both to those who have been actively receiving services and to those who have not?
In his explanation of 6 February, the Minister says:
“The Secretary of State now has responsibility for promoting the well-being of all children and young people (and, by extension, their families and those who care for them)”.
Can the Minister explain precisely who is implied by “their families”? Will it be spelled out in guidance?
The Minister’s letter also states:
“The clause itself requires the Secretary of State to promote children’s well-being”.
The clause explains that this is a general duty to reflect its target nature, recognising that the Secretary of State will be entitled to take a wide range of matters into consideration. The letter continues:
“It also ensures that the activities the Secretary of State undertakes to promote children’s well-being includes activities in connection with parenting”.
I have just welcomed that, but it would be useful to know what sort of activities the Government have in mind and what sort of resources are likely to be put behind such activities.
In this letter explaining the government amendment, the Minister also points out:
“The new duty will enable the Secretary of State to deliver the Children’s Plan more effectively and to ensure that the expenditure he incurs in certain contractual arrangements is in accordance with the government financial propriety rules. This would allow him to form those relationships with providers in the private and third sectors that are the most appropriate to achieve his objectives as he is currently able to do for education services”.
What plans does the Secretary of State have in mind? Is there likely to be a conflict between these and the Every Child Matters agenda? For example, taking the analogy with education, can a Government required to promote the general well-being of children and young people justify imposing an academy on a community which has decisively rejected such a proposition?
Finally, I should like to pick up on one or two points made by Barnardo’s, which says:
“The Government amendment rightly links the Secretary of State’s duty to promote well-being back to the five Every Child Matters outcomes for children and young people enshrined in law in s. 10(2)(a)-(e) of the Children Act 2004. Barnardo’s does not think that the current support systems fully contribute to young care leavers achieving the five outcomes outlined in the Every Child Matters agenda; and we would welcome steps taken by the Secretary of State through the new duty to address this. The following illustrate how care leavers’ achievement of the five outcomes can be compromised”.
First, on physical, mental and emotional well-being, Barnardo’s states that,
“many young care leavers tell us that they feel they have not been prepared for the reality of leaving care and in particular the issues of isolation and loneliness. Leaving care preparation frequently concentrates on the practicalities such as DIY, cooking and budgeting; but does not provide preparation for the emotional impacts of living alone or how to get help and advice”.
On protection from harm and neglect, Barnardo’s says that,
“we know that care leavers are vulnerable to many social problems such as substance abuse, exploitation and crime, yet it is too often the case that care leavers are placed in areas of the community where these problems are rife”.
On education training and recreation, Barnardo’s says that,
“the measures outlined in Care Matters and in the Bill to improve access to further and higher education are commendable; but we would also like to see proposals for increasing supported employment and believe there is an untapped opportunity to link to the commercial and business sector to achieve this”.
On making a contribution to society, Barnardo’s says that,
“we have already commented on the isolation that young care leavers’ experience which can preclude this contribution. The preparation for moving to independent living should include introductions and supports to enable young people to link to social and other networks in their new home area, including appropriate volunteer opportunities”.
Finally, on social and economic well-being:
“Barnardo’s welcome the proposal to provide extra money for child trust fund accounts, but recognise this will only impact on a small percentage of the care population, those born on or after the 1st September 2002. Barnardo’s would like older children in care to have similar opportunities to develop assets for use when they reach 18. In addition Barnardo’s believes there should be a minimum level of leaving care grant for each young person, consistent across all local authorities”.
As I say, those points have been put to us. It would be helpful if the Minister could provide further elucidation of his proposals.
This substantive new clause was proposed by the Government after we completed the Committee stage or, more accurately, thought that we had done so. It is fair to say that it was not signalled at that stage, but the Minister has written to those of us who participated in the earlier debates in Committee and has set out his reasoning today in moving the amendment. Although we have to react quite fast to the changes now being made to the Bill, I salute the Minister for taking a radical approach to the points that were made at the earlier stage and for coming forward with a comprehensive solution.
Although by nature I am hesitant about giving additional new duties, functions and potential action to the Secretary of State in legislation, I believe that in this case the new clause provides a guarantee for the well-being of children, in particular for those persons receiving services under Sections 23C to 24D of the 1989 Act. It may sound a little patronising to say so, but this is a longstop provision, described by the Minister in his letter as “complementary” to the duties on local authorities and governors of schools. I do not regret that; on the contrary, I welcome it.
As we are all relative newcomers to this new clause, I have one question for the Minister. I am glad to see the reference to,
“activities in connection with parenting”,
to which some noble Lords referred in Committee, but is the Minister satisfied that the phrase will sufficiently define what is needed and not go too wide? Does the phrase in fact exist anywhere else in United Kingdom legislation? I rather doubt it, so I would welcome a comment from him. However, as I have said, I support the new clause and, if it comes to it, I will certainly vote for it.
I am still digesting the impact of this proposed new clause, but on the face of it the provision is very welcome. In the past, there has been concern that too much responsibility in this area has been passed down to local government and not enough taken by central government. This is reflected in the failure to improve outcomes sufficiently in past years. In principle, giving the Secretary of State new powers in these circumstances is welcome; in practice, we should think about what will happen when the social work practice pilot report returns.
The concern is that, while we hope that this will improve continuity of care for children with a care order in the care system and that it will attract more social workers to work with children in care, thus preventing the high turnover currently so often experienced by these children, it might undermine the work done to support and intervene in families before children become legally subject to the duties of local authorities. Moreover, it might exacerbate the current situation, with which we all familiar, of a high threshold of intervention in families because of the lack of social workers and what are sometimes poor levels of support for social workers. That was strongly reflected in the research recently commissioned by the Government from the University of East Anglia, which highlighted a number of child protection cases where interventions were not adequate and children came to harm as a consequence.
To my mind, this new clause is reassuring in that these new responsibilities will put the Minister in a better position to look across the board to ensure that any interventions proposed do not help some children to the detriment of others. I look forward to learning more about these matters from the Minister in his response.
I, too, welcome these amendments and I commend the Minister for his careful perusal of the detail that we went through in Grand Committee. I have just two points to make. First, some years ago we spent a lot of time trying to introduce the concept of well-being into legislation. I recall the noble Baroness on the Liberal Benches—the noble Baroness, Lady Walmsley, rather than her colleague the noble Baroness, Lady Sharp of Guildford—pressing for this kind of phraseology in another Bill. We therefore warmly welcome it, although I am not sure that we know what the definition is and what it will mean in practice, a point that I shall come back to. I wish that the new clause were being inserted not before Clause 7 but before Clause 1. That would put into proportion the whole of this part of the legislation and take the heat out of the debate among social workers about practices in childcare. It would also give a whole-concept framework for children in terms of the 1989 Act and following through. I know that one of the Minister’s hopes is that he can latch these two pieces of legislation together more fundamentally, so that well-being is then the central core.
My second question concerns the wide range of duties on the Secretary of State and how those duties will link in with the local authority. The noble Baroness, Lady Sharp, referred to a long list of issues raised by Barnardo’s and other groups. I shall not repeat them but they are practice issues—not necessarily policy issues—which will have to be implemented by the local authority. I am sure that inspections will bring to the fore some of the issues and I should be interested to know how Ofsted might develop a more rounded approach towards helping those who are attempting to change practice as well as bringing the necessary criticisms to the fore. One of the difficulties is that, unless the regulator takes a rounded approach, there is a blame culture rather than a development culture. I shall be interested in the interrelationship between the Secretary of State’s new duties, which I welcome, and the practice issues that have to be carried out by the local authority.
My third point relates to finances. We have heard a great deal about the way in which the finances will be put together. However, as it is not yet clear in my mind, I ask the Minister what funding will be ring-fenced to ensure that this work can move forward. What will be left for the local authority to set its priorities, alongside its many other priorities, in order to ensure that children generally, and in particular children in care, receive the services that we are working towards?
I, too, congratulate the Government on the major thrust of the amendments. They seem to have taken into account a great deal of the detailed debates that we had earlier. Obviously the proof will be in the pudding. There is to be a Report stage and so we will have rather longer to absorb the full meaning of these provisions. In particular, I support what my noble friend Lady Howarth said about the relationship between how this will work out in practice and the wording. We can all applaud thoroughly the fact that well-being is included in the Bill in this form; we have been asking for it for a long time and there is a much greater understanding of what it means. There may not be the total detail but the holistic approach towards what we understand to be a child’s well-being is becoming clearer by the minute. I support the comments made by Barnardo’s, which raised some important issues, as other noble Lords have mentioned. With that proviso, I support the amendment and look forward to the Report stage.
I, too, welcome the new clause. It is, indeed, a sea change. It may not bring about something rich and strange, as the immortal Bard puts it, but it is nevertheless a tribute to the sensitivity, patience and understanding of the Minister, which he has shown at every stage of this legislation. The term “well-being” is well chosen. I do not know whether there is any statutory definition in any other legislation but I would have thought that it cannot be a thousand miles away from the reference to the welfare of a child that occurs dominantly in Section 1 of the Children Act 1989.
Another matter that may well arise in relation to many of these amendments is that it is made perfectly clear that the general duty on the Secretary of State is limited to children in England. I would be grateful if the Minister could kindly let me know whether there is currently any intention for the Welsh Assembly to create a parallel in Wales. I suppose that that very probably is the case.
I make a point en passant that reflects on all the matters that have been devolved by this House in favour of the Cardiff Assembly. Nothing constitutionally prevents this House, as the mother Parliament, from passing legislation that may be utterly contrary to what might have been done in Wales, although I do not think for a moment that we would intend to do so. On Scotland, a formal undertaking was given—I think that it is called the Sewel undertaking—that, having devolved a certain area of jurisdiction, the House would not seek to interfere in that area any longer. During the passage of the Government of Wales Bill through this House in 2006, I was given an undertaking by the relevant Minister that a parallel undertaking would be given concerning Wales. I have not heard anything formally in that regard, but I would not suggest for a moment that the Government were acting other than in perfect good faith on this matter. Unless I hear anything to the contrary, I assume that such an undertaking is now current and will be observed.
I am grateful for all the complimentary remarks that have been made, both about me personally and about the Government Whips’ Office, which has sought to accommodate the legitimate concerns of noble Lords that they should have an adequate opportunity to consider the government amendments before we move on to Report. We are glad to have been able to accommodate that request.
I was asked a large number of questions. I shall seek to answer as many as I can, although I may have to respond to some in writing. I am glad that there has been a general welcome from noble Lords in response to the new power set out in this amendment. The noble Lord, Lord Williamson, asks whether there is a precise parallel for the phrase,
“activities in connection with parenting”.
I am not aware of a precise parallel, but I can tell him that Section 14 of the Education Act 2002 gives the Secretary of State power to give financial assistance to support parenting, including support for prospective parents. Therefore, this builds on powers that exist in current legislation.
The noble Baronesses, Lady Morris and Lady Sharp, asked whether the new duty applies just to the Secretary of State for Children, Schools and Families or to other Secretaries of State. I can tell them that the duty is in relation to all government departments with regard to policy on children, not just to the Secretary of State for Children, Schools and Families. The noble Baroness, Lady Morris, mentioned asylum and immigration children. All relevant government departments will need to have regard to well-being in forming policies. However, the new duty sits alongside other legal duties on Secretaries of State, who will need to balance all their legal duties when developing policy and taking action on specific cases.
The noble Baroness, Lady Sharp, and the noble Lord, Lord Elystan-Morgan, talked about Wales. The new clause applies only to children in England. Wales is aware of the Secretary of State’s policy reasons for taking a new duty but is content at this stage not to take one itself. Wales has indicated that it does not have the immediate problems of financial propriety encountered by the Secretary of State in incurring expenditure under contracts, by virtue of Section 68 of the Government of Wales Act 2006. It therefore does not see the need to take the power at this stage.
In relation to financial propriety and contracting, the amendment will enable the Secretary of State to meet the Government’s financial propriety rules when he incurs expenditure in contractual relationships with providers in the third and private sectors. The noble Baroness, Lady Sharp, asked me to set out more fully why this was necessary and I am glad to do so. While there are powers to provide financial assistance through grants in Sections 14 and 15 of the Education Act 2002, there is no general statutory provision that provides the Secretary of State with authority to incur expenditure under contracts in relation to his children’s services activities, as there currently is for education. A general provision such as this can be construed as providing the Secretary of State with statutory authority to incur expenditure under a contract, because the provision is general in nature and silent as to how resources are to be applied for that purpose. One effect of taking the duty would be to plug the gap and remove the need for the department in future to seek specific legislation for a particular project related to children’s well-being that entailed expenditure under contracts. It would also reduce the number of circumstances in which the department needed to seek the Treasury’s permission to rely on the sole authority of the Appropriation Act. In particular, this would enable contracts to be let nationally to better support local authorities to deliver children’s services—for example, by providing expertise to assist in the establishment of Sure Start children’s centres, which I think would be welcomed on all sides of the Committee.
The noble Baroness, Lady Howarth, asked me whether the provision changes the legal duties of local authorities. It involves no changes in their legal duties, which will continue as they are now, and it does not make any changes to the funding regime for local authorities, including that balance between generally allocated and ring-fenced resources, which would not be subject to any change simply as a result of the amendment.
The noble Baroness, Lady Sharp, asked whether the definition of care leavers would be set out more fully elsewhere. We intend to do that. Subsection (6) of the new clause will give the Secretary of State power to make regulations in this regard. The noble Baroness raised some other, more detailed and technical issues in respect of the Barnardo’s response, to which I shall respond in writing.
On Question, amendment agreed to.
My Lords, with the leave of the House, I shall repeat a Statement made in the other place by my right honourable friend the Chancellor of the Exchequer on Northern Rock. The Statement is as follows:
“I hope the House will understand that it was necessary for me to issue a statement yesterday ahead of the markets opening so that trading in Northern Rock shares could be suspended this morning. It was also essential to allow the management of Northern Rock time to tell its employees what was happening so that the bank could open as normal this morning.
“As I said yesterday, the Government have decided to introduce legislation to take Northern Rock into a period of temporary public ownership. I took this decision after full consultation with the Bank of England and the Financial Services Authority.
“I made the draft Bill available in the Vote Office and in the House of Lords since this morning. I did so to provide as much time as possible for right honourable and honourable Members, as well as the other place, to examine the provisions of the Bill. If the House agrees, the Bill will begin its parliamentary passage tomorrow. I have also arranged for the principal opposition spokesmen to be briefed by Treasury officials today.
“It is important for savers and depositors to be reassured that their money remains safe and secure. Northern Rock will continue to operate as a bank on a commercial basis. It has been open for business as usual today. The Government guarantee that arrangements which I announced last year will remain in place and will continue to do so. Borrowers will continue to make their payments in the normal way. I have appointed Ron Sandler as the executive chair. He is in Newcastle today and has had meetings with the company and its employees.
“The new board and the bank will operate at arm’s length from the Government, with commercial autonomy for their decisions. I will publish shortly the framework agreement, which will outline how the relationship between the Government and Northern Rock will work.
“As I said yesterday, the board’s proposals will also cover the Northern Rock Foundation, which is very important to the north-east. The board will commit to guaranteeing a minimum income of £15 million per year in 2008, 2009 and 2010. This will be paid directly by Northern Rock, as now, and would be a condition of any sale if it were sold in this time. The new board will be asked to identify a long-term future for the foundation.
“I shall set out the reasons for the decisions that I made and outline what the new legislation will do. Before that, let me remind the House that last September there was almost universal agreement that the Government were right to intervene to save this bank, to stop its problems spreading into the wider banking system. There was also agreement that ultimately the long-term future of this bank must lie in the private sector. Even those who advocated nationalisation in the autumn did so on the basis that it could only be a temporary step—a stepping stone—to return it to the private sector when market conditions made that possible.
“Throughout last autumn and from the start of this year, the Government wanted to test all the options and to give the shareholders and the management time to find a solution which was acceptable and which met the three principles that I set out last year. These were: to support financial stability; to protect depositors’ money; and to protect the interests of the taxpayer. I have said throughout that all options, including a temporary period of public ownership, remained on the table.
“As the House will know, the Government had two private sector bids to consider. Each of them was tested against the option of a temporary period of public ownership to see which met our objectives and decision principles, including the best value for the taxpayer. Both proposals involved a degree of risk for taxpayers and very significant implicit subsidy from the Treasury, involving a payment below the market rate to the Government for continuation of the guarantee arrangements and for the financing we would be putting in place.
“Each proposal had its pros and cons. The Virgin proposal, for instance, would have brought a new brand and management. However, the taxpayer would only have seen any share of the private sector's return if the value of the business to its investors had reached at least £2.7 billion. The board's proposal would have involved a similar level of subsidy, but it had other disadvantages compared with Virgin—it would bring in less new capital and the business would be dependent for longer on government guarantees for new retail deposits. A subsidy on the scale required would not provide best value for the taxpayer; the private sector rather than the taxpayer would secure the vast majority of the value created over the period ahead. This would be a poor reflection of the balance of risk borne by the two sides.
“By contrast, under public ownership the taxpayer will secure the entire proceeds from the future sale of the business in return for bearing the risks in this period of market uncertainty. That is why we made the decision that we did. Therefore, we have made the decision we have to protect taxpayers, after weighing up all the various competing considerations. In deciding which was the best option for the taxpayer, it was clear that a temporary period of public ownership was the better option.
“I shall go through the contents of the Bill in more detail at Second Reading tomorrow. We have deliberately drafted the Bill to ensure that a bank can be acquired only in certain tightly defined circumstances, and that power will last for only 12 months. I have already announced a consultation which will lead to permanent legislation to deal with situations such as this in future. The Bill potentially applies to a range of financial institutions. I want to make it clear that the Government have no intention at present to use the Bill to bring any institution other than Northern Rock into temporary public ownership. The Bill also provides for appropriate compensation for shareholders. As I explained on 21 January, that is on the basis that all financial assistance provided by the Bank or the Treasury, including the guarantee arrangements for depositors, was withdrawn and that no further public financial assistance, apart from ordinary market assistance from the Bank, would be provided to the deposit-taker. I believe that this is fair to both shareholders and to the taxpayer.
“The Bill also makes provision for transfer of the bank, or parts of it, into the private sector.
“Let me remind the House that, following the problems that started in the United States last summer, Northern Rock was unable to raise the billions of pounds it needed to stay in business. We were right to save the bank. We were right to do everything that we possibly could to find a private- sector buyer on terms that were acceptable to the taxpayer. Because of current market conditions, we are right, now, to take over this bank on a temporary basis because that is what is in the interest of the taxpayer.
“There were choices to be made. We could have let the bank go under. But the risks to the wider financial system, for savers and the general public, were not acceptable. Having made the decision to save the bank and maintain financial stability and protect savers, we are now taking this decision to protect the taxpayer”.
I commend the Statement to the House.
My Lords, I thank the Minister for repeating this Statement on Northern Rock. I wish that I could say that I welcomed it, but I do not. I am sorry for the Minister for having to read it, as, indeed, I am sorry for the Chancellor, who is out of his depth and a puppet for a failed Prime Minister—a Prime Minister who created the conditions for the failure of Northern Rock in the first place.
This Statement is the third that we have had from the Government since the crisis began attempting to justify the Government’s handling of the Northern Rock fiasco and the wider effects that their policy has had on the United Kingdom’s financial services industry. We have gone from bad to worse. This Statement marks the final nail in the coffin for the Government’s reputation for economic competence. Government dithering and delay over the past five months have led to a complete failure of their policy. We now face the first nationalisation of a bank in modern times.
We on these Benches are opposed to the nationalisation of Northern Rock. In particular, we are opposed to the methods by which the Government wish to achieve that. Noble Lords will have seen the 17-clause Bill, published today, to allow the nationalisation of any bank or building society in the United Kingdom. The Government intend to allow just 20 hours of scrutiny on this Bill across both Houses of Parliament. With £100,000 million of taxpayers’ money committed to Northern Rock, that comes out at £83 million a minute.
What possible justification is there for such a flagrant disregard of parliamentary scrutiny? In the past, this House has, with reluctance, agreed to hasten legislation dealing with Northern Ireland or terrorism, but where is the terrorism angle here?
Given that this policy has been five months in the making and that a large Bill is ready, what is the conceivable case for acting in this way? There is no problem about managing Northern Rock; Mr Sandler is already in there. There is no market sensitivity; the facts are out there. Indeed, the only thing that is likely to trouble the markets internationally are the immense bank-grabbing powers in the Bill. What the Government are proposing will double the taxpayers’ liability to Northern Rock from £55 billion to £110 billion, and will place responsibility for the eventual repayment of this liability, as well as the ongoing running of Northern Rock’s mortgage book, in politicians’ hands. How can they possibly justify such an expansion of the taxpayers’ liability and such a blow to the United Kingdom’s reputation abroad?
Can the Minister confirm that the Bill gives the Government power to alter any Act of Parliament applying to banks in the United Kingdom by order? Can he confirm that it gives the power to backdate regulations applying to banks and building societies? Why has the Treasury flung so much money at this company when with, say, Equitable Life, it slunk past on the other side of the road? What is the difference between one financial institution with an over-ambitious business plan and another?
The Government have failed to explain how they intend this nationalisation to proceed. They claim that it will be temporary but give no timeframe for how long they expect the bank to be in public ownership. With such a huge public liability the Government must undertake to publish full accounts to Parliament every quarter. We should see immediately an audit of the assets and liabilities and the advice provided by Goldman Sachs. After all, we taxpayers will own all the assets, we will bear all the liabilities and we are paying for the advice.
There is no credible explanation of how nationalisation will affect the running of Northern Rock. The Chancellor has made great claims of arm’s length government and business as usual but has glossed over the inevitable distortion that a nationalised bank will have in a competitive banking system. It is even unclear whether to continue in this way will be legal under EU law. Indeed, is this proposal compatible with EU rules on state aid? Why do the Government expect the European Commission to allow these proposals without providing for a run-down of Northern Rock’s lending and deposit-taking operations? How will the Prime Minister respond to criticism from the EU of protectionism and state subsidisation—the very crimes he has accused it of? If the Government tell the EU Commission that Northern Rock was fundamentally viable, why should that argument not be used against them in litigation by shareholders?
How can Ron Sandler continue business as usual when the business model has been shown to have failed? Will Northern Rock continue, with government assistance, to offer 125 per cent mortgages, 0.5 per cent bonuses for existing savers and 6.49 per cent savings rates? If so, will it not be arguable that it has an unfair advantage over its competitors, and what will the consequences be? Will the Government really manage to keep at arm’s length if Northern Rock starts to foreclose on mortgages? How will they respond when their direct appointee sends in the bailiffs, forecloses on mortgages and sacks staff?
There is nothing in the Bill to stop the Government from directing every aspect of Northern Rock’s business and they have said nothing in this Statement or elsewhere about the details of how Northern Rock strategy is to be decided. The Government must allow proper parliamentary scrutiny of the running of Northern Rock to ensure that public assets are handled responsibly.
The Minister stated that the framework agreement would be published shortly. Does this mean before the Bill is debated here or will the details of this nationalisation be decided at the Government’s convenience after the Bill has been rammed through? Does anyone believe there will not be a hotline burning between the Prime Minister and Mr Sandler?
There are two other small issues. Northern Rock currently sponsors Newcastle United—hardly a winner either, right now. Will “UK taxpayer” be put on the lads’ shirts next week? Will the Minister assure us that taxpayers will not be sucked into sponsoring football? In view of the public concern over expenses in another place, will the Government now require all Ministers to register any loans or savings accounts they have with Northern Rock?
I again put forward our preferred solution for Northern Rock. As my honourable friends in another place have repeatedly stated, instead of reverting to Labour practices of the 1970s, the Government should set up a Bank of England-led reconstruction. Such an administration would not extend the taxpayer’s liability and certainly would not make the taxpayer responsible for paying back the wholesale depositors who enjoyed a premium to take the risk of investing in Northern Rock. Instead, the Bank of England, as a court-appointed special protective administrator, would be responsible for running down Northern Rock in an orderly way, protecting both depositors and the taxpayer. As under a normal administration, shareholders’ rights would be suspended until these creditors were repaid, and would eventually own whatever value was left if Northern Rock were to exit the administration. Administration would keep politicians away from the management and protect the United Kingdom’s reputation abroad. Indeed, it is mystifying why the Government are not taking this route. The Government intend to implement administrative provisions for future crises. Why are they not pursuing this route for the current one?
Do the Government expect further bank failures to justify the immense powers that they are taking? What is this Bill but Mr Tony Benn’s dream Bill of the nationalisation of banks, which went into old Labour’s infamous programmes of 1976 and 1983? What place does nationalisation have in a modern Britain?
My Lords, smugness is a particularly irritating character trait, and therefore I will avoid the temptation to say too loudly, “We told you so”, about the need to nationalise Northern Rock. It has taken the Government more than three months to get where they ought to have got to in the autumn, but they have now taken the right decision. Public ownership must be preferable to a bad private sale that left the risks and liabilities with the Government and the profits with the private bidder.
I fear that the Conservatives appear to have a very poor grasp of history when it comes to banking sector nationalisation. Can the Minister confirm that the last nationalisation of a privately-owned bank occurred in 1994, when the National Mortgage Bank was nationalised by the then Conservative Government, who paid the private owners the princely sum of £1 in compensation? Does the Minister agree that in reality there is no third way between private and public ownership? Does he agree that the Conservative proposal that the bank be run down by the nationalised Bank of England is simply nationalisation by another name?
If the Tories find themselves fulminating angrily to cover their lack of a realistic policy for Northern Rock, the Government still have plenty of difficult issues to answer themselves. First, what steps are they proposing to take to establish the quality of the underlying assets to be taken over? Will the Government insist on a full independent audit of the Northern Rock loan book? Will they accept that we can have no faith in the FSA to be the sole arbiters of the strength of that loan book? What instructions have the Government given Mr Sandler about the commercial policies that Northern Rock must now adopt? Can we have an assurance that the imprudent lending policies that played such a part in Northern Rock’s demise will stop and that in future the bank will adopt a more prudent lending policy? Will he ensure that such a principle is embodied in either the primary or secondary legislation that will come forward in the next few days?
When, as they must, the Government submit Northern Rock’s business plan to Brussels, can the Minister give an assurance that Parliament will be given sight of it so that we can be reassured that taxpayers’ money is being adequately safeguarded? Have the Government yet made any estimate of the contractions in Northern Rock’s operations that are likely to be required and the number of jobs involved? We recognise that this decision by the Government will bring considerable pain to shareholders. When the Government talk about “appropriate compensation” do not the tests of appropriateness in fact mean that no compensation will be paid at all?
We were pleased to hear that some measures were being taken to safeguard the situation of the Northern Rock Foundation. How have the Government arrived at the figure of £15 million rather than any other figure? How in reality do they intend to safeguard the position of the Northern Rock Foundation when the bank returns to private ownership?
Many Northern Rock stakeholders have been alarmed in recent days by indecision on the one hand and on the other hand being unsure of the consequences of the decision that has been taken. Can the Government give an assurance that adequate effort and energy are being used to ensure that staff, depositors and mortgage holders in Northern Rock are adequately informed about the situation and are reassured that their personal circumstances will not be adversely affected in the very near term?
In our view belatedly, the Government now have the opportunity to repay the taxpayers’ loan, to recoup any costs through a profitable sale in better market conditions in due course and to provide a positive future for the bank. We on these Benches will support the legislation when it comes to your Lordships’ House later this week, but equally we want to ensure that the Government’s stewardship of Northern Rock is more effectively exercised in the future than it has been over the past six months.
My Lords, I am grateful to both noble Lords, although I am slightly more grateful to the noble Lord, Lord Newby, than to the noble Lord, Lord De Mauley, who I understand of course is substituting for the noble Baroness, Lady Noakes, who we all regret cannot be with us today, due to injury.
The noble Lord, Lord De Mauley, substituted for detailed analysis a huge amount of rhetoric, which ill befits the situation. After all, some of the rhetoric could have been devoted to identifying just what the Conservative Party thinks its policy should be on Northern Rock, rather than taking every opportunity to be critical without at any stage advancing a position other than what seems to be the very worst of all—that the Government should allow Northern Rock to go into administration. That result would mean that the shareholders had absolutely nothing in return and, for taxpayers, would mean much less security with regard to the contributions made and undertakings given to Northern Rock that need to be safeguarded. That is the burden of the Government’s position.
Let me be absolutely clear about this legislation. I understand that the noble Lord has had only a limited time to consider the legislation and that this is a problem in terms of analysis. I assure the House that the legislation extends beyond Northern Rock because otherwise it would involve a private Bill procedure; it would be a hybrid Bill and we all know the length of time required in parliamentary procedure to deal with that. It would be totally ill-suited to this situation. So the Government have produced a Bill that covers the whole banking sector, while making absolutely clear in the Bill principles that activate provisions obtaining to Northern Rock and are unlikely to—and will not—apply to any other financial institution during the 12 months of the operation of those provisions. The Government also have a sunset clause in that part of the Bill to close these extensive powers down after 12 months.
We think—and there have been calls from many sides on this—that the Government need to look at the question of the security that they give to banking institutions and the necessity for adequate legislation to safeguard the public interest against the dangers of runs on banks. Within that framework, we intend to produce legislation that will be considered during this coming year and laid before both Houses in due course. However, this legislation is directed towards the particular circumstances of Northern Rock, while necessarily having a more general application than that.
The noble Lord asked whether we have taken into account the European Community’s position. We have taken into account not only the requirements of the European Union, but our own laws on competition that will clearly circumscribe the actions with regard to the Northern Rock bank in the coming months. There will be a guarantee that there will be no unfair advantage for this bank. It will operate under commercial principles at arm’s length from government and under reputable leadership which the House will recognise can give proper securities on those terms. Of course we were working within the framework that by 17 March it would be necessary to submit to the European Community the provisions under which we would continue to support the bank. That is necessary under the state aid rules of the Community. We are meeting those requirements. That has been an enormously significant constraint in considering the bids.
I also emphasise the obvious fact that the delay was because the Government hoped that the bank could remain within the private sector. That is why bids were solicited and hoped for and why work was done to provide the necessary analysis of those bids. The problem is straightforward: neither of the bids that eventually materialised gave the essential security to taxpayers which temporary public ownership guarantees.
The noble Lord, Lord De Mauley, asked about the shareholders. There will be an independent evaluation, which will be carried out against the background of the bank operating without the public guarantees because the true valuation of the bank is the bank operating in the private sector. That is what the shareholders are entitled to.
The noble Lord, Lord Newby, asked about contraction. Both bids looked at a contraction of Northern Rock's business. The executive chairman has gone to Newcastle to discuss the bank's future with the staff and the trade unions. There are problems with regard to the extent of the bank's business which will have to be discussed and there will, no doubt, be an element of limited contraction. Nevertheless, from the bids that came in, it was clear that that contraction could have been very significant indeed.
The noble Lord, Lord Newby, asked about the Northern Rock Foundation. The Government have guaranteed that for the next three years the Northern Rock Foundation—the charity—will receive a significant sum of money. It will be a figure that it received from the bank at times in the past—not in the best years of the bank because it is a percentage of profits, but a figure that the bank was prepared to pay in the past.
My Lords, I repeat the declaration of interest which I made when this issue was considered before. I owe Northern Rock quite a lot of money. If the bank owed me money I would not consider it proper to intervene in this debate.
Will the Minister accept that many of us believe that this is not only the right decision for the right reason, but also at the right time? I disagree with the noble Lord, Lord Newby. We had to give the chancers in the City, and the chancers who bought into Northern Rock in the expectation of making a windfall profit at the expense of taxpayers, the chance to expose themselves and they have. Now we need an assurance from the Minister that when Northern Rock goes back into the private sector, there will be no element of compensation, consideration or guarantees from taxpayers, but that it will be purely a private sector business.
My Lords, I am grateful to my noble friend who is well versed in such issues. I can of course give him that assurance that the return of the bank to the private sector will mean that all guarantees will end at that point. Before that occurs, the Government will seek to ensure that the returns to taxpayers are guaranteed so that taxpayers will not make a loss, and that there will be a return on the loan that was made by the Bank of England to Northern Rock.
I would not have put matters in quite the way my noble friend did. He is noted for his challenging approach at times to such issues. It was necessary that the Government explored every possibility of solving this issue within the private sector. It did not prove possible to get the necessary guarantees on the public money that has been underwriting the bank and, therefore, within that framework it is now necessary for us to continue limited public ownership.
My Lords, the Minister is rightly held in high affection by this House. However, even he cannot disguise the fact that this has been the biggest saga of incompetence in any bank failure in our history—there have been a few. Speed is of the essence in this matter. Is the Minister not aware that in 1984, when I was Chancellor and Johnson Matthey Bankers got into serious difficulties, after a few unsuccessful days of talks to try to get a private sector solution I authorised the Bank of England forthwith to acquire the bank, which it did? Is the Minister also not aware that, having taken all this time—at great cost and great cost to the reputation of the City of London—to grasp this nettle, the Chancellor has done the wrong thing? Is he not aware that there is no public interest whatever in perpetuating the life of this failed institution? Indeed, there is a considerable public interest in not doing so.
Is the Minister not aware that the bank should be closed for business forthwith and the loan book—much of which, I fear, is not nearly of such good quality as either the Financial Services Authority or the Government make out—should be sold off in an orderly way to maximise value? Finally, will he give the House an undertaking that there will be no question of any compensation whatever for the shareholders, whoever they may be, until the taxpayer has received back in full the massive loan that has been made to this bank?
My Lords, on the noble Lord’s final point, I certainly assure him that that is to be the case. However, when he says that there ought to be an orderly sell-off, he means a fire sale of the assets at the worst possible time, and therefore very significant losses indeed.
I hear what the noble Lord says about the ease and facility with which Johnson Matthey was tackled some 20 years ago. That was rather a different situation from a bank occupying this position, particularly as the issue confronting the Chancellor and the Government in the middle of last year was the anxiety of depositors about their deposits, to the extent that there was a developing run on the bank with a capacity for the contagion to spread more widely than that. Immediate government action was necessary and taken at that time. If the noble Lord suggests that a fire sale of the assets at that time, the sacking of 6,500 workers and the destruction of a great deal of the economy of the north-east of England would have had no consequences in the difficult times of last year, he is living in a different economic circumstance from the rest of us.
The simple fact of the matter is that what was happening in the United States at that time was subsequently to affect France, Germany and elsewhere. There were real threats to the banking system, in which there were major catastrophes and casualties. The Government had a bounden duty to limit that contagion to one institution. That is what we set out to do, and we are setting out to guarantee that the sums which the Government have put into the bank are returned to the taxpayer in due course.
My Lords, I am sure that when he reads Hansard, the Minister will want to revisit the answer he has just given to the noble Lord, Lord Lawson, on the question of compensation. It appeared to be at odds with the Statement. I am happy to give the Minister a chance to think about that now, if he wants.
I was much taken with the suggestion of the noble Lord, Lord McIntosh, that the chancers should have had a chance to expose themselves in the City. In that context, I ask the Minister what fee the taxpayer is paying to Sir Richard Branson for his efforts.
The most important issue now is clearly that the nationalised bank should be run on proper prudent and commercial lines. I ask the Minister to accept that we on these Benches will not support wrecking amendments from the Conservatives. It is clearly important that the Bill goes through as soon as possible, but we need proper assurances about how the bank will be run, preferably in the Bill or in the order that will immediately follow it. Only today, my noble friends and I met the Chancellor and challenged him about why pernicious 125 per cent together mortgages are still being offered by the bank. We have raised the issue in this House and in the other place. Now that it is taxpayers’ money, can that nonsense stop?
My Lords, I am grateful to the noble Lord for offering to let me reconsider what I said to the noble Lord, Lord Lawson. As I indicated in the Statement, there will be an independent evaluation of the bank’s value and, therefore, of what is owed to shareholders. As the Statement also makes clear, the valuation will be stripped of the essential public moneys that have gone in to support the bank. It will be a valuation of the bank as it stood as an asset at that time. That money will be paid as and when it falls due. That is a separate issue from the long-running position of the bank.
I heard what the noble Lord has said again about irresponsible lending by Northern Rock, but the bank’s current operation is consistent with that of other banks. He quoted some exceedingly limited figures. As I indicated in a previous answer on this question, some borrowers are inevitably better risks than others, and will therefore get more favourable treatment. However, the bank is currently operating pretty consistently with any other bank in the market and I do not accept his point that the bank is stretching its position beyond that.
I do recognise that the noble Lord and the House have the right to understand fully how the bank will be managed in future, and we will have time to extensively discuss those issues during the Bill’s passage. If the Bill is cleared by the Commons tomorrow, we hope to introduce it in this House on Wednesday. We will have time to go through these issues in more detail then.
My Lords, does the noble Lord not understand that he has just heard the first but not the last request for political interference by the Government in the management of this soon-to-be-nationalised business? Does he not understand—all of us who have experience in these matters do understand—that whatever the legislation states, Ministers can interfere with the running of a nationalised industry? The lunchtime directive is about to be reinvented, it seems to me. Does he not agree that the £15 million a year that is to be paid by the Northern Rock nationalised bank will be paid not out of the bank’s profits but out of taxpayers’ money, predominantly taxpayers in the south of the country who pay most taxes, to special interests in the north of the country where the Government have a political interest in maintaining them? Can he say why the Government need powers to amend all banking legislation without primary legislation? What is the reason for that, which I understand is in the Bill?
My Lords, the Government’s clear intent—this is why there is the 12-month clause—is to limit the activity beyond anything other than Northern Rock. The noble Lord said that we have heard from the Liberal Benches the first siren call for intervention in and political direction of the bank. He must recognise that I did my inadequate best to resist that siren call and said that I did not accept the contention from the Liberal Benches. The bank must be managed at arm's length from Ministers to meet the requirements. If the noble Lord is saying, “Yes, but we already have in the proposals an indication of concern about the Northern Rock Foundation”, all I can say is that of course the Government and the public are concerned about the foundation. After all, it is a charity that the bank has supported for many years. It has an important role to play in the north-east. I resist the noble Lord’s contention that no one in the country is prepared to see that foundation supported apart from direct beneficiaries from it who live in the north-east. It ill becomes him to suggest that. In that one area, the Government have been concerned to safeguard what is widely regarded as an asset that the public value.
On the more general issues raised by the noble Lord, we will have the opportunity to discuss the question of how the bank is to be managed. We will therefore be able to demonstrate the extent to which we will keep Ministers at arm's length and ensure that the business is conducted by reputable individuals who know the banking business and would not accept the degree of interference that the noble Lord suggests.
My Lords, did not the former Chancellor, the noble Lord, Lord Lawson, illustrate perfectly well why the previous, Tory Government failed? Would not the Conservatives have been the first to complain if the Government had not explored every possibility before coming down in favour of public ownership? Have not the Conservative Opposition forfeited any constructive ideas about the issue; rather, they have opted to put them on the shelf?
My Lords, how can it possibly be business as usual if the Government are subsidising the marketing and the whole business plan of Northern Rock? As we know that Ron Sandler actually believes in reducing overheads and producing cut-price products, what is to prevent Northern Rock undercutting every other bank and building society in the United Kingdom with taxpayers' money?
Secondly, Ron Sandler is being paid a pretty good wage for what I understand to be 12 months’ work. Will the Minister confirm that there is no bonus, no other perks associated with payment to Ron Sandler over and above his monthly salary?
My Lords, I have not gone into the detail of Ron Sandler's travelling expenses or anything such as that, but I can assure noble Lords that the remuneration that has been cited is intended to be the remuneration for the job that he is being asked to do. On the noble Lord’s more general question, we have to present a position to the European Community; we have also to follow and work within the framework of the competition laws of this country. Both put very effective constraints on what the noble Lord is suggesting: that a bank in temporary public ownership will be able to take advantage of that to have preferred business over its competitors.
My Lords, the noble Lord, Lord De Mauley, condemns public ownership in all its forms and in all its works. Given that, and particularly given the references made to the practices of Labour Governments in the 1970s, will the Minister confirm that the development of industries Act of 1971 gave the Government sweeping powers to take over any industrial or commercial concern? This happened during a sudden downturn in the economy. Nevertheless, the Government put those powers into legislation. Whether they did so as an act of premeditated apostasy or indeed out of panic matters not—they were the most sweeping general powers over public ownership that have ever appeared on the statute books of this country. In the circumstances, does it not ill behove the noble Lord to dress himself in the white sheet of purity in these matters?
My Lords, the noble Lord has cited the Industry Act 1971. He may also recall that Rolls-Royce was nationalised in a day and at a time when the then Conservative Government had a totally unquestioning and compliant upper House to ensure that there was no problem for the lower House in that respect.
My Lords, is the Minister aware that he is embarking on a tortuous and difficult road as he seeks to steer this legislation between the rules affecting hybridity in this noble House and the rules affecting state aid in the European Union? After all these months of dithering and delay, do he and his colleagues have any plan at all for the future of Northern Rock beyond the immediate rescue announcement? The Government have told the European Union that a detailed business plan will be in the hands of the European Union in a few weeks. Has it even been drafted? If it has, when will we see it?
My Lords, I thought that Ministers were paid to deal with difficult legislation. The noble Lord had enough experience of that, and I have no doubt that I will enjoy it as much as he did.
On the more obvious point about the European Commission, the chairman and chief executive are now charged with developing the business plan. The European Commission will want to be reassured about the nature of this plan to ensure that it meets all necessary competitive requirements and does not infringe the limitations on state aid. No one is pretending that this is easy, but it might help if for a moment the other side indicated that the difficulties with Northern Rock did not occur because the Government acted. It was not particular legislation that produced problems for Northern Rock but an aggressive banking system. I am talking not only about Northern Rock but about a number of other banks that lent unwisely and not well. The consequences, as ever, are borne by the wider society.
My Lords, with the permission of the House, I shall make a short business statement on the Banking (Special Provisions) Bill. The Bill is expected to arrive from the Commons late on Tuesday. The Lords’ print of the Bill will be available on Wednesday morning. The usual channels have agreed that the Bill should receive its Second Reading on Wednesday after Oral Questions. A provisional speakers list for the Second Reading will be opened in the Government Whips’ Office today after I have finished speaking. The remaining stages of the Bill will be taken on Thursday; the Committee stage will start immediately after Oral Questions. The Public Bill Office has said that it is willing to receive provisional Committee amendments from Tuesday morning onwards, as soon as the Commons’ print of the Bill is available.
A Business of the House Motion will be tabled tonight for consideration tomorrow, after Oral Questions, to allow the Bill to be taken on these days. I regret that other business on Wednesday, and especially on Thursday, will have to be postponed. On Thursday, it will be necessary to postpone the debates in the names of the noble and right reverend Lord, Lord Harries of Pentregarth, and the noble Lord, Lord Patel, and the Committee stage of the Private Member’s Bill of the noble Lord, Lord Mitchell. The statutory instruments scheduled for that day will remain as last business and the Grand Committee will run as scheduled. On Wednesday, the Committee stage of the Criminal Justice and Immigration Bill will resume after Second Reading of the banking Bill. I am afraid that the Question for Short Debate proposed by the noble Viscount, Lord Falkland, will have to be postponed.
I apologise for the inconvenience to all noble Lords who had intended to take part in those items of business. We will seek suitable alternative dates for everything that has been displaced and advertise them as soon as possible.
Children and Young Persons Bill [HL]
House again in Committee (on Recommitment).
[Amendment No. 9 not moved.]
10: Before Clause 7, insert the following new Clause—
“Reviews for social worker turnover
A local authority must conduct a review of a child’s experience of care if, during a child’s time in care, he or she has been looked after by three or more different social workers during the course of one single year.”
The noble Baroness said: My Lords, I shall speak also to Amendment No. 14. The new amendment fits in with the central tenet of our approach to this Bill; that is, to do what we can to ensure continuity of care so that meaningful relationships can be forged without fear of them being continually broken off, thus bringing an element of stability to the lives of children and young people in care. As I said in Grand Committee, the amendments are inspired by the Minister, who, at Second Reading, mentioned that some children see as many as 30 social workers and go through nine or 10 care placements within a few years. Amendment No. 10 places a duty on local authorities to review a child’s experience of care if he or she is looked after by more than three social workers in one year.
Amendment No. 14 stipulates that arrangements must be based on the idea,
“that the child’s accommodation placement should be changed the fewest number of times”.
I thank the noble Lord, Lord Judd, for adding his name to that amendment.
In the White Paper, Care Matters, the Government say that they want,
“children in care to have kind, understanding and committed carers—whether foster carers or residential staff—and we want to encourage that element of ‘stickability’ which research has shown to be key to the successful continuation of relationships. The more engaged carers are in all aspects of the child’s life and the greater their role in decision-making, the more likely they are to develop that close bond which will lead to a successful outcome for the child”.
That is what we all want, but one of the greatest frustrations is how that will happen.
We are fully aware that there are often good reasons for changing a social worker or moving a child. The last thing we want to do is constrain local authority provision or cause false alarms that require unnecessary reviews. Our intention is simply to have a structure whereby a significant problem in the care system—social work turnover and the number of placements—is checked.
In Grand Committee, the Minister said that he did not think it was necessary to have this in the Bill as there are already many reviews of the child’s care plan. But something must be wrong with these reviews if we still see so much instability in the system. We do not envisage that our review will simply be a cursory glance at the situation, but that it will go as deep as it needs in order to understand the reason for the turnover of social workers or why a child was moved. In Grand Committee, the noble Baroness, Lady Meacher, said in support of our amendment:
“I do not think that those at the top of these organisations give enough attention to these implications when they are planning systems. I am also conscious that organisations, including my own, do not like reviews or their time-consuming developments … it would be a signal to social services that, if they did not sort out their systems … they would have endless reviews. That would be difficult, expensive and embarrassing”.—[Official Report, 14/1/08; col. GC 396.]
I was most grateful to her for her knowledgeable support.
The negative effects of the two areas our amendments seek to deal with are of such importance that we feel that they can be addressed only through a statutory duty. I beg to move.
I support the principle behind the amendments because these children have already experienced enormous turmoil in their lives. They probably have quite a number of different teachers at school, so the idea of them having to get to know social worker after social worker to deal with their very personal care needs in any particular year is outrageous. If all these amendments can do is to put pressure on local authorities to do their very best to ensure good and sustainable placements in the first place so that children do not have to keep moving, they will have done a good thing. I compliment the noble Baroness, Lady Morris, for drawing the Committee’s attention to this problem.
While I have sympathy with the intent of the amendment, I have some concerns about it. I want to free up as much social worker time as possible so that they can actually intervene on behalf of and work with children. Endless reviews with no particular objective are not necessarily the way forward. It might be useful to set it out in statutory guidance that if there were more than three changes of social worker in a year, an independent reviewing officer would have to look at the case and assess whether a special review should take place.
Social workers change for many reasons, so the most important part of this is to research into the reasons for it and what local authorities might do to change the situation. However many reviews there are—and I have lived through what feels like more than 30 years’-worth of this sort of reviewing—unless you are able to use the material from those reviews to find out why their recommendations are not properly put in place to change the system, social workers will continue to feel deeply frustrated. I have pointed out on numerous occasions in these debates that social workers do not necessarily want to change their caseloads—they have nothing but the best intentions for these children—but that often the resources they want are simply not available to enable them to implement a plan which has been made at a review. Until we make absolutely clear the links between planning, resources and implementation—I make no apology for repeating this yet again—however many reviews we have, they will not make a difference to the lives of children. It is therefore vital that we have a way of intervening in and assessing why social workers are changing frequently and that there is a way of collecting that information. However, I would not want to see this become a statutory duty because that would take valuable time away from social work provision by local authorities, which should be used to carry each child’s plan forward.
I warmly thank the noble Baroness, Lady Morris of Bolton, for bringing this proposal back. These children are often very powerless in their early lives within their families, so their best advocate should be their social worker. That social worker should be given the professional development and support to enable them to be the most effective and efficient advocate for each child in their care. However, that aim is undermined if the individual social worker changes frequently, so this is an important point to hammer home and get sorted out.
I also support my noble friend Lady Howarth in her point about ensuring that detailed information about rates of staff turnover is published as widely as possible. Guidance on this issue should be looked at, so that if anything can be done to improve the situation, it certainly should be done. Moreover, I wonder whether anything could be done through joint area reviews, thus ensuring that inspections take into consideration the turnover rate of social workers for children, or possibly through a thematic review of the provision for children.
I was grateful for a letter from the chief inspector of Ofsted on my previous questions about the role of the inspectorates. There might be a role for them here in identifying our failures in practice and in providing support to improve and raise standards. We have often discussed the model used in Barnet of smaller social work teams with new roles. This keeps experienced people at the front line, supporting their newer colleagues, and thereby improving stability in the workforce. I hope the Minister will feel able to give the amendment some support and I look forward to his response on this question.
I, too, support the amendment. As we all know, it has arisen because there have been far too many cases where something like 30 different social workers have been involved and the outcomes have been appalling. For that reason, the issue is very high on our agenda.
There may well be a way of doing this which does not require a fully statutory commission or group to oversee these matters. My noble friend Lady Howarth is right that it may be possible not only to carry out a review if there are more than three changes, but to make it publicly available. That might or might not satisfy the noble Baroness, Lady Morris of Bolton—I do not know—but this is an important issue which is well worth bringing back again at this point.
I apologise for intervening but, for clarification—I am sure that my noble friend did not mean this—it may appear that we are implying that the individual review would be made public. Of course, neither of us meant that children’s confidential information would be made public. It is the aggregated information about why these children are in these circumstances that should be made public.
I find myself in great sympathy with and full of respect for practically everything that has been said by noble Lords who have taken part in the debate. It stands to reason that there is no more vulnerable constituency of persons than children in care. If there is one principle that dominates everything else in relation to their welfare, the principle of consistency in their care must come very high on the list.
As a family judge, over the years I saw many instances of a multiplicity of officers responsible for cases. To some extent I regarded the officer as being in loco parentis, on the same level, possibly, as a carer or the matron of a home. Therefore, the uprooting effect of changing that relationship more often than you have to is at the very heart of this problem. I respect very much the amendment moved by the noble Baroness.
Exactly how one deals with the problem is another matter. I take the point made by the noble Baroness, Lady Howarth, that in many cases this has nothing to do with slovenliness or a lack of appreciation for and sympathy with the situation of children; it has much more to do with maternity leave, illness, people having to attend lengthy courses, retirement and so on. Therefore, if one makes the procedure too rigid, one may well be punishing people unnecessarily in adding another wheel, as it were, to the coach. However, if one made some reference to it in statute, not of necessity on the lines of the wording of the amendment—I am sure the noble Baroness would be prepared to consider any improvement of the nature of widening it somewhat and making it less specifically prescriptive—it would have the benefit of becoming a statutory obligation. Social services, often in an impoverished country, would be able to say, “We are not able to carry out that specific statutory obligation”. That is the strength of the argument in favour of a reference in statute—but, as I say, not of necessity within the exact terms of the amendment proposed by the noble Baroness.
I support the amendment. My experience of children in care is infinitely less than that of my noble friend Lady Howarth and of many Members of this House, but I have come across enough children to realise the importance for children in care, particularly those who have not had the advantage of a secure attachment in their extreme youth, of the stability and security of a relationship with a reliable and responsible adult.
To touch on the point that I think my noble friend Lady Howarth made about the shortage of resources, there is a need for a quantum increase in available resources so that there are reserves of people who can come in. There are other aspects of the matter. The career structure often moves social workers on just as they are getting to know their clients, and there is room for lateral thinking there too.
I have a brief observation: it occurs to me that sometimes it is necessary to change the social worker because the child is unsatisfied, or perhaps the social worker is not up to that particular job. This debate highlights for me the importance of the need for representative advocacy for children. I am grateful that the Government are introducing the right to an independent advocate when a child has a complaint to make, but this also suggests the need for children to have greater access to advocacy altogether. We must be careful; while we must not demonise social workers, neither should we idealise them. They are not all perfect. A child is dependent on the professionalism of the social worker who is caring for them, so there also needs to be some mechanism for that social worker to be changed if need be. I hope we can bear that in mind when we come again to discussions about advocacy for children later in these considerations.
The Government share the concerns of the noble Baroness, Lady Morris, that have given rise to the amendment. We are all concerned about the problems of high vacancy and turnover rates for children’s social workers. These have been consistently too high and we are seeking to reduce them. The vacancy rate stood at 9.5 per cent in 2006 while the turnover rate stood at 9.6 per cent. The vacancy rate is particularly high in regions where the competition for graduates is most intense—in London, for example—and some authorities are very reliant on the use of agency staff. I made all that clear at Second Reading and in Grand Committee. The cause of difference between us is not the underlying problem but whether we should set out further requirements in primary legislation.
On reviews of individual cases, as I set out in Grand Committee, regulations already require reviews of children’s cases at regular intervals. The current legal framework provides for a minimum of three case reviews in the first year in care. After the first year, children’s cases are reviewed at least every six months, but the frequency of reviews prescribed in regulations is only the minimum. I stress that the reviews are not, as the noble Baroness suggested, intended to be cursory; they are intended to be proper reviews, taking account of all the factors that are relevant to the case in question.
Independent reviewing officers can also direct that reviews should be carried out more frequently where that is appropriate; for example, they can direct that reviews be brought forward where there are concerns about the support available to the individual child in care. The noble Baroness, Lady Howarth, asked whether we might make it clear in the guidance to independent reviewing officers that instability in the social worker provision for the child could be one of the factors to be taken into account when deciding whether reviews should be taken forward, which would go some way towards meeting the concern of the noble Baroness, Lady Morris, that the reviews that take place should in any event be aligned with concerns raised about the turnover of social workers. I am prepared to look further at the guidance that we give to IROs to see whether we could make a more explicit reference to social worker changes in triggering reviews by IROs where they consider that that would be appropriate.
Regulations already require local authorities to inform IROs of any significant failure to implement decisions made during a review of the care plan and of any significant change in circumstances after a review. As I said a moment ago, we set out in statutory guidance that IROs should consider calling additional reviews in such circumstances and we are prepared to look at whether that guidance can be strengthened. Furthermore, IROs already have the power to report to senior managers where actions from a review are not being carried out, including in such circumstance where a change in social worker is delaying implementation of decisions made at review.
The Bill will require that the IRO is better equipped to challenge at review meetings poor local authority practice, including in the deployment of social workers. Clause 11, for example, provides for the first time that a named IRO be identified for each child to strengthen continuity for the child and provide better and more consistent oversight of the implementation of the care plan. The IRO will also have to ensure that any views of the child have been ascertained and given due consideration by the local authority. That would include the child’s views on, for example, the impact of changes in the social worker for his or her case.
The regime for reviews in the Bill is therefore strong—significantly stronger than that which was previously in place. It will enable us to tackle social worker turnover by process of review, which is the concern of the noble Baroness, Lady Morris. As I have said, we will look further at whether we should strengthen guidance to IROs on the circumstances in which they should call reviews, including issues of social worker turnover as one of the triggers where they believe that that is appropriate.
Perhaps I may ask the Minister a question to which I am sure I should know the answer. What is the cost or penalty to the local authority if the independent reviewing officer says, “You’re doing a very bad job. You’re letting this child down”? Will such a negative report from the reviewing officer have an impact on the star rating of the local authority?
IROs have the power to report to senior managers where actions from a review are not being carried out. We expect those reports to be taken seriously. If they are not, a further review could lead to action being escalated to a higher level within a local authority, which would have consequences for the managers who had failed to implement actions the first time round.
I thank the Minister for his thorough and thoughtful answer on the amendment and I thank all noble Lords for having taken part in the debate. I know that the Government share our concerns. I am grateful to the Minister for saying that he will look at strengthening the guidance, which could be one of the ways of addressing the matter, because we are all looking for that principle of consistency of which the noble Lord, Lord Elystan-Morgan, spoke.
Far from being a review without a reason, as the noble Baroness, Lady Howarth of Breckland, said, the proposed review would have a specific reason. We would hope that it addressed problems in the system. It would easily ascertain whether it was for a perfectly understandable reason that a social worker was changed; for instance, if they were ill or on maternity leave. In answer to the noble Earl, Lord Listowel, I say that the last thing that we would want would be to keep a child with a social worker with whom they were unhappy, which would be unforgivable.
I understand the concerns of the noble Baroness, Lady Howarth, but the amendment is our attempt to put in the Bill those anchor points that are missing. The Bill has been much improved by the Government’s changes, but it still lacks those drivers that would ensure that all our concerns are answered. The review could be one of those drivers, but only if it were a statutory duty. I would therefore like to test the opinion of the Committee.
11: Before Clause 7, insert the following new Clause—
“Support for family and friends carers
(1) After section 17B of the 1989 Act (vouchers for persons with parental responsibilities for disabled children) insert—
“17C Support for family and friends carers
(1) This section applies to a person (“P”) who provides full-time care and accommodation for a child but who is not—
(a) a parent of the child, or(b) a local authority foster parent.(2) A local authority shall provide P with the same financial and other support that they provide to foster parents in the following circumstances—
(a) where the child comes to live with P as a result of an order made following an enquiry under section 47;(b) where the child comes to live with P following an investigation under section 37;(c) where P has secured a residence order or special guardianship order in order to avoid the child being looked after, and there is professional evidence of impairment of the parents’ ability to care for the child;(d) where P has obtained a residence order or special guardianship order arising out of care proceedings;(e) where P is providing accommodation for the child and then secures a residence order or special guardianship order.(3) The local authority shall appoint a named person who shall have responsibility for coordinating the provision of support to persons to whom this section applies.”
(2) In paragraph 1 of Schedule 2 to the 1989 Act (identification of children in need and provision of information), in sub-paragraph (2)(a)(i) for “17,” substitute “14F, 17, 17C,”.”
The noble Baroness said: I shall speak to Amendments Nos. 11 and 12 and refer briefly to Amendment No. 50. I thank the Minister and his team for their correspondence and for returning to these issues on the well-being of children and their care, particularly care provided by relatives and friends. I realise that this has been a bit of a trial but I think that we are getting somewhere and the Government’s approach is helpful. However, my amendments seek to make things even clearer. To illustrate the implications of the amendments, I shall set out a scenario and ask the Minister some related questions. I am to speak at the launch of a grandparents as carers association in March and, while I am not asking the Minister to write my speech, some signposts would be useful.
This scenario is hypothetical but based on fact. A grandmother—it could be a relative or a friend—takes charge of three of her daughter’s children at midnight because the daughter has died of a drug overdose. The children are aged 10, six and two. The father lives abroad and has disappeared. The grandmother has a one-bedroom flat. Her husband died three years ago. She is 59 and works as a clerical officer in a local firm. She is desperately anxious that the children should not go into care but wonders how she will cope financially and how she and the children will deal with their grief over the death of her daughter. She may be confused about child tax credit and working tax credit. She may even have to pay for childcare out of her own budget. She may have to pay for school meals. She will have to buy clothes, beds and bedding for three children. Many grandparents who take over these responsibilities fear all these things. It seems to me that the government amendment relates only to looked-after children, so would these children being taken over by the grandmother have to go into care before she could access any help? This is the crux of my concern. Would these children have to go into care?
The definition of a local authority foster parent in Section 22C(12) has its problems because a local authority foster parent must have been approved for the purposes of placement. The approval requirement is logical and welcome but approval takes time and it seems from the drafting here that a child may need to be placed elsewhere while the relative or friend is being assessed. I recognise that Section 23(3) allows a placement under the 2002 fostering regulations, which allow the placement of a child with a relative for up to six weeks with limited checks. Does the new definition imply that children being placed under Regulation 38 could not be placed under Section 22C(6)? If provision under Regulation 38 is no longer allowed, the child might have to be placed elsewhere during the assessment process, which is clearly contrary to the best interests of the child. If placement were permissible during assessment, are family and friend carers entitled to the fostering allowance? What happens to the grandmother whom I have described?
A recent ombudsman’s case in Dudley stated that kinship carers should be paid from the start of their assessment. In any case, evidence shows that six weeks is in practice a short time and few authorities manage such an assessment. Could the regulations not extend the period to 12 weeks to make the system more workable? Section 22C(5) contains the words “in their opinion”. Is this sufficiently evidence-based? Would it not be better to have, “the placement which they consider is the most appropriate, having regard to their duties”? I think that Section 22D also needs another look; I know that practitioners find this confusing. There could be a case for saying that any change of placement should be made only following a review, except in emergencies, but that is not what is here or in the government amendments.
Let me return to the grandmother whose hypothetical case I described at the beginning. All this potential confusion applies to her. She is trying to avoid the children going into care, with all that that implies. She needs financial assistance, housing assistance and emotional support. She will be distressed and concerned for the children, and the practitioners dealing with the case may be confused. All of them, but especially the grandparent, need clear and accurate information, which is what proposed new subsection (3) of my amendment asks for. Having a named person in every local authority who can co-ordinate support is essential and I know that some authorities do that. I am not seeking a full-time post, just someone who can step in from day one knowing what to do.
I have one further question: will this legislation link to the new drug strategy? I declare an interest as chair of the National Treatment Agency for Substance Misuse. Many relative and friend carers are carers because of substance misuse and I hope that what appears in the Bill will be picked up in other government policy.
We have said before in Committee that a family group conference, as in Amendment No. 12, is essential to ensuring that the child’s best interests are looked after. Insecurity for children is a terrible thing. I know that in this House we are all trying to do the best for children, which is why we are spending so much time and effort on redrafting. I look forward to the Minister’s response and I thank him for the steps that have been taken so far. I am grateful to the Family Rights Group and to other organisations that take very seriously their concern for children. I beg to move.
I support the amendment, particularly in relation to payment for kinship care. I have had huge experience of the wide variety of practices between local authorities in determining whether certain family members should be made foster parents. There are criteria in all local authorities for their particular fostering schemes, which are obviously made for stranger foster carers. Some local authorities apply those same standards to kinship care, where there are clearly different criteria. The physical amenities may not be the same as you might be looking at in a stranger situation, but the children concerned will be used to what their grandparents are able to provide. We recognise that the emotional security that they will be given will be far greater than any material gain but what is important is that the welfare needs of the children are met. Therefore I agree with my noble friend Lady Massey—I am not sure whether I am allowed to call her my noble friend as she sits on a different Bench, but I will do so—that it is vital that we pay grandparents appropriately right from the beginning of the child’s sojourn with them.
I recognise that there is an issue about whether the state should interfere in family life and that there are certain circumstances in which families will wish to care for the children who have come into their care without necessarily being given financial or other assistance. Those families simply will not ask for it. I became the unlikely founder of the All-Party Parliamentary Group for Grandparents and Extended Kin, simply because I listened to the stories of dozens of families who from the heart told of losing their grandchildren to stranger foster parent placements because they did not met the criteria of the local authority; and yet they cared deeply and passionately for their grandchildren. I think that the Government want to prevent that happening where they can give appropriate care, but to do so they need to make sure that there is emotional and financial support at the right time. Therefore, I support the amendment.
I too support the amendment of the noble Baroness, Lady Massey, because I have met so many grandparents and members of the family who are not perhaps directly blood-related but who take on this task. They sometimes do it when children are presented to them at the most inconvenient times of the day or night because they are desperately keen to look after the children and stop them being taken into care.
The noble Earl, Lord Listowel, and the Minister talked about the shortage of social workers in some areas, the fast turnover and the use of agency staff. When money is very short and the social workers are not terribly knowledgeable about the children that they are working with, there is a risk that it is very convenient just to say, “Thank goodness; these children are now with the grandparent or relative and we don’t have to bother about money here. We are okay; we can leave them with these relatives”. Stories such as the hypothetical case mentioned by the noble Baroness, Lady Massey, and the many real cases that many of us know of, demonstrate the horrible difficulties and problems that many grandparents and relatives face, particularly with severely disabled children or children who have suffered a great deal and have had a lot of problems in their lives.
There really ought to be presumed suitability in the case of a relative, who has to be shown not to be suitable, rather than the other way round. For that reason, I strongly support the noble Baroness.
My name is on this amendment also. I should like to ask my noble friend some financial questions that I suspect he might be predicting. What financial help would be available to the grandparents, as outlined by my noble friend Lady Massey? At the point at which children come for an extended stay grandparents will need some lump-sum money for bunk beds, bedding and above all clothes and all the other things that they will not have. That should mean that they ought to have access to and be eligible for a lump-sum payment from the Social Fund—a community grant. I bet that they do not get it. They certainly should. Can my noble friend confirm whether they will be eligible? I realise that this spills over into a different department; none the less, if he cannot answer today, perhaps his officials can write to us. Are such grandparents eligible for a lump sum—£1,000, £500 or whatever—to meet the immediate financial needs of the children?
Secondly, the grandmother will probably be in her later 50s, will probably be in work and will have to stop work. What access to an income in lieu will she have if she takes on the children under the scenario of my noble friend? While she was in work national insurance payments were being made towards her pension. Since 2003, as a foster carer, she is automatically eligible for a national insurance contribution towards her pension; but by being a good grandmother and taking on these children, without that status, is she now sacrificing some of her eligibility towards a pension? I suspect that she is. She should not be and we should do something about it.
Thirdly, in terms of an income in lieu, will she get income support as well as financial support for the children? Almost certainly not, if she has a spouse who is in work, even though the children will impose an additional financial responsibility. Fourthly, will the grandparents get guardian’s allowance? That allowance was designed for physical orphans. These children may be moral orphans or semi-orphans. This is now a responsibility of HMRC. The grandparents should be eligible for such an allowance; will they get it? I doubt it, but they ought to. Will my noble friend take it up?
A fifth element of financial support should be available—the childcare tax credit—which, if those children were being cared for by the next-door neighbour, would be paid to that neighbour. If they were being looked after by the grandparent, the grandparent almost certainly would not be paid. Can my noble friend confirm that the grandparent who should get that money probably is not getting it but probably ought to?
Finally, there is the child tax credit. That is a supplement to income which normally follows the child benefit book and which may take up to six weeks to materialise. If we are dealing with a long stay with grandparents, that may be fine but if children are staying six weeks there and six weeks back with their parents until the relationship breaks down for whatever reason—addiction, poor mental health, or whatever—then childcare tax credits or child tax credits can almost never catch up with the rights and the needs of the grandparents.
Potentially, there are five or six streams of income which ought to be available to grandparents, ranging from a lump sum from the Social Fund, to national insurance protection for their pension, to guardian's allowance, to income support, to childcare tax credit and to child tax credit itself. In my view, grandparents ought to be eligible for each and every one of those, except in so far as they are overlapping benefits. I bet they do not receive any of them. Therefore, I ask my noble friend to take away the issue of financial support for grandparents, particularly in the very difficult situation where the children may fluctuate between parents and grandparents. We know that grandparents will hang on in with children who may be difficult, disturbed or challenging as a result of their parents’ experience in a way in which foster parents may not. They may be the only source of stability to see those children through to responsible adulthood.
I too strongly support the amendment of the noble Baroness, Lady Massey. As the incoming president of the Grandparents’ Association, I support the comments made by the noble Baronesses, Lady Hollis and Lady Massey, about grandparents.
I want to alert the Minister to a totally different group of people. I mentioned this factual example in Grand Committee. A middle-aged woman, who has grown-up children, is a friend of a young woman who has taken to drink and drugs. Her little girl, who has been befriended by my friend, is in grave danger because of her mother's inability to cope because of drink and drugs, so my friend is asked by social services to take the child home and look after her. She is not related to the child or to the mother, but she takes on the child. She was prepared to be a foster parent but was persuaded not to be; she was persuaded to take a residence order which the local authority and the mother supported; she was persuaded not to apply to be a special guardian; and she was told a few days before the hearing that she would not receive any maintenance for the child because she did not come within the requirements of the local authority. I know that she is receiving, and has not questioned it, a relatively small sum of money to help her with childcare so that she can keep her job. The money can be stopped at any moment because she has not been told why she is getting it or for how long and it is not the foster carer’s amount.
If that can happen to her, how many other women or men in this country take on the care of a child at the request of a local authority, and are pushed down the residence route only to find that although having a residence order with the support of the local authority they will not receive a penny? That is why this amendment is so very important. It seems to me that proposed new subsection (2)(c), which states,
“where P has secured a residence order … in order to avoid the child being looked after”,
is exactly the position of my friend. Proposed new paragraph (e) states,
“where P is providing accommodation for the child and then secures a residence order”.
My friend comes under both of those proposed new paragraphs. The current government amendments, which seem to me to be admirable as far as they go—I strongly support many of the government amendments tabled which are very thoughtful—do not cope with grandparents or with those who take over the care of a child, get a residence order and are then left without support which puts them in danger of not keeping their jobs and going on to social benefit. Is that what we want? This is a very sensible amendment and I hope that the Government will consider it seriously.
I want to express the support of these Benches for Amendments Nos. 11 and 12. We have spoken at some length now on Amendment No. 11 and about grandparents. I am very pleased indeed that the noble and learned Baroness, Lady Butler-Sloss, has made the point that others, including family and friends, are involved here. Often in an emergency they take on responsibility for a child, take them into their homes, and look after them and because they are not officially looked-after children in the eyes of local authorities, they receive no remuneration whatever.
This is a similar amendment to one that we tabled in Grand Committee. On that occasion we were trying to extend the definition of “in need” in Section 17(10) of the Children Act 1989. This amendment is more straightforward, as the noble and learned Baroness, Lady Butler-Sloss, has pointed out. It seems to us that proposed new subsection (2)(a) to (e) sets out very well the circumstances under which the person concerned is seen to be de facto the carer. It is a very sensible way of tackling the obvious inequality and we support the amendment.
Amendment No. 12 covers a different issue and deals with family group conferences. We discussed this at some length in Grand Committee. It fell in the very first group of amendments and we had an extensive discussion about the importance and the desirability of family placements and the value of family group conferences. The government revisions to Clauses 7 to 10, which emphasise the importance of placement with family or friends, reflect some of the discussion that we had at that time. On family group conferences, we on these Benches were much influenced by the two contributions in that debate from the noble Baronesses, Lady Howarth and Lady Murphy, to the effect that family group conferences, while a valuable tool, are not always the appropriate tool to use.
In his response the Minister echoed those words, making it clear that while the department was anxious to see it offered in appropriate circumstances and while it was extending training and support to that effect, it was a complex service to provide and requires high levels of skill and competence. However, the Minister made it clear that new guidance has been issued which puts emphasis on the importance of involving family and friends in decision-making and care plans. For our part, we were persuaded that for the moment the department is doing what it can to carry that through. In so far as it is not, it is back to the same old problem; namely, that we are not seeing practice on the ground reflecting the guidance received. Issuing more guidance does not seem to us to be the right thing to do at this moment.
We strongly supported amendments in Grand Committee to provide a framework for family and friends carers, and we are happy to do so again today. It is time that we gave family and friends carers better support, particularly when they may be taking on more than one child and—as we heard—at very short notice.
I have a couple of points on the more general issue of kinship care. If it is not possible, after every effort has been made, to keep a child with their parents, then kinship care or care from a friend must be the next best thing. Sadly, such care is underused because too many local authorities have a presumption against family members looking after these children. That is a particularly poignant fact at a time when there is an estimated shortage of 10,000 foster carers in the country. In Grand Committee I mentioned Hampshire, which has a wonderful track record of kinship care. Unfortunately, there is no recognition of this valuable service. Given that the Minster has said that this is a vital issue, will he consider making it a key performance indicator?
We sought to address the issue of family group conferences by opening the Grand Committee proceedings with an amendment on early intervention. However, as our amendment was not without its technical deficiencies—no change there—we have not brought it back. We are nevertheless pleased to support this amendment. We have always felt that every effort should be made to keep families together, to prevent children going into care in the first place. Success in early intervention is good not just for the child and family in question but for the care system as a whole, freeing up already limited resources to be used more effectively elsewhere. It really is “invest to save”, both in terms of money and human outcome.
I, too, enthusiastically support the amendment; the case has been put very trenchantly by the noble Baroness, Lady Hollis, and the noble and learned Baroness, Lady Butler-Sloss, drawing on their vast experience from different fields. The rigidity of the present arrangements makes it extremely difficult for very worthy and very anxious people who are well placed to assist a child, because, for the reasons articulated, they are unable to give that assistance. Anything that removes such barriers would be of immense importance and significance to the welfare of children.
There is a narrower point as well. I appreciate that this is an amendment to Section 17 of the Children Act 1989, and that it therefore deals with children who are looked after rather than children in care. However, it is perfectly obvious that where a local authority is looking around for potential carers in order to avoid making a care order, then the more people that there are in the former category, the better are the chances of avoiding the necessity of making a care order. As far as a child is concerned, the nearer to their natural circumstances they can be given assistance, the better it is for them; the further away, the less advantageous it is.
For those reasons I support everything that has been said—and said so trenchantly—by those who have taken part, and I support the amendment.
I was thinking that we were on Report and that I could not speak to the amendment again, but then I realised that we are in Committee again. I realised that I had not turned over a page, and it is really quite an important page. I was going to go on to say that the Minister said that the legislative framework to which the noble Lord, Lord Elystan-Morgan, referred, already exists in the Children Act 1989. Local authorities already have a duty under Section 17 to promote the upbringing of such children by their families. I do not believe in legislation for legislation’s sake. If there is a perfectly good existing power, we should not pass another law. However, I just wonder whether the existing law is not too broad and whether a specific duty might go some way to encouraging what we all agree is a good thing. Family group conferences are important in their own right and an obvious first step, rather than just being an option in a menu of care provision. Specific primary legislation might go some way to ensuring that that occurs.
We fully share the concerns expressed to enable as many children as possible to remain at home with their birth family and to enable more children who cannot live at home to be cared for by family and friends. Similarly, we share a commitment to improve the support available to all those who care for vulnerable children, including relatives and friends, and to enable families to play a key role in decision-making where that is safe and practicable. We are investing significant extra resources in this area to enable local authorities to make a wider range of services available.
I turn to Amendment No. 12. As I said in Grand Committee, Section 17 of the Children Act 1989 places a general duty on local authorities to safeguard and promote the welfare of children in need in their area through the provision of a range and level of services appropriate to fulfilling those children’s needs. There is also a particular duty under Section 17 of that Act to promote the upbringing of such children by their families, as the noble Baroness, Lady Morris, has just noted.
We debated family group conferences at some length in Grand Committee, and some of that debate was taken up with considering the merits or otherwise of using primary legislation to highlight a particular service or to drive practice on the ground. The purpose of the 1989 Act has never been to prescribe particular services in other than the broadest terms. We are wary of doing so because such prescription could easily appear exclusive to practitioners. However, family group conferences are specifically commended in the revised Children Act 1989 statutory guidance on court orders and are included in the practice flowchart. In all applications for care proceedings, local authorities will be required to show what efforts have been made to enable the child to live with wider family and friends. A family group conference would be an excellent means for a local authority to demonstrate how it has fulfilled this duty. We expect the use of such conferences to increase in future.
On Amendment No. 50, it is right to raise the issue of ensuring that we use the most effective interventions in our work with the most vulnerable children and families.
I wondered why the noble Baroness was in her place but did not speak to her amendment. I thought that she might expect me to give a reply anyway, since it was in this group. However, she has reduced my task significantly because the next few pages of my speaking notes can wait until the noble Baroness brings her amendment back.
I turn to Amendment No. 11. As I said in Grand Committee, the Government are committed to making significant improvements in support for family and friends carers. We hope that this will reduce the numbers going into care, as my noble friend Lady Massey wanted to see. She can tell the meetings that she will address later that it is our intention that local authorities should provide an enhanced range of services precisely to avoid the need for children to go into care when they would not need to if they had appropriate family and friends support.
However, we cannot support the amendment as drafted. It would require local authorities to treat any person who is not a parent but is caring for a child in the circumstances set out in proposed new subsection (2) as if they were a local authority foster parent with whom the child had been placed by the authority under Section 23 of the Children Act 1989. This would be the case even if the local authority had had no prior involvement with the child or his or her family, even if the local authority considered the placement to be unsuitable or had concerns about the carer’s capacity to care for the child.
The carer’s entitlement to financial and other support under this provision would not depend on any assessment either of the carer’s needs or of those of the child. It would not allow the local authority to take into account the means of the carer or the parents and could impose on local authorities a duty to provide financial support for what is, in essence, a private fostering arrangement. The local authority would be obliged to assume financial responsibility for a care arrangement that it would have little power to police, and where it had no particular duty to ensure that the arrangements promoted and safeguarded the child’s welfare and no continuing duty to rehabilitate with parents. The local authority would have no power to interfere in any way with the arrangements that the carer makes for the child, even if it considered that those arrangements were not in the child’s best interests, unless it obtained a court order. The carer could pick and choose the support they wished to accept from the authority—for example, accepting the financial payments but refusing social work support either for themselves or the child.
The law imposes on local authorities specific duties to those whom they have approved as foster carers, because authorities have taken responsibility for the care of the child and they rely on foster carers to perform the practical daily aspects of that care. For similar reasons, foster carers are controlled and regulated and the local authority can impose sanctions if foster carers fail in their trust. These related powers and responsibilities flow from the fact that the local authority has a particular legal duty to safeguard and promote the welfare of a child it looks after.
However, family and friends carers are already able to access a range of support under existing legislation, including both special guardianship and residence order allowances. Through the Bill we are amending the Children Act 1989 to add to this. I have already mentioned that we are seeking through Clause 21 of the Bill to amend Section 17 of the Children Act 1989 to extend local authorities’ powers to provide financial support to promote the upbringing of children in need by their families. By removing the existing restriction that allows such support to be made only in exceptional circumstances, we will enable local authorities to provide financial assistance on a longer-term basis where they are satisfied that doing so would promote the child’s welfare—including, I stress, services for grandparents. So the Bill makes a significant move in the direction set out by my noble friend and supported by the noble Lords.
Further, family and friends carers have similar entitlements to those of a parent who cares for a child. There is a range of financial support, such as child benefit and child tax credit, both of which are unaffected by any payments made under either the existing Section 17 of the 1989 Act or the extended Section 17 that we propose in our amendments. Carers can qualify for other benefits on broadly the same terms as parents and, if they are bringing up a child on their own and are unable to work, they may claim income support on the same basis as other lone parents.
My noble friend Lady Hollis asked me about the eligibility requirements. As there is no greater expert in the House on these issues than my noble friend, I certainly do not feel equipped to reply precisely, benefit by benefit. However, I undertake to write to her setting out those issues and, in particular, responding to the concern which I know underpins her question, which relates not to formal eligibility but to the arrangements that we are making to promote uptake by carers who may not be the birth parents of the children in question.
I am very grateful to my noble friend for that response and his promise of a letter to me. I simply ask him to take on board that family or kinship carers who take on responsibility are entitled to the same benefits and support as parents, including child benefit and child tax credit. Can he check for us how speedily the child benefit book, and therefore child tax credits, can flow to another adult with responsibility? He is right that in the longer term that can happen but, to my knowledge, it can often be six or eight weeks or more before the money is obtained, by which time the child may be ready to go back again, and each time the grandparents are severely hurt financially. Therefore, will he consider what might be described as a bridging or temporary arrangement to ensure that the financial support is relatively seamless?
I fully take on board the point made by my noble friend. I shall certainly look into the issues that she raised and report back to her and other noble Lords on the current arrangements and on any plans that we have to improve the efficiency of transfers of payments between those who have responsibility for looking after children. I entirely agree that it is vital that those who have the real responsibility should be able to access as speedily as possible the resources to which they are entitled and which they need for that job.
I hope that, as ever, my noble friend thinks that we are going some way towards meeting her concerns. She is always keen for us to go further and I take to heart the points that she made about the promotion of a better and wider range of support services. I believe that we are moving in the direction that she wishes. We may not be moving as fast as she would have wished but we are at least going in the right direction.
Will the amendment to Section 17 promoted by the Government include non-kinship? I gave the example of a friend who takes over the care of a child. Will the deletion of exceptional circumstances, making it possible for maintenance to be given to a family, also apply to friends who take on the care in the circumstances that I outlined?
Supplementary to that, will individual local authorities find themselves making very different decisions so that whether a person receives these benefits through the local authority will be a matter of a postcode lottery? If there is a danger of that happening, will the Minister look at what guidance will be given under the new Section 17?
It will probably be best if I write to the noble and learned Baroness, Lady Butler-Sloss, setting out the precise circumstances rather than committing myself at the Dispatch Box to the range of additional services that the amendments to Section 17 would provide for. We hope that the resources that we are providing will enable all local authorities to enhance their provision in this area. I accept that the precise range of services supported will depend on decisions by local authorities but, as ever, that is subject to guidance by my department, and we try to see that there is as little of a postcode lottery as possible in this area.
Can the Minister comment on my question concerning whether kinship care could become a key performance indicator? Councils such as Hampshire find themselves in the perverse situation of missing out on other targets because not as many children in their area are being adopted or put in long-term foster placements. However, they are doing the very best that they can for those children and that is not being recognised. Can he look seriously at that issue?
I thank the Minister for his response, which I think included a number of good things. I also thank those who have spoken in this debate passionately and with great experience. The number of supplementary questions will indicate that there are still some issues about which I, for one, am not entirely clear. I have two remaining concerns. First, will kinship carers, relative carers, friends carers or grandparents carers, or whatever we call them, understand all this and, secondly, will the professionals understand it? I think that the issue needs to be spelt out almost in words of one syllable.
I should also like to do some sums and find out, perhaps with the noble Baroness, Lady Hollis, exactly how much we are talking about here. What is the total amount that the kinship carer can receive, including all the benefits—if they exist and if there is no postcode lottery, which I know there is? We need to find out whether it is equivalent to a foster carer’s allowance, although I suspect that it is not.
Bearing all that in mind, will the Minister agree to meet those of us in the Chamber today who are concerned about these issues in order to clarify with a fine-tooth comb exactly what this all means and how it can be expressed so that people understand it?
The noble Lord does not need to move anything because the Question has already been indicated from the Chair. Therefore, subject to his wishes, I would expect him to speak to whether this clause should stand part of the Bill and, as it is grouped, to speak also to Clause 8, for which I will put the Question to the Committee later.
I am very grateful. That makes it clear what I am doing. In essence, I am speaking to the government amendments that will replace Clauses 7 to 10 and 30. These government amendments concern the duties on local authorities in respect of the placement of looked-after children. They follow concerns raised in Grand Committee and by stakeholders about the interrelationship between different duties in the Bill with regard to different types of carers and different considerations, including locality and the proximity to a child’s existing place of education, which are to be taken into account in making residential placements.
I stress to the Committee that the changes involved here are not as great as might be thought from the volume of amendments. However, we thought it right to restate the entirety of the provisions on this issue in the form of a new clause and schedule in the Bill replacing existing Clauses 7 to 10 and 30. The new clause requires a local authority to make arrangements for a child it is looking after to live with its parents or other person with parental responsibility where that is consistent with the child’s welfare. This reflects the principle that state intervention in family life should be kept to the minimum necessary to protect the child from harm. This provision simply restates the existing law as set out in the Children Act 1989. However, where placement with parents is not in the child’s best interests, the local authority should place the child in the most appropriate placement available. The local authority’s determination of the most appropriate placement is subject to a number of considerations.
First and foremost, subsection (7) requires that all the considerations, whether to do with proximity, out-of-area placements or any other consideration, should be taken in accordance with the local authority’s other duties under Part 3 of the 1989 Act, in particular its duties under Section 22 to safeguard and promote the child’s welfare and to ascertain and give due consideration to the child’s wishes and feelings and those of other relevant persons. This brings together into a single test the separate tests set out in existing Clauses 7 to 10. We believe that this is the correct way to ensure that placement decisions are made in the child’s best interests as set out in Care Matters. It also reflects the views expressed by noble Lords when we debated this issue in Grand Committee.
Noble Lords commented in particular on the duty in Clause 8 relating to placing children within a local authority’s own area and to the different test that would apply in that case from the other tests set out in Clauses 7 to 10. The new clause applies a single consistent test; namely, that any decision and consideration of all factors relating to it should lead to the most appropriate placement that safeguards and promotes the welfare of the child in question. I stress that it is not sufficient for a local authority placement simply to be consistent with a child’s welfare. Under the clause as now drafted it must be the most appropriate placement that safeguards and promotes the child’s welfare. We believe that is the right position for the law to take.
However, the placement options under the new clause are unchanged. They include, first, placement with a relative, friend or other person connected with the child. We recognise that placements of this nature may not in every case be in the interests of the child. However, the law should encourage local authorities to consider the use of family and friends placements first. It is important to make clear, as the clause does, that children in this position should continue to be looked after by the local authority. The carer must be approved as a local authority foster carer and must be provided with support, including financial support, in accordance with the criteria that apply to all other foster carers. That meets the point that also caused concern among noble Lords: that where family members are designated as the appropriate foster carer they are not receiving the allowances to which they should be entitled. Beyond family and friends, the clause sets out placement options as a foster carer previously unconnected to the child, placement in a registered children’s home or other arrangements, such as supported lodgings or independent accommodation. All these placement options are the same as those set out in Section 23 of the 1989 Children Act.
The local authority must also ensure that, as far as is reasonably practicable and in line with its overall duties that I have described that apply under the 1989 Act, the placement allows the child to live near his home, does not disrupt his education, enables the child to live with a sibling who is also being looked after by the local authority and, if the child is disabled, has accommodation suitable to his needs. An additional requirement is set out in subsections (7)(c) and (9) which the local authority must observe: it must accommodate the child within its area unless that is not reasonably practicable. However, I stress that that is subject to the overriding duty under the 1989 Act to promote and safeguard the welfare of the child.
As we have made clear in previous debates, the Government are committed to reducing the number of inappropriate out-of-authority placements, hence these new provisions. There are concerns about the quality of placement supervision, the co-ordination of services for children placed out of authority and the poorer outcomes for this group, hence the changes we are making under new subsection (9), although we are continuing to look at whether there should be a further explicit provision requiring local authorities effectively to plan to have a range of local accommodation available alongside the new provision, which responds to the concern raised by the noble Earl, Lord Listowel.
Clause 9 introduced a new duty to place a child near to his school, preventing unnecessary school moves, with particular significance attached to school moves in the run-up to GCSE, when the impact on educational attainment is perhaps most significant. In response to concerns raised in Grand Committee about the definition of a school and whether it embraced a further education establishment, in new Section 22C this requirement has been rephrased as a duty to ensure that placements do not disrupt the child’s education. The advantage of this approach is that it is not specifically tied to particular educational establishments. The duty to avoid disrupting the child’s education will apply equally to children studying at FE colleges as to children in schools, which addresses a particular concern raised in Grand Committee.
New Section 22D restates Clause 10, which provided that if the local authority is considering moving a child from a placement with parents, local authority foster care or a children's home, which are all regulated and well supported placements, to another type of accommodation, such as unsupported lodgings or a hostel, it must undertake a full, statutory review of the child’s case, chaired by an independent reviewing officer, before making a decision.
We are convinced that the approach contained in the revised clause will allow local authorities to make effective placement decisions focused on the needs of the individual child. The detail of these requirements on local authorities will be fleshed out in the revised Children Act 1989 guidance and in the regulations, for which further provision is made in new paragraphs 12A to 12F to be inserted in Part 2 of Schedule 2 that will set out the detailed arrangements.
I believe that the arrangements set out in the revised clause meet the will of the House more effectively than the original provisions and get the balance that we are rightly seeking to achieve between taking full consideration of issues to do with proximity, education and locality in placement decisions made with respect to children with the overriding duty of local authorities to see that any placements safeguard and promote their welfare.
This new clause, which draws together the different issues that a local authority must take into account when placing a child, is broadly welcome and responds to a number of our concerns in Grand Committee, not least how to translate strategy into action on the ground. We are very pleased to see the emphasis on a placement allowing a child to live near home with a sibling and that arrangements must not be made if they are not consistent with the child’s welfare or will disrupt his education, although we feel strongly that they should also not disrupt any training being undertaken by a young person. We welcome the provision that accommodation for a disabled child or young person must be suitable for his needs.
While we appreciate the effort to change this part of the Bill to provide clarity and a greater responsibility for the promotion of welfare and safety, we still have some questions about how this will translate into an effective mechanism for deciding on the best placement for a child. Can the Minister explain what happens when a number of issues that affect a placement come into conflict? Disabled care versus location might be answered, but what if location might be a risk to a child's safety for other factors, such as abuse? Will there be a mechanism in place for guidance on these issues? How much will local authorities be allowed to exercise their own judgment in placements under these prescriptions?
New Clause 22C (5) states that:
“If a local authority is unable to make a placement under subsection (2), they must place”—
“in the placement which is, in their opinion, the most appropriate placement available”.
Should not that be the most appropriate in terms of the child's welfare? There seems to be no restriction on what constitutes “appropriate”.
We recognise that the aim of the changes was to bring the welfare of the child to the foreground in decision-making, but should there not be a proviso here as well? Once again, we want to be absolutely certain that what is driving the placement is the welfare of the child and to be sure that there is no loophole to allow local authorities to place a child somewhere for reasons not exclusively concerned with welfare. That is a most important subsection, as it governs what will happen in extreme cases.
New Section 22C(6) defines what is a placement and, in a list of four definitions, as the Minister said, includes, in paragraph (a) relatives and friends, in paragraph (b) a local authority foster parent, in paragraph (c) a children's home, and in paragraph (d) any other placement that conforms to regulations. The issue here is the status of the friends and relatives under the subsection. The amendment states that a placement can mean a
“placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent”.
When we queried that, the Bill team said that that subsection applies to relatives and friends who are not yet approved as local authority foster parents—that they could have a child placed with them and then be registered as a foster parent—but that is manifestly not reflected in the text of the amendment. As it stands, it makes it compulsory for a relative or friend to be a local authority foster parent before the placement can be made. If that is not the case, the amendment should be altered to reflect that.
I also ask the Minister about the list of preferences. Does the local authority have a duty to place a child with family and friends first? I most sincerely hope that it does, as that goes to the heart of much what we have been discussing. If the list is designed to be in order of preference, the amendment does not make that clear, as it simply defines what a placement could be.
The new clause raises so many questions that I could be here all day. I hope that other noble Lords will cover areas that I have not, or perhaps we could bring forward amendments on Report, after considering the Minister’s comments. However, in one area I seek assurance from the Minister. The Integrated Children's Services Development Group has asked for a clear guarantee—we are happy to ask this for it—that children with acute and complex needs will be able to receive the most appropriate care placement, including an out-of-area specialist setting where that is necessary.
I shall raise something completely different. I have a small but, I think, significant amendment to the set of new clauses. I find myself nodding sympathetically to my friend on the Opposition Benches on many issues, but that is not what I am going to talk about.
I want to talk about Amendments Nos. 62 and 63, which are about placing children with carers who are of the same religion. I want to add, “or of no religion”. I would prefer that there were no reference to religion in the Bill, but here it is. I must declare an interest as patron of the British Humanist Association and the National Secular Society. When a large number of people in this country profess no religious belief and do not attend any place of worship, they cannot be discounted. I therefore think that the words, “or none”, should be included and should be standard parlance when we talk about religion in any legal document.
When I sat on the Religious Offences Select Committee, we were very careful to respect the rights and feelings of those who professed no religion. We should do so again here. I commend the amendments.
I welcome the Government’s recognition of the particular needs of disabled children and young people in new Section 22C(8)(d) in the amendment. However, I am concerned that without specific measures to promote the development of a range of local provision, disabled young people will continue to be routinely placed far from home in expensive placements.
The provision that states that local authorities should place children and young people in their local area where “reasonably practicable” will mean that disabled children will continue to be placed out-of-authority. That will continue the trend for disabled children to be placed a long way from their families. The further away from home a disabled child is placed, the harder it is for their parents and friends to visit and the more isolated they become. We know that that also increases their vulnerability to abuse. Local and regional commissioners should be required to plan future services to meet that need within the local region wherever possible.
I welcome the Minister's commitments in Committee to encourage a range of suitable quality accommodation within each local authority area, but I am keen that there are practical methods to ensure that that happens.
I am most grateful to the Minister for explaining to us these significant new amendments. I am also grateful to the Bill team for dashing over here on our last sitting day, when the amendments were laid 10 minutes before I left your Lordships' House, to explain it all to me. I am not grateful to them for ruining my half-term holiday. However, if this produces legislation that is better for children, that will have been a sacrifice well worth making.
Many questions occur to me and I am very grateful that we have come back into Committee to give us the opportunity to scrutinise the Bill, with an opportunity to come back at Report with some amendments. That has already been referred to. The Minister wrote to us about the amendment. First, on page 2 of his letter, he went to the heart of what he mentioned a few moments ago, which is that, wherever placement with parents or others with parental responsibility is not possible, the local authority should place the child in the most appropriate placement available. His letter stated:
“i.e. the one that it believes will best promote and safeguard the child's welfare”.
I consider that to be a very significant phrase. Will that be consistent with doing everything possible to get the child back with its family, where that is also consistent with the child's welfare? Will the Government issue anything in guidance to ensure that that is also at the forefront of consideration of what placement is the most appropriate for the child?
On page 3 of the Minister's letter, he listed the criteria that appear in new Section 22C(8): the placement must allow the child to live near the home, must not disrupt the child's education, must allow the child to live with the sibling if possible if that sibling is also in care, that the child's disabled accommodation is suitable for their needs and is within the local authority’s area. That sounds a lot like a hierarchy. I do not believe that it is meant to be a hierarchy; it would be most helpful to all Members of the Committee if the Minister would make it quite clear from the Dispatch Box in reply to this debate that it is not.
Inevitably, there will be tensions where there is a conflict between those various criteria. Can the Minister say something about how social workers will make those decisions about which of the criteria is the most important in terms of the child’s best interests and welfare? In the end, the decision about what is the most appropriate placement will be a professional decision by the social worker, as it should be, but the social worker will have guidance from the Government, of which they will have to take notice. A little more clarification of how the Government envisage that that will work would be helpful.
I go back to the second of those criteria, which the noble Baroness, Lady Morris, mentioned, which is that the placement does not disrupt the child's education. The Minister has clearly listened to the debate and concerns expressed in Grand Committee. I am pleased that he has, because now we are not just talking about schools, but the disruption of education. Given that we have the Education and Skills Bill going through another place at the moment, which is trying to keep children in compulsory education until they are 18, I am very surprised that the Minister's amendment just states “education”, not training as well, although the way that it has been phrased allows for education being carried out in a college of further education as well as a school. What about training in the workplace, which I believe is to be covered by the Education and Skills Bill, for 16 to 18 year-olds who will have to stay compulsorily in education? Why only these criteria? Where does health come in the set of competing criteria that must be taken into account? It would be helpful if the Minister could say something about that.
I have another question about not disrupting a child’s education. Will the decision whether to move the child’s educational establishment be holistic? In other words, will there be consideration not only of the academic aspect but of whether the child is happy? A move might be a good idea because a placement at another school might give the child a better academic opportunity, but the child’s existing school might have the most brilliant football training and all the child ever wants is to become a professional footballer. As long as the child is getting an adequate education, there should be that consideration.
Page 4 of the Minister’s letter refers to children who move out of care into what are called “other arrangements”, and to the fact that the local authority,
“must undertake a statutory review of the child’s case”.
Will the Minister confirm that this means independent, or supported independent, living? If it does, will he clarify that that will take a child up to the age of 18? In other words, will there be a review if these “other arrangements”, up to when the child is 18, break down? In addition, I echo the call for the Minister to say how the duty in proposed new Section 22C(5) interacts with the child’s best interests. It would be helpful to know.
Finally, I support what the noble Lord, Lord Rix, said about the importance of ensuring that local authorities proactively develop more and sufficiently diverse resources locally for children with special needs. There is a lot of very good practice out there. People are very imaginative in putting together packages of support for children with disabilities that will prevent them having to go miles away from home, making it difficult for their parents to visit them and therefore putting them in a vulnerable position. In some cases, it prevents them going into care at all. This good practice needs to be studied and developed. Local authorities really need a positive duty to be put on them to ensure that there is a range of provision, if not in one local authority then in a group of local authorities, very close to each other, that make arrangements together—some sort of regional arrangement that will ensure that children with disabilities are not the only ones whose parents have to travel miles if they want to see, support and protect them.
I would like to place on record my warm appreciation of the Minister’s response to what was argued in Grand Committee. I think we are all aware that he is a listening Minister, and it is absolutely clear from the amendments and the very full and courteous letters that he has written to us that he has listened very carefully indeed and has tried to respond as positively as possible. This is almost exemplary conduct by a Minister, if I may say so.
However, I urge the Minister, having established so clearly that the Government share the concerns and commitments of all those who work with children and who have submitted so much considered material on the Bill, to take very seriously indeed the outstanding issues and to put on record as firmly as possible his support for the points that have been made in the House on the amendment. Having made that general point, I shall pick out a couple of points.
First, the noble Baroness, Lady Morris of Bolton, has argued strongly and passionately that the driving force must be the welfare of the child. None of us could dissent from that, but it is more than that; it is being absolutely certain that the child is being treated not as an object but as a person in their own right, and that their integrity and wishes are taken fully into account at all times. With all the pressures that operate, that can so easily become theory rather than practice. It is tremendously important to work at ensuring that the child’s own wishes are listened to carefully. This can be illustrated by considering what happens when making special arrangements for accommodation. Of course the security and the well-being of the child are absolutely fundamental, but in a disrupted life it is terribly important to make a priority what the child sees as significant in their relationships so that there is as little disruption as possible in the general context in which those arrangements are made.
I finish by making an observation that cannot be made too often. Yes, we are encouraging local authorities to provide more resources, but there is a bill attached to this. It has been heart-warming to hear the positive attitudes from all parts of the House towards this and related matters. I just hope that, in debates in council chambers up and down the country on expenditure, the level of rates and the rest, that same consensus will hold firm and that there will be the same strong voice from all quarters, saying, “These are priorities, which must be supported”. This is not only about the Government ensuring that the arrangements are there to turn aspirations into practice but about ensuring that the body politic at the local as well as the national level wills the means as well as the ends.
Unlike the proposed new clause before Clause 7 that we discussed earlier, this group of amendments is a form of replacement therapy; it proposes to remove Clauses 7 to 10 altogether and replace them with a single clause. It is also separately proposed to remove Clause 30 and to reinstate it in a schedule to the new clause. We are therefore dealing with quite a substantial change. I favour this approach, but even though we are largely incorporating into the Bill provisions that already exist in Section 23 of the Children Act 1989, it is still important that we as legislators are content with the wording of the proposed new clause, which we intend to become the law of the land, particularly as I am sure that we will be asked why, instead of amending Section 23 of the 1989 Act as the Government proposed, we are now proposing a new provision in substitution of that section.
We know from earlier discussions in Committee and more widely that some noble Lords and others concerned with the well-being and the placement of looked-after children asked a good number of questions as a result of the proposed amendment of the Act—in particular, about the potential for conflict between the provisions and the impact of the new duties on local authority practice. It is said from time to time that, in any event, the interpretation of Section 23 has led to some difficulties. I do not know whether that it is true, but it is said.
The more radical solution of restating the provisions of Section 23 in order to clarify the effect of the new duties and their relation with each other is a good decision. Of course, it is still necessary for us to make sure that the points to which we attached importance earlier in Committee are covered in the proposed new clause to be inserted after Clause 10.
I am very keen that we should do everything we can in legislation to make the placement of looked-after children satisfactory and, if possible, stable. Looking at the elements of the proposed new clause, first, I am content with the placement options in proposed new Section 22C(6), which are taken from the previous legislation. Secondly, I am very keen that the conditions applicable to the placement of a child should reflect the provisions of Section 23 of the 1989 Act and the new duties proposed by the Government in Clauses 8 and 9, now to be removed—in particular, the emphasis on local placement and that the child should, if possible, live near his or her home, and the new wording that the placement should not disturb the child’s education. That would cover further education colleges as well as schools and, possibly, as the noble Baroness, Lady Walmsley, mentioned, some other elements of education. We shall find out about that in due course.
Thirdly, it is right that if a local authority wants to move a child from his or her parents, foster care or a children’s home to “other arrangements”—that rather suspicious phrase—there must be a statutory review of the child’s case before making a decision. This reflects the old Clause 10 of the Bill and, once again, it is a reasonable safeguard. For all those reasons, I support the Government.
I, too, thank the Government for their hard and welcome efforts in major surgery on this Bill. I also thank the Minister and the officials for their hard work in bringing this forward. I was particularly gratified to hear the Minister say that he is looking at whether local authorities should have a duty to plan for a range of diverse provisions. I do not think that those were the Minister’s words, but perhaps I may say that that is what we all wish for; that is, a diverse provision of quality placements in the local area. For instance, my noble friend Lord Rix is concerned that disabled children should have a good quality, stable placement in their local authority area.
If I am correct, an important addition is proposed new Section 22C(11), which states:
“The appropriate national authority may make regulations for, and in connection with, the purposes of this section”.
That may offer the opportunity for, for instance, a duty on local authorities to have a plan, so that we can see the action on the ground to create the new placements required.
Further to what the noble Baroness, Lady Morris of Bolton, and other Members of the Committee have said on training, proposed new Section 22C(8)(b) of the 1989 Act, states that,
“it does not disrupt C’s education”,
and training. I seek reassurance from the Minister that that would be the case. If my memory serves me correctly, quite a few looked-after children go to further education colleges before the age of 16, because it is a more suitable environment—perhaps more vocationally based—for some of them. It should be clear that children attending an FE college or whatever would not be disrupted. That would be very helpful.
Thirdly, it was very welcome to hear the Minister make it clear in his comments that the first priority is the welfare of the child in all these considerations, because that has been a matter for concern. As regards proposed new Section 22C(6)(a) to (d), which includes children’s homes as the third option, we need to be clear that sometimes it is right to place a child in a children’s home before placing them in a foster home. I would be grateful to the Minister for reassurance on that point. I look forward to his response.
Other Members of the Committee have made most of the points I would have made, particularly some of the questions raised by the noble Baroness, Lady Morris, in detail, which I am sure she will test at the next stage when perhaps we will have a chance to go through them. I therefore want to make very few observations which I hope have not been made before, with the exception of one: I should like to reiterate what the noble Lord, Lord Judd, said about local authorities. We need an element of reality in our debates. We all believe fervently, on the Floor of this House, in the welfare of the child being paramount. We have to remember that in local authorities that may not always be so in terms of policy and the kinds of policies that will have to be put in place when priorities are set across the whole range of services. How the Government enable or encourage local authorities to put children at the top of their list is for them to think again about. I know that the noble Lord, Lord Adonis, all the time presses the needs and rights of children.
The second reality is to remember that, ultimately, it is not the social worker who makes the decision about what will happen to a child. He or she may make the professional recommendation. Again, the decision will be made on financial criteria. Time and again, children are not placed in the placement that they want, or that the social worker has decided is in their best interests, for financial criteria. Not only that, we depend on partnerships in local authorities, not least housing. That sinister “other placement” is often something like bed and breakfast, because there is not an appropriate housing option. I know that the Government are doing all that they can to press those partnerships with other parts of the local authority to ensure that there are proper placements. I say that to put us in the real world where those decisions will be made without that kind of thought as regards the child.
For that reason, I am not altogether with my noble friend Lord Rix. It is probably impossible for local authorities to make provision for some of the most disabled children. I declare an interest as chair of Grooms Shaftesbury, which cares for some of the most disabled children with learning and physical disabilities who need extraordinary care. Like the noble Baroness, Lady Walmsley, I think that local authorities can look to regional solutions and work out how they can make sure that those sometimes medical combinations of educational, medical and physical needs can be met.
Local authorities could believe that a good reason for moving a child from a very specialist facility into something less desirable is that it is within their local authority area. Let us remember what happened to many children during the 1990s when they were moved from provision outside their local authority area, often where they were settled, because it was in the financial interest of the local authority to do so under pressure. I make those points simply because we all have idealistic aims. When you get on to the ground as a social worker, “Life ain’t quite what we’d like it to be”.
I should like to make a couple of other points. I may not have understood this, so I look to the Minister to correct me if that is so. Proposed new Section 22C(7)(c) says,
“comply with subsection (9) unless that is not reasonably practicable”,
when determining the most appropriate placement, which should be local. We must add to that the words, “in the interests of the child’s welfare”. I say that in order to repeat something that the noble Baroness, Lady Morris of Bolton, said earlier regarding children and young people. I think particularly, from my work with Stop it Now, of those children who are sexually abused. Those children do not wish to be placed in a particular area because of their experiences. It requires the local authority and the local authority social worker to think about the placement. If the words, “in the interests of the child’s welfare” could be added to proposed new subsection (7)(c), it would make the safeguarding principle absolutely clear. Along with those two technical points, I feel that proposed new Section 22C(8)(d) and (9) may be in conflict in terms of some disabled children.
Lastly, I should say to the noble Baroness, Lady Massey, that, like her, I accept that it should be possible to say “of no religion”, but I am very keen to retain religion. I remember vividly a social worker of mine placing a Coptic Christian child with a Muslim family as the result of a very poor assessment. The repercussions for that child became significant very quickly. The situation was put right speedily, but we have to make a proper assessment of a child’s religion in terms of its placement. Even if the child has no religion, we should make the decision on that basis.
It is extremely helpful to have all these provisions in one clause because it will be much easier for practitioners to decipher and take forward the guidance. Again, I am grateful to the Minister for his thoughtfulness.
I apologise, but I omitted to put a couple of specific questions to the Minister, and I want to correct something I said earlier. I referred to training in further education colleges. I think that if a child is in a further education college, they would be in education, so that is not a good example. Perhaps the Minister can talk about that.
Will the Minister also comment on the terms of the diverse provision of quality accommodation within a local area? Will proposed new Section 22C(9) make this duty any more explicit? Further, can he provide an assurance that regulations made under proposed new Section 22C(11) would address the need for local authorities to develop provision within their authority as a means of meeting the requirements of proposed new Section 22C(9)?
I have been asked a number of detailed questions about the particular intents of certain aspects of the new clause. Perhaps I may take them one by one before dealing with the wider issues.
The noble Baroness, Lady Morris, and other noble Lords asked why the duty in the amendment to determine the most appropriate placements, as set out in new Clause 22C(5) and (7) could also be subject to the duty to promote and safeguard the welfare of the child when it is not explicitly stated. I am glad to be able to tell the noble Baroness that it is explicitly stated through the wording, which I shall explain. Following on from the words:
“In determining the most appropriate placement”,
in new Clause 22C(7), are the words,
“the local authority must, subject to the other provisions of this Part (in particular, to their duties under section 22)”.
That refers to Section 22 of the Children Act 1989, the provision being supplemented by this Bill, which is headed:
“General duty of local authority in relation to children looked after by them”,
and goes on to state in subsection (3):
“It shall be the duty of a local authority looking after any child—
(a) to safeguard and promote his welfare”.
Furthermore, referring to the point made by the noble Baroness, Lady Howarth, in respect of the views of children, subsection (4) goes on to state:
“Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of—
(a) the child;
(b) his parents;
(c) any person who is not a parent of his but who has parental responsibility for him; and
(d) any other person whose wishes and feelings the authority consider to be relevant”.
All of that is encompassed within the duties under Section 22 of the 1989 Act and referred to in subsection (7) of the new clause. So the duty is centrally placed in respect of all of the factors that need to be considered under the Bill.
The noble Baroness also referred to issues to be considered alongside each other, and which are to have preference. She asked me whether, all other factors being equal, the placement with a relative or friend should take priority over other forms of placement. That, too, is made clear in subsection (7)(a) of the new clause. I shall take the noble Baroness through the way this has been constructed. Subsection (7)(a) states:
“In determining the most appropriate placement for C [the looked-after child], the local authority must ...
(a) give preference to a placement falling within paragraph (a) of subsection (6) over placements falling within the other paragraphs of that subsection”.
Subsection (6)(a) states,
“placement with an individual who is a relative, friend or other person connected with C [the looked-after child] and who is also a local authority foster parent”.
By that means, the “relative, friend or other person” is given priority in the placement options available to a local authority, but it does not set the hierarchy in the other placement options, thus meeting the point made by the noble Earl, Lord Listowel. He asked whether we are suggesting that intrinsically foster parents should be preferable to persons registered under Part II of the Care Standards Act 2000 or “other arrangements”—I shall come to those in a moment. The answer is no. Under subsection (6), after the preference local authorities are expected to give to relatives, friends or other people, they should consider all of the options in terms of which would provide the most appropriate placement available to promote and safeguard the welfare and interests of the child. I hope that that is clear so far.
I thought that it was crystal clear. At least putting all these provisions into one clause makes it somewhat clearer than it was before, but I do not pretend that we are going to expect social workers to spend their time poring over the detail of this Bill. It will be made clear in guidance with user-friendly language what this actually means for them. Nevertheless, I thought that my explanation was so clear that simply replicating this section in Hansard would be more than good enough for social workers.
We come now to whether the issues to be taken into consideration—proximity, education and so on—set out in new Clause 22C(8) constitute a hierarchy or should be given equality of consideration. This point was raised by the noble Baroness, Lady Walmsley. The answer is that they should be given equality of consideration. Although in subsection (8) these issues are set out in paragraphs (a) to (d), they do not comprise a hierarchy, but are the issues which should be given consideration.
Before I come to the other specific questions about how local authorities should make the decision, I shall deal with the definition of the words “other arrangements” in subsection (6)(d). What is meant by these words is anything that is not foster care or a children’s home. That could include hostel provision, foyer provision, supported lodgings, flats and independent living. So the words of the noble Baroness, Lady Walmsley, are encompassed by the term “other arrangements”.
Moving on to some of the other specific questions, the noble Baroness, Lady Walmsley, asked me about the duty to promote rehabilitation with parents. Let me stress that this must always be the local authority’s first priority, subject only to consideration of the child’s welfare, because the authority must of course consider whether it is safe for a child to be rehabilitated. This rehabilitation duty is built into the Children Act 1989 and, as I said in my opening remarks, is included in new Section 22C. I should also state for the record that the Placement of Children With Parents etc Regulations 1991 and their accompanying guidance place great emphasis on the rehabilitation duties of local authorities and what is expected of them.
I was asked how local authorities should decide what is the most appropriate placement. This is precisely what the professional judgment of social workers is intended to achieve: the best possible decision, taking into account all the factors of the case. However, the means by which local authorities seek to make these judgments is set out in the Framework for the assessment of children in need and their families. This framework uses an age-related child development model and is the basis for developing the care plan, which includes details about the placement needed by the child. So, based on best social work practice, we give guidance to social workers as to how they should go about balancing their duties. As we noted in our earlier debates, the independent reviewing officer will review the care plan in the light of the information about the child’s needs to ensure that it remains the most suitable plan, and can engage in a dialogue with the local authority if it believes that the care plan needs to be upgraded.
I should like to take away the issue of training within the definition of education and look at it further before giving a definitive answer. I understand the points made by noble Lords. As the noble Earl said, training which is related specifically to an educational placement—for example, a course at a further education college—would be incorporated. I would like to look further at the position of training more widely.
My noble friend Lady Massey referred to the substance misuse and drugs strategy. We will ensure that the forthcoming drugs strategy reflects the family and friends policy commitment set out in the White Paper and that the new strategy framework reflects the needs of relatives and friends affected by substance misuse. I mentioned in my opening remarks that we are considering further whether we should enhance the requirements in the Bill for local authorities effectively to plan and have a range of local accommodation available and I take fully on board the remarks of the noble Lord, Lord Rix, and other noble Lords in that regard.
Turning finally to the amendments of my noble friend Lady Massey concerning children of no religious persuasion, we agree that placements must be sensitive to a child’s cultural background. That is why our commissioning strategy set out in the Care Matters White Paper seeks to ensure that local authorities better identify the needs of their looked- after children population and ensure that their population of foster carers is broad enough to meet those needs. In making such arrangements it is our intention that the absence of formal religious belief should be respected as well as religious beliefs. Fostering providers should take this cultural context into account and ensure that where possible it is respected in the choice of foster placement in the same way as the cultural needs of a child whose family hold religious beliefs should be respected and taken into account.
The information that authorities are required to have about prospective foster carers includes information about their religious persuasion and capacity to care for a child. The local authority must be satisfied that the placement with a particular foster carer is the most suitable in the light of all of the circumstances of the case, including the absence of faith as well as the existence of faith. The placement information record which incorporates the placement agreement details a child’s needs, including their religious background, and sets out the arrangements for meeting them. In making any placement decision the local authority must give due consideration to the wishes and feelings of the parents of the child. I hope that gives the reassurance my noble friend was seeking.
I was most impressed by the Minister as he guided us through Section 22. He has missed his calling as a lawyer somewhere along the way. I am loathe to say that he missed something out because it was the most wonderful pulling together of what everyone had said, but I asked him about the status of family carers under proposed new Section 22C(6)(a). The proposed new paragraph refers to,
“placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent”.
As we understood it from the Bill team, such a person does not have to be a foster parent. But the amendment does not make that clear and perhaps should be changed to reflect that.
The paragraph refers only to children who are in care. Therefore the person with whom they are placed while they are in care should be a local authority foster parent for the purposes of fulfilling that duty. But, of course, it would be open in those circumstances for the relative, friend or other person to become—I am not sure what the word is—validated or approved by the local authority for that purpose. There is also provision for emergency placements for short periods of time that do not require the relative, friend or other person connected with them to have gone through that process. So there can be a short-term placement while the status of the carer is formalised. But the point I want to stress is that many of the arrangements short of children going into care, including in some cases with the active involvement of social services, are predominantly with family and friends.
The Minister did not react to my comment about proposed new Section 22C(7)(c) and about the provisions of subsection (9) also being in the interest of the child’s welfare. I am concerned that in this discussion, which is strongly about placement with parents and friends—which obviously I support hugely—we must not lose the balance with safeguarding. Some families are simply not safe enough to have their children and hence the need for good fostering and residential placements. That is why I am keen that we keep this balance and the interests of the child central at every point.
I am sorry that I failed to respond to the noble Baroness’s point but I can give her the complete reassurance that she seeks. Subsection (7)(c) states that local authorities must comply with subsection (9), which states that the accommodation should be provided within the local authority’s area unless that is not reasonably practicable. That whole provision is also subject to the duties of the local authority under Section 22 of the 1989 Act, which sets out its duty to safeguard and promote the welfare of the child. The new provisions are all subject to the overriding duty of the local authority to safeguard and promote child welfare.
Clause 7 negatived.
Clause 8 negatived.
Clause 9 [Provision of accommodation which is near to looked after child's school]:
[Amendment No. 14 not moved.]
Clause 9 negatived.
Clause 10 negatived.
15: After Clause 10, insert the following new Clause—
“Provision of accommodation and maintenance for children who are looked after by a local authority
(1) For section 23 of the 1989 Act substitute—
“22A Provision of accommodation for children in care
When a child is in the care of a local authority, it is their duty to provide the child with accommodation.
22B Maintenance of looked after children
It is the duty of a local authority to maintain a child they are looking after in other respects apart from the provision of accommodation.
22C Ways in which looked after children are to be accommodated and maintained
(1) This section applies where a local authority are looking after a child (“C”).
(2) The local authority must make arrangements for C to live with a person who falls within subsection (3) (but subject to subsection (4)).
(3) A person (“P”) falls within this subsection if—
(a) P is a parent of C;(b) P is not a parent of C but has parental responsibility for C; or(c) in a case where C is in the care of the local authority and there was a residence order in force with respect to C immediately before the care order was made, P was a person in whose favour the residence order was made.(4) Subsection (2) does not require the local authority to make arrangements of the kind mentioned in that subsection if doing so—
(a) would not be consistent with C’s welfare; or(b) would not be reasonably practicable.(5) If the local authority is unable to make arrangements under subsection (2), they must place C in the placement which is, in their opinion, the most appropriate placement available.
(6) In subsection (5) “placement” means—
(a) placement with an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent;(b) placement with a local authority foster parent who does not fall within paragraph (a);(c) placement in a children’s home in respect of which a person is registered under Part 2 of the Care Standards Act 2000; or(d) subject to section 22D, placement in accordance with other arrangements which comply with any regulations made for the purposes of this section.(7) In determining the most appropriate placement for C, the local authority must, subject to the other provisions of this Part (in particular, to their duties under section 22)—
(a) give preference to a placement falling within paragraph (a) of subsection (6) over placements falling within the other paragraphs of that subsection;(b) comply, so far as is reasonably practicable in all the circumstances of C’s case, with the requirements of subsection (8); and(c) comply with subsection (9) unless that is not reasonably practicable. (8) The local authority must ensure that the placement is such that—
(a) it allows C to live near C’s home;(b) it does not disrupt C’s education;(c) if C has a sibling for whom the local authority are also providing accommodation, it enables C and the sibling to live together;(d) if C is disabled, the accommodation provided is suitable to C’s particular needs.(9) The placement must be such that C is provided with accommodation within the local authority’s area.
(10) The local authority may determine—
(a) the terms of any arrangements they make under subsection (2) in relation to C (including terms as to payment); and(b) the terms on which they place C with a local authority foster parent (including terms as to payment but subject to any order made under section 49 of the Children Act 2004).(11) The appropriate national authority may make regulations for, and in connection with, the purposes of this section.
(12) In this Act “local authority foster parent” means a person who is approved as a local authority foster parent in accordance with regulations made by virtue of paragraph 12F of Schedule 2.
22D Review of child’s case before making alternative arrangements for accommodation
(1) Where a local authority are providing accommodation for a child (“C”) other than by arrangements under section 22C(6)(d), they must not make such arrangements for C unless they have decided to do so in consequence of a review of C’s case carried out in accordance with regulations made under section 26.
(2) But subsection (1) does not prevent a local authority making arrangements for C under section 22C(6)(d) if they are satisfied that in order to safeguard C’s welfare it is necessary—
(a) to make such arrangements; and(b) to do so as a matter of urgency.22E Children’s homes provided by appropriate national authority
Where a local authority places a child they are looking after in a children’s home provided, equipped and maintained by an appropriate national authority under section 82(5), they must do so on such terms as that national authority may from time to time determine.
22F Regulations as to children looked after by local authorities
Part 2 of Schedule 2 has effect for the purposes of making further provision as to children looked after by local authorities and in particular as to the regulations which may be made under section 22C(11).”(2) Schedule (Children looked after by local authorities: supplementary and consequential provisions) (which makes amendments supplementary to, and consequential on, the provisions of this section, including a power to make regulations about an independent review mechanism for certain decisions in relation to foster parents) has effect.”
On Question, amendment agreed to.
16: After Clause 10, insert the following new Clause—
“Provision of communication aids for looked after children in the review of their care plan
In section 26 of the 1989 Act (review of cases and inquiries into representations), in subsection (2), after paragraph (d) insert—
“(da) requiring the authority, when seeking the views of the child, to make such arrangements as they consider necessary for the provision of alternative and augmentative communication support, communication aids and speech and language support services to a child with a communication impairment;”.”
The noble Baroness said: I shall speak also to Amendment No. 17 which is grouped with Amendment No. 16. Both amendments concern alternative and augmentative communications support. Amendment No. 16 seeks to enable children to make their views known during the review of their care plan if they have a need for such aids and Amendment No. 17 seeks to enable them to make their views known when any significant decision is to be made in relation to their care plan. However, I emphasise that such aids should be available all the time to any child in public care who has a need for them, and not only when there is a statutory duty to take his or her wishes and feelings into account.
These amendments are identical to those that we brought forward in Grand Committee because I want to respond to what the Minister said on that occasion and probe him a little further. On 16 January he laid great weight at the door of the IRO in respect of the provision of augmented and alternative communication aids. That is quite a mouthful so I shall call them “AAC aids”. He said:
“We will ensure through statutory guidance that children with communication difficulties or complex needs are supported either by an IRO with the skills necessary to facilitate care planning and to elicit the views of children with communication difficulties or complex needs, or through an IRO who has access to specialist input from someone who has these skills”.
What is going to be done about training IROs in this specialist area? Another aspect is that things move on in this field all the time. New communication aids are constantly becoming available; someone told me recently that a communication aid user had told her that getting to grips with a new piece of kit was like learning a new language. It takes considerable effort to keep up to speed with these very useful communication aids.
In the same column, the Minister went on to say:
“Where a communication aid is specified in … a statement of special educational needs, the local authority is obliged in law to provide it or to ensure its provision”.—[Official Report, 16/1/08; col. 530.]
My response to that is that there are many cases where such communication aids are provided at school, but the child really needs these pieces of equipment out of school as well. Often, unfortunately, they cannot take them home with them at the end of the day or during holiday time. So we are giving the child a voice during school time but not when it goes home or to whichever place it regards as home. That is a real problem, and I would like some reassurance that something will be done about that. I am pleased that the Minister recognised that provision is not always well managed, but some sort of guidance or directive could say that such communication aids should be provided to the child all the time, not just at these specific points when some statutory obligation or other makes it necessary. That is essential. The child will not have facility with using these aids unless he or she has them available all the time. Just to have them at times when the statute says the child must have them in order to express his or her views will not really be adequate. The child needs to have facility and familiarity with the equipment by having it all the time.
The problem is that there is a relatively low local incidence of any children who can benefit from AAC and an even smaller incidence of looked-after children who can benefit from it. That means there is very little local awareness. Most speech and language therapists have very little training in AAC. They have plenty of training in speech and language therapy, but when a child does not have speech and language the therapists just do not know about such equipment and these difficulties. Teachers, social workers and doctors often have no training at all. That means there is a real problem identifying those children who could benefit in the first place. It would be interesting to know how much training in AAC that, specifically, an IRO would receive, given the Minister’s dependence on the role of the IRO in responding to my amendments in Grand Committee.
There are no specific indicators relating to AAC, which means that spending tends to get directed elsewhere that will meet targets. The level of support available is often dependent on whether the area has a particular champion, someone who really knows, cares and does something about it. That is why we have patchy provision. It could well be that we need regional centres of excellence, because there is no critical mass in any one local authority. The Minister might like to think about that idea.
In order to ensure that the child’s statutory rights to express his or her wishes and feelings in these specific situations can be fulfilled, there is a need to ensure that the child has such a communication aid all the time and that the IROs and the professionals around them have the necessary awareness, and that the IROs have training—ongoing training, at that—because this is a technical field that is moving on very rapidly. I beg to move.
I very warmly support the noble Baroness, Lady Walmsley, in her amendment. I hope my noble friend will be able to respond positively. The noble Baroness has put the case as fully and effectively as possible. If we are serious about the best interests, the welfare and the well-being of the child, it is impossible not to take her argument seriously. Otherwise, we have different categories of children: those whose interests are being fully met because they are articulate and able to communicate in normal ways, and the second-class also-rans who are unable to operate on the same level. That is clearly not satisfactory.
Having said that, although I will not go on making this point over and again, I am sure the noble Baroness would agree with me once more that this obviously has resource implications and that we therefore have to be tough. I happen to belong to the old school that wishes that, on all these issues, we would snap out of the absolute nonsense that there is something reprehensible about taxation and local rates. If you want a service that is worth while—if you want a civilised society—you must be prepared to pay for it. Here is a very good example.
The noble Baroness, Lady Walmsley, knows that I have every sympathy with her on these amendments. I am afraid, however, she knows that if she were to call this to a vote I would not be able to support her because it involves those very spending commitments of which the noble Lord, Lord Judd, spoke.
We are talking about children at the most complex end of care. These communication aids are simply their lifeline. It is an area that requires some detailed consideration. I hope my honourable friend John Bercow’s review might be able to shed some light on the problem. In Grand Committee I asked the Minister whether the Government would collate figures so that we can understand the scale of the problem. He was not able to respond to me then. I wonder whether he might be able to do so now.
I wish to express my disappointment at the comment made by the noble Baroness, Lady Morris. I am sure she is instructed elsewhere to say that she cannot support anything that contains resources implications. This is an area that we should all be seriously supporting. Every child who has a serious communication disability should have the right to the equipment to enable them to communicate. Local authorities have the responsibility to provide aids to people with disabilities to enable them to take part in civil society. Those aids need to be with the child the whole time from the beginning of their communication learning. To say they cannot take them home is to deprive them totally of their social life at home.
Any good educational establishment—I am sure Ofsted would look at this—will ensure that not only the child but the parents are helped to understand how to use the communication aids, otherwise when the child goes home they cannot interact with their parents. How do we look across at other legislation on the provision of aids in local authorities that means that any disabled person who needs such a facility should be provided with it? There must be similar provision within education legislation that enables children to communicate because they cannot do so in class. I watch very disabled children using complex equipment while they are being taught, and who are therefore enabled to speak. Otherwise they can make no communication at all.
I strongly support both amendments. As someone who has had the benefit of an improved hearing facility in your Lordships’ House and who has needed hearing aids for 50 years, I can speak with some knowledge about just how unincluded you can feel if you cannot take part in the full range of communications. That is particularly true for children. I could not agree more with the point made by the noble Baroness, Lady Walmsley, about the need to take home the equipment and to have it with you all the time. That is particularly so with children, who are growing and developing every minute of the day, and making better use of whatever equipment they have. As we have been told, the speed at which the equipment is developing—it is almost day by day—is extraordinary. The equipment is becoming smaller and much easier to transport. I am therefore heartily in support of the amendments. I know that there are resource implications, but if the Government had always had the intention to go for an inclusive agenda—I applaud them and the Minister in particular for doing so now—there could not be an area where such provision could be more clearly applied and the resources made more available. These children are full members of society and should be treated as such.
I was sorry to disappoint the noble Baroness, Lady Howarth of Breckland, but I spoke on this matter at length in Grand Committee. I would like the Government to look at this problem. There are undoubtedly some special needs children with statements where all that is needed is some discipline and for them to be able to learn to read. If one saved money at that end of the special needs spectrum, one might have more to spend at the more complex end.
A statutory duty is placed on local authorities to ascertain, and give due consideration to, the wishes and feelings of children whom they look after before taking any decision that affects them. It is clearly and necessarily implicit in that duty that where the child has a communication impairment, the local authority should ensure that those tasked with consulting the child have the necessary skills to do so and that a child is provided with the necessary aids to make themselves understood.
The noble Baroness asked me about the training that should therefore be provided for independent reviewing officers in relation to communications issues. We are committed to working with government offices and local authorities to develop a training approach that is appropriate to the needs of the children with whom independent reviewing officers are dealing. This will include specialist communication training. As the noble Baroness identified, there may well be a need for specialisms to be developed to take full account of technical developments in this area. We would wish to see that incorporated in the training available to independent reviewing officers.
The provision needed for a child to express themselves appropriately may involve equipment or a preferred method of communication, or both. Consideration will need to be given to the child’s communication needs when the IRO is first appointed to ensure that, so far as possible, the IRO has the skills necessary to communicate with the child. The new statutory guidance which will follow the enactment of the Bill will build on existing guidance for IROs that states that they should be satisfied that disabled children’s contributions are obtained and effectively presented in any review, even if the child is not able to be present at the review meeting or has impaired communication skills. In the latter case, it will be expected that specific communication aids will be used to ensure that the child’s views are represented at the review meeting. Physical access to a review meeting should not be a barrier to attendance for a child. A venue with appropriate access for a disabled person should be selected for review meetings so that the child has the option of attending if they wish.
As the noble Baroness, Lady Morris, said, we have established a review of the wider issue of communication aids and children with speech, language and communication needs. It will be led by John Bercow and will advise the Government on how best provision can be mirrored in all areas, so that every young person up to 19 years of age gets the support that they need as early as possible. The review will advise on how local services can work closely together to ensure that children get that support. Among the issues that it addresses, it will look at children with communications needs. We may therefore have further proposals to make in this area in due course.
I thank the Minister for his reply and all other noble Lords who have taken part in the debate. The Minister concentrated on providing the IRO with the skills that they need, but I want to concentrate on providing the child with the voice that they need to communicate, not just with the IRO but with the rest of the world.
At the end of our debate in Grand Committee the Minister was kind enough to say that he hoped that John Bercow would read the debate in Hansard and take into account the points that were raised when he comes to his conclusions—to which we all look forward next month. I hope that John Bercow will also read the additional points made today. I further hope that when he makes his recommendations, which I am sure we will all welcome, the Minister will find that he can use his influence in government to make sure that resources are provided for the improvements which I hope Mr Bercow will recommend in his report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 17 and 18 not moved.]
Clause 11 [Independent reviewing officers]:
19: Clause 11, page 8, leave out lines 16 to 21
The noble Lord said: I shall speak also to Amendments Nos. 36, 38, 43, 44, 46, 47, 54, 60 and 64. The amendments have no substantive effect but will change the various references to the exercise of delegated powers by the Secretary of State in Part 3 of the Children Act 1989 to reflect the fact that, in most cases, the exercise of these powers in relation to Wales is now devolved to Welsh Ministers.
Broadly, the effect of the amendments is to substitute “appropriate national authority” for references to the Secretary of State in Part 3 of the 1989 Act. “Appropriate national authority” is defined in new Section 30A of the 1989 Act as the Secretary of State in relation to England and the Welsh Ministers in relation to Wales. Section 104 of the Children Act 1989 is also amended and new Section 104A inserted, which sets out the appropriate procedure for the making of regulations under the Act to make separate provision for England and Wales.
The amendments are consistent with the devolution settlement and make clear where powers are now exercised by Welsh Ministers in relation to Wales. This makes it much easier for any reader of the legislation as they will no longer have to refer back to the Government of Wales Acts. I beg to move.
On Question, amendment agreed to.
Infant Formula and Follow-on Formula (England) Regulations 2007
rose to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 20 December 2007, be annulled.
The noble Baroness said: My Lords, I start by welcoming the Government’s commitment to increase the level of breastfeeding in this country by 2 per cent per annum, particularly among disadvantaged groups, as the benefits of breastfeeding, especially in the first six months, are beyond doubt. The issue today is the regulation of infant formula and follow-on formula, specifically SI 2007/3521, which gives effect to the relevant European Union directive. The directive updates requirements on the composition, advertising and labelling of infant formula products.
I have tabled the Prayer because these regulations do not go far enough to promote breastfeeding as best practice for new mothers. Broadly speaking, the statutory instrument will achieve four key measures: first, better labelling will clarify that follow-on formula should be used only by infants from six months of age, rather than four months as at present, and labels should promote breastfeeding; secondly, it restricts advertising and promotion of formula; thirdly, it stipulates the nutritional content of formula, which must be clear on the label, and says that the product must require only clean water to reconstitute the powder; and, fourthly, it ensures that formula exported to developing countries is of EU standards, although, sadly, a lack of universal clean water in those countries is often an infection source. However, the regulations do not go far enough.
The health benefits of breastfeeding are widely accepted. The World Health Organisation states:
“Breastfeeding is the ideal way of providing young infants with the nutrients they need for healthy growth and development”.
“We can now say with full confidence that breastfeeding reduces child mortality and has health benefits that extend into adulthood”.
Breastfeeding is clean and safe; breast milk contains antibodies that reduce the risk of acute infection, such as diarrhoea, pneumonia, ear infections, haemophilus influenzae, meningitis and urinary tract infection. Moreover, benefits carry on into later life, as breast milk confers some protection against allergies, diabetes and even ulcerative colitis.
The National Childbirth Trust has said that,
“all parents need reliable information on all the different methods of baby feeding—this information should be clear, accurate and based on research evidence, so that parents have the opportunity to make informed decisions”—
and an informed decision must be free of commercial pressures.
Mothers, especially first-time mothers, need help and encouragement to breastfeed. They need preparation in antenatal care and a calm, supportive environment, with encouragement to maintain their own fluid intake as feeding is established. I recall having to justify carrying on breastfeeding in the face of comments such as, “Are you sure the baby’s getting enough?”, “Why don’t you give a bottle from time to time” or “You must be exhausted, breastfeeding”. I had to argue that I did not want to introduce solids at four months because of a strong family history of eczema. Sadly, I hear over and over again that such fights to breastfeed continue today.
We must improve the flow of information to women in pregnancy so that they realise that breastfeeding is easy, enjoyable and bonding and will help them to get their figure back quickly, too. It is the most natural and healthiest way in which to feed a child. Sadly, some mothers cannot breastfeed, but infant formula should be a fallback choice if breastfeeding is not right for them. Of course, such mothers must not feel stigmatised and safe formula products have been important for many women.
Those mothers need clear information on what is contained in formula products and how to prepare the formula safely. For example, current World Health Organisation guidelines recommend that the water used to mix the formula powder should be 70 degrees centigrade or higher to kill any bacteria and that the formula should then be allowed to cool. However, that information is not on labels, even though the WHO says that it is the single most effective step to reduce the risk of bacterial contamination and that contamination with Enterobacter sakazakii is found in some tins of formula, even before they are opened.
The Royal College of Midwives and the World Health Organisation support exclusive breastfeeding in the first six months without other solids or liquids. Although the NHS Information Centre’s most recent survey, from 2005, showed initial breastfeeding rates of 78 per cent, by six weeks breastfeeding rates had fallen to 48 per cent and by six months to 25 per cent. However, the figures for exclusive breastfeeding are worryingly lower, at 45 per cent at one week and 21 per cent at six weeks following delivery. The issue is not simply one of ceasing to promote formula; it is one of education and support. This study found that mothers who received advice, usually from the midwife, prior to the birth of the child, were more likely to breastfeed than those who had not received advice.
So what is wrong with these regulations? At first sight, they look excellent. The Baby Feeding Law Group and the Breastfeeding Coalition, which represents the views of 38 organisations, including five royal colleges, suggest that the regulations should also: ban all promotion of formula, both infant and follow-on; prohibit baby-feeding companies from seeking direct or indirect contact with pregnant women and mothers, including through company carelines; ban baby-feeding companies from setting sales targets and giving incentives to their employees; ban marketing complementary foods that could undermine breastfeeding; and prohibit formula gifts to healthcare workers.
The Royal College of Midwives has also called for the regulations to: prohibit the use of the image of a feeding bottle to indicate baby-changing areas in public places; ban the use of pictures of bottle-feeding babies in magazines that are aimed at pregnant women and new mothers; prohibit company-produced or company-sponsored material on infant feeding; and prohibit the promotion of names associated with breast-milk substitutes.
I call on the Minister to ensure that the Government make moves to adopt the suggestions and keep a close eye on the formula companies, as some have in the past found and exploited loopholes. There need to be clear distinctions between infant and follow-on formula products, so that companies cannot advertise by reverse association. Yes, I am calling for gold-plating of the EU regulations.
Interestingly, the companies that produce formula products claim that the timeframe to comply with the regulations is so short that they took a court injunction to stay the implementation date, which had been brought forward from January 2010, as originally planned, to 11 January 2008, although no other EU country has shortened the transitional arrangements. A judicial review is now scheduled, so it may be helpful for the Minister to clarify the English position.
The principle of these regulations is to be applauded. Infant-formula companies should not be allowed to undermine breastfeeding by heavily promoting their own products. It is an opportunity not to be missed. We have a chance to raise breastfeeding rates in this country, but these regulations need strengthening to achieve that. I beg to move.
Moved, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 20 December 2007, be annulled.—(Baroness Finlay of Llandaff.)
My Lords, I warmly welcome this debate and agree that although some progress is being made, not enough has been done to promote breastfeeding or to curb the marketing power of the formula manufacturers. It is a question, as the noble Baroness said, not only of ceasing to promote formula but of making far greater efforts to educate the public in the benefits of breastfeeding and to encourage pregnant women and mothers to pay attention to that message.
The Merits Committee has drawn to our attention the evidence that it received from a powerful consortium of professional and lay organisations; that is, that these regulations should have banned the advertising of infant milk formula and follow-on formula and that the labelling should include, as the noble Baroness said, a minimum temperature for the water used for mixing. By failing to do so, according to the Baby Feeding Law Group, the regulations undermine the efforts being made by health professionals to see that mothers are provided with scientifically correct advice on the best feeding regime for infants. That point of view is supported by the Scientific Advisory Committee on Nutrition and the Local Authority Coordinators of Regulatory Services.
An international code of marketing of breast-milk substitutes was developed as far back as 1981. We understand that the UK and other member states attempted to strengthen the draft directive so that it mirrored the wording of the code. The Commission ignored that advice, but there is always a margin of appreciation allowing member states discretion to go beyond the strict terms of a directive and one often hears criticism of states for the so-called gold-plating of European legislation mentioned by the noble Baroness, Lady Finlay. But in this case there would have been the powerful argument that we had consistently undertaken to comply with the code and that the promotion of these products, which undermines the Government's policy of encouraging mothers to continue breastfeeding their infants until they are at least six months old, is positively harmful. Yet in an NCT/UNICEF survey, 74 per cent of respondents said that they had started using follow-on milk when their baby was less than six months old; this applied particularly to younger, less well educated parents, who need the benefit of this advice more than those who are highly educated and therefore receptive to government messages.
The Government no doubt have some idea of how much the industry spends on marketing these products. It would be useful if the Minister could give us a ballpark figure and compare it with the amount that the Department of Health spends on the promotion of breastfeeding, because I think that there is a gross disparity between the two figures. The follow-on milks are unnecessary for any infant and I welcome the Department of Health agreement with the World Health Assembly resolution of 1986 to that effect. The Minister of State in another place agreed that there was misleading advertising, on which she said that there was a package of measures to strengthen controls that had been agreed with stakeholders. These controls were said to be,
“effective, proportionate and evidence-based”.—[Official Report, Commons, 16/1/08; col. 285WH.]
However, I understand that advertising of follow-on formula will continue to be allowed, subject to conditions, in print media and broadcasting.
So what are these controls and what is their statutory authority? If they are supported only by the voluntary agreement of the industry and there are no sanctions for non-compliance with the controls or with the guidance that the Minister said was now operational, they are not likely to have much of an impact. The formula market was worth £119 million in 1995 and £199 million in 2006, with the industry spending more than £8 million in the latter year—twice the amount that it spent three years earlier, with television advertising accounting for about 80 per cent of the total. As I say, the effect of this propaganda is to counter the Government’s advice that breastfeeding is best for infants up to at least six months and has long-lasting beneficial effects on health in later life—a message put across with only a fraction of the industry's money.
We welcome the Government’s promise of the independently chaired review to assess whether these regulations and the guidance are working and their undertaking to consider further legislation if the arrangements are found not to be working. Does the Minister agree that unless there is a reduction in the sales of both infant and follow-on formula, the controls will need to be strengthened? If these regulations are the best that we can do within the terms of the directive, what could be done theoretically in 12 months’ time that could not have been contained in the regulations?
Cases have been started in the courts of England and Wales, Scotland and Northern Ireland by the Infant and Dietetic Foods Association, an organisation representing the manufacturers of infant and follow-on formula, aimed at suspending the regulations in all three jurisdictions. The FSA said that it was,
“extremely surprised that companies to whom we have been talking about these regulations for almost three years should decide at the last moment to apply for judicial review”—
unless, of course, their motivation is simply to delay implementation of the directive for as long as possible. They found ways of getting round the previous legislation and, as George Monbiot said in the Guardian, in the drafting of the directive on which these regulations are based the FSA was outgunned by corporate lobbyists. The lobbyists' argument now is that originally there was to be a transition period lasting until the end of 2009, during which they would be able to ship products meeting the previous statutory specifications, which they ignored anyway. But they had already had a lead-in period since the publication of the directive on 30 December 2006 and some had already changed their labelling—the only matter at issue in these cases.
The changes in the labelling requirements are to ensure that customers are able to distinguish clearly between infant and follow-on formula and that follow-on is labelled as being suitable only for infants over six months and then only on the basis of advice from qualified persons. Will the Minister confirm that the industry accepts that advertising and presentation requirements entered into force on 1 January? Of course, advertisements often contain images of the packaging, including the labelling, so the industry would have been able to make the adjustments by 1 January in spite of its protestations now.
I would be grateful if the Minister could say when the 12-month review will start, in the light of these cases, and whether, since it appears on the surface to be the threat of criminal proceedings for non-compliance that caused the IDFA to launch these proceedings, she can give some assurances on the advice given by the FSA on the adoption of a graduated and educative approach to enforcement, which might persuade the litigants to withdraw from these cases.
We have one of the lowest breastfeeding rates in Europe. The last national infant feeding survey, in 2005, showed that in spite of government encouragement there had been only a marginal improvement over the last 20 years. As the noble Baroness explained, these regulations do not go far enough. I hope that, if the 12-month review does not show that they have made a difference, we shall consider what more can be done within the directive and whether we and like-minded member states should go back to the Commission with firm proposals for more comprehensive implementation of the international code.